DOCTRINE OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT IN RELATION TO CRIMINAL PROCEDURE CODE, 1973 The Code of Criminal Procedure, 1973 which is the major procedural law with regard to the criminal cases has incorporated this doctrine which has been provided in section 300 of this code." “Section 300(1) : A person who has once been tried by a court of competent jurisdiction for an_ offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub section (1) of section 221, or for which he mightSimilarly, a plea of autrefois convict means that a person cannot be tried for an offense for the reason that he has been previously been convicted in an offense and the same can be combined with the plea of not guilty. However, these two terms are jointly known as the Doctrine of Autrefois Acquit and Autrefois Convict. Actually, this doctrine in a way is the rule again double jeopardy. Rule against double jeopardy means that a person cannot be tried for the same offense once again if he has been either convicted or acquitted in the trial relating to the same offense. Protection against double jeopardy has been provided by many countries as a constitutional right India being one of them. The other countries include Canada, Israel, Mexico, and U.S. However in this project we will analyze this Doctrine of Autrefois Acquit and Autrefois Convict in special reference to Indian context in the light of the provisions of Code of CriminalLinyumba zetu ni nafuu Yonasé Leinyumba zetu ni nafuu EACA ( le-nyumba zetu ni nafuu R (1962) R_V Waziri Mussa (1984) TLR 30 Adan V R (1973) EA 445 WEBSITES: http://en.wikipedia.org/wiki/Pleamself [1] CAP. 20 R.E 2002 [2] S. E. Mchome, Criminal Law and procedure, p. 109 [3] (1972) 56 Cr. App. R. 196 [4] CAP 20 R.E. 2002 [5] http://en.wikipedia.org/wiki/Pleamself [6] (1962) EACA 65 [7] (1984) 2TLR 30 [8] (1973) EA445 ® Tags students lawyers fon [a 9It is only when the accused reiterates his plea of guilty and that the court is satisfied that the charge tallies with the facts the prosecutor has produced that the court may proceed to pass his conviction, consider his mitigation and sentence him accordingly. This was stated in the case of R V__Waziri_Mussa[7], by Mahon J while interpreting section 228 (2) of the Criminal Procedure Act. This procedure, as was so held in Adan V R[8] serves two purposes. It enables the magistrate to satisfy himself that the plea of guilty was unequivocal and that the accused has no defense. It further gives the magistrate the basic materials on which to assess the sentence, it is a realization of Judicial experience as it frequentlyupon or , unless there shall apf [enyumba zetu ninafuu_ | the contrary. Linyumba zetu ni nafuu leinyumba zetu ni nafuu 2.1_PROCEDURES TO BE FOLLOWED BY THE cou! IEN THE ACCUSED PLEADS GUILTY TO THE CHARGE: The interpretation of these provisions is now well settled and it is this; when the accused's plea indicate that he is admitting the truth of the charge, the magistrate should call upon the public prosecutor to give the facts of the case. The term facts here means a summary of the evidence which the prosecution witnesses would have given before the court had the accused pleaded not guilty to the charge. When the facts have been given, the magistrate must ask himself whether or not such facts constitutes the offence charged. If he is not so satisfied, he will record a plea of ‘not guilty’ and witnesses will then have to be called to prove the charge. If on the other hand the magistrate satisfies that the facts do not constitute the charge, he will turn to the accused and ask him if he understood the facts and what he has to say about theirA plea of guilty must be clear and free from ambiguities, that is to say must be an unequivocal s plea. A plea like, “it is true”, “I now nw now admit”, “I did wrong”, “that is correct”, “lam sorry” and the like. Are for all practical reasons not clear and free from ambiguities. In the case of Yonasani Egalu and others V R[6], it was stated that it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every element of its unequivocally. Where therefore, an accused person unequivocally pleads guilty to a charge he will be found guilty of the offense charged and will be convicted on his own plea. This is provided under section 228(2) which provides a follows; lf an accused person admits the truth of the charge his admission shall be recorded as nearly1.2 THE PER UF GOI; A plea of guilty means a confession to the offence charged, also it was defined in the case of Patrick Rimmer V_R[3], in which the court stated that the plea of guilty has two effects, one being it is a confession of facts and second being it is such a confession that without further evidence the court is entitled to and indeed in all proper circumstances will act upon it and result in a conviction. Pleas of guilty are governed under section 228(2) of the Criminal Procedure Act[4] hereinafter referred to the Act. Under common law, a plea of guilty by the defendant waives trial of the charged offenses and the defendant may be sentenced immediately[5].1.1 MEANING OF PLEA: In Tanzania plea is defined under section 228(1) of The Criminal Procedure Act[1] to mean a reply to a truthfulness of the charge. There are several types of plea, which are plea of guilty, plea of not guilty, autrefois convict, autrefois acquit and pardon[2]. 