DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under s 222 of the Justice’ Act 1886 against a decision of the Magistrates court on 22 January 2007 whereby the appellant was convicted at the end of a contested hearing, of a breach of s 138(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 which provides:

“138 Keeping off a painted island

1. (1)
   A driver must not drive on or over a single continuous line, or two parallel continuous lines, along a side of or surrounding a painted island, except as permitted under this section or under s 1394.”

2. [2]
   The original charge preferred against the appellant was a breach of s 132(3) of the Regulation, which provides:

“132 Keeping to the left of the centre of the road or the dividing line

1. (1)
   …
2. (2)
   …
3. (3)
   A driver on a road with 2 continuous dividing lines must drive to the left of the dividing lines, except as permitted under s 134 or 139(2).

3. [3]
   There was no defence advanced by the appellant in relation to the exculpatory provisions of either s 138(1) or 132(3).

4. [4]
   At the close of evidence, and having regard to that evidence, the learned Magistrate exercised the power vested in him by s 48 of the Justices’ Act 1886 to amend the complaint to change the charge from one of failing to keep left of 2 continuous dividing lines (s 132(3)) Regulation 132(3) to one of “driving on or over a single continuous line along a side of or surrounding a painted island” (s 138(1)).  The amendment is a matter in issue in this appeal and more will be said of it later.

5. [5]
   The appellant relies on the following grounds:

3. (1)
   absolute lack of evidence

3. (2)
   error of law

3. (3)
   procedural unfairness

3. (4)
   unreasonableness

3. (5)
   lack of jurisdiction.

In the Notice of Appeal after ground five above there is a notation (see attached letter) which refers to a letter dated 24 January 2007 written by the appellant to the Chief Magistrate in which he sets out, in rather intemperate language at times, his complaints about the Magistrates’ decision.

6. [6]
   Further in the Certificate of Readiness dated 5 June 2007 signed by the appellant he sets out the matters in issue in the appeal which in summary of these: -

1. (a)
   Lack of evidence to substantiate the charge that the wheels of the vehicle that the defendant was driving was seen crossing over two continuous dividing lines;

2. (b)
   An error in law on the part of the learned Magistrate in that he convicted the appellant of a charge which was found as an alternate to that charge which was alleged against the defendant in the summons;

3. (c)
   Unreasonableness on the part of the learned Magistrate in not construing the demand made on the appellant by his Taxi Cab passengers to “turn now” was one which compelled the appellant to commit the subject offence in order to avoid having open beer bottles smashed on his head by those passengers;

4. (d)
   Procedural unfairness in that the summons referred to a failure to keep left of two continuous dividing lines, that there was no evidence of any such two lines and that the Magistrate based his decision on an unrelated charge.  Further there is the allegation that the Magistrate discussed the case in the hearing of a police witness before the witness was called to give evidence.

7. [7]
   The abovementioned letter to the Chief Magistrate of 24 January 2007, relevantly, deals with the above issues with an additional one in paragraph ten that he was threatened by the Police Prosecutor. I have endeavoured in this appeal to address all relevant issues raised by the appellant.

FACTS

8. [8]
   The appellant was charged that on 3 June 2005 whilst driving along Wardell Street, Enoggera, south of the Wardell Street and South Pine Road intersection, he performed a U‑turn and in so doing failed to continue to drive to the left of the dividing line constituted by 2 continuous lines.  The appellant was driving a Maxi Taxi at the time and denied that the road had the 2 continuous lines alleged by the prosecution.  The court found that the defendant was driving along Wardell Street and drove past the inner most lane of Wardell Street known as the slipway, which is a right turn only lane into Pickering Street.

9. [9]
   At the time, he was proceeding northbound along Wardell Street towards the South Pine Road intersection and had on board his taxi five or six intoxicated male passengers, one of whom was in the front of the vehicle with him and the other four or five in the back.  His case was that, after passing the Pickering Street slipway on his right, the passengers demanded that he do a U‑turn to take them back to a hotel to buy more alcohol.  He explained that he could not turn but they demanded that he “Turn now”.  At that point in the road there was a traffic median strip and the appellant admitted that, in compliance with the demands of his passengers, he executed a U‑turn by crossing over the median strip so as to then place him in Wardell Street driving south in the opposition direction to which he had been travelling.

10. [10]
    The learned Magistrate preferred the evidence of the appellant to that of the police officer who was present on the night in question in relation to the existence of 2 continuous lines at the point where the defendant made his U‑turn.  He accepted the police evidence that there were 2 continuous lines further up Wardell Street, but accepted that, where the incident occurred, the police officer must have been mistaken in relation to that particular, and that the version offered by the defendant, that there were no 2 continuous lines, was more likely to be the correct situation.  On that basis he accepted that, at the point at which the alleged incident took place, there was no 2 continuous lines.

11. [11]
    What he also accepted, relying on a photograph being Exhibit 3 tendered by the appellant, was that he could see from that photograph the traffic island which the defendant drove over to execute his U‑turn.  Importantly, he could see a continuous white line around the base of that traffic island on that side of the island opposite to the side the defendant’s vehicle would have been closest to immediately before executing the U‑turn, being the northern directional lane.  He further accepted the police witness’s evidence that the traffic island had painted lines across the front of it and that further up Wardell Road from that traffic island, continuing in the northbound direction which the appellant was driving in immediately before executing the U‑turn, there was a continuous white line on the road.  In relation to the photograph Exhibit 3, the learned Magistrate found:

“As the photograph shows, once you have passed that area where you can turn right, there is a traffic island of some significant length and on certainly the side that can be seen from the photograph which is on the side of other – opposite to the defendant that you can clearly see a single continuous white line around the traffic island.  And there are certainly also, continuous lines leading up on to the other side where the defendant was travelling which go up to the island and it is clear continue on.”

