R v Eagan et Al

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 07 July 1977
• Date: 07 July 1977

Supreme Court

Malone, C.J.

Regina

and

Eagan et al

The Director of Public Prosecutions for the Crown

Mr. S. Musa for the First Accused

Before the Honourable Sir Denis Malone, Chief Justice

Criminal Law - Trial — Preliminary Enquiry

Facts: Committal of accused — Motion to quash indictment on grounds that examining magistrate did not comply with provisions of section 35, Indictable Procedure Ordinance, Cap. 22, and that Magistrate had determined to commit before complying with sections 34 and 35 of Ordinance — Record not clear as to what was procedure followed — Party maintaining procedure followed to satisfy court it was so followed

Held: Order that indictment be quashed.

1 If a committal is bad an indictment cannot be preferred. On this motion it is submitted by counsel for the first accused that the indictment preferred should be quashed as the committal was bad on two grounds. The first ground is that the examining magistrate did not comply with the provisions of section 35 of the Indictable Procedure Ordinance Charter 22 (hereinafter referred to as “the Ordinance”). The second ground is that the examining magistrate had determined to commit before complying with the provisions of sections 34 and 35 of the Ordinance.

2 The Ordinance sets out clearly in mandatory terms the procedure to be followed at a preliminary inquiry. When the stage is reached at which the prosecution witnesses have given their evidence, the examining magistrate is required by section 34 of the Ordinance to enquire of the accused if he wishes to say anything in answer to the charge. The question has immediately to be followed by the administration of a caution to the accused that he is not obliged to say anything and by an address that he has nothing to fear from any threat which may have been held out to him to induce him to make any admission or confession of his guilt but that whatever he says may be given in evidence on his trial. Then by section 34(3) of the Ordinance the examining magistrate is required to record as nearly as possible whatever the accused may say if he chooses to make a statement. The provisions of section 34 of the Ordinance having been complied with, the examining magistrate is, by section 35(1) of the Ordinance, required to ask the accused: “whether he desires to give evidence on his own behalf and whether he desires to call witnesses.” It is therefore clear that the Ordinance draws a distinction between a statement given by the accused and evidence given by him and that it permits the accused to make both or to make one or the other. In addition or without making either a statement or himself giving evidence, the Ordinance permits an accused to call witnesses to give evidence on his behalf. Until the aforementioned steps have been taken, the examining magistrate may neither discharge nor commit the accused. For the provision conferring the power to discharge, which is to be found in section 38(1) of the Ordinance, begins with the following words: “When all the evidence on the part of the prosecution and of the defence, if any, have been taken ……” and that conferring the power to commit, which is to be found in section 40(1) of the Ordinance begins with the words: “Subject to the provisions of this section if upon the whole of the evidence, the examining magistrate is of the opinion ……” The words “Subject to the provisions of this section” are not of present concern.

3 In this case the penultimate page of the record contains the following matters. The confirmatory certificate of the last witness of the prosecution to give evidence dated the 23rd parch, 1977 and a memorandum of the examining magistrate which appears after the confirmatory certificate. That memorandum first records under the heading “Case” the finding by the examining magistrate that the prosecution had made out a prima facie case as under that heading appears the following words: “I am satisfied on the evidence that a sufficient case has been made out to put the 3 accused upon their trial”. Below those words appears the signature of the magistrate. Below the signature appear the words: “The charges are read to the 3 accused” and that is followed with a quotation from each accused and in each case with words to the effect that the defendant states he does not wish to give evidence on his own behalf or to call witnesses. The page ends with the words: “The 3 accused state that they do not wish to give evidence now on their own behalf or to call witnesses” and the signature of the examining magistrate below them. At the top of the next page are the words: “Case committed for trial by the Supreme Court to be held at Belize City on 21st day of June, 1977 at 9:00...