Horne J:

The appellant was charged with using on 2 March 1939, a motor car with inefficient brakes. On 24 March 1939, two prosecution witnesses were examined and an adjournment allowed to 31 March. On that day a further adjournment took place to 21 April and there is nothing on the record to show what happened on that day. The case was resumed by another Magistrate on 26 January 1940, when the advocate for the appellant asked the Magistrate to recall the witnesses for the prosecution. The proviso to s. 261 of the Criminal Procedure Code which governs a change of Magistrate during a hearing is in these terms:

(a) In any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard;

In my opinion, such a word as "demand" makes it obligatory for the Magistrate to recall such witnesses if the accused asks for them and leaves no discretion to the Magistrate to act upon evidence partly recorded by his predecessor and partly by himself.

The conviction is quashed and the fine paid is to be returned.

I would add that the time elapsing between the offence viz. 2 March 1939 and the conviction 30 J