amour hamis madulu vs republic 2023 tzca 229 5 may 2023

amour hamis madulu vs republic 2023 tzca 229 5 may 2023

The evidence of PW2, a child of tender age, was received in violation of section 127(2) of the Evidence Act as the mandatory procedure was not followed; this vitiated the validity of her evidence, which was the only evidence directly connecting the appellant to the offence. With the expunging of PW2's evidence, the conviction could not stand, and a retrial was not appropriate as it would unfairly assist the prosecution to fill evidentiary gaps.

Citation
amour hamis madulu vs republic 2023 tzca 229 5 may 2023
Parties
Appellant: Amour Hamis Madulu; Respondent: The Republic
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
5 May 2023
Procedural Posture
Criminal Appeal / Second Appeal (court of Appeal of Tanzania)
Outcome
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully detained
Legal Topics
Rape, Evidence of Children, Standard of Proof, Procedure for Receiving Evidence, Retrial, Burden of Proof
Source Language
English
Criminal Law Criminal Procedure Rape Evidence of Children Standard of Proof Procedure for Receiving Evidence Retrial Burden of Proof

Case Brief

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Parties

Amour Hamis Madulu

Appellant

The Republic

Respondent

Procedural Posture

Criminal Appeal / Second Appeal (court of Appeal of Tanzania)

Legal Issues

  1. 1 Whether the evidence of a child of tender age was properly received in compliance with section 127(2) of the Evidence Act
  2. 2 Whether the conviction was sustainable without the evidence of the complainant (PW2)
  3. 3 Whether a retrial should be ordered after expunging the evidence of PW2

Ratio Decidendi

The evidence of PW2, a child of tender age, was received in violation of section 127(2) of the Evidence Act as the mandatory procedure was not followed; this vitiated the validity of her evidence, which was the only evidence directly connecting the appellant to the offence. With the expunging of PW2's evidence, the conviction could not stand, and a retrial was not appropriate as it would unfairly assist the prosecution to fill evidentiary gaps.

Court Disposition

appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully detained

Orders

  • The appeal is allowed.
  • The conviction is quashed.