1.2 THE PLEA OF GUILTY: A plea of guilty means a confession to the offence charged, also it was defined in the case of Patrick Rimmer V_R[3], in which the court stated that the plea of guilty has two effects, one being it is a confession of facts and second being it is such a confession that without further evidence the court is entitled to and indeed in all proper circumstances will act upon it and result in a conviction. Pleas of guilty are governed under section 228(2) of the Criminal Procedure Act[4] hereinafter referred to the Act.unfavorable witness is the one who, although he displays no hostile animus to the party calling him, fails to come up to proof or give evidence unfavorable to the party calling him, Re examination, Is a means of allowing the witness to explain anything he had said in cross examination through inadvertence, excitement or misunderstanding and which would damage your ease if not explained, per section 146 (3) of the Tanzania Evidence Act. A witness ‘once examined cannot be re examined as to the same matter without leave of the court but he ‘may be re examined as to any new matter upon which he has been examined by the other party to the action, The re-examination shall be directed to the explanation of matters referred to in cross examination and if new is by permission of the court introduced in re examination, the adverse party may further cross examine and re examine respectively, ‘The objectives of conducting re examination are as follows; (a) To give opportunity to the witness to reconcile the discrepancies if any between the statements in the examination in chief and cross examination, or, (b) To explain any statement inadvertently made in cross examination, or, {c) To remove any ambiguity in the deposition or suspicions cast on the evidence by cross examination. Leading questions cannot be asked in re examination, as pet section 151 (1) of the Tanzania Evidence Act™. However the court shall allow reading as to matters which are introductory, undisputed or which have in its opinion been already sufficiently proved, per section 151 (2) of the Tanzania Evidence Act. Re-examination in chief, re-cross examination and re-examination, section 147(4) of the evidence Act” to recall the witness for further re examination in chief, where such witness is called the right to re-cross examine and reexamine him exists" this may due to rise of unseen 28 [CAP 6 R.E 2002) 29 [Cap 6 R.E 2002] 30 Evidence Party Three, B.T Mapunda.pg36-37.08:55 © @ a - OF. 2 @ Download now W (i) No question refered in section 158 ofthe Tanzania Evidence Act ate permisble tnless the peson ashing has ream grounds for thinking thatthe imputain wh conveys is well ound, seton 189 the Tanzania Evidence Ac? i) Inthe corse of eros examination except a8 povided inthe provi to ection 162 8 witness may be asked any question ending to mmpesch ie characte or credit but ules such questions ae als relevant vo the mates in ssc the witness answers are conclusive and cannot tb contitd by other eviderse. The general ral is that all witnesses ae abe tobe cross examined however thee are the main exceptions tothisas follows: (2) A person summoned to producea documeat cannot be eos amined unless and uni he ‘scaled asa witness, per section 148 ofthe Taman Evidcnce Act (b) A witness who ino examined i hist boas he has bom clled by mistake (6) A witness giving replies in answer to gueatns By the our can only Be cross examined with the eave ofthe sor, per estion 176 of the Taneaia Evidence Ast Oinaty leave ofthe cour to coss examin is given ifthe evidence is adverse cher panty. Apt ror he onary stations where the opposite party does the cost examination a pty calling a witness my need to cross crane his own witness this my occur in sitatios where witness tums stile the time when examination in hi sein coat A hostile witness i the one who sls is about what he obviously knows oF who otbratly changes his tory and rom hit demcanoe and maner, i eal biased again the rt calling him In such cates, the party cling the witnssmay be permite by the cour 0 ross examine him, pe seton 163 ofthe Tanzania Evers Act”. A witness isnot