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The West Indian Reports/Volume 17 /Vysick v Commissioner Of Police - (1971) 17 WIR 391

(1971) 17 WIR 391

Vysick v Commissioner Of Police

COURT OF APPEAL OF THE WEST INDIES ASSOCIATED STATES

A M LEWIS CJ, CECIL LEWIS AND ST BERNARD JJA

18, 19 NOVEMBER,

Criminal law Appeal Preliminary objection that summons not issued in accordance with relevant law Preliminary objection overruled Statement by defendant's solicitor that he was appearing under protest and would not crossexamine Defendant pleading to complaint Effect of crossexamination of prosecution witness by defendant's solicitor despite statement of contrary intention Criminal Procedure Code, Cap 77 [Grenada], ss 71, 72 (1), 73, 74 (1) Motor Vehicles and Road Traffic Ordinance, Cap 194 [Grenada], s 50.

The appellant was convicted on 20 September 1971, by the magistrate of the Southern District of driving a motor vehicle on a public road without due care and attention and was fined $10 payable by 27 September 1971, and in default of payment he was ordered to undergo 14 days' imprisonment. At the hearing of the charge before the magistrate on 15 September 1971, the defendant was not present but his solicitor was, and he raised the preliminary point on his behalf that the summons served on his client had not been issued in accordance with s 74 (1) of the Criminal Procedure Code, Cap 77 [Grenada] (hereinafter referred to as "the Code") and therefore the magistrate had no jurisdiction to entertain the complaint. It was submitted that under s 74 (1) of the Code it was essential before a magistrate could issue a summons thereunder he should see the complaint, and as the magistrate never saw the complaint in this case before the summons was issued he was unable to exercise the discretion vested in him by s 74 (1) of the Code. Evidence was given by the magistrate's clerk which was uncontroverted and which conclusively established that the magistrate never saw the complaint before it was issued and that she had signed and issued the summons without referring the complaint to him. The ruling on the preliminary objection was reserved and on 20 September 1971, the magistrate gave his reasons in writing overruling the objection. He held in effect that the summons was properly issued although he had not seen the complaint previous to the issue of the summons.

After the objection had been overruled the defendant's solicitor said that he was appearing under protest, the defendant pleaded not guilty to the charge and the first witness for the prosecution was examined. At the end of her examinationinchief the defendant's solicitor again stated that he was there under protest and "is not crossexamining".

The second witness for the prosecution, the police constable who investigated the circumstances out of which the complaint arose, next gave evidence and he was crossexamined. The case for the prosecution was then closed and the solicitor for the defendant thereupon submitted "that the court has no jurisdiction because there is no proper complaint under s 74 in that there was no complaint before the magistrate". He then informed the magistrate that he rested his case. The magistrate held that a prima facie case had been made out against the defendant and convicted him and fined him. The defendant gave "verbal notice of appeal". His notice of appeal contained two grounds but only one was argued and this was "that the magistrate had no jurisdiction to adjudicate in the matter as the provisions of s 74 (1) of the Criminal Procedure Code, Cap 77, of the Laws of Grenada were not complied with in that the complaint was not made before the magistrate and accordingly the magistrate did not exercise his discretion to issue his summons".

Before this court counsel for the appellant submitted that if a complaint is made in writing the magistrate must see it before the summons is issued so that he may authorise the issue of the summons.

(1971) 17 WIR 391 at 392

Counsel sought and obtained leave to argue the additional point that the complaint itself was defective. On this issue he submitted that s 71 of the Code lays down the methods by which proceedings shall be instituted in the magistrate's court, that one of these methods is by complaint "made before the magistrate", that "before" means "in the sight of" and in this context connotes that the magistrate must have seen the complaint, it must have come to his knowledge. He further contended that on the evidence no complaint had at any time been made before the magistrate, and as a complaint institutes proceedings, if no complaint is made, everything else flowing therefrom was void.

As to the effect of his action in crossexamining a witness for the prosecution after indicating that he was taking no part in the trial and was appearing under protest, counsel for the appellant (who also appeared in the court below) submitted that his crossexamination was directed to the same question raised by the preliminary objection as to the jurisdiction of the court, that he did not contest the case on its merits as he never touched the vital question whether the defendant was driving without due care and attention, and that his crossexamination of the policeman was only directed to ascertaining whether or not he had warned his client that he was likely to be prosecuted.

