Sephen s/o Munga v. R., Crim. App. 186-D-68, 17/4/68, Hamlyn J.

Sephen s/o Munga v. R., Crim. App. 186-D-68, 17/4/68, Hamlyn J.

Accused was initially charged with attempted murder, to which he pleaded not guilty. After the prosecution had presented its evidence, the magistrate, finding that the evidence did not show an intent to murder, altered the charge to one of causing grievous harm. The appellant was not required to plead to this charge, nor was he given the opportunity of recalling the prosecution witnesses for cress-examination. After making his defence accused was convicted of causing grievous bodily harm and sentenced to 18 months imprisonment.

            Held: The trial was a nullity. “Until a charge is put and an accused ’s plea recorded there can be no basis for a trial to proceed and the accused person is not properly before the court for trial and determination of his case.” The proper course for the court to have taken, upon altering the charge was to so inform him of its action and have him plead to the new charge. Then it should inform him that he had the right to recall any or all of the prosecution witnesses for cross-examination. [Citing Crim. Proc. Code s. 227]. Conviction and sentence set aside; case remanded to trial court for re-trial.