Masolwa Samwel versus The Republic; Criminal Appeal No. 206 of 2014: Court of Appeal of Tanzania at Mwanza (Unreported).
- Criminal Procedure
- Conviction – trial court sentence the accused before conviction- whether proper.
- Assessors – trial judge sitting with assessors- fails to sum up vital points of law-Effect
- Assessors-what amounts to vital points?
Held:-
(i) It is the law that upon a verdict of guilt, a sentence must be prefaced by a conviction, put it differently, there cannot be a sentence without conviction. This is the essence of section 235(I) of the CPA (Citing Alli Ramadhani v.R; Criminal Appeal No 205 of 2013 (Unreported).
(ii) Upon finding an accused person guilt or even when on plea of guilty, conviction comes first before proceeding to sentence.
(iii) As provided under the law, a trial of murder before the High Court must be with the aid of assessors. One of the basic procedures is that the trial judge must adequately sum up to the said assessors before recording their opinions. Where there is inadequate summing up, non-direction or misdirection on such a vital point of law to assessors, it is deemed to be a trial without the aid of assessors and renders the trial a nullity. (Cited Rashid Ally v. R, Criminal Appeal No 279 of 2010 – Unreported).
(iv) In a criminal trial in the High Court where assessors are misdirected on a vital point such trial cannot be construed to be a trial with the aid of assessors. The position would be the same where there is non-direction of the assessors on a vital point (Cited Bituro v. R (1982) TLR 204)
(v) There is no exhaustive list of what are the vital points of law which the trial High Court should address to the assessors and take into account when considering their respective judgments. From established authorities of the Court the vital points of law vary considerably depending on particular facts tending to prove or disapprove a vital point of law for the time being before the trial judge concerned. Examples of vital points are alibi, provocations; dying declarations must be corroborated etc.