Held: (i) "A summons is the result of a complaint which has been made to a magistrate on which a magistrate must bring his judicial mind to bear and decide whether or not on the complaint before him he is justified in issuing the summons" (per Lord Goddard, CJ in R v Wilson, ex parte Battersea Borough Council (R v Wilson, ex parte Battersea Borough Council, [1942] 2 All ER 569), [1947] 2 All ER at p 570). Therefore the very essence of this matter is that the magistrate must give judicial consideration to the complaint and decide whether or not he will issue the summons, and he can only do this if, in the case of a written complaint, this document is before him. He cannot exercise his discretion in vacuo. The magistrate was accordingly wrong in overruling the defendant's objection and in holding that the summons was properly issued.

(ii) On the question of the validity of the complaint, the evidence disclosed that the magistrate saw the complaint on 15 September 1971, when the hearing began and on that date both the complainant and the complaint were before him. The limitation period of three months fixed by s 72 (1) of the Code for bringing a complaint for the offence in respect of which the appellant was charged had not yet expired and therefore the complaint was properly before the magistrate and was valid.

(iii) By pleading to the charge and by permitting a witness for the prosecution to be crossexamined on his behalf after his solicitor had indicated that he was appearing under protest and was not crossexamining, the appellant took steps which were "unequivocally referable to the issue on the merits" of the charge. Moreover the substance of the crossexamination of the witness was directed to the merits of the case and was not confined to matters relating to the jurisdiction of the magistrate raised by the preliminary objection. Accordingly, the appellant must be deemed to have submitted to the jurisdiction of the court.

Appeal dismissed.

Cases referred to:

R v Wilson, ex parte Battersea Borough Council, [1942] 2 All ER 569

In re Dulles' Settlement (No 2) Dulles v Vidler, [1951] Ch 842

Dixon v Wells, 17 CCC 48

Appeal

Appeal from a decision of the magistrate of the Southern District in Grenada in which he convicted the appellant on 20 September 1971, of driving a motor vehicle on a public road without due care and attention.

C Bristol and A Taylor for the appellant.

D Lambert (Ag Director of Public Prosecutions) for the respondent.

(1971) 17 WIR 391 at 393

LEWIS CJ. I have had the advantage of reading in advance the judgments which are about to be delivered by my Lords. For the reasons which they have given I agree that this appeal should be dismissed with costs.

CECIL LEWIS JA. The facts out of which this appeal arises are that on 20 September 1971, the appellant was convicted by the magistrate of the Southern District of driving a motor vehicle on a public road on 22 June 1971, without due care and attention. He was fined $10 payable by 27 September 1971, and in default of payment was ordered to undergo 14 days' imprisonment.

It is unnecessary to go into the facts of this case in detail because the appeal is being argued on a point of law (the same which was raised in the court below) which goes to the jurisdiction of the magistrate. It is sufficient to state that on the date in question the appellant's vehicle was involved in a headon collision with another vehicle on the Morne Rouge public road, and after an investigation on the spot by a member of the police force, the appellant was there and then informed by the constable that he would "charge him for driving without due care and attention". He was duly charged, with the result indicated above.

At the hearing before the magistrate on 15 September 1971, the defendant was absent, but was represented by his solicitor who raised a preliminary objection to the jurisdiction of the court. He said that the summons served on his client was not issued in accordance with the provisions of s 74 (1) of the Criminal Procedure Code, Cap 77, and therefore the magistrate had no jurisdiction to entertain the complaint. This subsection (omitting the proviso) reads:

`74. (1) Where a complaint is made before a Magistrate that any person has committed or is suspected to have committed, within the jurisdiction of the Magistrate, a summary offence, it shall be lawful for the Magistrate, in his discretion to issue his summons directed to the person, stating concisely the substance of the complaint, and requiring him to appear at a certain time, being not less than fortyeight hours after the service of the summons, and at a certain place, before the Magistrate's Court, to answer the said complaint, and to be further dealt with according to law...'

The submission based on this subsection was that it was essential before a magistrate could issue a summons thereunder that he should see the complaint (where it is made in writing as was done in this case) and, as the magistrate never saw the complaint before the summons was issued he was unable to and did not in fact exercise the discretion vested in him by the subsection. In order to substantiate this submission the magistrate's clerk, Clementine Buxo, was called as a witness by the defendant's solicitor. Her evidence, which was uncontroverted, established beyond doubt that the magistrate never saw the complaint before the summons was issued and that she had signed and issued the summons without referring the complaint to him.

