453 abu a mwenge v r crim app 592 d 67 81167 biron j

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453. Abu A. Mwenge v. R., Crim. App. 592-D-67, 8/11/67, Biron J.
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Accused was convicted on nine counts of obtaining money by false pretences [P.C. s. 302]. He had obtained money and goods in exchange for cheques which were returned unpaid; in most if not all cases, he was later found to have stopped payment. The evidence that there had been no money in his account when the cheques reached the bank was contained in a bank statement, which was pro- duced in court by a police witness who was also the prosecutor, and who had in- vestigated the case. After an adjournment to call witnesses, the accused had stated that he had no further witnesses, but wished to add to his statement; the magistrate refused permission to do so, although he had earlier granted a similar request by the prosecutor, who had testified first after the testimony of 8 other witnesses, Rejecting a prosecution request to alter the charge, the magistrate stated: “…..the charge needs to be altered to suit the particulars. But I am con- vinced that an offence would have been committed if the charge was properly framed and evidence called to support it.” It also appeared, finally, that the magi- strate had assisted in transporting prosecution witnesses to the court; this prompted the accused to request trial by another magistrate and another prose- cutor, which request was denied. Held: (1) The charge here would require a showing that the accused knew that he did not have money in his account sufficient to cover his cheques at the time he wrote them, or that he had stopped payment on them before writing them. The bank statement, offered by a police witness who was also acting as prosecutor, was inadmissible; thus, the conviction fails for lack of sufficient evi- dence. (3) The magistrate, in several respects, gave “the impression, not only to the appellant, but to the public at large, that justice was not seen to be done.” One instance was his refusal to allow additional evidence by the accused; (1967) H.C.D. 137. Another was his comment in rejecting an admittedly needed alteration of the charge; a third was his alleged conduct in transporting prosecution on witnesses to the court.
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454. Dengwa s/o Masiku v. R., Crim. App. 58?-D-67, 8/11/67, Georges C. J. Accused was convicted of stealing certain property which was found in a house owned by on Ali Saudi. Accused ’s defence was that he did not live in the house and knew nothing about the stolen property. Held: (1) The trial court accepted Saudi’s testimony that accused had lived in his house for the last year. The court had failed to appreciate that since Saudi had an interest of his own to serve, in that if accused was innocent he was the most likely suspect, his testimony required corroboration. On examining the record the High Court found such corroboration. (2) The doctrine of recent pos- session was relied on to require the accused to explain how the stolen property came into his possession, which he refused to do. While 5 months had elapsed between the theft and finding of the goods in accused ’s possession, the goods involved were not common articles and were specifically identified by their owner.
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