Rex v Waldays (Criminal Appeal No. 187 of 1941) [1942] EACA 67 (1 January 1942) | Right To Defence | Esheria

Rex v Waldays (Criminal Appeal No. 187 of 1941) [1942] EACA 67 (1 January 1942)

Full Case Text

# APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND HAYDEN, J.

### REX. Respondent

#### v

# BAKALA S/O WALDAYS, Appellant

## Criminal Appeal No. 187 of 1941

Criminal Law—The defence—Compliance with provisions of section 209 (1) Criminal Procedure Code.

Held (23-1-42).—That the omission to comply with the provisions of section 209 (1) of the Criminal Procedure Code is fatal to a conviction.

Appellant in person.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—As a result of inquiries made by Crown Counsel from the Magistrate it appears that the accused's rights were not explained to him. They are set out in section 209 (1) of the Criminal Procedure Code which we quote here, so much importance do we attach to strict compliance with its provisions: -

"At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any),"

The information conveyed to us explains the absence of any record of evidence or a statement by the accused at the close of the Crown case. The omission to comply with the provisions of the section is fatal and the conviction and sentence are accordingly quashed.

We might add besides that the evidence relating to the finding of Nubian gin is inadequate. C. I. Overton in his evidence in chief says that he found "a bottle containing a small quantity of what appeared to be Nubian gin". Evidence of this kind is not acceptable.

The appeal is allowed and the accused acquitted.