The ruling on the preliminary submission was reserved, and on 20 September 1971, the magistrate gave his reasons in writing overruling the submission. The relevant part of the ruling reads:

`In this case there is a charge in writing filed in the Magistrate's Court, and as such that charge is properly before the Magistrate. The charge was laid by the complainant. Subsequently a summons was issued and served on the deft. In the circumstances what has the magistrate to do when the deft appears or does not appear? The answer is no injustice has been done and I cannot possibly say that because it is alleged that the magistrate did not see the complaint, that invalidates the hearing.'

The magistrate thus held in effect that the summons was properly issued although he had not seen the complaint previous to the issue of the summons.

(1971) 17 WIR 391 at 394

Counsel for the appellant before this court made the same submission as was put forward in the magistrate's court. He said that the magistrate must see the complaint so that he might authorise the issue of the summons. In support of this submission, counsel referred to R v Wilson, ex parte Battersea Borough Council (R v Wilson, ex parte Battersea Borough Council, [1942] 2 All ER 569), in which Lord Goddard, CJ, expressed his opinion as to the nature of a summons issued as a result of a complaint before a magistrate. He said at p 570:

`A summons is the result of a complaint which has been made to a magistrate on which a magistrate must bring his judicial mind to bear and decide whether or not on the complaint before him he is justified in issuing the summons.'

Therefore, the very essence of this matter is that the magistrate must give judicial consideration to the complaint and decide whether or not he will issue the summons and he can only do this if in the case of a written complaint this document is before him. He cannot exercise his discretion in vacuo. The magistrate was accordingly wrong in overruling the defendant's objection and in holding that the summons was properly issued.

This, however, is not the end of the matter, for counsel for the appellant also argued that the complaint itself was defective. This was not a ground of appeal but counsel submitted (a) in view of the fact that at the end of the case for the prosecution, the submission was made "that the court has no jurisdiction because there is no proper complaint under s 74 in that there was no complaint made before the magistrate", and (b) the magistrate in his ruling on the preliminary objection had stated that during the argument on this objection the provisions of ss 71, 73 and 74 (1) were examined, he should be allowed to argue this point as in reality it was not a new one. The court allowed him to argue the point as it appeared from the submission which was made in the court below that the question of the validity of the complaint had been at least mentioned at the trial. Counsel then referred to s 71 of the Criminal Procedure Code, Cap 77, which reads as follows:

`71. Every proceeding in the Court for the obtaining of an order against any person shall be instituted by information or complaint made before a Magistrate.

It shall be lawful for any person to make a complaint against any person committing a summary offence, unless it appears from the statute on which the complaint is founded that any complaint for such offence shall be made only by a particular person or class of persons.'

He submitted that this section lays downs the methods by which proceedings shall be instituted in a magistrate's court; that one of these methods is by complaint "made before a magistrate"; that "before" means "in the sight of", and in this context connotes that the magistrate must have seen the complaint, that it must have come to his knowledge. He further submitted that according to the evidence in this case no complaint had at any time been made before the magistrate, and as a complaint institutes proceedings, if no complaint is made, everything else flowing therefrom is void.

In considering these submissions, regard must, however, be had to a passage in the magistrate's ruling on the preliminary objection in which he said:

`In this case there is a charge in writing filed in the magistrate's court, and as such that charge is properly before the magistrate. The charge was made by the complainant.'

This passage shows that the magistrate, at some time had the complaint before him, and an answer given by the magistrate's clerk in her evidence furnishes some indication as to the time when the magistrate would normally see

(1971) 17 WIR 391 at 395

complaints. She said in crossexamination: "At least the magistrate would see the cases before the day of the hearing as he usually asks to see them."

It would appear therefore, that the magistrate may have seen the complaint on 14 September 1971, the day before the hearing; he certainly saw it on 15 September 1971, when the hearing began and on that date both the complainant and the complaint were before him. The limitation period of three months fixed by s 72 (1) of the Criminal Procedure Code, Cap 77, for bringing a complaint for the offence with which the appellant was charged had not yet expired, and therefore the complaint was, in my view, properly brought before the magistrate and was valid.

I now turn to the question whether or not the appellant submitted to the jurisdiction of the court despite his preliminary objection thereto. At the adjourned hearing on 20 September 1971, when the ruling on the preliminary objection was given the following entry appears on the record:

`Written ruling. Objection overruled. Mr Bristol now represents the deft and says he is appearing under protest. Plea: not guilty.'

