Tomy v Adogma

• Jurisdiction: St Lucia
• Judge: Peterkin, J.,Bishop, J.
• Judgment Date: 29 July 1968
• Neutral Citation: LC 1968 HC 21
• Date: 29 July 1968
• Court: High Court (Saint Lucia)
• Docket Number: Miscellaneous No. 1 of 1968

West Indies Associated States Supreme Court. (High Court)

Bishop, J. and Peterkin, J.

Miscellaneous No. 1 of 1968

Tomy

and

Adogma

Appearances:

Attorney General for complainant.

St. George Murray for defendant.

Practice and procedure - Trial — Whether a mistrial — The appellant was charged with two offences. The magistrate proceeded under Article 1075 of the Criminal Code and tried the matter ex parte finding him guilty. The defendant produced a medical certificate to show that he was ill. The issues were whether the court ought to set aside the convictions and acceded to a rehearing of the cases and whether the hearing amounted to a mistrial

Held: In the event of the defendant not having been served at all, there would be a mistrial. However, the facts and circumstances of the present case did not amount to a mistrial and a nullity. The magistrate having adjudicated under Article 1075(1)(a) was functus officio and would have under the circumstances no jurisdiction to rehear the cases. In the circumstances the ex parte decision would stand and could only be set aside on appeal.

Peterkin, J.

1 The matter appears before us in the form of a case stated by the learned magistrate. The circumstances are as follows:

2 The defendant in this matter appeared before the learned magistrate on the 17 ^th of June. He was charged with two offences. The first was for failure to slow down and halt, at a major road. The second was for assaulting Woman Police Constable Agdoma.

3 The learned magistrate proceeded under article 1075 of the Criminal Code to try the matters ex parte in the absence of the defendant. There was service on the defendant personally and this was sworn to. He proceeded under 1075(1)(a) to the hearing of the complaint and he adjudicated there on as fully and effectually to all intents and purposes as if the defendant had personally appeared before the court in obedience to the summons.

4 He convicted the defendant on the charge of failing to stop at a major road and fined him Ten dollars. On the complaint for assault he sentenced him to two months imprisonment with hard labor.

5 At 2.15 p.m., i.e. sometime later in the day, the defendant appeared in court represented by counsel, who, on the defendant a medical certificate and explained that the defendant's absence form court that morning was due to illness.

6 In the light of these circumstances, the learned magistrate was of the opinion that the convictions and sentences should not stand and...