Rule s/o Kimwana v. R. Crim. App. 14-DDM-72, 4/4/72, Mnzavas, J.

 

Rule s/o Kimwana v. R. Crim. App. 14-DDM-72, 4/4/72, Mnzavas, J.

The appellant was charged with cattle-theft but convicted of receiving the cattle knowing it to be stolen c/s 311(1) of the Penal Code. The complainant’s three head of cattle were stolen from his boma in September 1970; in July 1971 one of the animals was found in the boma of one Momve who gave evidence that it had been brought to him b the appellant for safe keeping as there was an epidemic among the cattle in his, appellant’s village. The appellant denied that he had given the animal to Momve. The animal was not produced before the trial Court.

            Held: (1) “On the facts Momve was person who had an interest of his own to serve …… In Kenneth Frank Prat v. R. (1960) 44C.A.R. 83, the Court dealing with a similar situation had this to say: ‘Where it appears that a witness, whether a co-prisoner or a crown witness, may have some purpose of his own to serve in giving evidence, it is desirable in practice that a warning should be given to the jury with regard to the danger of acting on his uncorroborated evidence …..Whether the witness can properly be classed as an accomplice or not’. I agree with the Republic that there was sufficient confirmatory evidence of Momve’s testimony that it was the accused who sent complainant head of cattle to his homestead”. (2) “Production of alleged stolen property can only b dispensed with when there is other cogent and sufficient evidence regarding identification of the property and where the accused does not challenge the description as to identification given by prosecution witnesses ……. As there was sufficient identification of the head of cattle by the complainant as well as complainant’s neighbours and this evidence has not been challenged by the accused. Production of the head of cattle was not necessary”.