Wednesday, 28 September 2011

Case Notes: Law of Evidence

 
Burden and Standard of Proof

Dowool v Dowool 1982 MR 292
This case concerned an action “en desaveu de paternite”’ and according to article 312 of the Civil code the Court held that it need not, as before, be satisfied that “la paternité est impossible” but may content themselves “d'une série de présomption précises et concordantes (impossibilité morale de cohabitation)”.

R v Ramlochun 1980 MR 175
In this case concerning a murder, the issue in contention was the direction given by the judge to the jury on circumstantial evidence adduced by prosecution. The Court following the case of McGreevy, came to the conclusion that: In a trial in which the case for the prosecution, or any essential ingredient thereof, depends as to the commission of the act wholly on circumstantial evidence, no duty rests upon the judge, in addition to giving the usual direction that the prosecution must prove the case beyond reasonable doubt, to give a further direction in express terms that this means that they must not convict on circumstantial evidence unless they are satisfied that the facts proved are (a) consistent with the guilt of the defendant and (b) exclude every possible explanation other than the guilt of the defendant. Therefore the direction given by the judge was a good one and the appeal was dismissed.

R v Wahedally 1973 MR 103
The right of a person charged with a criminal offence to remain silent is one of the fundamentals of our criminal law and section 10(7) of the Constitution to which reference has been made and which enacts that no person who is tried for a criminal offence shall be compelled to give evidence at the trial has done nothing more than give constitutional protection to a particular form of the exercise of that right. Consequently, any statement that may be construed as denying that right to the accused would be wrong in law. On the other hand, it is equally well-settled that the trial Judge may comment on the prisoner's silence, but his comment must not in any circumstances amount to an invitation to the jury to form an adverse view of the prisoner from the fact of his silence and, if it could so amount, should at least be accompanied by an indication that the prisoner has a right to remain silent.

National Bank of SA v Merven 1924 MR 53
First, as regards the application of the law of Estoppel in this Colony: Estoppel (Taylor on evidence para: 89 et seq.) “may be ranked in the class of conclusive presumptions… They are usually divided into 3 classes, viz: those “by matter of record, those by deed and those in pais. Paragraph 89 contains the following: -
“The doctrine of Estoppel has been guarded with great strictness; not because the party expressing it is presumed to be desirous of excluding the truth, for the more reasonable suggestion is that that is true, which the opposite party has already solemnly admitted; but because the Estoppel may exclude the truth. Hence estoppels must be certain to every intent, for no one shall be prevented from setting up the truth, unless it be a plain contradiction, to his former allegations and acts.
Best (Evidence 12th Edn. 1922) para. 543 contains the following: -
“… the following rule has been laid down by authority, and may be looked on as established: “where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as its alter his own previous position, the former is concluded from avering against the latter, a different state of things as existing at the same time. It has indeed been said that unless the representation amounts to an agreement or licence by the party who makes it, or is understood by the party to whom it is made as amounting to that, the above rule would not apply. But it would seem that the application of the rule is not thus limited. Moreover by “wilfully” in the rule must be understood, not that the party represents that to be true which he knows to be untrue, but only that he means his representation to be acted upon, and that it is acted upon accordingly. For if, whatever a man’s real intention may be, he so conducts himself that a reasonable man would take his representation to be true, and believe that it was meant that he would act upon it as true, - the party making the representation will be equally precluded from contesting its truth. And conduct by negligence or omission, where a duty is cast upon a person by usage of trade or otherwise, to disclose the truth, may often have the same effect…”
Para. 533 (p. 463): - “…On the whole, an Estoppel seems to be when in consequence of some previous act or statement to which he is either a party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim allegans contraria non est audiendus and is that species of presumption juris et de jure, where the fact presumed is taken to be true, not as against all the world, but as against a particular party, and that only by reason of some act done: it is in truth a kind of argumentum ad hominem. Hence it appears that Estoppels must not be understood as synonymous with conclusive evidence - the former being conclusions drawn by law against parties from particular facts, while by the latter is meant some piece or mass of evidence sufficiently strong to generate conviction in the mind of a tribunal, or rendered conclusive on a party, either by common or statute law…”
Looking generally at the question of applicability of Estoppel in our system of laws, we note, in the civil code, such articles as articles 1349 to 1353, which deal with presumptions: 1354 to 1356 which deal with certain admissions in certain circumstances (aveux judiciaires et extra judiciaires.”) A comparative synopsis of instances of Estoppel at common law in England and of express and definite provisions in the civil code dealing with cognate cases would go far beyond the purposes of this judgment, besides unduly delaying our decision. For the purposes of the case it is sufficient to say that we are prepared to hold that where our local law provides for the effect and legal purport of certain admissions or presumptions, it should be applied to the exclusion of the English Law of Evidence on the same subject, be that law in the shape of Estoppel or otherwise.

