Rex v Mairongo (Criminal Appeal No. 244 of 1948) [1948] EACA 72 (1 January 1948)

#### APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J. and DE LESTANG, J.

#### REX, Respondent (Original Prosecutor)

# MWANGI s/o MAIRONGO, Appellant (Original Accused) Criminal Appeal No. 244 of 1948

- Criminal Law—Procedure—Plea of "not guilty"—Accused requesting to make statement before case for prosecution closed—Application of section 209. Criminal Procedure Code. - Held (1-7-48).—That when an accused person pleads "not guilty" to a charge, until the close of the evidence in support thereof, section 209 (1) of the Criminal Procedure Code cannot be brought into operation.

Appeal dismissed.

## Appellant absent, unrepresented. Todd, Crown Counsel, for the Crown.

JUDGMENT.—In view of the appellant's definite admission before the learned Magistrate that he had stolen the articles set out in the charge, we regard his Memorandum of Appeal as both frivolous and impudent, and were the appellant before us to-day we might well have asked him to show cause why his sentence should not be increased.

One point does arise, however, from the record before us, to which reference must be made. It appears that at the conclusion of the complainant's evidence and before any other evidence had been called the appellant intimated to the Magistrate that he wished to make a statement. The Magistrate then, according to his record, explained the provisions of section 209 to him. The appellant then made an unsworn statement which amounted to an unequivocal plea of guilty, whereupon the Magistrate convicted. We have no doubt the learned Magistrate, in adopting the course he took, wished to be fair to the appellant, but in our opinion it was a most dangerous step to take and one which did not really accord with the provisions of the section. For had the appellant, instead of admitting his guilt, protested his innocence, there would have been no evidence on the record which could have justified the conviction. Section 209 (1) of the Criminal Procedure Code cannot be brought into operation until the close of the evidence in support of the charge. Then only if it appears to the Court that a case has been made out against the person accused sufficiently to require him to make a defence.

The appeal is dismissed.