Swarray v Commr. of Police, 1972-73 ALR S.L. 64

5 10 15 20 25 30 35 40 SECTION 10 THE AFRICAN LAW REPORTS SWARRAY and CONTEH v. COMMISSIONER OF POLICE High Court (Tejan, J .) : March 17th, 1972 (Mag. App. No. 6/72) [ 1] Courts-magistrates' courts-procedure-summary trial-failure of magis­ trate to explain accused's rights under Criminal Procedure Act, 1965, s.122, deprives him of jurisdiction and makes trial nullity: Where the consent of the accused is required before an offence may be tried sum­ marily, the magistrate must comply strictly with the terms of s.122 of the Criminal Procedure Act, 1965, explaining to the accused the differ­ ence between summary and jury trial, and after obtaining his consent to be tried summarily, asking him to plead to the information and informing him of his right to recall the witnesses for the prosecution and cross-examine them; strict compliance is necessary before a magistrate can assume jurisdiction and the failure to comply renders the trial a nullity (page 68, lines 30-33; page 68, line 39- page 69, line 1; page 72, lines 32-34; page 72, line 38- page 73, line 3). [2] Criminal Procedure-summary trial-trial with accused's consent-failure of magistrate to explain accused's rights under Criminal Procedure Act, 1965, s.122, deprives him of jurisdiction and makes trial nullity: See [1] above. (3] Statutes-operation-mandatory and directory enactments-criminal Procedure Act, 1965, s.122 requires magistrate to explain accused's rights before proceeding to summary trial-failure to do so deprives him of jurisdiction and makes trial nullity: See [ 1] above. The appellants were charged in the Magistrate's Court, Free­ town, with larceny. When asking the appellants whether they consented to summary trial the magistrate did not explain to them the difference between the case being dealt with summarily and in the usual course, or inform them of their right to recall and cross-examine witnesses for the prosecution, as provided by s.122 of the Criminal Procedure Act, 1965. The appellants consented to summary trial and the magistrate then read and explained the charges to them and asked them to plead. They pleaded not guilty and the magistrate proceeded to determine the case against them, finding them guilty of receiving stolen property. On appeal, the appellants contended that their consent to summary trial gave the magistrate jurisdiction to try the case summarily but that his failure to comply with the requirements of s.l22 of the Criminal Procedure Act prejudiced the appellants and was fatal to their conviction. The respondent conceded that the 64 SWARRA Y v. COMMR. OF POLICE, 1972-73 ALR S.L. 64 H.C. magistrate had not followed the prescribed procedure but main­ tained that his failure to do so totally deprived him of jurisdiction to proceed and consequently rendered the trial a nullity. The convictions were quashed. Cases referred to: (1) Commr. of Police v. Sesay, Court of Appeal for Sierra Leone, App. No. 40/64, unreported. (2) R. v. Coe, [1968] 1 W.L.R. 1950; [1969] 1 All E.R. 65. (3) R. v. Kent JJ., ex p. Machin, [1952] 2 Q.B. 355; [1952] 1 All E.R. 1123. (4) R. v. Kettering JJ., ex p. Patmore, [1968] 1 W.L.R. 1436; [1968] 3 All E.R. 167. Legislation construed: Courts Act, 1965 (No. 31 of 1965), s.6(1): The relevant terms of this sub-section are set out at page 67, lines 15-31. Criminal Procedure Act, 1965 (No. 32 of 1965), s.122: The relevant terms of this section are set out at page 68, lines 14-26. Mrs. Marcus-Jones for the appellants; C.S. Davies, Sol.-Gen., for the respondent. TEJAN, J.: 5 10 15 20 On November 2nd, 1971, both appellants and two others ap- 25 peared before the learned magistrate, Mr. E.C. Thompson-Davies, on a preliminary investigation of the offences of larceny and receiving. At the close of the evidence of the sixth witness for the prosecution, and at p. 19 of the records, the following appears: "Court: Each accused consents to summary trial-charges 30 read and explained. First and second accused pleaded not guilty on count 1, and third accused pleads guilty on count 2, and fourth accused pleads not guilty on count 2. Prosecution states in view of the plea of third accused he is offering no further evidence against fourth accused. 35 The fourth accused is therefore discharged. Prosecution states that nothing is known against third accused. Mr. Minah in mitigation states that accused's story has been most consistent, that he helped the police in their 40 investigations, that he readily gave the police his vehicle to go 65 THE AFRICAN LAW REPORTS to Blama and collect the said tyres. States he is a first of· fender: asks for mercy. Accused is sentenced to a fine of Le300 or 12 months' imprisonment.'' 