Shila s/o Mchomba v. R., (PC) Crim. App. 38-A-67, 7/12/67, Seaton J.

Shila s/o Mchomba v. R., (PC) Crim. App. 38-A-67, 7/12/67, Seaton J.

Accused was convicted of burg alary and theft. Evidence against him, consisting of several items found in his home which were alleged to be among the stolen goods, had been obtained during a search by a constable; the constable had no warrant for the search, was not looking for the accused himself, and, according to accused ’s wife and some other witnesses who were present at the time, did not have the wife’s permission to make the search. During the trial, accused ’s wife  was called as a witness by the prosecution; it appeared that the magistrate did not warn her that she had no duty to testify.

            Held: (1) Even assuming that the search was illegal, it does not follow that evidence obtained thereby is in –admissible. The proper test seems to be whether the evidence is “relevant to the facts in issue……” 

[Citing O’Brien v. McGrath, an unreported case cited in 83 Law Quarterly Review 185.] (2) A husband and wife are competent to give evidence for or against each other, but they cannot be called except upon application of the accused. The record reveals neither such a request, nor any warning to the wife by the magistrate. The admission of her testimony was, therefore, erroneous. (3) However, since it appears that the wife’s testimony “in no way assisted the case for the prosecution,” and is not even referred to in the magistrate’s judgment, the error occasioned no failure of justice. Appeal rejected.