Abu A. Mwenge v. R., Crim. App. 592-D-67, 8/11/67, Biron J.

 

Abu A. Mwenge v. R., Crim. App. 592-D-67, 8/11/67, Biron J.

Accused was convicted on nine counts of obtaining money  by false pretences [P.C. s. 302]. He had obtained money and goods in exchange for cheques which were returned unpaid; in most if not all cases, he was later found to have stopped payment. The evidence that there had been no money in his account when the cheques reached the bank was contained in a bank statement, which was produced in court by a police witness who was also the prosecutor, and who had investigated the case. After an adjournment to call witnesses, the accused had stated that he had no further witnesses, but wished to add to his statement; the magistrate refused permission to do so, although he had earlier granted a similar request by the prosecutor, who had testified first after the testimony of 8 other witnesses, Rejecting a prosecution request to alter the charge, the magistrate stated: “…..the charge needs to be altered to suit the particulars. But I am convinced that an offence would have been committed if the charge was properly framed and evidence called to support it.” It also appeared, finally, that the magistrate had assisted in transporting prosecution witnesses to the court; this prompted the accused to request trial by another magistrate and another prosecutor, which request was denied.

            Held: (1) The charge here would require a showing that  the accused knew that he did not have money in his account sufficient to cover his cheques at the time he wrote them, or that he had stopped payment on them before writing them. The bank statement, offered by a police witness who was also acting as prosecutor, was inadmissible; thus, the conviction fails for lack of sufficient evidence. (3) The magistrate, in several respects, gave “the impression, not only to the appellant, but to the public at large, that justice was not seen to be done.” One instance was his refusal to allow additional evidence by the accused;

Another was his comment in rejecting an admittedly needed alteration of the charge; a third was his alleged conduct in transporting prosecution on witnesses to the court.