Musa s/o Kiumbe v. R., Crim. App. 813, 817, 856-M-66; 31/5/67; Platt, J.

Musa s/o Kiumbe v. R., Crim. App. 813, 817, 856-M-66; 31/5/67; Platt, J.

The three accused were convicted of robbery. On appeal they urged, inter alia, that they had been debarred from calling defence witnesses. The trial record was unclear and incomplete as to what, if any, requests for witnesses had been made.

Held: Normally the record would be returned to the trial magistrate for certificate stating what had occurred. But here the appellants have been in custody for some time and to delay the appeal further would cause injustice. “As the record is incomplete the appellants must be given the benefit of doubt that the trial may not have been conducted with complete fairness. I have no doubt that the learned trial magistrate will in future record whether or not an accused person wishes to call defence witnesses, and in the event of witnesses for the defence being applied for, he will no doubt call such witnesses or record his reasons for refusing the application. If this procedure is followed accused persons will not then be able to challenge the fairness of the trial.” The convictions were quashed.