The solicitor who appeared for the defendant on that day in the magistrate's court now appears as his counsel on this appeal and he confirmed the accuracy of this entry. He informed this court that the appellant, who had not appeared originally, appeared under protest after the ruling on the preliminary point and pleaded not guilty. The obvious inference to be drawn from the fact that the appellant pleaded is that the charge was read to him. Two witnesses gave evidence for the prosecution. At the end of the evidence of the first witness there is a note on the record which reads: "Mr Bristol says he is here under protest and he is not crossexamining." He accordingly did not crossexamine this witness. The other witness, police constable Crawford, who carried out the investigation at the scene of the accident was crossexamined by the defendant's solicitor. His crossexamination was as follows:

`X XD by Bristol: Q Why did you serve a notice of intended prosecution on Mrs Sheltus? A When we visit the scene of accident we usually serve a notice on both drivers. Q Why? A It is the usual procedure. Q Whether or not you made up your mind to prosecute you serve notice? A Yes, sir. I have no written statement from the deft. Q Is it not correct that he refused to give a written statement? A Yes. Q Is it not correct that his arrest was contemplated because of his refusal to give the statement? A No. Q You had charge of the investigation in this matter? A Yes. While going round the corner he saw a car P4808 coming in the opposite direction and in a minute time they were crashed head on. I asked him if there was any one also in his car 3403. He told me his wife. I asked him if his wife was injured. He said no. I asked him nothing else. I had asked him that before. Q Then you took measurements? A Yes. I made a note in my official pocket book. Then I informed him that I would charge him for driving without due care and attention.'

At the close of the case for the prosecution, the defendant led no evidence and rested his case on the submission that "the court has no jurisdiction because there is no proper complaint under s 74 in that there was no complaint made before the magistrate". The magistrate found a prima facie case had been made out, and convicted the defendant who then gave "verbal notice of appeal".

The defendant did two acts in reference to the proceedings: (a) he pleaded to the charge, and (b) a witness for the prosecution was crossexamined on his behalf. Counsel for the appellant himself posed the question as to what was the effect in the circumstances of this case of his crossexamination of a witness after he had stated that he had appeared under protest and was objecting to the jurisdiction of the court. The answer to counsel's question is to be found

(1971) 17 WIR 391 at 396

by applying the principle laid down by Lord Evershed, MR, in In re Dulles' Settlement (No 2) Dulles v Vidler (In re Dulles' Settlement (No 2) Dulles v Vidler, [1951] Ch 842), a case in which objection had been taken to the jurisdiction of the court and, by reason of certain affidavit evidence given by the party taking the objection, it was alleged that he had "involved himself in the question of the merits of the application". The Master of the Rolls said at p 847

`It is, of course, plain that where a question of jurisdiction arises a man cannot both have his cake and eat it. He cannot fight the issue on the merits, and at the same time preserve the right to say, if the worst comes to the worst, that the court has no jurisdiction to decide against him. And he cannot consistently with that principle take any steps unequivocally referable to the issue on the merits.'

Were the steps mentioned above which were taken by the defendant "unequivocally referable to the issue on the merits" of the charge in this case? If they were, then he must be deemed to have submitted to the jurisdiction of the court and to have abandoned his objection thereto. Counsel for the appellant contended that he did not abandon his original stand as to the absence of jurisdiction in the magistrate by crossexamining a witness for the prosecution. He submitted

(a) that if crossexamination is directed to the same question raised by a preliminary point as to the jurisdiction of a court, this does not mean that the party raising the point would be submitting to the jurisdiction of the court;

(b) that he did not contest the case on its merits as he never touched the vital question whether the defendant was driving without due care and attention and confined his crossexamination to the issue whether the magistrate's jurisdiction was affected;

(c) that he crossexamined the policeman only on the question of notice of intended prosecution which was a matter relating to the jurisdiction of the magistrate, because the giving of notice of intended prosecution was a prerequisite for founding the magistrate's jurisdiction to entertain the charge and the purpose of the crossexamination of the policeman was merely to find out if he had really warned the defendant that he was likely to be prosecuted.

