JUDGMENTBY: TERRELL, JA

The charge was one of cheating (section 420 of the Penal Code). The learned Magistrate after hearing the complainant acquitted the accused without giving the Prosecution the opportunity of calling their other witnesses in support of the charge.

The learned Magistrate purported to act under section 182 (g) of the Criminal Procedure Code which reads as follows:--

"Nothing in paragraph (f) shall be deemed to prevent the Court from

acquitting the accused at any previous stage of the case if, for

reasons to be recorded by the Court, it considers the charge to be

groundless;"

and the Crown has appealed against the acquittal, citing in support of their argument the case of PP v Perianan Chetty 4 FMSLR p 30 distinguished and not followed, which was decided under a similar provision in the F.M.S. Criminal Procedure Code. The Court of Appeal (Woodward, C.J.C. and Reay, J.C.) ruled that if the prosecuting counsel asks the Court to hear a witness the Court cannot refuse to hear him, but must take all the evidence that the prosecution desires to be heard. The Court, however, dismissed the appeal on the ground that the prosecution had acquiesced in the procedure adopted. The dictum of the Court therefore was obiter, and, as it is contrary to the express provisions of section 182 (g) of the Criminal Procedure Code, I do not feel bound to follow it.

It appears to me that some effect must be given to this subsection, and I take it that a Magistrate can avail himself thereof at any rate in the following cases:--

(a) where all the facts which the prosecution have set out to prove

would not constitute a criminal offence even if they were

accepted, or

(b) where an essential link in the prosecution case is provided by

one or more witnesses whom the Magistrate has heard and whose

evidence he is not prepared to accept.

In either of these cases it is obvious that to hear further evidence would be a mere waste of time.

In the present case it is clear that the deception which the prosecution relied on was a false statement made by the accused to the complainant as a result of which the complainant parted with $ 10.00. The prosecution were prepared to prove by a witness Haji Hassan that this statement had been made, and that the money was paid, and by another witness that the statement was untrue.

It was not competent for the learned Magistrate to decide finally as to the credibility of the complainant until he had heard Haji Hassan who might have supported him. Equally it was not competent to reject the evidence of a witness who had not been called. The fact, as found by the learned Magistrate, that the complainant and accused were almost in the position of partners, does not preclude the possibility of the accused having cheated the complainant. This was not therefore a case in which the learned Magistrate could avail himself of his powers under section 182 (g) after hearing the complainant only.

The appeal must accordingly be allowed and a retrial ordered before another Magistrate.

Retrial ordered.

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