Salum Issa v. R. (PC) Crim. App. 698-M-69; 8/1/70; Seaton, J.

The appellant was convicted in the Primary Court of housebreaking and theft c/ss. 294(1) and 265 of the Penal Code. He was sentenced to two ears imprisonment and 24 strokes corporal punishment on the first count and four months imprisonment on the second count, the sentences of imprisonment to run concurrently. On appeal to the District Court, the conviction and sentence on the first count were upheld but, on the second count the conviction was quashed and the sentence set aside. The appellant now appeals to this Court against conviction and sentence on the first count of house-breaking.

            Held: (1) “At the hearing of this appeal, learned Senior State Attorney on behalf of the Republic did not support the conviction as it appears from the record that the provisions of s. 41(2) (b) of the Magistrates’ Courts Act, Cap. 537 were not complied with. The section provides as follows: “41. (2) A primary court - ….. if the accused person so elects, shall transfer to the district court of the district for which it is established any proceeding of a criminal nature in which the accused is charged with an offence punishable in the primary court by imprisonment for more than twelve months or, in the case of an adult, by corporal punishment. An election under this section shall be exercised before the accused pleads to the chare”. I will be observed that the above-quoted section provides that in cases falling under that section, the primary court magistrate shall transfer such case to a district court if the accused person so elects. The section further provides that this election by the accused person shall be exercised before his plea is taken. According to paragraph 40 (b) of the Primary Court Manual, the primary court magistrate must inform the accused of his right to elect before his plea is taken. The appellant in this case was not informed of his right as to election. This, it was submitted by learned State Attorney, was an irregularity because it was in direct violation of the procedure set out in the Magistrate’s Courts Act. It was further submitted that such irregularity is fatal because the requirements as laid down in section 41 of the Magistrates’ Courts Act appear to be mandatory because of the use of the word ‘shall’ in section 41 (2) (b). Hence the Republic did not support the conviction. The effect of this error in the present case appears to have been aggravated when during the trial, even though he was not informed of his right, the appellant applied for a transfer of the case to another court, and the magistrate refuse ….. As a result of being refused that application, the appellant declined to cross-examine prosecution witnesses and he also declined to defend himself after the close of the prosecution case.” (2) “I would, with respect, agree with  learned Senior State Attorney that in these circumstances it is impossible to be satisfied that failure to comply with section 41(2) (b) of the Magistrates’ Courts Act did not occasion a failure of justice. The irregularity or error of the trial court is not therefore curable by invoking the provisions of s. 32 of the Magistrates’ Courts Act. Accordingly I hold that the proceedings were a nullity, set aside the conviction and sentence and order that a retrial beheld at the earliest opportunity before another magistrate”.