[1938] EACA 166
The convictions and sentences were set aside because the magistrate visited the locus in quo alone, failed to record the results of his visit, and thereby introduced uncertainty and possible prejudice into the proceedings. This procedural irregularity undermined the fairness of the trial and violated the principle...
Source-derived case information.
- Citation
- [1938] EACA 166
- Parties
- Respondent: Rex; Appellant: Sahib Singh; Appellant: Hazara Singh; Appellant: Harnam Singh
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Cr. Apps. Nos. 20-22 of 1939
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- convictions and sentences set aside; retrial ordered
- Judges
- Lucie-Smith, J. (Kenya), Sheridan CJ
- Legal Topics
- Criminal Procedure, Locus in Quo Visits, Fair Trial Rights, Magistrate Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rex
Respondent
Sahib Singh
Appellant
Hazara Singh
Appellant
Harnam Singh
Appellant
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether a magistrate may visit the locus in quo in the absence of the accused and their counsel without prejudicing the accused's right to a fair trial.
- 2 Whether the failure to record the results of such a visit invalidates the conviction.
Ratio Decidendi
The convictions and sentences were set aside because the magistrate visited the locus in quo alone, failed to record the results of his visit, and thereby introduced uncertainty and possible prejudice into the proceedings. This procedural irregularity undermined the fairness of the trial and violated the principle that all material facts and deductions influencing the judgment must be on the record and open to scrutiny by both parties. The court held that such visits must be conducted with the opportunity for the accused and their counsel to be present, and the results must be recorded to allow examination or cross-examination. The error was sufficiently material to render the convictions...
Court Disposition
convictions and sentences set aside; retrial ordered
Orders
- Convictions and sentences of all appellants set aside.
- A new trial is ordered before Mr. Rudd.
Full Case Text
Judgment text and source record
11 paragraphs
## APPELLATE CRIMINAL
### Before SIR JOSEPH SHERIDAN, C. J. AND LUCIE-SMITH, J.
#### **REX.** Respondent (Original Prosecutor) v
# (1) SAHIB SINGH, (2) HAZARA SINGH, AND (3) HARNAM SINGH, Appellants (Original Accused)
## Cr. Apps. Nos. 20-22 of 1939
Criminal procedure-Visit by Court to scene in absence of accused-Practice.
Appellants were convicted of an assault causing grievous bodily harm on a dark night. It appeared from the judgment that the magistrate by himself had visited the locus in quo on a dark night and it was clear that this visit did in some way or another influence his judgment but in what way or to what extent was not clear.
$Held$ (1-3-39).—That it is necessary as a matter of practice that the accused person and his counsel should be given an opportunity of visiting the locus in quo in any case in which such a visit is considered necessary and decided upon and also that the result of such visit should be recorded on the Magistrate's return to court so that the prosecution or defence may be in a position to examine or cross-examine on any point recorded as a result<br>of the visit. (Convictions and sentences set aside and a retrial ordered.) (Babbon Sheikh v. Emperor (37 Cal. 340) considered.)
Mangat for the Appellants.
Dennison, Crown Counsel, for the Crown.
JUDGMENT.—There is an important question of principle involved in this case. The learned magistrate by himself visited the locus in quo and presumably as a result of his visit made certain deductions. What they were is not stated for nothing is on the record. The result of his visit did it is clear in one way or another influence his judgment, in what way or to what extent we cannot say. It may be that when he went to the scene he entertained some doubts as to whether a conviction should be had, but on that we cannot speculate. In the case of Babbon Sheik v. Emperor (37 Cal. 340) it was laid down that "Where the magistrate did not merely view the place of occurrence for the purpose of following or understanding the evidence and testing it in respect of the features of the locality, but imported into his judgment matters of opinion and inference based on circumstances not on the record, and did not place thereon the results of his local inspection" he "had committed an error of jurisdiction which may have materially prejudiced the accused and that therefore the conviction was bad in law". In the present case while we are left in a state of uncertainty as to whether and to what extent the visit to the scene may have weighed with the magistrate, our opinion is that the conviction cannot stand. The convictions and sentences are set aside, a new trial ordered before Mr. Rudd, who doubtless will take into account the period the accused persons have been in custody in the event of one or more of them being convicted. We should like to place on record the necessity as a matter of practice of an accused person and his counsel being given an opportunity of visiting the *locus in quo* in any case where such a visit is considered necessary and decided upon, and also of the result of such visit being recorded on the magistrate's return to court, so that the prosecution or defence may be in a position to examine or cross-examine on any point recorded as a result of the visit.