The Queen v Economides (Criminal Appeal No. 108 of 1956) [1956] EACA 32 (1 January 1956)

## APPELLATE CRIMINAL

## Before SIR KENNETH O'CONNOR, C. J., and RUDD, J.

### **THE QUEEN Appellant**

v.

# J. ECONOMIDES Respondent

## Criminal Appeal No. 108 of 1956 (Case Stated).

Traffic Ordinance, 1953, section 47 (1)—Criminal Procedure Code sections 208, by 367. 372—Charge dismissed Magistrate—Case Stated—Whether Magistrate should give reasons for dismissal.

The respondent was charged with careless driving under section 47 (1) of the Traffic Ordinance, 1953. A case was stated at the instance of the Attorney-General to obtain the opinion of the Supreme Court as to whether the Magistrate was correct in holding that there was no case for the accused to answer. The Prosecution evidence had been conflicting and the case must have turned upon the credence given to the witnesses after a view by the Magistrate of the scene of the accident; but the Magistrate had given no reasons for dismissing the charge.

Held (1-6-56).—That the case must be remitted to the Magistrate under section 372 of the Criminal Procedure Code for him to state the reasons for his decision. Dictum in<br>Attorney-General v. S. M. Bashir, (1948) K. L. R. 23 Pt. 1, 78, to the effect that the Magistrate in stating a case should refrain from setting out any views upon the evidence heard, or matter indicative of his reasoning, not followed.

#### Held (25-6-56)

(2) That a magistrate visiting the *locus in quo* must take great care not to constitute himself a witness and that a view should not be substituted for evidence in the case. The object of a view of the locality is to enable the evidence to be better understood and to enable it to be better appraised and weighed.

(3) If, on a properly conducted view of the locus in quo, it becomes evident that a witness either could or could not have seen what he has testified to having seen, that fact may be taken into consideration in weighing his evidence.

(4) A view, however, should not be used as a substitute for evidence, but as a<br>means of understanding and assessing evidence. If it is desired to challenge the evidence<br>of a witness on the ground that he could not have see desirable that he should be recalled to the witness box and the matter be put to him, in order that he may have the opportunity of correcting any misapprehension, and that there may be sworn testimony dealing with the point on the record. In particular, if anything adverse to an accused person has resulted from a view, he should be given an opportunity of dealing with it if he wishes.

(5) The proceedings in the instance case had not been wholly satisfactory; but as the Magistrate at the end of the Prosecution case was in doubt, the Court could not say that he had been wrong in holding that there was no case to answer.

Davies, Crown Counsel for the Appellant.

#### Sirley, for the Respondent.

The judgment of the Court (O'Connor, C, J, and Rudd J.) was delivered by O'Connor C. J.

JUDGMENT.—The respondent was charged with careless driving contrary to section 47 (1) of the Traffic Ordinance, 1953. The magistrate dismissed the case under section 208 of the Criminal Procedure Code without stating reasons. The Attorney-General applied for a case to be stated to have it determined whether or not the magistrate was correct in law in holding at the conclusion of the

Crown case that there was no case for the accused to answer. The Court remitted the case to the Magistrate, under section 372 of the Criminal Procedure Code, for him to give reasons for his decision. The magistrate furnished reasons. It appeared that the evidence of the Prosecution witnesses being conflicting the Magistrate had been in doubt at the end of the Crown case and had decided to visit and inspect the scene of the accident. There, he came to the conclusion that one of the witnesses for the Prosecution could not have seen what he had testified he had seen. The magistrate did not recall the witness concerned or give him an opportunity of correcting any misapprehension and took no steps to record anything as to his observations at the scene.

Appeal dismissed.