44 tuhani so ngura v r crim app 846 d 67 81267

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44. Tuhani s/o Ngura v. R., Crim. App. 846-D-67, 8/12/67, Georges C. J. Independent evidence had established a “very strong prima facie case” against two accused persons for bicycle theft, malicious property damage and escape from lawful custody. Appellant and the co-accused took the stand, appellant de-
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nying all knowledge of the matter and any acquaintance with co-accused, and co-accused giving testimony further implicating appellant in the crimes. The record does not show whether or not appellant was advised of his right to cross- examine co-accused, merely that he did not in fact do so. Held: (1) On the facts, it is proper to conclude that “the opportunity to cross-examine was not afforded” to the appellant. The opportunity to cross- examine is “a fundamental right” of a person whose co-accused gives testimony, since such testimony, though given in defence of the witness, “becomes in fact evidence for the prosecution against the other.” [Citing Edward s/o Msenga v. R. (1956) E.A.C.A. 553, where “the trial magistrate had made a positive decision not to allow” the cross-examination.] (2) However, the question in such cases is whether the irregularities occasioned “ a failure of justice”; it is not reasonable to state, as a rigid proposition, that the failure to afford a co-accused the right of cross-examination is “ipse facto a fundamental irregularity necessitating the quashing of the conviction.” (1967)H.C.D - 18 - (3) Here, where evidence independently established a prima facie case against appellant, and where his cross-examination would evidently have attacked the co-accused ’s testimony as wholly false, rather than attempting to clarify its impli- cations, it is unlikely that a failure of justice occurred. Appeal dismissed. 45. Leornard s/o Kaseko v. R., Crim. App. 730-M-67, 8/11/67, Cross J. Accused was convicted of arson. After making an unsworn statement, he was questioned by the magistrate and cross examined by the prosecutor. Held: (1) An accused who makes an unsworn statement may be asked questions by the court in order to clarify any of the statements made by him. It is quite improper for him to be cross-examined by the prosecution. (2) In the cir- cumstances of this case, the error in permitting cross-examination did not preju-
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dice accused, and it is curable under section 346 of the Criminal Procedure Code. Appeal dismissed. 46. Wambura Kirangi v. R., Crim. App. 820-M-67, 24/11/67, Cross J. Accused was convicted of unlawfully doing grievous harm. [P.C. s. 225.] In his plea he said, “I admit to have wounded the person.” This was recorded as a plea of guilty. Held : Although this may well be a plea of guilty to a charge under section 228 of the Penal Code, it was not an unequivocal plea of guilty to a charge brought under section 225, for it does not admit doing “grievous harm”. Convic- tion quashed.
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