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Kereku v Dodd [1969] PGSC 19; [1969-70] PNGLR 176 (15 April 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 176 - Kereku v Dodd

[1969-70] PNGLR 176

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KEREKU

V

DODD

Rabaul

Minogue ACJ

13-15 April 1970

CRIMINAL LAW - Appeal - Unlawful striking - Hearing separate informations together - Right to cross-examine - Right to call witnesses in defence - Newspaper publicity before hearing - Whether new hearing should be ordered - District Courts Ordinance 1963-1969, s. 137.

The appellant had been convicted summarily of unlawfully striking another person. The charge against the appellant, who had pleaded not guilty, was heard along with similar charges laid in separate informations against seven others. Neither the appellant nor any of the other accused was represented, and none was asked whether he consented or objected to the charges being heard together. At the conclusion of the evidence of the first of the witnesses for the prosecution, the appellant asked whether the defendants had the right to cross-examine witnesses. The magistrate answered in the affirmative, whereupon the appellant sat down. Most of the defendants cross-examined the witness and then the appellant sought to cross-examine him, but the magistrate told him that he had exhausted his right of cross examination because he had given him that right in the first place and it had not been exercised. After the appellant had testified, the magistrate asked him if he wished to call any witnesses. The appellant, who had been in custody since arrest along with the other seven defendants, said he wished to call a taxi driver who could support his defence but he did not know his name. The magistrate said that the appellant could not summon someone to come to court if he could not give particulars, and the appellant said he did not have any further particulars. He then said that he would not call any witnesses. On appeal against the conviction,

Held

In allowing the appeal:

N1>(1)����� There had been a substantial miscarriage of justice because:

N2>(a)����� The appellant had been deprived of his right of cross examination. This constituted a clear breach of s. 137 of the District Courts Ordinance 1963-1969, and it could not be said that the appellant would not have elicited material favourable to his case had he been able to exercise this right.

N2>(b)����� The appellant had been unable to seek or call a witness in his defence. Where an accused has been in custody for some time and has no legal representation, great care should be taken by the court to ensure that a defendant to a criminal information is able to properly present his case.

N2>(c)����� The appellant had not been told of his entitlement to a separate hearing nor what his rights in this respect were.

N1>(2)����� As on the evidence before the magistrate and the further evidence heard on appeal, the probabilities pointed to a lack of firm conviction that the appellant was inciting the violence which he maintained he was endeavoring to prevent, the case should not be remitted for hearing and the conviction should be quashed.

N1>(3)����� The trial had not miscarried on the ground that it was preceded by undue newspaper publicity, as such newspaper publicity was merely part of the general atmosphere which had existed at the time.

Appeal from District Court

On 22nd December, 1969, Damien Kereku (the appellant) was convicted before the District Court at Rabaul that on 7th December, 1969, at Vunamami he unlawfully struck another person, to wit, Vin Tobaining, contrary to the Police Offences Ordinance 1925-1965, s. 30(a).

Against this conviction, the appellant appealed. The relevant facts appear in the judgment.

Counsel

Lalor, for the appellant.

Pratt, for the respondent.

15 April 1970

MINOGUE ACJ:� The appellant was convicted by the District Court at Rabaul on 22nd December, 1969, on the information of the respondent that he, on 7th December, 1969, at Vunamami, unlawfully struck another person, to wit, Vin Tobaining, thereby contravening s. 30(a) of the Police Offences Ordinance 1925-1965.

The learned magistrate held that although the appellant did not actually strike Vin Tobaining he was equally as guilty as several assailants convicted on that day because of his part in aiding the assault by urging others of the mob, as the magistrate described them, to attack the victim. The appellant was then sentenced to be imprisoned for six months. He was charged before the Court along with seven other men. Each of these seven was charged upon a separate information in identical terms to that laid against the appellant. Before any of the defendants was called upon to plea to the charge, the prosecutor, a professional officer of the Crown Law Department, made application for all charges to be heard together as, so he stated, the offences alleged all happened at the same time. He further pointed out that he would be relying on s. 23a of the Ordinances Interpretation Ordinance and he requested the magistrate to explain this to the defendants. Section 23A is as follows:

N2>�23a.�� A person who aids, abets, counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of an offence against or contravention of any law in force in the Territory or a part of the Territory shall be deemed to have committed the offence or contravention and shall be punishable accordingly.�

The court record does not show that the prosecutor expanded on his somewhat cryptic utterance nor that he in any way particularized the way in which the case would be presented against these defendants. The defendants who are all Tolais and all of whom were unrepresented, were not asked whether they objected or consented to the charges being heard jointly and the record does not show whether indeed they understood that the application was in fact being made. Each defendant pleaded �not guilty� and the joint hearing proceeded. In the result, seven of the defendants were convicted and one acquitted.

