Adam Shabani v. R., Crim. App. 149,150,151,152-M-67; 3/6/67; Platt, J.

Adam Shabani v. R., Crim. App. 149,150,151,152-M-67; 3/6/67; Platt, J.

Accused was one of four persons convicted of robbery with violence (P.C. s. 286). He said that at the relevant time he had been at home with his mother, and that he had sold some bananas to a customer, while he was there. He did not call the customer as a witness. He tried to call his mother, but the prosecutor objected, stating that she had been present in the courtroom though out the trial. The magistrate sustained the objection. He later stated that he was not “entirely” satisfied with the defence.

            Held: (1) The fact that a witness for the defence may have been present during the testimony of other witnesses “does not make his or her evidence inadmissible. It is a matter of ascertaining the materiality of the evidence and the weight to be attached to it.” (2) The refusal of this evidence, coupled with the magistrate’s implied suggestion that accused ’s defence had had some force, meant that the trial “was not carried out with fairness to the appellant, with the result that it must be held a nullity.” Conviction quashed.