Tyamosi Asao v. R., Crim. App. 191, 249, 224, 180, 187-M-67; 30/6/67; Cross, J.

 

Tyamosi Asao v. R., Crim. App. 191, 249, 224, 180, 187-M-67; 30/6/67; Cross, J.

The five accused were convicted of burglary, stealing and assault. The evidence against three of the accused was overwhelming. However a fourth accused denied his guilt under oath and pointed out that the police did not arrest him for several days although they questioned him earlier. A fifth accused gave the alibi that he had been sleeping at home and his witness supported this defence. The trial magistrate dealt with all of the defence together and stated that the accused had not satisfied him that they were not the people who had committed the crime.

            Held: (1) The defences of the various accused were different, and the trial magistrate should not have considered all of them together. (2) The burden of proof in a criminal case is on the prosecution, and the magistrate erred in stating that they must satisfy him that they were not the guilty persons. (3) The evidence against the first accused was so strong that it is clear they would have been convicted had the magistrate properly directed himself. They were not prejudiced by the misdirection and their convictions should be upheld. Citing Shah v. Reg, (1956) 23 E.A.C.A. 401, 416. The convictions of the fourth and fifth accused were quashed.