ADAMS v. COMMISSIONER OF POLICE

JUDGMENT OF VAN LARE J.S.C.

Van Lare J.S.C. delivered the judgment of the court. The appellant in this case was convicted by the district court for the offences of careless driving and negligently causing harm and sentenced to a fine of £G5 or two months I.H.L. He successfully appealed to the circuit court where the appeal then lay on the ground that the defence had not closed before the trial district magistrate convicted him. There was no suggestion as to the competency of the trial court, or that the trial was otherwise a nullity. It is a straightforward case where the conviction could not stand because the defendant-appellant had not closed his defence.

The learned circuit judge, however, after quashing the conviction and sentence, ordered a re-trial by a court of competent jurisdiction. This order is no doubt wrong as we are of the opinion that such an order could only be made where the trial was a nullity such as where the trial court is lacking in jurisdiction.

The appellant considering himself aggrieved by the order remitting the case for a re-trial appeals to this court in effect to complain against such order. Upon the matter coming on for hearing we asked learned counsel for the appellant as to his right of appeal in view of section 14 of the Courts Act, 1960,1 which regulates appeals to this court and limits appeals by persons other than the Director of Public Prosecutions to persons who have been convicted. In the instant case however the appellant, who is not the Director of Public Prosecutions, and not a convicted person appears to appeal not against a conviction which in fact he cannot do because his conviction had been already quashed.

Counsel for the appellant himself agrees that there is this hurdle he cannot overcome, but has asked us to exercise the inherent powers of this court. Much as we have sympathy with the appellant that the order remitting the case for a re-trial is erroneous, and also that the learned senior state attorney could not have been prepared to support such an order, we find ourselves helpless, that is to say, not provided with the necessary statutory jurisdiction to entertain the appeal which does not lie.

The learned senior state attorney has however intimated that he would bring the matter to the notice of the Director of Public Prosecutions to enable him to consider taking the necessary steps to avoid the carrying into effect such an erroneous order of the circuit court.

[p.176]

We are however reluctantl