Rex v Nasser (CrimInal Appeal No. 189 of 1942) [1942] EACA 80 (1 January 1942)

# APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND JUCIE-SMITH, J.

#### REX, Respondent

ν.

## **BADI NASSER, Appellant**

## Criminal Appeal No. 189 of 1942

Robbery—Section 289, Penal Code—Three counts—Trial—Procedure—Evidence disclosing use of violence—Jurisdiction of magistrate—Trial a nullity.

The facts appear from the judgment.

Appellant absent, unrepresented.

Dennison, Crown Counsel, for the Crown.

JUDGMENT (22-12-42).—The procedure in dealing with the different counts in this case seems unusual. There were three counts of robbery with violence, subsequently altered to three counts of simple robbery. The accused pleaded not guilty on all three counts. The learned Magistrate then proceeded to hear the evidence on the first and second counts and convicted on the second count and after the accused had previous convictions put to him and had admitted them he sentenced the accused on the second count leaving the decision on the first count in suspense. Presumably the Magistrate would next have proceeded to hear evidence on the third count had the accused not at that stage intimated that he pleaded guilty on all three counts. The Magistrate departed from the ordinary and proper procedure in convicting and sentencing the accused on any one count before the evidence had been recorded on the other counts. This procedure was calculated to prejudice the fair trial of the accused on the other counts by reason of the admission of the previous convictions. But there is a more serious aspect of the case namely that the evidence on the first and second counts discloses that violence accompanied the robbery and that therefore the Magistrate tried the case without jurisdiction (see Circular to Magistrates No. 14/42). The proceedings are a nullity and we therefore quash the convictions and sentences and direct that the accused be tried by a court of competent jurisdiction.

NOTE.—Jurisdiction in cases of robbery with violence contra section 289 Penal Code was conferred on Subordinate Courts of the first class by Ordinance $27/42$ dated 23-12-42.