Held 1 the magistrate s refusal to accept a defence

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Held: (1) The magistrate ‘s refusal to accept a defence as truthful is not a proper basis for conviction; here, the magistrate’s judgment did not give any indi- cation the he was aware that the onus of proving the guilt of the accused is on the prosecution, or that he gave any consideration to the prosecution evidence.
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(2) To review the record independently in such a case “Would be a complete usurpation of the function of the magistrate.” Conviction quashed; immediate re- lease of accused ordered. 385. Mohamed s/o Saidi v. R., Crim. Apps. 535, 505,562-M-67, 22/9/67, Cross J. The four accused were convicted of store breaking and stealing. [P.C. s. 296 (1).]There was admitted as against the firs accused his statement to a police of- ficer that he had received flour from the thieves. As against the second accused evidence was admitted that tyres stolen from the store were found under his bed; these tyres were not among the stolen articles specified in the charge. Held: (1) The introduction of the first accused ’s statement to the police officer was contrary to section 27 of the Evidence Act, 1967. (2) The accused were charged with the composite crime of store breaking and stealing. Evidence, therefore, of the finding of any article in the second accused ’s possession which had been in the store before it was broken into, and was missing subsequent to the theft, is relevant to the charge and consequent to the theft, is relevant to the charge and consequently admissible whether the article was specifically men- tioned in the charge or not. 386. Mwidin s/o Mohamed v. R., Crim. App. 671-D-67, 18/10/67, Biron J. Complainant believed his nephew and perhaps others had robbed him. The ne- phew confessed to the crime after the uncle had threatened to bring a witchdoc- tor to bewitch the culprits. In this confession the nephew said second accused was his confederate, and gave the uncle a letter addressed to second accused asking him to disclose the where about of the stolen property. Before the uncle could do anything with this letter the stolen property was found in the bush by a villager. At trial both accused denied participation in the theft, and first accused (the nephew) denied making the confession. There was no evidence other than the confession to implicate the two accused. Held: (1) The magistrate believed the complainant rather than the ac- cused, as he was entitled to do. (2) The conviction of the first accused solely on
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the basis of the confession was perfectly proper. (30 “Although the confession may be said to have been induced by fear, that of witchcraft, (1967) H.C.D. - 113 – It is properly valid confession and the explanation for its having been made is eminently reasonable….” (4) As against the second accused the statement by the first accused to the uncle was hearsay. However, since that statement consti- tuted a full confession, implicating second accused to the hilt, it is admissible against him. (5) In the absence of any corroboration, the confession standing alone was insufficient to support a conviction of theft. Conviction of second ac- cused quashed.
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  • Fall '17
  • Dean Majamba

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