The evidence against the appellant, Damien Kereku, and it is only with him that I am dealing in this case, was as follows:

Firstly, there was that of the victim himself, Vin Tobaining. He spoke as to the attack made on him by a number of men but did not have anything to say about the appellant as I recollect the evidence. Then followed a witness named Penni Paam who is the son of Tobaining. In the course of his evidence he said that he saw Damien Kereku standing on the ground. This was after he had seen a man named Rumet and some other men. Later in his evidence he stated that he saw Kereku standing on the ground and shouting at the people on the truck. According to him he was saying �Come down off the truck and we will see where Vin Tobaining is�. He was cross-examined by the appellant and was asked whether he saw the car from which the appellant emerged. That question was disallowed by the magistrate, the witness having already, as the magistrate held, answered the question. The witness had earlier said �I did not see what truck you arrived in�. And he said also there were many people shouting at this time and he gave then some fairly inconclusive evidence about the general picture at the scene. He was followed by a witness named David Tokau who also gave evidence in relation to a number of the defendants charged on that day, but as far as the appellant in this case is concerned he said that he saw him jump off the truck and walk towards Vin�I should add he didn�t specify which truck�and he went on to say that the appellant said �There he is standing�. Cross-examined by the appellant, he said that the appellant arrived at the scene and �It was when all the trucks arrived you jumped off the trucks�. There was some misunderstanding apparently because although this witness had not given any evidence that the appellant was physically involved in the fight, the appellant apparently thought that he had and began to cross-examine him about this. That line of cross examination was soon abandoned.

The next witness was Ianuk Divut who was the wife of Vin Tobaining. She also gave evidence of the direct assault by other men. She recognized two men who came and assaulted her husband, and she stated that she was crying and in a distressed condition, as was natural. She said that while she was crying she saw the appellant running in the middle of the men. She identified him in Court as being the eighth man. This was apparently his position in the line of defendants at the hearing. She said that she heard the appellant saying �Kill him, kill him�. In cross examination she was asked whether she knew the appellant before the day of the trouble and it appears that she did not. Her evidence was supported by that of her daughter, Agar Tobaining, who similarly gave general evidence against other defendants and said in relation to the appellant that Damien Kereku was moving in the crowd and shouting �Kill him, kill him�. She also was cross-examined by the appellant and said that she knew his face, that she saw him wearing trousers and shirt and that she was at Tobaining�s side when she heard the appellant shouting out �Kill him, kill him�. Now that was the evidence so far as it was led against the appellant. At a later stage in the hearing he testified that on the Sunday morning, on the day of the fight, he was picked up by a Mr. Jack Walsh who took him to the Mataungan office at Malaguna at about 10 o�clock. At this time there were some trucks of other people who went to Kokopo and they left him there at Malaguna�they in fact passed him on the road. He swore that later he had heard that the crowd had gone to fight, he didn�t know where they had gone, he took a taxi to follow and see where the fight had happened and as the president of the Mataungan Association he wanted to find out what the trouble was about. He went to Vunamami to the place where the fight was and the fight was on when he arrived. He called out to stop the fight and then he said that he himself later stayed to see Vin Tobaining and went back to his house in a taxi. At a later stage again the magistrate asked the appellant whether he had any witnesses to call and the appellant said that he only had the taxi driver but he did not know his name. I should point out that at this stage the appellant had been in custody along with the other defendants for some time. The magistrate then said that he could not summon someone to come to court if he could not be given any further particulars of the man and the matter was apparently let drop. The appellant, who was unrepresented, said that he did not have any further particulars. That is understandable enough as he had been in custody for some time and had not been out and about and able to attend to the preparation of his defence. He said that he would not call any witnesses. In that state of the evidence the appellant was convicted.

There is one other matter that is or was not clear to me from the court record, that is whether or not at any stage the appellant appreciated that it was not being alleged against him that he actually hit or assaulted Vin Tobaining but that the case really being made against him was one of aiding and abetting or counselling under s. 23a of the Ordinances Interpretation Ordinance. From the court record, although the magistrate told the appellant�told all the defendants on that day�that they were at liberty to cross-examine, it does not appear that any of them realized that they had the right to cross-examine their co-defendants to elicit any material that might have been favourable to them.

