R. v. John Mathias Crim. App. 299-A-69; 30/1/70; Platt J.

R. v. John Mathias Crim. App. 299-A-69; 30/1/70; Platt J.

The respondent was charged with attempted murder. The Resident Magistrate heard the preliminary inquiry but came to the conclusion that there was not sufficient evidence to commit the accused to the High Court. He accordingly discharged the accused. The Republic appealed against the ruling. Relying upon the provisions of section 225 of the Criminal Procedure Code, as it then existed, the Republic brought a further charge against the accused based on the same facts and he was brought before the court on the 28^th April 1969. On that date the charge was read over and explained to the accused, but he was not called upon to plead. The accused was then released on bail and there were several adjournments. Finally on the 16^th July 1969 argument was heard as to the effect of the Criminal Procedure (Amendment) Act upon the proceedings before the court. This Act (No. 10 of 1969) repealed the procedure for hearing preliminary inquiries as it existed under the old Code, and replaced the repealed provisions with new provisions outlining an entirely new procedure. In the course of the repeal, section 225 of the old Code had been repealed, the validity of the proceedings before the court which had been commenced on the 28^th April 1969 no longer had any valid basis. Therefore the preliminary inquiry must be considered ultra vires and should be dismissed for want of jurisdiction. With this view, the learned Magistrate expressed himself to be in complete agreement and accordingly dismissed for want of jurisdiction. With this view, the learned Magistrate expressed himself to be in complete agreement and accordingly dismissed the inquiry “and released the accused.” The Republic now appeals against that ruling on the ground that the learned Magistrate had erred in law in finding that the prosecution had no right to re-open the inquiry and challenged the view that the prosecution would have to rely on provisions which had been repealed. As a result of these errors, the learned Magistrate had wrongly failed to apply the transitional provisions set out in section 35 of the Amendment Act and prays for an order that the ruling be set aside. It is further prayed that the subordinate court to be directed to hold the preliminary inquiry under the new provisions of the Amendment Act.

            Held: (1) “There is no doubt in my mind that the appeal must be allowed. it is not disputed that on the 28^th April 1969, the Republic had a perfect right to commence the proceedings afresh. Section 225 of the old Code specifically provided that a discharge under that section shall not be a bar to any subsequent charge even on the same facts. Therefore no objection could be taken to the fresh proceedings brought at that time. It follows that the proceedings brought in April 1969 were validly entertained by the court and they amounted to proceedings which were caught at an intermediary stage by the Act under the transitional provisions as set out in section 35 of the new Act, any preliminary inquiry commenced immediately before the coming into operation of this Act, is to be continued and concluded in accordance with the provisions of the Code as in force immediately before the commencement of the Act. A procedure for a division of proceedings was then provided by virtue of section 35(2) of the Act describing what was to be

considered as the commencement of proceedings. It was laid down that a preliminary inquiry should be deemed to have been commenced where evidence had been taken; the provisions of the old Code were still to operate. By inference where evidence had not been taken but the preliminary inquiry had been commenced, in the sense hat the accused had been informed of the charge against him in court, then the preliminary inquiry was to continue under the new provisions of the Amendment Act. Therefore the preliminary inquiry brought on the 28^th April 1969 having been lawfully commenced but not having reached the stage of evidence having been taken was to be completed under the provisions for the Amendment Act as indeed the prosecution suggested on the 2^nd July 1969.” (2) “It was then argued that the validity of the proceedings suddenly disappeared with the repeal of section 225. If that argument were to be carried to its logical conclusion, then it would mean that Mr. Mtenga had never had the right to discharge the accused at all. The defence could not have it both ways; it could not be argued that the prosecution’s right to bring subsequent proceedings no longer existed because of the repeal of the section without at the same time denying the learned Magistrate’s right to discharge the accused because of the same repeal. The only reasonable conclusion could be that the fresh proceedings commenced on the 28^th April 1969 were brought under a right which existed at that time and once that right had been exercised, the proceedings were to be considered as any other fresh proceedings, and that the repeal of section 225 as from the 1^st July 1969 did not affect the validity of the proceedings commenced in April. In my view, authority for this construction is clearly to be found in section 10(2) of the Interpretation and General Evidence Clauses Ord. Cap. 1. The prosecution’s right and the respondent’s obligation under the proceedings brought, is preserved under section 10(2) (c) and further, the continuation of such proceedings is preserved under section 10(2) (e). In my view, therefore the learned Magistrate was in error as the Republic protested and the ruling is set aside.” (3) “It is ordered that the record be remanded to the District Court which is directed to continue the preliminary inquiry according to the provisions of the Amendment Act.