Samwel Marwa @ Ogonga versus The Republic; Criminal Appeal No. 74 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported).
- Evidence
- Circumstantial evidence – when it can be relied upon to enter conviction
- Doctrine of recent possession – Essential elements.
- Exhibits – claim of custody of stolen goods mandatory.
- Criminal procedure.
- Defence- It is mandatory for trial court to consider defence.
Held:-
(i) To pin liability on the basis of circumstantial evidence, the evidence must lead to no other conclusion except that the accused is the person who committed the offence he is charged with. If the evidence is capable of more than one explanation it does not meet the standard of proof set in this principle.
(ii) The following elements must be proved for the doctrine of recent possession to apply :-
(a) It must be proved that the property was found in the possession of the suspect.
(b) The property seized must be positively identified to be the property of the complainants.
(c) It must be proved that the property was recently stolen from complainant.
(d) It must be proved that the stolen thing in possession of the suspect / accused constitutes the subject of a charge against the accused person.
(e) The property must be the one that was stolen / obtained during the commission of the offence charged.
(iii) Chain of custody when an essential feature of the information / charge is stealing, that property has, through asportation, moved hands unlawfully from one person to another. The proper recording of the chain of custody of exhibits helps to establish that the alleged evidence (Exhibits) is in fact related to the alleged crime.
(iv) Failure to consider defence can vitiate a conviction.