Witnesses

General Rule

POORUN vs THE QUEEN 1981 MR 367
The cases of Ranglall v. Q. [1861 MR 43]and Mazerieux v. R. [1883 MR 66]afford examples of convictions being quashed because the record omitted to state whether witnesses who had undisputably solemnly affirmed had done so as Hindus or Moslems.
In R. v. Dawousse 1881 Gr. No. 124 and quoted in Lalouette’s Digest, Vol. II, Evidence Pt VI s. 4 at note 494, it was held that whether a witness was duly sworn when giving his evidence before the trial Court was a fact conclusively proved by the record itself.
In Rama v. R [1861 MR 282], a conviction was quashed where the proceedings in the Court below did not state whether the witnesses were sworn.
Following the principles enunciated in those cases we hold that the failure to record whether the witnesses had given evidence on oath or solemn affirmation was a serious defect, fatal to the conviction.

Children

BHANGEERUTHEE V. THE QUEEN 1962 MR 143
The case for the prosecution was that the appellant, a teacher of the Hindi language at Champ de Lort Government School Port Louis, in the course of a lesson assaulted the complainant, a girl aged 7, by holding her cheeks with his hands and biting her lip. The witnesses for the prosecution were the complainant herself, one Anita jugdharry, another girl of the same age and Mrs. Edna jouana, another teacher of the school.
We would, however, draw attention to the fact that the magistrate, after hearing the evidence of the complainant, a girt of seven, on a promise from her to speak the truth without being sworn, acting rightly in accordance with the provisions of section 109 of the Criminal Procedure Ordinance (Cap. 169), followed the same procedure with regard to the witness Anita jugdharrv, also a girl aged seven. In our view, he was wrong to do so. Section 106 of the Ordinance provides that, in a criminal trial, a witness can only be admitted to give evidence after he has sworn, according to the religion he professes or made such solemn affirmation as by law is receivable in place of an oath, to speak the truth. Section 109 provides, by way of exception, that when an offence has been committed upon an individual of tender years such individual, if under nine-years of age, may be admitted as a witness at the trial without being sworn provided the Court is satisfied that the said individual has sufficient, intelligence to make a correct statement on the subject of the trial. The witness under reference not coming within the purview of section 109 and at having been sworn, her evidence was consequently not receivable.

JUGARSING AND ANOR vs THE KING 1952 MR 13
 At the time of the trial the conditions under which the unsworn evidence of a child under nine years of age could be received in evidence were laid down in sections 6 and 7 of Ordinance No. 12 of 1866 which read: -
“6. In every trial of any offence charged as having been committed, or attempted to be committed, upon the person of an individual of tender years, such individual, if under nine years of age, shall be admissible as a witness, provided the Judge or Magistrate by or before whom the case is tried, shall be satisfied that the said individual has sufficient intelligence to make a correct statement on the subject of the trial, although he or she may not understand the nature of an oath, or of a solemn affirmation in lieu of an oath.
7. Any individual who shall be admitted as a witness under the last section, shall not be examined on oath, or solemn affirmation, but shall, before giving evidence, make, in presence of the Judge or Magistrate aforesaid, a promise, in terms of the Schedule, to speak the truth."
      The Schedule referred to in section 7 runs as follows:
“I do promise that I will speak the truth in answer to any questions which shall be put to me in this Court."
      The record of the proceedings does not show that the requirements of the law regarding an investigation by the Magistrate as to whether the girl Indranee Beenud was possessed of sufficient intelligence to make a correct statement on the subject of the trial and the necessity of her making a promise to speak the truth had been fulfilled.
      In the case of Ackbar v. R., [1918 MR 11], [1918 MR 7], where the only witness of the indecent assault, the girl, was not heard on oath and the Magistrates failed to ascertain whether she understood the nature of an oath before taking down her statement and did not ask her to make, a promise to speak the truth in terms of the Schedule to Ordinance No. 12 of 1866, the conviction was quashed.

