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A Handbook for Public Prosecutors

B. D. Chipeta

Publication Year: 2009

This is the third edition of A Handbook for Public Prosecutors. It takes into account multiple changes in the Tanzania law since publication of the first and second editions in 1978 and 1982 respectively, and the new Criminal Procedure Act of 1985. A Handbook for Public Prosecutors is written primarily for Public Prosecutors. However, it is sufficiently comprehensive to be useful to those who are fresh on the Bench or the Bar, and to investigators of crime, as well as to those who are required to do examinations in Criminal Law, Criminal Procedure and the Law of Evidence in order to advance in their careers. While it is based on the Tanzania Penal Act, Criminal Procedure Act, the Evidence Act and other statutes, readers in other East African countries will have no difficulty in finding relevant and equivalent provisions of applicable legislation which are invariably identical to those in their countries. This book provides guidance to public prosecutors and others on basic principles of Criminal Law, Criminal Procedure, and the Law of Evidence and the art of prosecuting cases.

Published by: African Books Collective

Title Page

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Copyright Page

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Contents

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pp. vii-viii

Acknowledgements

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pp. ix-

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Preface to the First Edition

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pp. x-

A Handbook for Public Prosecutors has been designed primarily for Public Prosecutors. However, it is sufficiently comprehensive, although not exhaustive, to be useful for those fresh on the Bench or at the Bar, and to investigators of crime...

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Preface to the Second Edition

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pp. xi-

A second edition of this book at this early stage has been necessitated by two main factors: the first is that since publication of the book, there have been important changes in the Law in Tanzania. It has therefore been imperative to incorporate...

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Preface to the Third Edition

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pp. xii-

Apart from the reasons which necessitated the birth of the second edition of A Handbook for Public Prosecutors, this third edition has become necessary because it is long overdue. Over the last two decades or so, there have been major changes...

Part I: The Public Prosecutor and the Law of Criminal Procedure

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pp. 1-84

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Introduction

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pp. 3-4

A public prosecutor is an integral part of the machinery for the administration of criminal justice. No legal system that uses public prosecutors in the dispensation of criminal justice, therefore, can afford inexcusable weaknesses on the part...

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1. Appointment, Powers and Duties of a Public Prosecutor

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pp. 5-10

The office of public prosecutor is a creature of statute. So, the appointment, powers and duties of a public prosecutor are derived from statutory provisions. In Tanzania, all criminal prosecutions are the direct concern of the Director...

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2. Jurisdiction and Powers of Courts

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pp. 11-31

It is essential for a public prosecutor to know jurisdiction of courts. You just do not file a case in any court you want. Different courts have different powers and the public prosecutor is required to know the extent of the powers of a court before filing...

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3. Formulation of Charges or Complaints

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pp. 33-40

Although a magistrate has the duty to see that the charge is correct, the responsibility for the correctness of a charge is that of the public prosecutor. It is, therefore, the public prosecutor’s duty to satisfy himself that the charge he is about...

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4. The Accused and His Plea

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pp. 41-50

When the charge has been filed in a court of competent jurisdiction to try the offence charged, and the accused person appears before such court in answer to a summons or under a warrant of arrest, the court must read over and explain the charge...

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5. Bail Pending Trial

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pp. 51-60

In the majority of cases accused persons do not plead guilty to the charges and very often such cases do not proceed to trial and final disposal immediately, either because investigations have not been completed, or witnesses were not summoned...

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6. Procedure in Trials

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pp. 61-69

Section 2 of Act No. 19 of 1992 introduced into the Criminal Procedure Act provisions for the holding of what is called a preliminary hearing. Those provisions are contained in section 192 of the Criminal Procedure Act. It is there provided that where...

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7. Judgments and Sentences

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pp. 71-77

It is the duty of the presiding magistrate to prepare a judgment in every case which he himself has tried. It is, therefore, a province, perhaps, outside the duties of a public prosecutor. However, a public prosecutor must know something about...