When the appeal came on before me I granted leave to amend the appellant�s grounds of appeal and in their amended form they are as follows:

�Firstly, that the learned magistrate was wrong in failing to allow the appellant to cross-examine a witness in this case.

�Secondly, that the magistrate conducted the hearing of this matter in a manner contrary to natural justice in that he failed to allow the appellant to cross-examine the witnesses in the case.�

As Mr. Lalor pointed out, these grounds really amounted to one. And I should have said when dealing with the evidence that this ground of appeal arises in this way.

At the conclusion of Tobaining�s evidence-in-chief, the appellant stood to his feet and asked whether the defendants had the right to cross-examine witnesses. The magistrate said to him that they did whereupon the appellant sat down. The magistrate then asked all the defendants whether they wished to exercise the right to cross-examine witnesses and most of the defendants in turn stood to their feet and cross-examined. At the very end the appellant stood up and began to cross-examine but the magistrate told him that he had exhausted his right to cross-examine because he had given him that right in the first place and it had not been exercised. It seems to me that there was a complete misunderstanding of the position here and that in fact the appellant was deprived of the right to cross-examine Tobaining and I so find as a matter of fact.

To proceed with the grounds of appeal. The third ground was that the conviction of the appellant was against the weight of the evidence. The fourth that the magistrate was wrong in law in convicting the appellant before all the defence evidence was given, and I will explain on what basis that is put before me in a moment. The fifth that the magistrate was wrong in hearing the information against the defendant jointly with seven other defendants. The sixth ground was that the appellant was prejudiced by pre-trial publicity. The seventh that the magistrate was wrong in not requiring the prosecutor to supply particulars of the charge to the defendant. The eighth that there was unsatisfactory identification of the appellant and, ninthly, that the magistrate failed to give proper consideration to matters affecting sentence.

To return to ground four, that is, that the magistrate was wrong in law in convicting the appellant before all the defence evidence was given. This ground is based on the contention that the magistrate should have taken some pains to enable the appellant to call this taxi driver or the witness that he wanted to support him in his testimony that he in fact went there to Vunamami in a taxi subsequent to the truck-loads of men.

I allowed additional evidence to be given, that of Karlus Marko, who chanced to have been a passenger in the taxi, the name of the driver of which the appellant did not know. This witness supplied that driver�s name and the information that he was now in Buka. He went on to the effect that he and another man were in the taxi when it was hailed by the appellant, that they were intending to go to a meeting at Ganai but that when the appellant got into the taxi they went down to Vanumami. Fighting was going on when they arrived, the appellant directed Karlus and his companion to remain in the taxi while he got out and attempted to stop the fight. He was waving his hands trying to direct the gathering to calm down, to stop fighting, and at the same time was using the word�the Kuanua word��kilare�, which has been translated as meaning �stop the fight� or �get out of the fight�. And he was unshaken in his assertion that there was no question of the appellant inciting or urging the men there on that morning to attack Tobaining or for that matter anybody. His evidence provided some strong support for that of the appellant. After the cross examination of Karlus by Mr. Pratt, for the respondent, I found nothing in the evidence or in the witness� demeanour to lead me to think that he was lying and his evidence found some support in a passage in the deposition I also allowed to be put in evidence. This was a deposition taken at the hearing of the case of yet another defendant, Tomarita, in January of this year at which the wife of the victim, Ianuk, gave evidence. After again describing what had happened to her husband and Tomarita�s part in it she concluded her evidence-in-chief by saying that whilst she was kneeling by his head, that is Tobaining�s head, the attackers were then stopped by Kereku. Of course that does lend some support to the evidence, the oral evidence of Karlus which I allowed to be given.