Even a casual reference to the crossexamination of police constable Crawford will reveal that no support can be found for these contentions. The cross examination was not directed to the same question as had been raised on the preliminary objection to the magistrate's jurisdiction. This objection was based on two grounds, viz, the validity of the summons and the validity of the complaint, and no assistance could be obtained in the determination of these issues by the questions put to the police witness by the defence. Whether or not the defendant had been warned of an intended prosecution was not a factor which could affect the magistrate's jurisdiction, as his jurisdiction to entertain the complaint was not dependant on the establishment of this point. Section 50 of the Motor Vehicles and Road Traffic Ordinance, Cap 194, lays down certain requirements which must be complied with before a person can be convicted of careless driving and notice of intended prosecution is one of these requirements. It also provides that "the requirements of this section shall in every case be deemed to have been complied with unless and until the contrary is proved", so there is a rebuttable presumption in favour of the prosecution that the necessary warning had been given to the defendant. By crossexamining on this issue, the defendant's solicitor was presumably hoping to show either that the warning had not been given or to create a sufficient doubt in the magistrate's mind on this point to persuade him to dismiss the complaint. In so doing, he clearly got himself involved in the question of the merits of the case. Questions as to whether the defendant had given or had refused to give a written statement, about the vehicle crashing headon and as to the taking of measurements were, in my opinion, also directed to the merits.

(1971) 17 WIR 391 at 397

Moreover, the appellant's act in pleading to the charge had the effect of putting in issue the facts which the prosecution had a duty to produce in support of the complaint, and the prosecution was thereby put in a position where it was bound to lead evidence. If it did not lead any evidence, or if the evidence led was insufficient to establish the guilt of the defendant he would be entitled to be acquitted on the merits and the same charge could not afterwards be brought against him. In my view, the defendant by pleading and cross examining a witness on the points which he did, took steps which were "unequivocally referable to the issue on the merits" and he must therefore be held to have submitted to the jurisdiction of the court.

There was enough evidence to support the magistrate's finding that the appellant was guilty, and I would accordingly dismiss the appeal with costs.

ST BERNARD JA. The appellant was convicted and sentenced on a charge arising out of a driving offence committed on 22 June 1971.

At the trial which commenced on 15 September 1971, the appellant was absent but was represented by counsel. His counsel objected to the jurisdiction of the magistrate to hear the complaint on the ground that subs (1) of s 71 of the Criminal Procedure Code, Cap 77 of the Laws of Grenada had not been complied with, in that the magistrate had not exercised his discretion before a summons was issued to the appellant. That subsection reads as follows:

`74. (1) Where a complaint is made before a magistrate that any person has committed or is suspected to have committed, within the jurisdiction of the Magistrate, a summary offence, it shall be lawful for the Magistrate, in his discretion, to issue his summons directed to the person, stating concisely the substance of the complaint, and requiring him to appear at a certain time, being not less than fortyeight hours after the service of the summons, and at a certain place, before the Magistrate's Court, to answer the said complaint, and to be further dealt with according to law:

Provided that the Court may, if it thinks fit, with the consent of the parties, hear and determine a complaint notwithstanding the said period of fortyeight hours may not have elapsed.'

In order to prove that the provisions of the above subsection had not been complied with, counsel for the appellant called Clementine Buxo, the magistrate's clerk, as a witness. She gave evidence regarding the procedure adopted in the magistrate's court before the issuing of a summons to defendants on charges preferred against them. That evidence as it affects this case was that a summons had been issued to the appellant without the magistrate having seen the complaint. The effect of her evidence was that she had issued a summons, dated 1 July 1971, to the appellant without any instructions from the magistrate.

The ruling on this submission of counsel was reserved until 20 September 1971. On that date the magistrate overruled the objection and the appellant who was present in court pleaded not guilty to the charge. His counsel stated that he was appearing under protest. The trial continued on that date in the presence of the appellant. There were two witnesses. At the end of the evidence of the first witness, counsel said he was appearing under protest and was not crossexamining the witness. However, at the end of the evidence of the second witness counsel crossexamined the witness in respect of the service of a notice of intended prosecution on that witness; about the appellant's refusal to give a written statement; about the appellant's version of the accident and about the measurements taken at the scene. At the end of the trial counsel submitted that the complaint was bad in law and rested his case. There is a note on the record which states: "Mr Bristol says he rests his case." The magistrate overruled the submission, found that a prima facie case was made out and convicted the appellant.

