Andrea s/o Kimbulu v. R., (PC) Crim. App. 277-M-68, 3/6/68, Seaton J.

Andrea s/o Kimbulu v. R., (PC) Crim. App. 277-M-68, 3/6/68, Seaton J.

Accused was charged in Primary Court with housebreaking, theft, and assault. At the close of the prosecution case, the magistrate substituted a charge of robbery [P.C. s. 286], and accused was duly convicted of that offence. The record indicates that after the original charges were read and the accused was addressed in terms of section 41(2)(b) of the Magistrates Courts Act, he stated that he did not wish to be tried by the court. The record also indicates that after the charge was altered and read to the accused, he denied guilt and was altered and read to the accused, he denied guilt and was put upon his defence.

            Held: (1) The requirement of transfer under the Magistrates Courts Act, section 41(2)(b), is not discretionary. If the Accused is charged with an offence punishable with imprisonment for more than 12 months or by corporal punishment, and elects to be tried in the District Court, the Primary Court Magistrate “shall transfer” the case. (2) “The alteration or substitution of the charge at the end of the case for the prosecution should have been followed by the appellant being given the option recalling and previous witnesses and cross-examining them – the procedure outlined in s. 21 of the Third Schedule to the Magistrates Courts Act.” (3) The irregularities of procedure might not have been fatal to the convictions of accused had the evidence clearly indicated that he was guilty of the offence charged. As it did not, the conviction could not stand.