I have formed in this case a clear view that there has been a substantial miscarriage of justice and that this appeal should be allowed and I can state my reasons quite shortly. The appellant was in my opinion deprived of the right to properly conduct his defence in two important respects. In the first place, due I think to an unfortunate though a natural misunderstanding on the part of the magistrate, the appellant was not permitted to cross-examine the victim Tobaining at all. There was a clear breach here of s. 137 of the District Courts Ordinance 1963-1969 and it cannot be said that the appellant would not have elicited material favourable to his case had he been able to exercise his right. Secondly, he was unable to seek or call a witness in his defence. He had been in custody for some time and had no legal representation. In such circumstances I think great care should be taken by the court to ensure that a defendant to a criminal information is able to properly present his case. In the event, now that the appellant has been able to obtain legal representation the sort of exculpatory evidence which he suggested was available to him has been procured. The question now is whether I should remit the case for re-hearing. After some anxious consideration I do not think that I should. It seems to me that had the learned magistrate had before him the evidence of which I have had the advantage of hearing and reading it must have been sufficient to raise a reasonable doubt, indeed a strong doubt, in his mind as to the guilt of the appellant. Whilst I do not think that the case of Reg. v. Bailey[ccxxii]¹�lays down any general principle with regard to new trials, like their Honours of the Full Court of South Australia in that case I think that I can approach the question by considering what are the probabilities with respect to the result in the event of a new trial. The probabilities in my view point to a lack of firm conviction that the appellant was inciting the violence which he maintained he was endeavouring to prevent. And so I would not only allow his appeal but quash his conviction and sentence for the reasons I have endeavoured to state.

But in view of the matters that were urged upon me by Mr. Lalor and indeed placed in the forefront of his arguments I think I should express my view on one other matter. I refer to his submission that there has been a substantial miscarriage of justice resulting in a mistrial because the magistrate heard the charges against the appellant and seven others jointly and without their consent. This submission raises questions of considerable difficulty. Mr. Lalor has urged that the failure to try the appellants separately vitiates the whole proceeding and he founded his argument principally upon what was said in the High Court in the case of Munday v. Gill[ccxxiii]². Let me say at once that I am not satisfied that the appellant or any of the other appellants consented to the course taken by the magistrate. Failure to object does not constitute consent or waiver when knowledge of the right to object does not exist, or rather when there is nothing to show me or the Court that it does exist. When there is objection to a joint hearing, or as it has been called in Munday v. Gill[ccxxiv]³�a �lumped� hearing, prohibition would appear to lie. In some cases even when there has been consent to such a course it may be able to be shown that there has been a mistrial.

In Munday v. Gill[ccxxv]⁴�the nineteen defendants, through their counsel, had consented to the case against each, of knowingly continuing in an unlawful assembly being tried together with that against each of the others. Four members of the Court decided that although the defendants charged upon different informations for summary offences were entitled to separate hearings it was a right which could be renounced or waived by them and did not go to the jurisdiction of the magistrate, and that in the circumstances of the case statutory prohibition did not lie. In a vigorous and powerful dissenting judgment the then Chief Justice, Sir Isaac Isaacs, maintained that a �lumped� hearing was a nullity. This case of course dealt with a situation where there was undoubtedly a clear consent to such a �lumped� hearing but in my opinion what was said by their Honours enables me to arrive at the way in which I should approach the determination of the question argued in the case before me. Dixon J. (as he then was), with whom Rich J. concurred, rejected the argument that the authorities which establish that the two indictments cannot be heard at once apply to proceedings before justices. He had this to say[ccxxvi]⁵:

�There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. In the one the prisoner is brought to the bar of the Court �in his own proper person and being demanded concerning the premises in the indictment specified and charged upon him how he will acquit himself thereof he saith that he is not guilty thereof and thereof for good and evil he puts himself upon the Country and he who prosecutes for our Lord the King doth the like�. In the other the defendant is given a sufficient opportunity to appear which (unless he be in custody because it is considered that he will abscond) he may exercise or not at his choice, and, whether he avails himself or not of his right to be present, he is dealt with by those assigned to keep the peace, who judge both law and fact. �There is�, says Blackstone, �no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice� (4 Comm. 280). The tribunal is fixed and remains the same whether the cases are dealt with successively or simultaneously. But upon a criminal inquest the jurors are summoned particularly to pass between their Sovereign Lord the King and the prisoner at the bar. The prisoner standing upon his deliverance may challenge them or any of them. At common law in treason and in felony he is entitled to a number of peremptory challenges, a right which in Australia has been extended to misdemeanours. When prisoners are jointly indicted they may sever or they may join in their challenges, and the consequences which ensue are prescribed by law. But there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments. The jurors are specially chosen for the single purpose of trying one indictment or such of the prisoners arraigned on one indictment as they may have in charge.�

