Dominico Simon v .R., (PC) Crim. App 141-M-71, 4/2/72, El-Kindy, J.

 

Dominico Simon v .R., (PC) Crim. App 141-M-71, 4/2/72, El-Kindy, J.

The appellant was convicted of house-breaking and stealing c/ss 294 (1) and 265, Penal Code. During the course of his trial the two original assessors were replaced by others who did not hear all the evidence presented.

            Held: (1)”Section 8 of the Magistrates Courts’ Act. Cap. 537, as amended by S. 2 of the Magistrates’ Courts (Amendment) Act, 1969, being Act No. 18 of 1969, provides that trial in primary courts shall be with at least two assessors. In this case the trial commenced with Gabrial and Blasio as assessors. These assessors heard the whole evidence, but on an adjourned date John and Paulo sat as assessors and it was recorded that the appellant did not wish to have the witnesses, who gave evidence, recalled.

This may have been so. But can it be said that the court was properly constituted by a total change of assessors? The Magistrate Courts Act, Cap. 537 has not provided for such an eventuality. It has, however provided, that the trial can proceed to conclusion with one assessor if the other assessor was unable to attend and a conviction on such basis is not to be set aside because of this. It is understandable why it should be so in such a case …. There is not total break of continuity. But in the case, there was a total break, and the fresh assessors had not had the valuable advantage hearing the witnesses although they may have heard the summing up of the case. Sometimes, and I cannot say that this case was not one of them, the demeanour of witnesses and what impression they make in a court can be the determinant factor ……in a case. Hence …..the necessity of the Court listening to all the witnesses whenever that is practicable. In my view, therefore, the fresh assessors could not be substituted for the original assessors even if the charged person raised no objection. No reason appears on record why the original assessors did not appear. In the absence of the original assessors, the trial court was not properly constituted as required by section 8(10 of the Magistrates Court’s Act, Cap. 537, and therefore the trial of the appellant was a nullity (see Kiwelesi v. R. (1969) E.A. 227).” (2) “In normal circumstances I would have ordered a retrial, but for a number of reasons I do not propose to do so. In the first place, even if the court was properly constituted, the evidence on record would not have sustained his conviction. Secondly, the appellant has almost completed serving his term of imprisonment and it is highly unjustified to put him again through the null of trial. And that the value of stolen goods was so negligible.” (3) Appeal allowed.