BASENOO  VS THE QUEEN  1983 MR 89
The victim in this case was a girl aged five, who, was accompanied in Court by her father. Her testimony was of capital importance because, not only she was the person on whom the alleged indecent act was committed, but, as is to be expected in such cases, she was the only witness to describe the offence. Before she started to depone before Magistrate Oozeerally on the 7th August, 1981, she informed the Court that she knew that she must tell the truth and that she knew what it was to take an oath. After a few postponements, in the course of which there was a change in the constitution of the Court, the case was continued before Magistrate Balgobin who was authorised to take, follow up and determine the case. When the proceedings were resumed on the 29th January, 1982, the victim's examination in chief continued without any indication to show whether her testimony before the second Magistrate was given on oath or otherwise.
Sections 106, 109 and 110 of the Criminal Procedure Act deal with the swearing of witnesses and the evidence of a child victim as a witness. They provide as follows:
106. Swearing of witness.
Any person who is produced or appears as a witness, against or for an accused on a criminal charge, shall before he is admitted to depone or give any manner of evidence-
(a) be sworn by the Court according to the form of the religion he professes; or
(b) make such solemn affirmation as is receivable in place of an oath, to speak the truth, the whole truth and nothing but the truth.
109. Child victim as witness.
In every trial of an offence charged as having been committed, or attempted to be committed, upon a child of tender years, the child, if under the age of 9, shall be admissible as a witness, where the Judge or Magistrate by or before whom the case is tried, is satisfied that he has sufficient intelligence to make a correct statement on the subject of the trial, although he may not understand the nature of an oath or of  a solemn affirmation.
110. Child witness not to be sworn.
A child who is heard as a witness under section 109, shall-
(a)    not be examined on oath or solemn affirmation;
(b)    before giving evidence, make, in presence of the Judge or Magistrate, a promise to speak the truth in terms of the First Schedule.
The First Schedule reads:
I promise that I will speak the truth in answer to questions which shall be put to me in this court.
In Phipson, Twelfth Edition, para 1498 we read:
Present Law-General Rule
1498. With certain exceptions as to criminal proceedings, all witnesses who are capable of under-standing the nature of an oath and giving rational testimony are competent. A witness may therefore be incompetent from defective intellect, or from infancy.
and    at para 1500:
Incompetency from infancy
1500. No precise rule can be laid down as to the limit of age, or degree of knowledge and intelligence, which will exclude the testimony of infants. Their competency, however, depends not so much on years as ability to understand the nature of an oath and the consequences of  falsehood. Thus, children of seven, six or even five years of age have been allowed to testify, upon the Court being satisfied in open Court on the above points; while, where not satisfied, the testimony of a child of seven, or even eight, has been rejected; as also the dying declarations of a girl of four, the Court remarking that it was impossible her understanding could be sufficient for the purpose. The following answers have sufficed to admit the testimony: "What becomes of a liar?" "He goes to hell";     or, “Is it a good or bad thing to tell lies?" "A bad thing;" A child destitute of religious education has been allowed to be qualified therein with a view to the trial. Such an application must, it has been held, be made before the jury are sworn. On a claim for damages by the next friend of an infant of nine, who did not understand the meaning of an oath, Judge Cluer, of the Shoreditch County Court, adjourned the case for the child to be instructed in the oath. The sole criterion is the understanding of the nature of an oath. It is apparently for the judge, and not the Counsel tendering the witness, to examine such witnesses to his competency.
From what we have cited above the following rules can be formulated: A person who is over the age of 9 is always competent to depone as a witness on oath or solemn affirmation. Secondly, if he is under the age of 9 and he can understand the nature and implication of an oath, he may depone on oath or solemn affirmation whether he depones as an ordinary witness or a child victim. Thirdly, if he is under 9 and he cannot understand an oath, then, if he is the victim in the case, he can depone provided (a) he shows that he has sufficient intelligence to make a correct statement on the subject of the trial and (b) before giving evidence he makes a promise to speak the truth in terms of the First Schedule of the Criminal Procedure Act. This last proposition meets the requirements referred to "obiter" in Bhangeeruthee v. The Queen [1962 MR 143]at p. 145.
The sole criterion, in the case of a child deponing on oath or on a promise to speak the truth in case he does not understand the nature of an oath, is the understanding of the nature of an oath in the former case and the possessing of enough intelligence to make a correct statement an the subject matter of the trial in the latter case. It is for the trial Magistrate or Judge to examine the witness as to his competency in either case and the record of the proceedings must show that he has carried out that investigation (vide Jugarsingh v. R. [1952 MR 13]). The test is one which has to be made by the Court in either case and such test cannot be substituted by a statement from the child that she knows the meaning of an oath or knows that she must tell the truth.
In this case, when the child started to depone on oath before Magistrate Oozeerally there was a serious flaw in the proceedings in that the Magistrate did not carry out the test to ascertain whether she was competent to depone on oath. Her testimony given before that Magistrate was thus vitiated and deprived of evidential value.