His Honour cites with approval[ccxxvii]⁶�three cases heard in the Court of Queen�s Bench of England: R. v. Justices of Staffordshire[ccxxviii]⁷�in 1858; Ex parte Biggins; R. v. Lipscombe[ccxxix]⁸�in 1862 and Wells v. Cheyney[ccxxx]⁹�in 1871�all of which show that the justices had jurisdiction to hear informations together. After reviewing a number of other authorities his Honour had this to say[ccxxxi]¹⁰:

�It may be conceded that defendants charged upon different informations for summary offences are entitled to separate hearings, but these cases show that in England, Victoria and New Zealand it has long been considered that failure to give effect to this right does not go to the jurisdiction of the justices, nor to the validity of the conviction, but is an irregularity only which the defendants may waive. This view is in accordance with principle as well as with justice and convenience. The statutory requirement that an information shall be confined to one offence does not appear to affect the question whether a defendant may waive his right to a separate hearing of every information.�

So that, as I see it, what his Honour is saying is that informations may be heard together but to so hear them requires a waiver by the defendants. His Honour did not go on to consider what would be the position where either the case proceeded despite objections by the defendants or where there had been no waiver, nor was it necessary in Munday v. Gill[ccxxxii]¹¹�for him to do so.

Mr. Justice Gavan Duffy and Mr. Justice Starke in a joint judgment had this to say[ccxxxiii]¹²:

�Assuming that the simultaneous hearing of the informations in the cases now under appeal did not oust the jurisdiction of the justices, still it has been argued that the proceeding was so irregular and constituted such a serious defect in the mode of conducting a criminal matter that the convictions should not be allowed to stand, and that a writ of prohibition should issue pursuant to the statute. . . .

�Undoubtedly Courts having appellate jurisdiction have frequently interfered and set aside convictions so obtained. This Court held in Russell v. Bates[ccxxxiv]¹³�that it was irregular in law for justices to proceed simultaneously with the trial of persons charged with several offences in the face of objection by the accused to such a course. . . . Again, it is but a truism that every case must be decided on evidence given in relation to the particular charge; therefore it is irregular to intermix trials, or to interject, as has been said, one trial into another . . .; yet if the Court be satisfied, even in cases which have been heard together, that the evidence relevant to a particular charge and none other, has been applied to that charge, the decision of the justices will be supported. . . .�

Their Honours go on to cite other cases in which irregularities have or have not vitiated proceedings and conclude[ccxxxv]¹⁴:

�No definite principle can be extracted from these cases. In some instances, the irregularity is so serious that the consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refuse to interfere. Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties at the hearing. The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the Court must consider the whole of the circumstances.�

In Russell v. Bates[ccxxxvi]¹⁵�the High Court held that the fact that a stipendiary magistrate heard separate informations against different persons together did not render the proceedings a nullity. But the Court went on to hold that, on an appeal from such conviction, the court of quarter sessions had no jurisdiction without the consent of each of the accused persons to hear the appeals together. In their joint judgment Sir Adrian Knox, the Chief Justice, and Justices Isaacs, Gavan Duffy, Powers, Rich and Starke, had this to say[ccxxxvii]¹⁶:

�The learned Chairman of Quarter Sessions held, however, that he had authority to hear the cases together, that is to say, to hear the charge against Albert Bates and Nellie Isabel Bates together with the charge against Saunderson. All the respondents objected to the learned Chairman so proceeding and gave no consent to his so doing. It would be quite irregular in law for him so to proceed without such consent and, if he so proceeded, a mistrial would result.�

As I have earlier stated I am not satisfied that there was any true consent to the information against the appellant and the other seven defendants being heard together. In my opinion I must consider the whole of the circumstances of this case in an endeavour to assess the seriousness of the irregularity which I consider to exist. As they appear to me they are these: On 7th December there was an unprovoked, vicious and serious assault made on an elderly man. There was a great deal of publicity given to this and other incidents of a like nature at that time and feelings were high. The Mataungan Association figured prominently in the publicity. It was known that at least one of its leaders, that is the appellant Kereku, was before the Court. It could be assumed that public feeling was such that stern punishment should be meted out to those responsible for the assault. On another aspect of this appeal Mr. Lalor referred me to the case of R. v. Staines; Ex parte O�Connor[ccxxxviii]¹⁷, a decision of the Full Court of Queensland. That was a case citing a newspaper for contempt of court and which is not directly relevant to what I am at present considering. What I have in mind is not only newspaper but other publicity but I wish to refer to the expression of opinion by all the judges in that case, that it is not beyond the range of probability that even judges of the Supreme Court might be influenced by material such as was under the Court�s consideration with the consequence that they might lean one way rather than the other at the hearing. In effect the Full Court of Queensland was there giving expression to the reality, and in my respectful opinion properly so, that judges, magistrates and juries are all human beings and subject in greater or lesser degree to human feelings and public pressures. In the atmosphere existing in December, even later in December when these cases came on for hearing, in my view it was most important that great and particular care should be taken to consider the case against each individual charged. It was equally important to ensure that each such individual was able to present and conduct his case adequately.

