ALAST AIR PETER McNEILE . Appellant
v.
COMMISSIONER OF POLICE Respondent
[Magistrate Appeal13/61]
Magistrate's court-summary jurisdiction-Autrefois acquit-Prosecuting officer
unable to proceed because of lack of witness-Appellant "discharged" by
magistrate-Whether appellant entitled to be "acquitted and discharged."
Aug. 14,
1961
Bankole Jones
Ag.C.J.
Appellant was charged before a magistrate with the offence of driving a
vehicle without due care and attention. When he appeared before the
magistrate, after pleading not guilty, the prosecuting officer told the magistrate
that, as he was unable to trace his main witness, he was offering no evidence
against appellant. The magistrate thereupon "discharged" appellant. When
appellant contended that he was entitled to be " acquitted and discharged "
instead of merely " discharged," the magistrate reserved this question for the
consideration of the Supreme Court.
Held, that the magistrate came to a correct determination in point of law in
" discharging " appellant instead of " acquitting and discharging " him.
The court also said, obiter, "The effect of this, of course, is that the
Commissioner of Police is entitled to prefer the same charge against the
appellant and that a plea of autrefois acquit would not stand him in good
stead."
Cases referred to: Davis v. Morton [1913] 2 K.B. 479; Owens v. Minoprio
[1942] 1 K.B. 193 ; Land v. Land [1949] P. 405; Pickavance v. Pickavance
[1901] P. 60.
No appearance for the appellant.
Nicholas E. Browne-Marke for the respondent.
BANKOLE JoNEs, Ao. C.J.
The police magistrate in the Kono District on
March 22, 1961, reserved for the consideration of this court a question of law
which arose on the hearing of certain proceedings before him. The facts were
that the appellant Alastair Peter McNeile was charged before the magistrate
with the offence of driving a vehicle without due care and attention contrary
to section 43 (1) of the Road Traffic Ordinance 1959. After he had pleaded
not guilty to the charge, and on his second appearance, the prosecuting officer
representing the Commissioner of Police, told the magistrate that, as he was
unable to trace his main witness, namely, the driver of the other vehicle, he
was offering no evidence against the appellant, whereupon the magistrate
discharged the appellant. It was contended on behalf of the appellant that :
"(i) The prosecutor, to wit the Commissioner of Police, having appeared
by his officer and subordinate in the person of Sub-Inspector Allie who after
the appellant had been arrested and charged with the offence and after the
appellant had pleaded not guilty to the charge, on the second appearance of
the appellant informed the court that because he was unable to trace one of the
other witnesses, i.e., the driver of the other vehicle, he was offering no evidence
against the appellant, he was thereupon ' discharged ' by the court and not
' acquitted and discharged.'
" (ii) The appellant having heard the charge read and having pleaded not
guilty thereto was in jeopardy of the offence and was in the circumstances
entitled to be acquitted and discharged.
" (iii) The prosecutor by his agent, to wit Sub-Inspector Allie, having
informed the court that the other driver could not be traced, had in fact given
evidence-(admittedly not on oath) in the proceedings and in consequence the
appellant was entitled to be ' acquitted and discharged.' "
The question for this court to decide is whether upon these facts the magistrate came to correct determination in point of law in " discharging" the
appellant and not in " acquitting and discharging " him.
Mr. Browne-Marke, Senior Crown Counsel, appearing in this court, said
that he was supporting the contention of Mr. McNeile. He submitted that once
the appellant had pleaded to the charge, the magistrate should have " acquitted
and discharged " him. He said that in merely " discharging " him, the
appellant would lose his right to a plea of autrefois acquit if he were faced
with the same charge at a future date.
I have had an opportunity of considering this matter and with the greatest
respect to Mr. Browne-Marke, I find myself unable to agree with his submission. It seems to me that when the prosecuting officer told the magistrate that
he was offering no evidence for the reason he gave, he was in fact withdrawing
the charge and that when the magistrate discharged the appellant, he in effect
consented to the charge being withdrawn. The test of autrefois acquit is to be
found in Archbold's 34th ed., at para. 438. To fulfil such a test an accused
person must have been tried upon the merits and found not guilty of the
offence by a court competent to try him. In such circumstances his acquittal
is a bar to a second charge for the same offence. Could it be said in this case
that the appellant was tried upon the merits and found not guilty of the
offence so that he would be in peril if charged at some later date with the same
offence? In my view certainly not. There is a long line of authorities which
favours this view.
In the case of Davis v. Morton [1913] 2 K.B. 479, an information was
preferred by the respondent against the appellant under section 1 of the Betting
Act, 1853, for using a house for the purpose of betting with persons resorting
thereto. It was discovered, when the third of the respondent's witnesses was
being examined, that the appellant had not, through inadvertence, been
informed before the charge was proceeded with, as required by section 17 of
the Summary Jurisdiction Act, 1879, of his right to be tried by a jury, and
thereupon the solicitor for the respondent withdrew the summons with the
consent of the justices ; although the solicitor for the appellant contended that
there was no power to withdraw it. A further information was subsequently
preferred by the respondent under the same section (s. 1 of the Betting Act,
1853) against the appellant. The evidence given on the hearing of both informations was substantially the same. It was held that the withdrawal of the
first summons in consequence of technical informality was not equivalent to a
dismissal which could be pleaded in bar of the subsequent proceedings.
Again in the case of Owens v. Minoprio [1942] 1 K.B. 193, an information
was laid against the respondent for failing to comply with a billeting notice by
a person who was not authorised to institute the proceedings, a second information was laid against the respondent for the same offence by an authorised
police officer who applied to the justices for the withdrawal of the summons
issued in respect of the first information. On the hearing of the second information, the respondent contended that he had been put in peril on the first
summons and could not be put in peril for the same offence and the justices
on that ground dismissed the second information. But it was held that the
respondent had not been put in peril and the justices ought, therefore, to have
heard the second information, and that where the withdrawal of a summons
has been not on the merits of the case, but on a preliminary point, the
withdrawal is not equivalent to a dismissal or an acquittal.
Also in Land v. Land [19491 P. 405, it was held that where there has been
a withdrawal of a summons (not leading to an adverse adjudication), the withdrawal does not operate as an estoppel per rem judicatam and this applies whether it be a withdrawal upon a preliminary point or upon the merits of the
case.
Mention must be made of the case of Pickavance v. Pickavance [1901] P.
60. This case appears to have been incorrectly interpreted to mean that after
the withdrawal of a summons, no fresh summons can be issued upon the same
cause or complaint. This case was explained and distinguished in both Owens
v. Minoprio and Land v. Land. The statement in Pickavance v. Pickavance
was obiter dictum and is no authority whatever for the proposition under
consideration.
In the instant case, the appellant was never tried and no decision was given
by the magistrate on the merits. The fact that the prosecuting officer informed
the court that he could not proceed in the absence of a witness does not amount
to evidence being taken. I therefore hold that the magistrate came to a correct
determination in point of law in " discharging" the appellant and not in
" acquitting and discharging " him. The effect of this, of course, is that the
Commissioner of Police is entitled to prefer the same charge against the
appellant and that a plea of autrefois acquit would not stand him in good stead.