Nyeura Patrick versus The Republic; Criminal Appeal No. 73 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported).
- Evidence
- Confession–Confession retracted- Trial within trial not conducted-Effect.
- Admissibility-circumstances under which a cautioned statement may be admitted in evidence.
Held:-
(i) A confession voluntarily made by accused to a police officer of above the rank of corporals is admissible in evidence. However, in order for such statement to be admitted, it must be established that it was made voluntarily. In terms of section 27(2) of the Evidence Act Cap 6 of R.E, 2002 the onus of proving voluntariness lies on the prosecution. It is the court which is charged with the duty to determine voluntariness or otherwise of such statement in any inquiry to be conducted by it.
(ii) If an objection is made after the trial has informed the accused of his right to say something in connection with the alleged confession the trial court must stop everything and proceed to conduct an inquiry (or a trial within trial) into voluntariness or not of the alleged confession such inquiry should be conducted before the confession is admitted in evidence.
(iii) The trial within trial is of course, one designed to cater for accused’ s right to a fair trial in order to ensure that questions of admissibility and of guilt are distinguishable from each other and decided separately. If it may be established after trial within trial that the statement is involuntary the court is duty bound to reject such evidence.
(iii) Where it may be established that the trial court did not hold a trial within trial after an objection was made against admissibility of the said statement, there is no better option for the court but to make an order expunging that statement.