Masika s/o Nusurupia v. R., Crim. App. 31-A-67, 2/12/67, Seaton J.

Masika s/o Nusurupia v. R., Crim. App. 31-A-67, 2/12/67, Seaton J.

Accused, charged in Primary Court with theft of one head of cattle, was convicted of being in possession of stolen property. On appeal to the District Court, the conviction was quashed and a conviction on the original charge was substituted, resulting in the imposition of the statutory minimum sentence. During the original trial, the court had questioned accused to bring out evidence of a prior conviction. Furthermore, when accused claimed innocence.

And testified that another man had sold him the cattle, the court had the other man charged with theft and took evidence which was then used in the case against accused.

            Held: (1) The Primary Court erred in opening the second case and using evidence obtained there against accused. The court should have used its powers under section 15(3) of the Magistrates Courts Act, Cap. 537, to call the other man to testify. (2) It would appear that the court asked the appellant a question tending to show that he had committee or been convicted of a previous offence or that he was of bad character. This prohibited by section 56(4) of the Evidence Act. The court allowed the appeal despite the fact that it was out of time.