Having read the magistrate�s report and the transcript, I am satisfied that apart from the mistakes to which I have already referred in relation to the prevention of Kereku�s cross examination of Tobaining, and apart from an understandable shortness when what the magistrate thought were irrelevancies were introduced, I am satisfied that he did his best to allow each defendant full rein within his capabilities. But the defendants were all unrepresented and in the atmosphere of this �lumped� hearing I do not think it would occur to each defendant that he could seek exculpatory evidence from his fellow defendants. Nor indeed would the danger occur to him that he may have been in, if incriminatory evidence were given against him by any one or other of the defendants. This was a case in which I think each defendant needed to be told of his entitlement to a separate hearing, and to be told clearly what his rights were. He was not so told and in the case of the appellant Kereku, on that ground also, I would hold that there had been a mistrial and I would have allowed the appeal and remitted the matter for rehearing. However in his case I have taken another course because there are special considerations which there may or may not be in the others. I have not considered the other cases in detail but in his particular case there are special considerations which have led me to quash the conviction.

Now I have not dealt with other grounds of appeal taken by Mr. Lalor, the major one being the failure, as he asserted, of the magistrate to give particulars to each man of the offence with which he was charged. I have not given serious consideration to this ground as I consider it unnecessary in the circumstances that exist, and in the light of the decision I have come to on other grounds. Furthermore, there is a matter of a kindred nature about to be argued in the Full Court and I think it probably better for me not to express any views on it at the moment. With relation to the ground that there was undue newspaper publicity before the trial I would not regard that as a ground for holding that the trial miscarried, or for aborting the trial. That publicity was merely part of the general atmosphere which existed at the time. There may have been one or two unfortunate remarks in the press but this on the other hand was a very newsworthy occasion and an occasion in which the public as a whole was intensely interested. The only relevance that I think this publicity has is to show the need for special care on the part of the magistrate to see that where you have a disturbed situation of this sort and, as it were, a public thirst in some quarters for vengeance, that vengeance should be wreaked upon the right people, that is to say that the cases before the Court should be scrutinized with particular care to see that they are proved beyond reasonable doubt. Of course I express no opinion whatever of the guilt or innocence of the other appellants. I have not had occasion to hear their cases nor to give any consideration to other matters which may be urged on the appeals to be conducted in this Court, nor to the kind of material which may emerge on any rehearing. And so I return now to the appellant Kereku and formally pronounce the order that the appeal be allowed and the conviction and the sentence based thereon be quashed.

Appeal allowed. Conviction for unlawful striking quashed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: P. J. Clay, Acting Crown Solicitor.

[ccxxii][1956] S.A.S.R. 153.

[ccxxiii](1930) 44 C.L.R. 38.

[ccxxiv](1930) 44 C.L.R. 38.

[ccxxv](1930) 44 C.L.R. 38.

[ccxxvi](1930) 44 C.L.R., at pp. 86-87.

[ccxxvii](1930) 44 C.L.R., at pp. 88-89.

[ccxxviii](1858) 32 L.T. (O. S.) 105; 23 J.P. 486.

[ccxxix] (1862) 5 L.T. (N.S.) 605; J.P.489.

[ccxxx](1871) 36 J.P. 198.

[ccxxxi](1930) 44 C.L.R., at pp. 89-90.

[ccxxxii](1930) 44 C.L.R. 38.

[ccxxxiii](1930) 44 C.L.R., at pp. 79-80.

[ccxxxiv](1927) 40 C.L.R. 209.

[ccxxxv](1930) 44 C.L.R., at pp. 80-81.

[ccxxxvi](1927) 40 C.L.R. 209.

[ccxxxvii](1927) 40 C.L.R., at p. 214.

[ccxxxviii] (1930) 24 Q.J.P.R. 39.