Hassani v. R. Crim. App. 813-M-1969; 15/1/70; Seaton J.

Hassani v. R. Crim. App. 813-M-1969; 15/1/70; Seaton J.

The accused was convicted on two counts:- 1st Count: House breaking c/s 294 of the Penal Code; 2nd Count; Stealing c/s 265 of the Penal Code. In his appeal he challenged the sufficiency of the evidence. From a perusal of the record, it appeared that the appellant did not cross-examine the witnesses and did not make any statement in his defence because he informed the court that he did not like his case to be heard before the Primary Court, but wished it to be heard before the District court. The District Magistrate had given directions that the case should be heard by the Primary Court notwithstanding the appellant’s objections. Therefore, the Primary Court, after considering the prosecution evidence, convicted the appellant charged. It was argued that in ANDREA S/O KIMBULU v. R. reported in 1968 High Court Digest at No. 312 the same court held “that the requirements to transfer under the Magistrates Courts Act, Section 41(2) is not discretionary and if an accused person elects to be tried in the District Court, the primary court Magistrate shall transfer the case. However, the court went on the hold that the irregularities of procedure might not have been fatal to the conviction of the accused had the evidence clearly indicated that he was guilty of the offence charged.”  On the basis of the case quoted, it was submitted that in he present case, as the evidence was sufficient, the conviction could be upheld.

            Held: (1) “The judgment in the case cited happens to be one of my own and I would, with respect, observe that my holding that the irregularities of procedure might not be fatal to the conviction of accused had the evidence clearly indicated that he was guilty of the offence charged was obiter in as much as in the case cited, the evidence was insufficient and the conviction was quashed. I have since had the opportunity of further considering this matter in Salum Issa @Maulidi Kassata vs. Republic (P.C.) Criminal Appeal No. 698 of 1969 (unreported) in which the point was raised and fully argued by the Senior State Attorney on behalf of the Republic that the requirements of section 31(2) (b) of the Magistrate’s Courts Act being mandatory, failure to inform the appellant of his right to elect whether or not he wished to be tried by the Primary Court is an irregularity; and when the accused person indicates he does not wish to be tried by the Primary Court  is an irregularity; and when the accuse person indicates he does not wish to be tried by the Primary Court, this aggravates the irregularity. As it was impossible to be satisfied in such circumstances that there was no failure of justice, I held that the proceedings were a nullity and quashed Salum Issa’s conviction.” (2) “For similar reasons, I must hold in the present case that the proceedings ere irregular because it appears that the magistrate did not inform the accused of his right to elect to be tried by the District Court. Certainly, the accused unless so informed would be unable to know whether the offence carried the sentence or more that 12 months imprisonment, such offences being those which under section 41(2) (b) of the Act. The Primary Court has no jurisdiction to try against the accused’s wish. The conviction is accordingly quashed, and the sentence set aside. The appellant is to be tried de novo before a court of competent jurisdiction and before another magistrate than the one who tried him in this case”. (3) “Retrial ordered”.