“One of the grounds of appeal is that Stephen Nwosu had previously been convicted twice of frauds of this kind, and that the judge was wrong not to have allowed him to be cross-examined as to his previous convictions and character. There is substance in the submission as to the Judge’s ruling and at least one previous conviction is admitted by the prosecution. Section 159 of the Evidence Ordinance makes an accused person a competent witness for the defence on his own application, subject to claim provisos designed for his protection. Proviso (d) lays down that a person Called as witness in pursuance of the section shall not be asked, and if asked, shall not be required to answer, any question tending to show that he had committed or been convicted of or been charged with any offence other than that wherewith he is then charged except in certain specified circumstances of which (iii) is that “he has given evidence against any other person charged with the same offence.” The whole of Section 159 of the Evidence Ordinance is based on Section 1 of the Criminal Evidence Act, 1898, and Proviso (d) to Section 159 of the Ordinance reproduces the exact wording of Proviso (f) to Section 1 of the Act. The Court of Criminal Appeal in England held in R. v.Ellis and Ellis [1961] 1 W.L.R.1064, that where an accused person giving evidence had made himself liable to cross-examination as to his character or convictions under exception by giving evidence against another person charged with the same offence the judge had no overriding discretion to allow or disallow such cross-examination and it might be put as a matter of right. This Court is of the view that the same interpretation should be given to the corresponding provision of the Evidence Ordinance, and it follows that the trial judge was wrong to disallow the questions which counsel for the appellant wished to put to Stephen Nwosu. It is submitted on behalf of the Crown that even if this is so there was ample evidence apart from that of Stephen Nwosu to justify the conviction of the appellant, and that since the judge was aware that Stephen Nwosu had been convicted in another case, as appears from a note made when the hearing was put off from the 14th September, 1962, to the 10th October, and had heard him admitting that he had inflated vouchers for the appellant’s predecessor, the cross-examination which he disallowed could not have seriously affected the judge’s view as to the witness’s credit. The judge should certainly have had no illusions about the general honesty of the witness, and if the cross-examination had been intended merely to destroy the witness’s credit by injuring his character there would be some force in this submission, but although this Court has not even now been supplied with exact particulars of the questions which it was proposed to put to the witness it appears that his previous convictions related to frauds of precisely the same kind as those in this case, which being so the cross-examination might, for all this Court can say to the contrary, have shown that the picture which he presented of himself as the mere cat spaw, lending himself to the frauds of his superiors and getting nothing in-return for it, was a completely false one, and the appellant’s story that he acted in good faith might then have appeared less improbable. It is the view of this Court that, in the well-known words used in R. v. Cohen and Bateman, 2 Cr. App. R. 197 “there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted.”
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