5 On January 11th, 1972, both appellants appeared before the said learned magistrate, and on January 28th, 1972, Mrs. Marcus­ Jones, counsel for both appellants, submitted that the appellants had no case to answer, and at the end of her submission, she stated that she relied on her submission and that she was calling no 10 evidence. On February 8th, 1972, the said learned magistrate gave his ruling and found both appellants guilty of the offence of receiv­ ing stolen property and sentenced each appellant to a fine of Le300 or 12 months' imprisonment. Counsel for the appellants gave notice of appeal and she later filed seven amended grounds of 15 appeal. I shall now proceed to deal with the third ground of appeal which goes to jurisdiction. The third ground of appeal is worded as follows: "That the learned trial magistrate did not fully comply with 20 the procedure laid down in s.l22 of the Criminal Procedure Act, 1965, in that he omitted 'to forthwith inform the appel­ lant of his right to recall all or any of the witnesses for the prosecution who had been heard, for purposes of further cross-examination'." 25 Under the above ground of appeal, Mrs. Marcus-Jones argued that when the appellants consented to summary trial, their consent thereby gave jurisdiction to the magistrate to try the case summar­ ily, and that by the magistrate's failure to comply with the require­ ments of s.l22 of the Criminal Procedure Act, 1965, that is, by his 30 failure to inform them of their right to recall all or any of the witnesses for the prosecution who have been heard, for further cross-examination, the chances of the appellants' acquittal were prejudiced, and that the magistrate's failure was fatal to the appellants' conviction. 35 In reply to Mrs. Marcus-Jones' argument, the Solicitor-General conceded the objection made under Ground 3, but he differed from the appellants' counsel on the question of jurisdiction. In his argument the Solicitor-General said that it was not a question of whether the magistrate had jurisdiction and then exceeded the 40 jurisdiction. According to the Solicitor-General, all the stipulations under s.122 of the Criminal Procedure Act, 1965 should have been 66 SWARRAY v. COMMR. OF POLICE,l972-73 ALR S.L. 64 H.C. complied with before the right of the magistrate to assume juris­ diction could have been exercised, and after the failure of the magistrate to observe the stipulations, he could not then proceed to try the case since he had no jurisdiction to do so. In her reply, Mrs. Marcus-Jones referred to the case of Com- 5 missioner of Police v. Sesay, (1). She then went on to read a passage of the judgment of Ames, J.A. as follows: "When the magistrate concluded that the offence was suitable for summary trial, he did not at that moment have jurisdiction to try the charge summarily. The consent of the respondent was necessary before he 10 could have jurisdiction." I shall now refer to s.6 (1) of the Courts Act, 1965 which confers jurisdiction on magistrates to try certain criminal cases. This section provides that: "In addition to any criminal jurisdiction which may be con- 15 ferred upon the Magistrates' Courts by any other enactment, every such Court shall, notwithstanding any enactment to the contrary, have jurisdiction to try summarily- ( a) Any offence punishable by a sentence of imprisonment for a term not exceeding one year or a fine not exceed- 20 ing three hundred leones or both such imprisonment and such fine; (b) With the consent of the accused but not otherwise any offence, if during the course of a preliminary investi- gation, the Court shall conclude that, having regard to the 25 circumstances of the case, the offence is one which, if proved, can be suitably punished by a sentence of im­ prisonment not exceeding three years or a fine not ex- ceeding six hundred leones: Provided that the Court shall not try summarily under this 30 section any of the offences specified in the Second Schedule." It appears from the record that the appellants were first charged with the offence of store-breaking and larceny, but this charge was subsequently amended and changed to larceny under s.2 of the Larceny Act, 1916. Section 2 of the Larceny Act, 1916 provides 35 that "stealing for which no special punishment is provided under this or any other Act for the time being in force shall be simple larceny and a felony punishable with imprisonment for any term not exceeding five years." It follows therefore that the offence with which the appellants were charged, could not have been dealt 40 with by the magistrate under s.6(1)(a) of the Courts Act, 1965. 67 THE AFRICAN LAW REPORTS Since s.2 of the Larceny Act, 1916 is not one of the offences specified in the Second Schedule of the Courts Act, it seems that the magistrate could try the case summarily under s.6(l)(b) but he could only do so with the consent of the accused and not other· 5 wise, if during the course of a preliminary investigation, the court concluded that, having regard to the circumstances of the case, the offence was one which, if proved, could be suitably punished by a sentence of imprisonment not exceeding three years or a fine not exceeding Le600. 