Under section 52 of the minimum sentences act which

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under section 5(2) of the Minimum Sentences Act, “which allows leniency in ap- propriate cases Conviction and sentence of second accused set aside; convic- tions of first accused upheld, but sentence reduced to result in immediate re- lease. 195. R. v. Iddi Noel , Crim. Rev. 65-D-67; 14/6/67; Georges, C.J. Accused was convicted of entering a dwelling house with intent to steal. The only evidence connecting accused with the crime was the testimony of two children, neither of whom testified under oath. Held: Criminal Procedure Code, section 152, requires that where evidence is given not on oath or affirmation by a child, “the accused shall not be convicted unless such evidence is corroborated by some other material evidence in support
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thereof.” Unsworn testimony, which itself needs corroboration, cannot be used as corroboration for other unsworn testimony. 196. --------------------v.-----------------, Cim. App. 217-M-67; 10/6/67; Platt, J. Accused was convicted of theft by public servant. (P.C. ss. 265, 270.) The trial magistrate was apparently not satisfied with the prosecution evidence, and called a court witness to testify at the close of the prosecution case. The Court stated, obiter ; “Having in mind the recent decision of the Court of Appeal in Criminal Appeal No. 50 of 1967 Charles s/o Murimi v. Republic which unfortunately cut down the scope of a trial Court’s power in calling wit- nesses under section 151 of the Criminal Procedure Code where the prosecution had not proved its case, the procedure adopted by the learned magistrate is doubtful.” The conviction was quashed on other grounds. ( 1967) H.C.D. - 53 – 197. R. v. Raphael Alphonse , Crim. App. 213-M-67; 19/5/67; Platt J. Accused was convicted of theft by public servant. (Penal Code, ss. 265,270). The evidence showed that a cheque had been forged and that accused, a clerk in the Public Works Department, had had ample opportunity to commit the offence. A handwriting expert and accused ’s superior both testified that the writing on the cheque was that of the accused; the latter witness, however subsequently admit- ted that he was not certain. Held: (1) There must be some evidence connecting an accused with a for- gery other than the testimony of a handwriting analyst. (2) “ (O)pportunity alone does not amount to corroboration unless the circumstances and locality of the opportunity are such as in themselves amount to corroboration.” Citing Omari s/o Hassan v. R., (1956) 23 E.A.C.A. 580. (3) As the evidence showed that others also had had an opportunity to commit the offence, and did not with certainty place the accused at the locality of the offence, at the time of the offence, the re-
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sult could be no more than a “grave suspicion” that the accused was guilty. Con- viction quashed. 198. R. v. Athumani s/o Mlia , Crim. Sass. 83-D-67; 26/5/67; Georges, C. J. Accused was charged with murder. The policeman who arrested him testified that the victim had stated, in the presence of the accused, that the accused had approached him in the victim’s tea-shop to ask him for food, and that when he refused the accused had beaten him. The victim’s son, apparently an infant also testified that the he saw the accused strike his father with an iron bar. The as-
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  • Fall '17
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