Expatriate leaving country before giving evidence
Recently I was interrogated by a law enforcement agent in connection with a criminal offence which was allegedly committed by my company in the course of its business. The investigator told me that the investigation is still underway and I don’t know when the investigation will be concluded. My key witness is an expatriate whose term of employment is about to expire and who will soon be leaving the country. I am worried that if I am charged after the expatriate has left for his home country, I will not be able to get him back for him to give evidence in support of my defence. What can I do to have the evidence of this expatriate witness taken before he leaves the country? Can I ask him to make an affidavit and later during the hearing use the affidavit to support my evidence? In case I am charged and the expatriate is unwilling to come back to give evidence, will it be possible to ask the Court to issue a summons to compel him to come back and give evidence? How will the summons be served to a person who by then will be residing in another country?
ER, Mbeya
It is unfortunate for you that the Criminal Procedure Act does not recognise the use of affidavits in criminal trials. The affidavit taken by the witness during investigation or even after the commencement of the hearing cannot be used in a criminal Court as evidence. In criminal trials evidence has to be given orally in the presence of the judge or magistrate and the other party has the right to cross examine the witness.
However, section 252 of the Criminal Procedure Act provides a way of preserving evidence of a witness who is seriously ill and is not likely to recover or a witness who is not likely to be available at the time of trial to give evidence. Since your witness is likely to leave the country before the completion of investigation and commencement of the hearing, you can formally make an application to the Court to take his statement on oath and affirmation. You have to bear in mind that the statement of the witness must be taken in the presence of the public prosecutor who shall be availed an opportunity to put questions to your expatriate witness and answers given by the witness shall form part of his statement to be recorded by the magistrate. Such a statement made before a magistrate and certified by him can only be used as a substitute to oral evidence if the trial Court will be satisfied that the person who made the statement is dead or that his attendance cannot be procured without amount of delay, expense or inconvenience and that the prosecutor was given the right to put questions to the deponent of the statement.
A person residing outside the jurisdiction of the Court is a competent but not compellable witness. Local Courts don’t have jurisdiction to compel attendance of a person residing in a foreign jurisdiction. Once the expatriate leaves the country, a local Court in which you will be charged will not have the power to compel the expatriate to come back to give evidence in support of your defence. The only way to serve a summons to a person residing in a foreign jurisdiction is through mutual legal assistance which takes the form of a diplomatic channel and is a very long process.
Having said the above, the simplest way of taking evidence of a person living in a foreign jurisdiction is by video conferencing or other forms of technology provided under section 25A of the Mutual Assistance in Criminal Matters Act [Cap. 254 R.E 2022]. This is the simplest route we would recommend to use in case you are charged and your witness is unwilling to come back to Tanzania to give evidence. He can testify while he is in his home country without necessarily being physically present in Tanzania.