Jhowry v R  1990 MR 317
The appellant was charged before the intermediate Court with the possession of a firearm with intent to endanger the life of a girl Devika Rajpot, in breach of Sec. 19 of the Firearms Act.
Regarding the testimony of a child victim as witness which is raised in ground 3, we feel that it will be appropriate first to quote sections 106, 109 and 110 of the Criminal Procedure Act relating to swearing of witness, child victim as a witness and child witness not to be sworn respectively;
106.Swearing of witness
Any person who is produced or appears as a witness, against or for an accused on a criminal charge shall before he is admitted to depone or give any manner of evidence-
(a)      be sworn by the court according to the form of the religion he professes; or
(b)      make such solemn affirmation as is receivable in place of an oath,
to speak the truth, the whole truth and nothing but the truth.
109.        Child victim as witness
In every trial of an offence charged as having been committed or attempted to be committed, upon a child of tender years, the child, if under the age of 9, shall be admissible as a witness, where the Judge or Magistrate by or before whom the case is tried, is satisfied that he has sufficient intelligence to make a correct statement on the subject of the trial, although he may not understand the nature of an oath or of a solemn affirmation.
110.        Child witness not to be sworn
A child who is heard as a witness under section 109, shall-
(a)    not be examined on oath or solemn affirmation;
(b)    before giving evidence, make, in presence of the judge or Magistrate, a promise to speak the truth in terms of the First Schedule.
In view of the above three sections, it is easily seen that, except in the case of a victim who is under 9 years of age and does not understand the nature of an oath or affirmation, every witness in a criminal case must give evidence on oath or affirmation.In the present case, it was not open to the Magistrates to allow, as they did, the child victim, Devika Rajpot, aged 10, to depone without oath or affirmation on the ground that she understood the meaning of telling the truth.  In doing what they did, can it be said that this is a ground to quash the conviction? The testimony of the victim added hardly anything to the other evidence led by the Prosecution.  All in all it only confirmed the testimony of Dharamdeo Jagesar that Rajman Jhowry was running at the material time.  We are of opinion that, even if the magistrates had, as they should have done, discarded the evidence of the child, they would have reached no other conclusion, on the evidence which they accepted otherwise, that the guilt of the appellant had been proved.