merely hostile becuse he gives unfavorable evidence against he party calling him, such wines cannot be ai tobe hostile buh ie simply an unfavorable wine, AD ime 2610 27 (CAP 6 RE 2002),apparent strength of the prosecution case, and second, if the accused does not desire to cross examine a particular prosecution witness afier he has given the opportunity to do so, a note to that effect should be embodied in the record. Thus for this reasons the High Court quashed the conviction. ‘The essence of cross examination is governed by section 147(2) of the Tanzania Evidence Act? Which provides that the cross examination need not be confined to the facts to which the witness testified in his examination in chief, that is cross examination is not restricted in scope as judicial review, however that liberty does not extend to the questioning of a witness on in admissible evidence such as hearsay evidence.Furthermore leading questions are pemnitted in cross examination, per section 152 of the Tanzania Evidence Act, The basis for this rule is that normally a witness is biased in favor of the party who calls him. Also there are minimum rules that need to be observed while cross examining a witness, the ules are as follows, (i) The court may forbid any questions or enquiries which it regards as indecent or scandalous unless they relate to facts in issue or to matters to be known in order to determine whether or not the facts in issue exist, per section 160 of the Tanzania Evidence AcP. (ii) The court may forbid any question which appears to it to be intended to insult or annoy or which, though proper in it appears to the court to be needlessly offensive in form, per section 161 of the Tanzania Evidence Act’ 20 [CAP 6 R.E 2002] 21 John Kaplan and others, evidence cases and materials, 22 bled 23 Ibid 24 [ CAP 6 R.E 2002)(Questions in examination in chief must be confined to facts in issue or relevant facts, Inferences, opinions or belicfs unless they come within sections 47-53 of the Tanzania Evidence Act’, As the general rule in examination in chief, a witness should not be asked leading questions except with the permission of the court, per section 151(1) of the Tanzania Evidence Act”, Leading questions are questions that suggest the answer which the person putting the question desires from the witness. The exception to the leading question shall be to the matter which are introductory such as his name and address or undisputed or have already been sufficiently proved, per section 151(2) of the Tanzania Evidence Act!, This can be seen in the case of; Bonifasi Wanani s/o Ndiyo vs, R~, in this case the Court of Appeal of East Africa condemned that- leading questions are most undesirable to the witness made at the preliminary inquiry, A party forming that question may be permitted when a witness because of language barrier, because of age, unable to convey information meaningfully in response to non leading questions”. The rule prohibiting the asking of leading questions to a party's own witness has its own foundation on the assumption that a witness is always biased in favor of the party calling him'the rationale is to avoid conspiracy hence to affect the administration of justice, the interest is only that a person should explain what he know and nothing else. Thew might happen that a person called as a witness has turned hostile, there are no statutory procedures to treat such witness but through case law a persoa calling the witness have to seck a leave from the court to cross-examine the hostile witness so as to destroy the evidence given against his favouras per the case of Jumanne Athman mista V R¥. Where the witness has been declared hostile his ‘her evidence should be ignored as stated in the case of Leddy 9 [Cap 6 RE 2002] 10 Cap 6 RE 2002 11 Cap 6 RE 2002 12 [1957] E. 453 13 Steven Goode and Olin Guy, Court Room Evidence Handbook. 14 B.T Mapunda, OLW 202 Evidence Party Three. University of Dar-es-salaam pg 27 Lucas RY that it's a fatal irregularity to for the court to treat the statement of the hostileofficer authorized by him in that behalf. However a child of tender age who in the opinion of the court is incapable of understanding the nature and obligation of the oath can give testimony without taking an oath or affirmation provided that the court is satisfied that child is possess sufficient imelligence to justify that the reception of his evidence and understands the duty of speaking truth as per section 127 of the law of evidence Acf. A witness must provide information with reference to the ease in hand: the witness while in witness box is required to provide information or to adduce evidence which is relevant to the fact in issue of the case in hand. He or she is not allowed to adduce matters which