10 There is no doubt that the appellants and the third and fourth accused consented to summary trial and that the charge was read and explained to each accused person, but s.122 of the Criminal Procedure Act, 1965 states that- "the Court before asking the accused in pursuance of section 15 6 of the Courts Act, 1965, whether he consents to the case being heard and finally determined summarily, shall explain to him the difference between the case being dealt with sum­ marily and in the usual course. In the event of the accused giving his consent to the case being dealt with summarily, the 20 Court shall call upon him to plead to the information, and forthwith inform him of his right to recall all or any of the witnesses for the prosecution, who shall have been heard, and to subject them to any further cross~examination. Upon taking these steps the Court shall proceed to hear and finally 25 determine the matter in accordance with the provisions of Part II relating to summary trials.'' In the present case, the trial magistrate obtained the consent of the appellants and read and explained the charges to them. He then asked the accused persons to plead to the charges and finally 30 proceeded to determine the matter summarily. The magistrate, however, failed to observe that before he could assume jurisdiction to determine the case summarily, strict compliance with the statutory provisions was necessary. The magistrate failed to explain to the accused persons the difference between the case 35 being dealt with summarily and in the usual course. He also failed forthwith to inform the accused persons of their right to recall all or any of the witnesses for the prosecution, who had already given evidence, and to subject them to any further cross~xamination, and according to s.122 of the Criminal Procedure Act, 1965, the 40 magistrate can only assume jurisdiction to determine the matter summarily after all the steps specified in the section have been 68 SWARRAY v. COMMR. OF POLICE,l972-73 ALR S.L. 64 H.C. taken. It is my view that the failure of the learned magistrate to observe the stipulations contained in s.122 deprived him of jurisdiction to try the case summarily and that the trial was a nullity. In the case of R. v. Kent JJ., ex p. Machin (3), according to the 5 headnote in the Law Reports ([1952] 2 Q.B. at 355)- "the applicant was charged before justices with indictable offences; he was asked if he consented to be dealt with by the justices but it was not explained to him that he might, if convicted, be committed to quarter sessions for sentence 10 under section 29 of the Criminal Justice Act, 1948. The applicant consented to be dealt with by the justices who convicted him and committed him to quarter sessions for sentence .... Held, that the justices in failing to explain to the applicant that he might be committed to quarter sessions 15 for sentence had failed to comply with the statutory provisions which alone give them power to try indictable offences; and that therefore, although the applicant had consented, the justices had no jurisdiction to deal with him." In the same case, delivering his judgment, Lord Goddard, C.J. 20 said ( [ 1952] 2 Q.B. at 358): "It is well known that when a man is brought before a court charged with an indictable offence which can, with his con­ sent, be treated summarily, certain information has to be given to him by the clerk of the court. He has to be told of 25 his right to be tried by a jury; he has to be asked if he desires to be tried by a jury or whether he desires the case to be tried summarily; and when he is given that chance ... he invariably asks to be tried summarily and endeavours to persuade magistrates to deal with him summarily, because he knows 30 he cannot be given a sentence or more than six months. But still there are those provisions which say what is to be done before the magistrates try an indictable case. The provisions are peremptory because for many centuries in English history an indictable offence could only be tried by a jury and the 35 power of magistrates to try cases of theft and false pretences is purely the creation of statute which hardly existed at all, except in the case of children, before 1879." [These words do not appear in the report of the case at [ 1952] 1 All E.R. 167]. 