Denys Roberts CJ:

Background

At the conclusion of the hearing, I upheld the order made on 27 July 1998 whereby a magistrate had exercised his powers under s. 186 of the Criminal Procedure Code ('CPC') and ordered a discharge of the defendants, the magistrate ordering that such discharge should amount to an acquittal.

I quashed the earlier order (dated 17 June 1998), which he had made under the same section, discharging the defendants, such discharge not amounting to an acquittal.

I undertook to deliver reasons for this judgment, in due course, which I now do.

Section 186 CPC

This section is in the following terms -

(1) At any stage of any trial before the delivery of judgment, the officer or other person conducting the prosecution may if he thinks fit inform the court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on such charge against the accused may be stayed by leave of the court or the court may of its own motion stay the proceedings and if so stayed the accused shall be discharged.

(2) Such discharge shall not amount to an acquittal unless the court so directs, except in cases coming under s. 172.

(3) The court may require a person discharged under this section to execute a bond, with or without sureties and during such period as the court may direct, for his reappearance before the court on the same charge and in the meantime to keep the peace and be of good behaviour.

The DPP applied on 17 June for a discharge of all the defendants, such discharge not amounting to an acquittal. The prosecution applied to withdraw all the charges.

The record made by the magistrate on 17 June 1998, states -

Order defendants be discharged not amounting to an acquittal. For further mention 22 July at 2.00 pm.

Counsel for the third defendant ('D3') submitted that this record is not accurate and that, when making the order, the magistrate said that it was a conditional order, and that this explained why he had arranged for a further mention of the case on 22 July.

On 22 July, the matter was further adjourned to 27 July. On the later date, the DPP informed the magistrate that the prosecution did not intend to proceed with the charge.

Counsel for D3 then applied for all the defendants "to be discharged amounting to an acquittal".

The magistrate thereupon "ordered the defendants to be discharged amounting to an acquittal".

He also said that he would submit the case to the High Court for revision, no doubt because he was unsure that his second order was correct, although in his view justice required that the defendants should be acquitted.

Accordingly, at the instance of the magistrate, I exercised my powers of revision under the CPC and examined the record of the case. I commend the magistrate for referring the matter to me.

Control Of Prosecutions

The difficulty faced by the magistrate on the second occasion (ie, 27 July) was that he had already exercised his powers under s. 186 CPC. Could he do this again?

It must be implied that in each case the leave of the court had been given to the exercise of the powers conferred by s. 186.

Assuming that counsel for D3 is correct, and that the first order made by the magistrate was a conditional one, could the magistrate make such an order?

I do not think that he can. If a magistrate exercises his power under s. 186 and discharges, it must be an order made without conditions.

The correct course, in such circumstances, would have been for the magistrate to warn the prosecution that, if it is not ready to proceed on a specified date, the magistrate would direct that there be a discharge amounting to an acquittal on that date, or to order a discharge amounting to an acquittal forthwith.

If a magistrate issued such a warning, it would be open to the public prosecutor to enter a nolle prosequi, under s. 377 CPC. This would not amount to an acquittal, and would enable the prosecution to pursue the charge at a later date if