Remenisele s/o Elisawo v. R., Crim. App. 19-A-67; 10/3/67; Bannerman, J.
Accused was convicted of forgery and theft. The magistrate who commenced the case heard the evidence of the prosecution and, after a recess of three months, heard some of the defence witnesses. After another recess a second magistrate replaced the first who had been transferred to another district. Exercising his discretion under Criminal Procedure Code Section 196, the second magistrate elected not to re-commence the trial but to hear only the remaining portion of the defence.
Held: (1) The discretion given to a magistrate by Criminal Procedure Code section 196 should be exercised with great care, for a primary purpose of the hearing is to permit the court to observe the demeanor and evaluate the creditability of all the witnesses. In the present case the charges were grave and the accused vigorously contested the allegations of the prosecution’s witnesses. (2) Criminal Procedure Code section 196(a) permits the accused to demand that witnesses heard by the first magistrate be resummoned and reheard and provides that the accused “shall be informed of such right by the second magistrate …..” there is no record that the accused was so informed. A new trial was ordered.
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