40 In the case of R. v. Kettering JJ., ex p. Patmore (4), s.25(3) of 69 THE AFRICAN LAW REPORTS the English Magistrates' Courts Act, 1952 was dealt with. This section provides that - "a magistrates' court before which a person is charged with a summary offence for which he may claim to be tried by a 5 jury shall, before asking him whether he pleads guilty, inform him of his right and, if the court thinks it desirable for the information of the accused, tell him before what court he would be tried if tried by a jury and explain what is meant by being tried summarily; and shall then ask him whether he 10 wishes, instead of being tried summarily, to be tried by a jury." In the above case, the defendant, who was represented by a solicitor, was charged before the justices with an offence carrying a sentence of more than three months' imprisonment and giving 15 him a right to claim trial by jury. The clerk of the court stated that the defendant had the right of trial by a jury and thereupon the solicitor elected summary trial and pleaded not guilty. The court did not inform the defendant personally of the right and what was meant by being tried summarily and did not ask him 20 personally whether he wished, instead of being tried summarily, to be tried by a jury. He was convicted. On an application to quash the conviction for non~compliance with s.25 of the Magistrates' Courts Act, 1952, it was held, al~ lowing the application, that the provisionf: of s.25(3) of the 25 Magistrates' Courts Act, 1952, were mandatory and required the information to be given and the question to be put to the defend­ ant personally; but that, if he was personally given the information and asked whether he wished, instead of being tried summarily, to be tried by a jury, an election could be made in his presence and 30 on his behalf by his solicitor or counsel. Accordingly since the provisions of s.25(3) had not been complied with, the conviction would be quashed. In his judgment in this case Lord Parker, C.J. said ([1968] 1 W.L.R. at 1439; [1968] 3 All E.R. at 168): 35 "The statute by section 25(3) enjoins the court to explain the matter to the defendant and requires the court having explained the position to the defendant, to ask him person­ ally whether he wishes, instead of being tried summarily, to be tried by a jury. That the provision of subsection ( 3) and 40 the provisions under the earlier sections of the Act should be complied with has long, long been recognised, cf. Reg. v. 70 SWARRAY u. COMMR. OF POLICE,1972-73 ALR S.L. 64 H.C. Cockshott ... It makes it quite clear that the provisions are mandatory and must be complied with." The following headnote appears in the case of R. v. Coe (2) ([1968] 1 W.L.R. at 1950): "It is not in the best interest of society that serious cases of 5 indictable offences should be tried summarily, and the prose- cutor should only invite summary trial where the magistrates' courts' powers to administer punishment is [sic] adequate. In the case of indictable offences it is the duty of magis- trates to begin to inquire as examining justices and to deal 10 with a case summarily only if it can be brought fairly and squarely within section 19 (2) of the Magistrates' Courts Act, 1952, and there the powers of punishment are adequate." I think it will be interesting to quote the observations made by Lord Parker, C.J. in his judgment in the case of R. v. Coe. In his 15 judgment, the learned Lord Chief Justice said ([1968] 1 W.L.R. at 1953; [1969] 1 All E.R. at 67): "This court is quite unable to understand how it came about that the prosecution invited the magistrates' courts, as they did, to deal summarily with the indictable offences. The 20 picture of events known to them, which I have shortly re- lated, disclosed a really shocking state of affairs. Two young men of 22 making wholesale raids on property throughout Hertfordshire and Bedfordshire, using cars taken and driven away for the purpose, and driving whilst disqualified. No 25 doubt it is convenient in the interests of expedition, and possibly in order to obtain a plea of guilty, for the pros- ecution to invite the magistrates' court to deal with indictable offences summarily. But there is something more involved than convenience and expedition. Above all there is the 30 proper administration of criminal justice to be considered, questions such as the protection of society and the stamping out of this sort of criminal enterprise if it is possible. This court would like to say with all the emphasis at its command that the prosecution in a serious case such as this is not 35 acting in the best interests of society by inviting summary trial. This is by no means the first case in which the court has had to make these comments. They were made by Lord Goddard, C.J. on a number of occasions in the past; they have been made by this court comparatively recently .... It 40 is all the more important, now that the jurisdiction of the 71 THE AFRICAN LAW REPORTS magistrates' courts has been enlarged, for the prosecution to take care that they only invite summary trial in cases where the power of the magistrates' court to administer punishment is sufficient .... 