have no connection with the matter in dispute. In the case of Madeg VRE, the High Court quashed both conviction and sentence of the accused person and ordered the district court of Iringa to try the cease de-navo duc tothe reason that the complainant throughout her examination in chief did not allege that the accused had any sexual intercourse with her while in a charge of rape there must be evidence of penetration of the penis into the vagina though actual emission of seed is not necessary Examination in chief, Is the examination of a witness by a party who calls him, this is sometimes called as direct examination, per section 146 (1) of the Tanzania Evidence Act, The “objective of examination in chief is to enable the party calling the witness to exercise from his witness subject to niles of evidence and procedure, everything that the witness knows about the case so as to advance party's case and it must relate only to relevant facts, per section 147(2) of the Tanzania Evidence Act, For this reason the examiner should not only make himself thoroughly acquainted with the entire facts of the case but also with the particular facts which the witness has come to depose, the nature and character of the witness and the degree of his intelligence. 5[ Cap 6 RE 2002) 6 (1972) HCD 101 7 (CAP 6 RE 2002] [Cap © RE 2002]judges arrive atthe ruth or the substantive truth and so resolves the issues in any given case, The {judge oF magistrate's work is to listen carefully to and revord the evidence of the witness and in the end decides to which of the witnesses should believe and to which he should dishelieve or disregard altogether Witness plays a very important role in the administration of criminal and civil justice. The term witness here must be taken wo include parties wo the proceedings; judgments are normally made on the busis of evidence given by witness. Examination and Questioning of witness is done when a witness is brought before the court of law then he is expected to give some information that would assist the court to reach a decision. The process of giving evidence is through three main stages namely; examination in chief, cross examination and re-examination as per scetion 147(1) ofthe Tanzania Evidence Act and in certain circumstances re-examination in chief and re-cross examination as per section 1474), 2. MAIN BODY, ‘The following are the procedures, features and rules governing examination and questioning of witness inthe court of law ‘Witncss must take oath, it isthe statutory aw requirement with exceptions every witness in criminal cause or matter must be examined upon oath or affirmation in accordance with the law. Section 198(1) of the criminal procedure Act? provides that every witness in a criminal cause or matter shall subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation in accordance with, The Oaths [Julicial Proceedings] and ‘Statutory Declaration Act.‘ 1966, The oath must be administered by the magistrate himself or the 1 Morris, H.F, Evidence in east Africa 2 (CAP 6 RE 20021 3 Cap 20 RE 2002] 4 Act NO 59 of 1966 ‘officer authorized by him in that behalf. However a child of tender age who inthe opinion ofthe ‘court is incapable of understanding the nature and cbligation of the oath can give testimony without taking an oath or affirmation provided that the court is satisfied that child is possess sufficient intelligence to justi thatthe reception of his evidence and understands the duty of3 “4 " iv) If the accused does not dispute the contents of the exhibits tendered to form part of the facts then the exhibits will be admitted, marked and endorsed to form part of the court record. v) If the accused disputes contents of exhibits tendered, then his plea will be changed to that of not guilty. The case will be set for other steps as if there was no plea of guilty. This applies where the exhibit tendered is to be relied upon to prove the elements of the offence one has pleaded guilty to. (b) During Preliminary Hearing Prosecution exhibits may be tendered during preliminary hearing” if it is not disputed by the opposite party. (c) During Trial When witnesses are called to give oral evidence, exhibits, if any, may also be tendered."* (d) Inquiry/Trial Within Trial An inquiry/trial within a trial is intended to determine the voluntariness of the confessional statement such as cautioned or extrajudicial statements.'* In order to prove voluntariness of the confession, an accused may wish to tender a PF3 or any medical chit, report or document to show that he was tortured. This procedure is not conducted in primary courts."” (e) Sentencing In order to impose an appropriate sentence, the court may consider exhibits and documents tendered by both parties. Such documents may include documentary evidence showing previous conviction and medical chit or report showing the convict’s health status. !