(1971) 17 WIR 391 at 398

From this conviction and sentence the appellant has appealed on two grounds, namely:

`(a) That the magistrate had no jurisdiction to adjudicate in the matter as the provisions of s 74 (1) of the Criminal Procedure Code, Cap 77 of the Laws of Grenada were not complied with in that the complaint was not made before the magistrate and accordingly the magistrate did not exercise his discretion to issue the summons.

(b) That the magistrate's decision is unreasonable and cannot be supported by the evidence.'

Counsel, at the hearing of this appeal, abandoned ground two and relied on ground one. He submitted that the evidence of the magistrate's clerk showed that the magistrate did not bring his judicial mind to bear and decide whether or not a summons should issue and therefore the issue of a summons in those circumstances was irregular. He further submitted that the complaint itself was bad as it was not made before a magistrate in accordance with s 71 of the Criminal Procedure Code, Cap 77, of the Laws of Grenada.

In support of his first submission counsel cited several authorities. The case of Dixon v Wells (Dixon v Wells, 17 CCC 48) was cited. This was a case of an information laid against the appellant under Sale of Food and Drugs Acts 1875 and 1879 before two justices on 20 September 1879. No summons was issued by justices but subsequently a summons returnable upon 23 October was issued by an other justice who had not heard the information. The appellant appeared and objected to the jurisdiction. It was held that the summons was not legally issued. This case is not directly on the point as in this case the summons was bad because under the Acts it must be served within 28 days from the time of the purchase of the article in question. It does show, however, that a magistrate who issues a summons must be satisfied before so doing that a prima facie case was made out. Matthew, J, at p 54 stated:

`The magistrate who issued a summons must be satisfied before doing so that there is a prima facie case against the person to whom the summons is addressed.'

In the case of R v Wilson ex parte Battersea Borough Council (R v Wilson, ex parte Battersea Borough Council, [1942] 2 All ER 569), [1947] 2 All ER at p 570, Lord Goddard, CJ, stated:

`A summons is a judicial act. It is the result of a complaint which has been made to a magistrate on which a magistrate must bring his judicial mind to bear and decide whether or not on the information or complaint before him he is justified in issuing his summons.'

It is clear from the authorities cited that the issue of a summons is a judicial act, and the summons issued, in this case, was irregular as the magistrate had not complied with the provisions of s 74 (1) of the Criminal Procedure Code. A magistrate, every time an information or complaint is made before him, must decide whether or not a summons should be issued.

Although there is merit in counsel's submission and this issue must be decided in favour of the appellant, such decision does not, however, dispose of this appeal.

In regard to the second submission, counsel contended that the complaint itself was bad as it was not made before the magistrate in accordance with s 71 of the Criminal Procedure Code. That section reads:

`71. Every proceeding in the Court for the obtaining of an order against any person shall be instituted by information or complaint made before a magistrate.'

The offence for which the appellant was charged was alleged to have been committed on 22 June 1971. The complainant, Sergeant Slinger, was present

(1971) 17 WIR 391 at 399

in court on 15 September 1971, and again on 20 September 1971, when the appellant appeared personally. On the latter date the magistrate stated as follows:

`In this case there is a charge in writing filed in the Magistrate's Court, and as such that charge is properly before the magistrate.'

This statement shows that the magistrate, at least on that date, had brought his mind to bear on the complaint before him. The period of limitation for making such complaints is three months according to s 72 (1) of the Criminal Procedure Code. This period not yet having elapsed on 20 September 1971, in my opinion, the complaint was good and valid.

Although, in this case, no summons was issued in accordance with s 74 (1) of the Criminal Procedure Code and therefore the summons was not valid, yet in my opinion, the conviction and sentence of the appellant should be confirmed for the following reasons. On 20 September 1971, when the magistrate ruled that there was jurisdiction to hear the case the appellant was present in court. The complainant was also present and there was a complaint in writing before the magistrate. The appellant pleaded not guilty to the complaint and the case proceeded. During the course of the trial his counsel cross examined a witness for the prosecution on matters relating to the merits of the case. Counsel contended that the questions asked were questions which did not affect the merits of the case. In my view there were questions so asked, though, perhaps not all of them. There were questions relating to the notice of intended prosecution and to whether or not the appellant had given a written statement; questions relating to the cause of the accident and as to whether or not measurements were taken. The questions asked when taken together with the plea of not guilty entered before a court of competent x

Appeal dismissed.

Solicitors: Henry, Henry and Bristol for the appellants; Director of Public Prosecutions for the respondent.