Kiboga s/o Mahenga v. R., Crim. App. 47-D-68, 22/3/68, Mustafa J.

Kiboga s/o Mahenga v. R., Crim. App. 47-D-68, 22/3/68, Mustafa J.

Accused was charged with taking part in a corrupt transaction. [Cap. 400, Prevention of Corruption Ordinance, sec. 3(2)]. P.W.3 made a statement favorable to accused which was allegedly contrary to an earlier written statement that he had made, whereupon  the prosecution asked that he be treated as a hostile witness, which request was granted. The witness’ earlier statement was not produced in court, nor was accused given an opportunity to cross-examine the witness.

            Held: The statement should have been produced in court, and accused should have been given the opportunity to cross-examine the witness. The magistrate treated the witness’ earlier statement as substantive evidence, accepting it as the truth rather than the statement made in court by the witness. This was unwarranted and highly prejudicial to the accused. Conviction quashed.