AfricaPress-Tanzania: THE Court of Appeal has warned magistrates to avoid mixing facts and personal biases, attitudes or emotions when conducting cases presented before the court.
Justices Rehema Mkuye, Barkey Sahel and Ignas Kitusi issued the warning when determining an appeal lodged by Said Salum who was accused of committing unnatural offence against his own son.
“We are dismayed to find that the trial magistrate in her judgment twisted the facts presented before her in her own personal view,” they noted.
The justices reminded the magistrates on their oath of office that they should decide cases according to the presented facts and evidence and apply the legal principles and laws on the facts and evidence.
“They (magistrates) should at all-time put aside personal biases, attitudes, emotions, and other individuating factors in the judgment for the preservation of fair trial,” they said in their judgment delivered in Dar es Salaam recently.
In their judgment, the justices ordered Salum to be immediately released from custody, unless otherwise held for other lawful reasons, after quashing the 30- year sentence imposed to him by the High Court.
They agreed with the submission presented by a state attorney that the prosecution, during the trial failed to prove the case against Salum beyond reasonable doubt.
The justices noted that the alleged victim of tender age, but the trial court received his evidence in none compliance with section 127 of the Law of Evidence Act, requiring the trial judge or magistrate to conduct voire dire test to such a witness.
Voire dire test is conducted to enable the court to satisfy itself whether the child understands the nature of an oath, or is of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
“As rightly submitted by State Attorney, where the reception of testimony of child of tender age is done without properly conducting voire dire examination that evidence is reduced to a level of unsworn evidence and it requires corroboration before it can be relied upon to convict an accused person,” they said.
The justices noted that in convicting the appellant, the trial magistrate used the evidence of mother to corroborate the unsworn evidence of her son.
In their decision, however, they agreed with the state attorney that the evidence of the mother was hearsay as she had not witnessed the act. During the trial, the prosecution had also relied on a PF3 form to support the charge.
The justices, however, noted that the crucial document was unprocedurally tendered by the prosecutor as he was not a witness and that it was received in court against the law, as it was not read out as required.
“It is now settled law that once a document has been cleared for admission and admitted in evidence, it must be read out in court. Failure to do so occasions a serious error amounting to miscarriage of justice and the document must be expunged from the record,” they insisted.
Facts show that on July 5, 2015, the mother noticed her son not walking properly. She informed his father, the appellant, who was staying with the boy as the two had separated from their marriage.
Having received the information from her, the appellant forced the son open up on what had transpired through coercive means (beating). The son did not say anything to his father.
Later, the son reported the matter to his uncle, informing him that his father was the one who committed the crime and that he did so repeatedly for about a week.
The said uncle reported the matter to the village leaders who interrogated the appellant but he denied. The appellant was then arrested and taken to the police station.
