Held 1 under the criminal procedure code section 213

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Held: (1) Under the Criminal Procedure Code, section 213, the court must, upon request by the accused, make available for examination the doctor who has prepared a medical report received in evidence. Therefore, the court is obliged to inform an accused of his right to cross-examine the doctor, and its failure to so inform the accused here was error. (2) However, the error here was not “a se-
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rious omission which would go to the root of the case,” as it was clear that the accused had assaulted the complainant, and as the report itself seemed to be in order. 298 Hatibu s/o Nyatika v. R., Crim. App. 498-D-67, 4/8/67, Hamlyn J. Accused was convicted of house breaking and stealing. Act the trial, after the close of the defence case, the Court called a witness and took his evidence. Held: (1) “Except in most unusual circumstances, prosecution evidence cannot be called after the defence case has closed. …..” Even where such a pro- cedure is justified as, for example, in rebuttal of an alibi unexpectedly raised dur- ing the defence ---the greatest care must be exercised by the Court. In the present case, the procedure was wholly improper. (2) The testimony admitted was unnecessary, ineffective and was not mentioned in the judgment, and its in- troduction did not prejudice accused. Appeal dismissed. ( 1967) H. C. D. - 85 – 299. R. v. Jafari s/o Musa , Crim. Rev. 3-D-65, 14/8/67, Hamlyn J. Accused was convicted of hunting game animals without a licence [Fauna Con- servation Ordinance, Cap. 302, s. 12] and unlawful possession of a firearm [Arms and Ammunition Ordinance, Cap. 223, s. 13 (1).] Sentence included forfeiture of the fire-arm unlawfully in accused ’s possession. [Fauna Conservation Ordin- ance, s. 53 (2B).] Included in the record of the case sent to the High Court was a sworn affidavit by the owner of the gun stating that he was out of town when ac- cused used the gun unlawfully and knew nothing about the events constituting the offence. Held: It seems evident that the owner of the gun in no way connived in the commission of the offence by accused, and it would be unjust to penalize the owner for an offence committed by another without his knowledge. The Court or- dered that the firearm be returned to the owner.
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300. R. v. Ngado d/o Mwakalinga , (PC) Crim. Rev. 7-D-67, 17/8/67, Georges C. J. Accused, a child of ten years of age, was convicted of assault causing actual bo- dily harm [P.C. s. 241] upon the bases of the testimony of the victim, a child of eleven years of age. A fine and order of compensation were imposed, both of which were ordered to be paid by the parent of accused under the provisions of section 21(1) of Cap. 13. However, the parent was given no opportunity to be heard at the trial. Held: (1) Section 15 of the Penal Code provides, “A person under the age of twelve years is not criminally responsible for an act … unless it is proved that at the time of doing the act … he had the capacity to know that he ought not to do the act ….” In such a simple charge as assault, proof may be inferred from the surrounding circumstances. Most children of 10 know that they ought not to hit
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