JUDGMENTBY: ADRIAN CLARK J

In this case the appellant was brought before the District Court in July of 1935 on a charge sheet containing two charges.

The case was conducted on behalf of the Crown by a firm of solicitors who were feed by the complainants but authorised under section 384 of the Criminal Procedure Code to act for the Public Prosecutor.

The accused was remanded for trial and, on the day on which the trial commenced, a third charge was added to the charge sheet. This third charge cannot be traced on the records of the District Court and the usher of the Court has stated on oath that he returned it to the solicitors for the prosecution. This seems to show some practice, or lack of it, in the District Court which should immediately be remedied. It is essential that in all criminal trials, in whatever Court they take place, charges should be formally drawn up, recorded and preserved.

This third charge seems, from what appears in the notes of evidence, to have been one charging criminal breach of trust of a sum which was the aggregate of many sums (presumably not including that in the first charge) alleged to have been misappropriated during one year, details being given of the individual misappropriations making up the aggregate. Whether such a charge really complies with the provisions of section 159(2) of the Criminal Procedure Code may be open to doubt but the point is not before us.

For the purposes of this appeal it is agreed that this third charge, and its addition to the first two, can have no bearing on the points at issue.

After several hearings and the recording of a mass of evidence from a large number of witnesses the Grown closed its case. The advocate for the defence then took the objection ( inter alia) that the "whole of the prosecution was bad for misjoinder" because the second charge in the charge sheet alleged the commission of an offence of criminal breach of trust on the 5th January, 1934, while the first charge alleged the commission of an offence of the same kind on the 13th March, 1935. There was therefore between these dates a period of time greater than the space of twelve months permitted under section 170(1) of the Criminal Procedure Code.

The advocate at that time appearing for the Crown resisted all the submissions of the advocate for the defence and, in the result, the learned District Judge ruled that "the charges are legal and there is a case to meet on all three charges."

The accused then gave evidence on oath throughout the remainder of that day and during part of another days hearing.

While his evidence was still progressing, however, the advocate for the Crown, according to the note of the learned District Judge, "interposed to say that the Deputy Public Prosecutor ... considers charge II contravenes section 170(1), Criminal Procedure Code and that he will not further prosecute on that charge."

In other words the Deputy Public Prosecutor purported to act under section 182 of the Criminal Procedure Code under which section the Court is thereupon empowered either merely to discharge or else to acquit as well as to discharge the accused.

In this case the accused was acquitted of the second charge and the trial then proceeded upon the first and third.

After the Court had adjourned, and had resumed after the adjournment, the advocate for the defence raised the point as to wehther or not the trial could be proceeded with or should commence again de novo; and a further adjournment was then taken so that this point might be considered.

At the subsequent hearing the advocate for the defenace claimed that the accused should be discharged from or acquitted of the remaining charges. The Deputy Public Prosecutor attended the hearing and, after discussing the point, stated that he "preferred to act under section 182 of the Criminal Procedure Code" and therefore announced that he would not further prosecute on charges I and III, and asked for an order of discharge not amounting to an acquittal

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