Ludovico s/o Kashaku v. R., (PC) Crim. App. 600, 601-M-66; 31/5/57; Platt, J.
Accused were convicted of burglary and stealing, and were sentenced under the Minimum Sentences Act. They were allegedly caught in the home of complainant after having broken in at night, and complainant stated that Shs.100/- were taken. One of the accused was apprehended on the spot, and the other was found later elsewhere; the second accused was identified by the two men who had rescued the complainant. It was also alleged that the first accused had been convicted of an offence previously, but this was not proved. No finding was made as to the age of the first accused. The convictions for stealing were set aside for lack of sufficient evidence.
Held: (1) It is unsafe to support the conviction of the second accused, who was not brought directly from the scene of the offence to the custody of the police, on “the bare assertions of the witnesses that they had recognized him.” In the circumstances, especially because it was dark when the offenders were found by the witnesses, “there ought to be evidence showing clearly in what way they were identified,” e.g., by the sound of their voices, their distinctive clothing, etc. (2) Prior convictions cannot be considered in sentencing unless they are admitted by the accused, or proved. (3) Where corporal punishment is involved a specific finding as to the age of the accused must be made. (4) “As the charge of theft had not been sustained and as the appellant had no proven previous convictions it seems to me that this is a case where discretion should be exercised under section 5(2) of the Minimum Sentences Act, “which allows leniency in appropriate cases Conviction and sentence of second accused set aside; convictions of first accused upheld, but sentence reduced to result in immediate release.
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