Republic v. Mohamed Crim. Case 92-M- 70; 17/8/70; Onyinke, J.

Republic v. Mohamed Crim. Case 92-M- 70; 17/8/70; Onyinke, J.

The accused was charged with murder. The deceased and another person returned drunk to the deceased’s residence where the accused was also staying. Deceased’s wife served them food and retired to sleep. The deceased’s friend also went to sleep. They were awaken a little while later by noise outside to find the deceased lying in a pool of blood and bleeding from the chest. The state sought to tender in evidence the post mortem report of a doctor who had left the country and whose where about were unknown. The defence objected to the admissibility of the report relying on R. v. Masalu [1967] E.A. 365.

            Held: (1) “I allowed the report to be tendered as it was technical admissible under s. 34 (b) of the Evidence Act, 1967. in indicated at time the document was tendered that the weight to be attached to it was to be considered in my judgment.” (2) “The court in a criminal case a discretion to refuse to admit evidence which may be prejudicial to the accused though technically admissible (R. v. Masalu [1967] E.A. 365). The question whether the Court would exercise its discretion to reject a document which is technically admissible would depend on the facts of each case and the degree of prejudice to the accused. In Masalu’s case there apparently no evidence, beside the medical report, as to the cause of death. In the instant case there was substantial oral evidence as to the cause of death. The medical report expressed in technical and medical language what eye-witnesses were expressing in ordinary language. I, therefore, decided to admit the post-mortem examination report in the circumstances. The position may be different in such cases like causing death by poisoning where the medical report may be the only evidence of cause of death. In such cases it may well be that, since the accused had no opportunity to cross-examine the doctor who prepared the report, it would be too prejudicial to admit the document against him in a capital charge.” (3) “The prosecution led no evidence to show how the deceased met his death. But is was clear that the accused inflicted the fatal wound that caused the death since the deceased was healthy and it was not suggested that he fought with any other person besides the accused. (4) [Disagreeing with the assessors] “The circumstances were too uncertain to permit of any firm finding that the accused is guilty of murder – the deceased and accused, were known to be very drunk that night. This is a borderline case and the accused is entitled to the benefit of the doubt.” (5) “Accused was found guilty of manslaughter and not murder as charged.