KIRKE v. REGEM 2Q
Supreme Court (Beoku-Betts, Ag.C.J.): November 9th, 1950
(Cr. App. No. 19/50)
be relied on without evidence of it being called: A trial magistrate 25 who inspects the locus in quo of an alleged offence and proposes to rely on this inspection in reaching a decision should not do so without calling evidence as to what took place at the inspection (page 70, lines 27-31).
- Criminal Procedure — sentence — imprisonment — imprisonment with 30 hard labour to be imposed only where specifically authorised for offence in question: Imprisonment with hard labour should not be imposed unless by law there is a direct provision for it on conviction
of the offence in question (page 70, lines 35-37).
- Evidence—inspection—locus in quo—inspection should not be relied on without evidence of it being called: See  above.
The appellant was charged in a magistrate’s court with careless driving contrary to s.14(1) of the Motor Traffic Ordinance (cap. 148).
At the trial the magistrate resolved a difficulty as to the facts of the case by inspecting the locus in quo and relying on her personal 40
findings there. She did not call evidence as to what took place at
the inspection. The appellant was convicted and sentenced to a fine or, in default, three months’ imprisonment with hard labour, and ordered to pay compensation to the complainant.
On appeal, the Supreme Court considered whether the trial magistrate properly exercised her power of inspection, and whether imprisonment with hard labour was a permissible sentence in this case.
Miss Wright for the appellant; Benka-Coker, Ag. Sol.-Gen., for the Crown.
The appellant was charged with the offence of careless driving contrary to s.14(1) of the Motor Traffic Ordinance (cap. 148). He was convicted and fined £15, or three months’ imprisonment with hard labour, and ordered to pay 30/- as compensation to the complainant.
Against conviction and sentence the appellant has appealed on several grounds. On considering this case, a great deal depends on facts, and the magistrate’s decision showed that she had some difficulty in coming to a conclusion on the facts. She however stated that she inspected the locus in quo and used her findings at the locus in quo to resolve the difficulty on the facts. Unfortunately, although the decision dealt with the locus in quo and the magistrate referred to the facts at the locus in quo, there is no evidence to show that there was any inspection in the notes of evidence. That is clearly wrong. If the magistrate inspects the locus in quo and proposes to rely on this inspection, evidence should be called as to the inspection. The magistrate cannot rely upon her own knowledge of what took place. The magistrate therefore erred in relying upon the result of the locus in quo inspection without calling evidence as to what took place at the inspection.
The conviction and sentence cannot be supported. I therefore quash the conviction and order the fine, if paid, to be returned to the appellant, and also the compensation awarded.