Mathias s/o Kajara v. R., Crim. App. 112-M-67; 28/6/67; Cross, J.

Mathias s/o Kajara v. R., Crim. App. 112-M-67; 28/6/67; Cross, J.

Appellant was convicted of stealing, but “(i)t seems obvious to this court that the learned magistrate ….. found himself utterly at sea and not only did he not address his mind to the issues in the case but he appeared unable to determine what they were.” Conviction was quashed, leaving only the question of whether there should be a re-trial. Accused argued that Slim Muksin v. Salim bin Mohamed, (1950) 7 B.A.C.A. 128 precluded a re-trial. In that case there was misdirection by the magistrate, without fault on the part of either party. Because the accused was not at fault the Court of Appeal refused to permit a re-trial, notwithstanding the fact that the prosecution was equally blameless.

            Held: In the instant case the ends of justice would best be served by re-trial, not because the magistrate had misdirected himself but because the magistrate had neither considered nor determined any of the issues in this case. Citing Kagoyi s/o Bundala v. R. (1959) E.A. 900. There was not sufficient material to enable the High Court to decide the appeal on the merits of the case. Re-trial ordered, before a different magistrate.