Ruttun R. v The State 1999 SCJ 368
The appellant is challenging his conviction on four grounds which essentially question the learned Magistrate’s reliance on the evidence of the child victim without ascertaining her ability to depone and the general appreciation of the evidence by the learned Magistrate.
The only witness on whose evidence the prosecution could rely to establish how the accident occurred was the victim who was a child and who gave her age to the court, before deponing, as being 10 years.  The record shows that the court accepted her evidence on solemn affirmation without carrying out any test to ascertain whether she was competent to give evidence on oath or otherwise contrary to the principle laid down in Basenoo v the Queen [1983 MR 89], where the court said:
“In this case, when the child started to depone on oath before Magistrate 0ozeerally there was a serious flaw in the proceedings in that the Magistrate did not carry out the test to ascertain whether she was competent to depone on oath.  Her testimony given before that Magistrate was thus vitiated and deprived of evidential value”.
            It is a matter of regret that 16 years after Basenoo, we find a Magistrate still committing the same blunder.  In the circumstances, the learned Magistrate was not entitled to rely on the evidence of the young child to convict the appellant, and as there was no other evidence to establish that the appellant was reversing from his parked position without ensuring that it was safe to do so, the appellant’s conviction cannot stand.

MOSSAI A v THE STATE 2006 SCJ 5a
The appellant appeared before the Intermediate Court to answer a charge of willfully and criminally committing an indecent act (attentat à la pudeur) upon a female under the age of 12 years, in breach of section 249(3) of the Criminal Code.
The child victim was 6 years old at the time of the alleged incident. She was one day short of ten years when she came to testify in court, having been born on 11.07.93 and testifying as she was on 10.07.03. Considering her age and the date on which she was being called upon to give evidence, she should not have been treated as a child witness under section 109 but an ordinary witness under section 106 of our Criminal Procedure Act. 
Section 106 of the Criminal Procedure Act sets the general rule as regards the deposition of witnesses in a criminal trial and it provides that every person who testifies –
“on a criminal charge shall before he is admitted to depone or give any manner of evidence – 
(a)               be sworn by the court according to the form of the religion he professes; or
(b)               make such solemn affirmation as is receivable in place of an oath,
to speak the truth, the whole truth and nothing but the truth.”
That general rule is qualified by section 109 when it comes to the case of taking the deposition of a child witness who by our law is one who is under the age of 9. This section provides that his or her evidence is admissible -
                        “where the Judge or Magistrate by and before whom the case is tried, is satisfied that he(in this case she) has sufficient intelligence to make a correct statement on the subject of the trial, although he may not understand the nature of an oath of  a solemn affirmation.”
            It is when the witness is under the age of 9 that the law provides that the child shall not be examined on oath or solemn affirmation but that before giving evidence, he or she shall make in presence of the Judge or Magistrate, a promise to speak the truth in the following terms:
            “I promise to speak the truth in answer to questions which shall be put to me in this Court.”
            This procedure has been sufficiently explained in the case of Basenoo v. R [1983 MR 89] into which we need not go for being only of indirect interest in our case.
            What the trial Magistrate in the present case did was to treat the witness as one who was over the age of 9 as one who was under that statutory age. Admittedly, the record shows that when the complainant entered the witness box she was assumed to be of 9 years of age. However, it was plain that, soon after, in her very first sentence, she stated in so many words that she was going to be 10 the next day. This was in any case so obvious from the information and the date on which the trial was taking place. On such facts, she should have been solemnly affirmed as a witness like any other witness of age, as per the general rule set in section 106. However, the prosecution treated her as a witness under section 109 and adopted a procedure applicable to a child witness under 9. The lapse did not strike even the Magistrate who proceeded to submit her to the section 109 procedure requiring her to promise to speak the truth instead of submitting her to the section 106 procedure requiring her to solemn affirmation to speak the truth, the whole truth and nothing but the truth in the witness box.
            This witness’ evidence was not of a negligible nature in proof of the case which the appellant had to meet. But, through a lapse which, in our view, was purely procedural in nature and technical in character, what she came to complain about amounted to no evidence at all under our procedural law. We are of the view that it would not serve the ends of justice either to the appellant or the complainant that, through a lapse of the prosecution and the trial court, both should be denied a proper hearing as per our law, all the more so when it is an irregularity that is not in the competence of the appellate court to amend.

