Several witnesses testified that accused s hands were

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referred to by both assessors as justifying their view that accused was guilty. Several witnesses testified that accused ’s hands were bound and that they saw him being beaten. Held: (1) The Primary Court should have instructed the assessors that the confession could be admitted into evidence only if they were satisfied that ac- cused made it voluntarily. [Citing Magistrate’s Courts (Rules of Evidence in Pri- mary Courts) Regulations, 1964, rule 13). (2) The trial court erred in admitting evidence of accused ’s bad character (i.e., the previous conviction.) Because of these errors the conviction was quashed and sentence set aside. 366. Salehe s/o Kassim v. R., Crim. App. 226, 227,228-D-68, 29/7/68, Hamlyn J. The three accused were convicted of burglary and stealing. The magistrate held that “though accused No. 1 claimed that the clothes .. were his own in absence of proper identification on his side and his failure to quote at least cost of each as the complainant did, I find that they are not his… On the other side accused No. 2 and 3 claimed to have got the clothes from accused No. 1. Though this might be so, I am reluctant to accept this testimony which is uncorroborated as the law requires.” Held: The magistrate misdirected himself on two counts. (1) No corrobora- tion is required b the law for testimony by co-accused which is part of the de- fence evidence. (2) The law does not require accused to positively prove their version of the matter; they need only “raise some doubt in the mind of the court as to whether the prosecution has proved its case to the full. Appeal allowed. 367. R. v. John Yakubona , Crim. Sass. 102-M-68, 12/7/68, Mustafa J. The first accused, an assistant divisional executive officer, ordered second ac- cused, a messenger, to lock up over fifty alleged tax defaulters in two small cells which had almost no ventilation. First accused gave evidence, denied by the second accused, that he had ordered that no more that eleven people be locked in one cell and twelve in the other. There was other evidence that prisoners
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shouted intermittently all afternoon and throughout the night, while second ac- cused was on guard. It also appeared that first accused returned at midnight, but went away without doing anything. Thirteen of the prisoners in one cell suffo- cated, and accused were charged with manslaughter. Held: (1) The evidence of each accused against the other is accomplice evidence. However, making allowances for that, it does seem that first accused ordered second accused to lock up the prisoners in two cells, knowing full well that the cells could not safety hold so many people.(2) Both of the accused had a duty of care to the prisoners, and both showed such a high degree of reckless- ness in regard to human life as to. (1968)H.C.D. - 141 – Amount to an unlawful act; therefore, they are guilty of manslaughter. As both are equally responsible, and as a “severe and deterrent” sentence is called for, each is sentenced to ten years’ imprisonment.
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  • Fall '17
  • Dean Majamba

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