Buttrose J (delivering oral judgment):

This is an appeal from a decision of the Criminal District Court convicting the appellant of the offence of armed robbery under s. 397 of the Penal Code and imposing a sentence of three years imprisonment.

A preliminary point was taken by Counsel for the appellant that the trial was a nullity in that the District Court had no jurisdiction to try the appellant on a charge under s. 397 of the Penal Code because of the provisions of ss. 8 and 10 of the Criminal Procedure Code.

In order to found the jurisdiction of the District Court to try an offence of armed robbery there must be, by virtue of the provisions of s. 8 -

(i) an application by the Public Prosecutor to the District Court to try such offence;

(ii) the appellant must consent to be tried by such Court.

There was here no application by the Public Prosecutor before the Court to try the offence. All that appears to have happened was that after the main witness for the prosecution, the complainant, and his sister had given their evidence the prosecutor informed the Court that the appellant had not consented to be tried by the District Court. The Court thereupon inquired of the appellant who stated that he wished to be tried by that Court and his Counsel intimated that he did not wish the two prosecution witnesses to be recalled and the trial proceeded.

This, in my view, falls far short of and is quite inadequate to meet the requirements of s. 8. In any event the prosecuting officer, an Inspector of Police, was not the Public Prosecutor for this purpose. The matter is governed by s. 391 of the Criminal Procedure Code.

As the essential prerequisites provided for by s. 8 have not been fulfilled the District Court, in my opinion, had no jurisdiction to try the appellant on this charge of armed robbery.

The effect of s. 10(1) of the Criminal Procedure Code, in so far as it concerns this appeal, is that the offence of armed robbery under s. 397 of the Penal Code may only be tried by the High Court notwithstanding the other provisions of the Code.

For these reasons therefore the trial was, in my view, a nullity and the appeal must be allowed and the conviction and sentence quashed.

As the appellant has already served six months of his sentence and in view of the unusual circumstances surrounding this case, I do not propose to remit the proceedings back to a Magistrate's Court for a Preliminary Inquiry.

Order accordingly.