Athumani Alli v. R., (PC) Crim. App. 158-D-67, 6/11/67, Hamlyn J.

 

Athumani Alli v. R., (PC) Crim. App. 158-D-67, 6/11/67, Hamlyn J.

Accused were convicted of shop breaking. At the trial neither of the accused was given the opportunity to cross-examine his co-accused, and the prosecution did not choose to cross-examine this testimony.

            Held: (1) An accused must be given the opportunity to cross examine any of his co-accused who testify. (2) The lack of such opportunity constitutes a miscarriage of Justice and the conviction must be quashed on appeal. [Citing Edward s/o Masenga v. Reg. 23 E.A.C.A 553; Archibald’s Criminal Pleading and Practice (35^th Edition) paragraph 1388.] (3) In considering whether a retrial should be ordered, it is relevant that “(t)he magistrate’s error may not have been the fault of the prosecution but surely it is a more important consideration that it was not the fault of the accused.” [Salim Muhsin v. Salim bin Mohamed and others (1950) 17 E.A.C.A 128; cited in Ahmedi Ali Bharamsi Sumar v. R. (1964) E.A.481.] In the present case the error in no way can be attributed to the accused.

            The Court stated, obiter, that if a prosecutor chooses not to cross-examine an accused who testifies, “this can raise a presumption in the mind of the court that the version of the affair given by the accused is not raised as a matter in issue with the Republic.”