Cletusi s/o Seffu v. R., Crim. App. 433-D-69, 13/8/69, Georges C. J.

Cletusi s/o Seffu v. R., Crim. App. 433-D-69, 13/8/69, Georges C. J.

This is an appeal from a ruling by a magistrate rejecting an application by the appellant that the hearing of the charge against him be transferred to another magistrate. In the proceedings the appellant is recorded as basing his application on an alleged statement by a police sergeant that he (the sergeant had so arranged matters that he appellant would be jailed whether there was sufficient evidence to justify this or not.

Held: (1) “I am satisfied that [these allegations] are not a sufficient reason for transferring the case. They do not involve the magistrate, even if true. A police sergeant may quite improperly frighten an accused person by stating that he has arranged matters so that the accused will in any event be convicted, but in the absence of any special connection between the magistrate and that sergeant, there is no basis for saying

That justice will not be done or will not manifestly appear to be done. If the threat is believed, then the mere change of magistrate will not help for there is the possibility that arrangements could have been made with the new magistrate as well.” (2) “Apart from this, I am not convinced that an appeal can competently be lodged from an order of this nature. Section 312 of the Criminal Procedure code, Cap. 20. Reads, in part, as follows: “Save as hereinafter provided any person aggrieved by any finding, sentence or order made or passed by a subordinate court … may appeal to the High Court …. On the face of it, the section appears wide enough to include any order or finding made by a subordinate court. It could, for example, include a ruling after a trial within a trial that confession is admissible, or a ruling after a no case submission that there was a case to answer. I do not think it could have been contemplated that there would be a pause at such junctures of a trial to allow the accused person to challenge such orders. If that were the case, then there would be a duty on the part of the magistrate to inform the accused of his right of appeal and the necessary delay to enable him to make his mind up about it. The proper view to me would be that finding or order is appeal able in a criminal proceeding only when it is part of an order convicting or acquitting the accused person, thus finally disposing of the matter, or when the code contains a specific provision enabling an appeal to be filed from such an order. (Referring to Marbruk s/o Orangai v. R., (1948) 1 T.L.R. 311) ….. I cannot think that section 312 contemplates appeals from interlocutory orders in criminal appeals. Accordingly. I would hold also that the appellant had no right of appeal. His appeal is accordingly dismissed.” (3) In view of irregularities at the trial, however, a new trial is ordered before another magistrate.