Tuhani s/o Ngura v. R., Crim. App. 846-D-67, 8/12/67, Georges C. J.

Tuhani s/o Ngura v. R., Crim. App. 846-D-67, 8/12/67, Georges C. J.

Independent evidence had established a “very strong prima facie case” against two accused persons for bicycle theft, malicious property damage and escape from lawful custody. Appellant and the co-accused took the stand, appellant denying all knowledge of the matter and any acquaintance with co-accused, and co-accused giving testimony further implicating appellant in the crimes. The record does not show whether or not appellant was advised of his right to cross-examine co-accused, merely that he did not in fact do so.

            Held: (1) On the facts, it is proper to conclude that “the opportunity to cross-examine was not afforded” to the appellant. The opportunity to cross-examine is “a fundamental right” of a person whose co-accused gives testimony, since such testimony, though given in defence of the witness, “becomes in fact evidence for the prosecution against the other.” [Citing Edward s/o Msenga v. R. (1956) E.A.C.A. 553, where “the trial magistrate had made a positive decision not to allow” the cross-examination.] (2) However, the question in such cases is whether the irregularities occasioned “ a failure of justice”; it is not reasonable to state, as a rigid proposition, that the failure to afford a co-accused the right of cross-examination is “ipse facto a fundamental irregularity necessitating the quashing of the conviction.”

(3) Here, where evidence independently established a prima facie case against appellant, and where his cross-examination would evidently have attacked the co-accused ’s testimony as wholly false, rather than attempting to clarify its implications, it is unlikely that a failure of justice occurred. Appeal dismissed.