® Note: Where an exhibit is of perishable nature or is subject of destruction, depreciation or evaporation, the court may order its disposal and such court order is a sufficient proof of a matter in dispute during the trial. Section 192(4) of Criminal Procedure Act (Cap. 20 R.E, 2019]. Section 228 of Criminal Procedure Act [Cap. 20 RE. 2019]. Adan w Republic [1973] EA 445 at page 446 and Khalid Athumani v. Republic [2006] T.L.R. 79 (CAT) at pi Inewtrw ana trial within a trial refer tothe came thine It2.4.7. Value of Exhibits (Weight/Value Attached to the Exhibit) The general rule is that only the exhibits which have been marked and endorsed in accordance with O. XIll r. 4 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) form part of the record of the court and will be considered in decision making.'' The above principle equally applies to criminal proceedings. However, failure to endorse exhibits may not necessarily render them invalid." It should be borne in mind that admission and evidential weight of exhibits are two different concepts and processes. Admission is a process of receiving an exhibit in the course of hearing and evidential weight of exhibit connotes the probative value to be attached to the exhibit. 2.4.8. Where the Authenticity of Document is at Issue When the objection to authenticity of the exhibit such as forgery is raised during tendering, the court may record but reserve the decision thereon to the final determination of the case. The reason is that authenticity touches the contents of the documents which cannot be dealt with at the admission stage. 2.4.9. Exhibit Wrongly Admitted If a document which is inadmissible because of a legal impediment is otherwise admitted, the court may, during final determination, disregard the same, for reasons to be recorded in the judgment. 2.4.10. Stages for Tendering of Exhibits Exhibits may be tendered at various stages of the proceedings depending on prevailing circumstances. In criminal cases, the exhibits are tendered during: (a) Plea Taking i) During plea taking exhibit can be tendered by prosecutor if the accused person pleads guilty to the offence. The trial court shall require the prosecutor to read facts of the ii case and tender exhibits to prove the offence charged. iii) The accused will be required to comment on the exhibits tendered.2.4.3. Step 1: Step 2: Step 3: Step 4: Step 5(i): Step 5S(ii): Step 6(i): Step 6(ii): Step 7: Steps in Tendering Exhibits Ensure a witness has laid a foundation evidence for tendering an exhibit, (i.e. witness explains how the exhibit is connected to the case and how it came in his Possession). Ensure the exhibit is shown to the opposing party for comment.” Whether or not there is an objection, the exhibit will be shown to a magistrate or judge to see and inspect. Where there is an objection, the party who seeks to tender that exhibit has to be accorded an opportunity to respond; in case a new point is raised by a party proposing to tender it, then the party objecting will rejoin. Where there is no objection, the judge or magistrate may admit the exhibit provided it has passed the admissibility test. Where there is an objection, the presiding judge or magistrate will rule on the admissibility of the exhibit. When the exhibit is rejected it will be returned to the party who proposed to tender it. When the exhibit is admitted the judge or magistrate will mark and endorse it. Once the exhibit is admitted, a person tendering the exhibit shall read out its contents in court. It should be noted that during the tendering process, the contents of the documents should not be read out in court until it has been admitted as an exhibit.® Step 8: The presiding Judge or magistrate shall ensure the Registry Management Assistant prepares and keeps a list of exhibits tendered, in the case file.v) _ the original is of such a nature as not to be easily movable; vi) originals cannot conveniently be examined in court on account of being numerous and the fact to be proved is a general result of the whole collection; or vii) for any other reason recognized by law a copy of the original may be admitted. (e) if the exhibit is an instrument chargeable with stamp duty, such instrument has been stamped; (f) if a document requires a separate declaration before it is admitted in court, such declaration has been shown as reflected below, that is: (a) the law requires certain officials or persons to sign the exhibit, that the officials or persons have signed it.4 (b) adocument from a foreign country sought to be admitted under the Mutual Assistance in Criminal Matters Act has been signed by a Judge or