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8. Substituted Convictions

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pp. 79-81

It is the duty of a public prosecutor to bring out all the evidence that is necessary to establish all the elements of the offence with which the accused stands charged; and it is the duty of the court to decide whether or not the evidence before it establishes...

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9. Committal Proceedings

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pp. 83-84

Where an offence with which the accused is charged is not triable by a subordinate court, or where the Director of Public Prosecutions so directs in writing or otherwise that it is not suitable to be disposed of by summary trial the subordinate court will hold committal...

Part II: Criminal Law: Select Offences

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pp. 85-163

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10. General Rules of Criminal Responsibility

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pp. 87-95

A public prosecutor cannot hope to be or ever become a public prosecutor worth the name if he/she has no idea about elements of common offences often tried in subordinate courts, such as rape, house-breaking or burglary, stealing, assaults...

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11. Offences Relating to the Administration of Justice

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pp. 97-102

One of the most important discretionary powers vested in courts for the protection of the authority and dignity of courts and the due administration of justice is the power to punish summarily for the offence of contempt of court. It is, therefore...

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12. Offences Against Public Tranquility, Health and Convenience

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pp. 103-107

Any person who takes part in a fight in a public place commits an offence termed affray (see s. 87 PC). In a charge of affray, therefore, the prosecution must prove the following: (1) that there was a fight; (2) that the accused took part in that...

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13. Offences Against Morality

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pp. 109-113

The passing of the Sexual Offences (Special Provisions Act), 1998 has somewhat changed the landscape of offences against morality. Foremost in the changed landscape is the definition of “rape” and elements thereof as well as the prescribed...

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14. Offences Involving Bodily Injury

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pp. 115-118

If a person unlawfully causes grievous harm to another, he is guilty of the offence of causing grievous harm (see s.225 PC). The expression “grievous harm” is defined in section 5 of the Penal Code as meaning any harm which amounts...

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15. Theft and Allied Offences

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pp. 119-131

Cases of theft account for quite a substantial percentage of cases tried in subordinate courts. It is, therefore, imperative that a public prosecutor should have a reasonably intimate knowledge of this and allied offences. Fortunately, the Penal Code provides...

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16. Forgery and Allied Offences

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pp. 133-136

Forgery is defined as the making of a false document with intent to defraud or to deceive...

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17. False Pretences and Allied Offences

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pp. 137-141

A false pretence is a representation by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows it to be false or does not believe it to be true...

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18. Robbery and Extortion

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pp. 143-147

This is one of the most serious offences which subordinate courts have jurisdiction to try. A person who steals anything and at, or immediately before or immediately after such stealing, he uses or threatens to use actual violence to any person or property...

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19. Burglary, Housebreaking and Allied Offences

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pp. 149-153

Subordinate courts are flooded with cases involving offences of burglary, housebreaking and stealing and similar offences. So a public prosecutor who is ignorant of the elements of these offences is in for a rough...

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20. Offences Involving and Causing Damage to Property

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pp. 155-157

Arson is the wilful and unlawful setting on fire to any building, structure or vessel whatever, whether completed or not, or to any stack or cultivated vegetable produce, or of any mineral or vegetable fuel, or to a mine, or the workings, fittings or appliances...

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21. Offences Under the Road Traffic Act

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pp. 159-163

The Road Traffic Act, 1973, Cap. 168 RE 2002, repealed and replaced the Road Traffic Ordinance, Cap. 168 of the Revised Laws. The large number of traffic cases which are handled by subordinate courts necessitates that a public...

Part III: Basic Principles of the Law of Evidence

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pp. 165-232

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22. What Evidence is Admissible?

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pp. 167-170

One day I was trying a case in a district court. The accused person had been charged with unlawful wounding and the complainant was a brother of the accused. There was evidence from two independent witnesses who testified that they were present...

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23. Competency, Compellability and Privilege

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pp. 171-177

As a large body of evidence which the prosecution adduces in courts of law consists of oral evidence, it is necessary for a public prosecutor to know which of those persons may be allowed to testify in court if they have some knowledge relevant...