5 The court would like to observe that while in their view the prosecution was at fault, and while no doubt the invitation to the justices was a temptation to them to deal with it sum­ marily, that is no excuse for the magistrates' court. Their duty in the case of indictable offences is to begin to inquire 10 into the matter as examining justices, and only to deal with the case summarily if the matter can be brought fairly and squarely within section 19(2) of the Magistrates' Courts Act, 1952." I have quoted the above observations because of the nature of 15 the charge against the appellants in this case and the third and fourth accused persons. The appellants were originally charged with the offence of store-breaking and larceny contrary to s.26(1) of the Larceny Act, 1916, while the third and fourth accused were charged with the offence of receiving contrary to s.33(1) of 20 the Larceny Act, 1916. Section 26(1) of the Larceny Act, 1916, carries a punishment of imprisonment up to 14 years while s.33(1) of the Larceny Act, 1916, also imposes punishment of imprison­ ment up to 14 years. I am unable to understand why the pros­ ecution amended the charge against both appellants to s.2 of the 25 Larceny Act, 1916, which section imposes a maximum penalty of five years' imprisonment. Moreover, with no application made by either the prosecution or the defence, the magistrate, exercising his discretion, concluded that the charges could be adequately and sufficiently dealt with under s.6 of the Courts Act, 1965 and 30 thereupon imposed a sentence of Le300 fine or 12 months' imprisonment on both appellants and the third accused. Relying on the persuasive authorities cited above, I think that the statutory provisions contained in s.122 of the Criminal Pro­ cedure Act, 1965 are peremptory provisions. There is no doubt 35 that the appellants and the third and fourth accused persons consented. But there are the provisions contained in s.122 and these provisions were overlooked and not explained to the appel­ lants and the third and fourth accused persons. Since I think that the failure of the magistrate to observe the statutory obligations 40 under s.l22 goes to jurisdiction, and that such failure deprives him of jurisdiction to deal with the case summarily, I hold that the 72 HEROE v. F.C.S.C. LTD., 1972-73 ALR S.L. 73 H.C. trial was a nullity and that the convictions of the appellants and the third accused were bad because the magistrate never had juris­ diction to try the case summarily. In the circumstances, the convictions of the appellants and the third accused are quashed and they are accordingly discharged. 5 It follows therefore that the appellants and the third accused have never been technically in peril and they could now be tried again. But it is a matter for the Solicitor-General to decide whether it would be desirable and in the interest of society to do so. Appeal allowed. 10 HEROE v. F.C.S.C. LIMITED High Court (Agnes Macaulay, J.): March 28th, 1972 (Civil Case No. 19/70) 15 (1] Evidence-burden of proof-negligence-employee prima facie liable for loss of or damage to employer's property entrusted to his care-burden on employee to show no negligence: Dismissal of an employee by his employer is not wrongful if it can be justified by the employee's mis­ conduct, as by his gross negligence in failing to take proper care of his employer's property entrusted to him. In such circumstances the em- 20 ployee is prima facie liable for the loss of or damage to the property and the burden of proving the absence of negligence lies on him (page 77, lines 1-11, lines 29-33; page 78Iines 8-16, lines 31-33, lines 36-38). [2] Employment-duties of employee-duty of care-duty to safeguard employer's property entrusted to his care-prima facie liable for dam- 25 age or loss: See [ 1] above. [ 3] Employment-tennination-summary detennination by employer-em­ ployer's refusal by words or conduct to allow employee to fulfil contract of employment constitutes dismissal: An employer dismisses his employee by words or conduct amounting to a repudiation of the essential obliga- tions placed on him by the contract of employment, as by refusing to 30 allow his employee to fulfil his contract (page 76, lines 35-41). [ 4] Employment-tennination-wrongful dismissal-not wrongful if justified by employee's misconduct: See [1] above. The plaintiff brought an action against the defendants in the High Court for damages for wrongful dismissal, arrears of salary, 35 salary in lieu of notice and repayment of her contribution to a pension scheme. The defendants counterclaimed for the value of money alleged to have been lost by the plaintiff's negligence. The plaintiff worked for the defendants as a cashier. Feeling unwell, she decided to leave the office for a few minutes. She was 40 at that time in charge of cash amounting to about Le2,000 which 73