TENGNAH  vs THE QUEEN  1976 MR 11
The appellant was prosecuted under section 249(3) of the Penal Code Ordinance, Cap. 195, before the district Court of Curepipe for having committed an indecent act attentat à la pudeur upon the person of a female child aged seven years, and he pleaded not guilty to the charge.
At the trial, the victim, who did not understand the nature of an oath in view of her young age gave unsworn testimony and the prosecution produced the statement given to the Police by the appellant in which he flatly denied the charge.
Counsel for the Crown submitted that the conviction of the appellant by the Magistrate was bad and could not be supported, inasmuch as the conditions laid down by law under which the unsworn testimony of a child under nine years of age could be received had not been fulfilled. In support of his submission he quoted the decision of this Court in Jugarsing and anor. vs. The King, [1952 MR 13]which, we agree, applies to the case before us.
The provisions of the law regarding the admission of the unsworn evidence of children under nine years of age are laid down in sections 109 and 110 of the Criminal Procedure Ordinance, Cap. 169, and in the first schedule thereto - 109. In every trial of any offence charged as having been committed, or attempted to be committed, upon the person of an individual of tender years, such individual, if under nine years of age, shall be admissible as a witness, provided the Judge or Magistrate by or before whom the case is tried, shall be satisfied that the said individual has sufficient intelligence to make a correct statement on the subject of the trial, although he or she may not understand the nature of an oath, or of a solemn affirmation in lieu of an oath.
110. Any individual who shall be admitted as a witness under the last article, shall not be examined on oath, or solemn affirmation, but shall, before giving evidence, make, in presence of the Judge or Magistrate aforesaid, a promise, in terms of the Schedule, to speak the truth.
Schedule I - I do promise that I will speak the truth in answer to any questions
which shall be put to me in this Court.
The record of the proceedings does not show that the requirements of the above provisions of the law were complied with by the Magistrate.
We agree with the view expressed by this Court in Jugarsing and anor. vs. The King (supra) that before the unsworn testimony of the girl (the victim) could have been received, the Magistrate had to satisfy himself that the girl was possessed of sufficient intelligence to make a correct statement on the subject of the trial and, if so satisfied, had to ask her to make a promise in terms of the above schedule.
The evidence given by the girl in this case cannot be taken into consideration as the formalities conditioning its admission have not been complied with.

Spouses

Ah Yune v R  1990 MR 291
the prosecution called the appellant’s wife to depone as its witness, learned counsel then appearing for the appellant objected to the evidence of that witness on the ground that it was inadmissible inasmuch as she was the wife of the appellant.  He submitted that the matter was not governed by either of Sections 164 or 187 of the Courts Act which, as an exception to the general rule, allow the spouse of an accused partly to depone in a criminal case when the offence is charged to have been committed by the accused against the person or property or the conjugal rights of the spouse of the accused.  The Senior Crown Counsel who assisted the prosecution argued the point.  In its ruling the Court held that Sections 164 and 187 were applicable and made the appellant’s wife competent witness since the offences allegedly committed by the appellant affected her conjugal rights and her property.
Section 164 is clearly a reproduction of what was then article 4 of Ordinance No. 15 of 1881 while section 187 is a faithful copy of what used to be article 4 of Ordinance No. 30 of 1909.  But article 6 of the later Ordinance reads as follows:-
Repeal clause.  6. Articles 4 and 5 of Ordinance No. 15 of 1881 and any other Ordinance now in force are repealed in so far as the same are inconsistent with any of the provisions of this Ordinance.
(See Laws of Mauritius, Ed. of Herchenroder and Koenig, Vol.4 pp. 2264, 2274 and 2275).
In the circumstances, it would have been more appropriate for the editors of the Revised laws in 1945 and 1981 to omit section 164 of the Courts Act altogether.  At any rate, it is clear that section 187 must prevail and that, when a spouse is competent to give evidence, he or she is not a compellable witness.
On a proper construction of those sections of the Act we have no doubt that the rights of the spouse in the community of goods existing between her and her husband or wife came within the exceptional clauses contained in both sections.  The Magistrates therefore came to the right decision when they held that the appellant’s wife was a competent witness.