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24. Facts not Requiring Proof

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pp. 179-185

We have seen that every allegation in a charge must be proved by evidence. In other words, all facts in issue or relevant to facts in issue must be proved by evidence which establishes such facts. There are, however, two exceptions to this rule. There are matters...

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25. Admissions and Confessions

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pp. 187-196

Admissions and confessions have certain things in common. The simplest way of describing the similarity between these two terms is to say that all confessions are admissions, but not all admissions are confessions. Admissions and confessions come up...

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26. Documentary Evidence

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pp. 197-200

“Documentary evidence” means all documents produced as evidence before the court, and “document” means any writing, typewriting, printing, photostat, photograph and every recording upon any tangible thing, any form of communication...

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27. Opinion Evidence

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pp. 201-204

As a general rule evidence of opinion of witnesses is not admissible in evidence. It is for this reason that such questions like “What is your opinion?”, “What did you think about it?” are generally not allowed because essentially they call for the opinion...

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28. Banker's Books

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pp. 205-206

“Bank” or “banker” is defined as in section 76 of the Evidence Act as meaning any person carrying on the business of banking in the United Republic of Tanzania, Kenya or Uganda. A banker or officer of the bank cannot...

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29. Evidence of Character

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pp. 207-210

“Character” is defined in section 57 of the Evidence Act as including both reputation and disposition, and except as to rules of relevancy, evidence may be given of only general reputation and general disposition and not of particular acts...

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30. Burden of Proof

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pp. 211-215

The expression “burden of proof ” is defined in many ways depending upon the sense in which it is used. For our purposes, it may be defined as meaning the obligation to prove alleged facts; that is, the obligation to adduce evidence to prove...

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31. Credibility of Witnesses and Weight of Evidence

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pp. 217-225

Questions of credibility of witnesses, the weight of their evidence and sufficiency of evidence cannot be determined by rules of thumb. It depends, largely on common sense, logic and experience. In the words of Birch, J. in the Indian...

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32. Examination of Witnesses

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pp. 227-232

As is well known, there are three stages in the examination of witnesses. These are: examination-in-chief, cross-examination and re-examination...

Part IV: The Art of Conducting Cases

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pp. 233-264

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33. The Public Prosecutor and Case Preparation

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pp. 235-238

As already pointed out, the job of a public prosecutor demands intellect, courage, common sense, tact, patience, capacity for hard work, training and an interest in the job. As in everything else in human affairs, a public prosecutor needs...

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34. The Choice of Witnesses

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pp. 239-244

Your case file and notes are now ready and you are itching to go for a tussle in court. But you are not yet fully armed. Before you can be reasonably sure that in court your case will turn out to be what your case file and exhibits say it will...

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35. How to Conduct Examination-in-Chief

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pp. 245-248

As we have seen earlier, the purpose of examination-in-chief is to elicit from the witness all the facts which he knows about the case, or such of those facts as are necessary to prove the case of the party calling him. So important is...

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36. How to Conduct Cross-Examination

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pp. 249-257

In the words of Poison in his book Evidence, the object of cross-examination is defined as...

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37. How to Conduct Re-Examination

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pp. 259-260

The purpose of examination-in-chief, as we have seen is to bring out all the relevant facts which the witness knows about the case; the aim of cross-examination is to demolish the facts deposed to in examination-in-chief, or to weaken the probative...

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38. Final Submissions

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pp. 261-264

At the close of the case for the defence, both the public prosecutor and the defence are allowed to make final submissions as provided by sections 201 and 233 of the Criminal...

Appendices

Appendix I. Bibliography

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pp. 267-

Appendix II. Excerpts

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pp. 268-272

Appendix III. Case Index

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pp. 273-281

Appendix IV. Alphabetical Index

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pp. 282-287

Back Cover

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Back Cover

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E-ISBN-13: 9789987081011
Print-ISBN-13: 9789987080076

Page Count: 300
Publication Year: 2009