Magistrate or Officer in or of a foreign country and authenticated by oath of a witness or an officer of the Government of a foreign country or sealed with an official public seal of the foreign country or of a Minister.5 (g) where the document is to be registered under any law, such registration must be shown to have been done. Such documents include contract of sale, assignment, mortgage and leases.6 2.4.2.2. Criminal Cases The procedure regarding admission of exhibits applicable in civil cases is generally applicable in criminal cases, save for the requirement of attaching them to the pleadings and list of documents. In cases committed to the High Court for trial, documents to be tendered as exhibits in the High Court are those listed during the committal proceedings and the preliminary hearing.2.4.2.1.Civil Cases Before admitting exhibits in civil cases, the court shall satisfy itself that- (a) the witness is competent to tender the exhibit (i.e. maker, addressee, custodian, owner, possessor); (b) the exhibit had been attached to the pleadings or included in a list of documents filed in court;* (c) the exhibit is original;* (d) where a party intends to tender an exhibit which is not original, he must have complied with the following conditions before it is admitted, that is: i) ii) iii) iv) the opponent who is in possession of the original has failed to produce the same even after being given notice to produce; the original is in possession of a third party who is out of reach of, or not subject to the process of the court and efforts to make him produce the same have failed; the content, existence or condition of the original has been admitted in writing by the person against whom the document is to be tendered or his representative; the original has been destroyed or lost, or cannot be produced within a reasonable time; "Thomas Ernest Maungu @Nyoka Mkenya v. Republic, Criminal Appeat No. 78 2072, CAT (unreported); Director of Public Prosecutions v. Kristina d/o Biskasevskaja v, Republic, Criminal Appeal No. 76 of 2016, CAT (unreported) and Director of Public Prosecutions v. Mirzai Pirbakhshi & 3 Others, Criminal Appeal No. 493 of 2016, CAT (unreported). ©. Vile 14, 15 and 18; and Q. XII, 1; and 11 of The Civil Procedure Code [Cap. 33 R.E. 2019] Section 64(1) of the Evidence Act [Cap. 6 R.E. 2019]2.4.1. Who may Tender Exhibits Exhibits may be tendered in court during preliminary hearing by legal counsel or prosecutor if not objected. However, during hearing they must be tendered by the following- (a) amaker or author of a document; (b) aperson who at one point in time possessed anything subject of the trial; 3 (c) custodian of an exhibit; (d) actual owner; (e) addressee; (f) arresting, searching or investigating officer; or (g) an officer from a corporate entity to which an exhibit relates.’ (h) any person with knowledge of the exhibit. 2.4.2. Conditions Precedent Before Tendering Exhibit Before admitting an exhibit, the court must observe legal requirements for its admissibility. The witness must point out specific identification marks, brand or trade name or other peculiar features in relation to the exhibit to be tendered. 2.4.2.1.Civil Cases Before admitting exhibits in civil cases, the court shall satisfy itself that- (a) the witness is competent to tender the exhibit (i.e. maker, addressee, custodian, owner, possessor); (b) the exhibit had been attached to the pleadings or included in a list of documents filed in court;?2.1. The Concept of an Exhibit An exhibit refers to a document, record or any other tangible object formally admitted in court as evidence. 2.2. Exhibits and Articles for Identification An exhibit can be distinguished from an article such as document, record or other tangible object produced and marked for identification purposes (“ID”). It is marked an exhibit when duly identified, cleared and admitted. Where an article is identified but not cleared for admission it may be produced and marked for identification purposes (“ID”) only. 2.3. Types and Categories of Exhibits There are two major categories of exhibits which are real exhibits and documentary exhibits. i) Real exhibits are tangible objects such as clothes, weapons, tools, vehicles, drugs and others. ii) | Documentary exhibit are exhibits which are in written form. 2.4. Tendering of Exhibits In tendering exhibits, courts shall take into account principles of admissibility of exhibits. 2.4.1. Who may Tender Exhibits Exhibits may be tendered in court during preliminary hearing by legal counsel or prosecutor if not objected. However, during hearing they must be tendered by the following- (a) amaker or author of a document; (b) a person who at one point in time possessed anything subject of the trial; Eee SSS See CE