MOHIT  VS THE QUEEN  1974 MR 54
The appellant was prosecuted before the District Court of Rivière du Rempart for the offence of larceny (s. 301 of the Penal Code).
In fact the first material witness called by the prosecution was one Rajman Mohit who started by saying this: "Accused is my wife civilly married. We are not divorced". Having thus clearly established why that witness should not have been called, the prosecution proceeded to elicit from him evidence tending to corroborate that of the declarant, and learned magistrate allowed that evidence to be recorded.
But to call a husband to testify against his wife goes far beyond admitting incompetent evidence. It is a principle deeply enshrined in our law that no man should be compelled to incriminate himself. To the extent that husband and wife are one, to use spouses to incriminate one another is equally objectionable. The principle is given statutory force by s. 164 of the Courts Ordinance (Cap. 168). Any breach of that rule is a serious irregularity which makes the trial unfair. The case law in England shows that wherever such an irregularity has occurred the Courts have been quick to quash the conviction

LALLBAHADOOR vs THE QUEEN 1982 MR 120
The appellant was prosecuted before the District Court of Black River on a charge of blows upon his mother contrary to sections 230 and 231 of the Penal Code Ordinance.
We also note with concern that a person who described the appellant as her husband and who the Magistrate himself called “accused's wife” was, in the teeth of section 184(c) of the Courts Ordinance, allowed to depone as a witness for the prosecution against her husband.
In Mohit v. The Queen [1974 MR 54]this Court held that “to call a husband to give evidence against his wife in a criminal case is a serious irregularity which goes far beyond the mere misreception of evidence: such irregularity justifies the quashing of the conviction”. In that case the trial Magistrate had not in his judgment specifically referred to the inadmissible evidence; yet the appellate Court considered that the normal inference was that he had been influenced by the evidence of the husband.
In the present case the Magistrate clearly acted on the evidence of the wife of the appellant who, according to him, corroborated that of the declarant. In the circumstances we have no alternative but to quash the appellant's conviction.


Examination of Witnesses

Duty on prosecution to call witnesses

REGINA v. DAUPHINE 1959 MR 179
Counsel for the Crown having stated that he did not intend calling certain witnesses whose names appeared on the list of witnesses for the Crown, counsel for the defence moved that two of those witnesses be tendered for cross-examination.  Counsel for the Crown objected, stating that those witnesses, who were in attendance, were, in his view, not material ones and that they could be called by the prisoner, if he so wished, as his own witnesses.
HELD, following Adel Muhammed El Dabbah v. Attorney General for Palestine,(1944) A.C. 156, that the prosecution in a criminal case had a discretion as to what witnesses they should call; that, as a rule, unless prosecuting counsel had a good reason to the contrary, witnesses whose names appear on the list for the Crown and who have not been called should be tendered for cross-examination; but that this remained a matter for the discretion of the prosecuting counsel.

Barbeau v. R 1988 MR 247/1988 SCJ 384
The principles governing the calling of witnesses by the prosecution may be summarised as follows  -
(i) The prosecution, as a general rule, should have present in Court all the witnesses whose names appear on the list of witnesses but they have a discretion whether to call all of them or not (Archbold 42nd Ed. para. 4-182, page 335).
(ii) Where the prosecution choose not to call a witness, two courses are open to them: they can either tender the witness for cross-examination or just leave it to the defence to call him. (R v. Dauphine 1959 MR 179; R v. Teerumalai 1972 MR 131). Where they opt for the second course of action, it is their duty to make available to the defence any statement made by the witness (R v. Nellayah [1985 SCJ 106]; R v. Teerumalai (supra)).
(iii) The discretion of the prosecution not to call a witness is theirs only and should be exercised fairly. It will not be interfered with by the court unless there are strong reasons for so doing (R v. Oliva (1965) 49 C. App. 298; Adel Muhammed El Dabbah v. Attorney-General for Palestine (1944) AC 156).
(iv) If the prosecution feel that a witness will confuse, deceive or mislead the Court they are not bound to call such a witness (R v. Teerumalai (supra); R v. Nugent (1977) 3 A11 ER 662.