12. [12]
    It is clear from that statement and the previous evidence I have mentioned that the learned Magistrate found that there was one continuous line running along that side of the traffic island closer to the camera and in the right‑hand foreground of Exhibit 3. He also found there was a continuous line on the road immediately prior to reaching the island after the Pickering street slipway. From that, he inferred that there was a similar configuration of continuous lines on that side of the island where the appellant was immediately prior to executing his U‑turn on Wardell Street. That is, there was a continuous white line all along the north bound lane of Wardell Street from prior to the slipway along the inner side of the traffic island and then continuing past the island northbound along Wardell Street.  The effect of that is that the defendant, in executing that U‑turn, crossed a continuous white line, being the white line along the base of the traffic island.  That inference drawn by the learned Magistrate as to the positioning of the continuous white line was clearly open to him. Further the learned Magistrate was entitled to take judicial notice of the fact of the fact of uniformity of road line markings on and around the baseline of traffic islands indicating a prohibition on vehicles being driven over them.

Amendment of Charge

13. [13]
    Once the learned Magistrate determined that the prosecution case was insufficient to make out the charge under s 132(3) he directed his mind to his powers under s 48 to amend the charge to better accord with the evidence he had received.  At page 46 of the transcript of the trial the learned Magistrate raised with the prosecutor, Sergeant Hodge, the question of whether crossing a single white line was itself an offence.  The following exchange took place in the present of the appellant:

“BENCH: Well, there’s some suggestions, from the defendant anyway, I just wanted to comment on this, is that he seems to have done somewhat a U‑turn over a traffic island.

SGT HODGE: Yes.

BENCH: Isn’t that an offence in itself?

SGT HODGE:It is, and it’s also a white line that you – if you look at the photograph it’s actually a single continuous white line which is also an offence to cross a single continuous white line.”

14. [14]
    At p 48 the following exchange occurred between the learned Magistrate and the appellant:

“Yes.  What would you want to say?

DEFENDANT:To begin with, your Honour, I pointed out that it is up to the prosecution to prove their case.  It is not for me to prove innocence.  Now I’m saying this, your Honour it is not for me to prove where the so-called double white lines are.  If indeed as the police claim there are two double white lines on this Wardell Street, which is so long, then they ought to produce those two double white lines.  They’re not there.  That is why …

Too, your Honour, one, I do not intend and do not contest the fact that I did a U‑turn.  It’s something that I’ve even told the policeman.  There and then on the spot.”

15. [15]
    The appellant was then asked again about crossing over the traffic island and told that it may be an offence in itself. Then followed this exchange:

“DEFENDANT:It may well be, but I’ve not been – whatever it is, I’ve not been charged with that.”

BENCH:Well, one – in traffic matters particularly, where the court hears evidence and finds evidence of an offence similar to but not identical to the one that is charged, the court can, of course, amend the charge or the – before passing a sentence, and that may, in fact be what could – what could happen today.  I’m drawing that to your attention today and I’m drawing it to the attention of the prosecution.

DEFENDANT:Yes.

BENCH:In your case, you have, leaving aside the question of emergency.

DEFENDANT:Yes, sir.

BENCH:It’s a different issue which is an offence of an excuse.

DEFENDANT:Yes, sir.

BENCH:If that is an offence it could be a matter which is subject to an amendment, so I’m drawing that to your attention so that you’re not caught by surprise at the end of it all, but that’s a possibility.”

16. [16]
    The appellant then went on to address the court on the matter generally and the court adjourned until 2.15 pm.

17. [17]
    When the learned Magistrate resumed at 2.15 pm he delivered his decision which included an amendment to the complaint to bring it into line with an offence under s 138(1) of the Regulation.  In that regard, he said at p 14:

“And in those circumstances, I intend, based on my view of the evidence, taking into account the defendant’s admissions about the matter and those admissions being consistent with the prosecution evidence to the extent only as to whether or not the U‑turn was performed over the traffic island or further up the traffic island where would have been double white lines, in these circumstances I will amend the complaint … so, the amendment of the complaint will be as follows.  I read the whole complaint, I think for completeness.  The complaint of Glen Robert Winston, Sergeant of the Queensland Police Service of Metropolitan North Traffic Adjudication section and it is dated the 26^th day of September 2006 before the undersigned, a Justice of the Peace of the said State who says, “that on the 3^rd day of June 2005 at Enoggera in the central division of the Brisbane Magistrates court district in the State of Queensland, one Josiyas Zifanana Mbuzi, being the driver of a vehicle, namely a car on a road, namely Wardell Street, Enoggera, the said road with a single continuous line, a line of or surrounding a painted island, drove on or over that single continuous line on the said road and it is averred that the said car or the vehicle is defined in Schedule 6 of the Transport Operations Road Use Management Road Rules Regulation 1999, and it is averred that the said Wardell Street is road as defined in Schedule 6 of the same regulations, contrary to the Acts in such case made and provided.”

18. [18]
    The appellant was then convicted of an offence under s 138(1) in reliance upon the evidence of his admission of the execution of the U‑turn on Wardell Street and the other evidence as to the continuous white line I have outline above.

19. [19]
    Section 48 of the Justices’ Act, pursuant to which the learned Magistrate amended the complaint, provides:

“If at the hearing of a complaint, it appears to the justices that:

1. (a)
   there is a defect therein in substance or in form, other than a non‑compliance with the provisions of s 43; or

2. (b)
   there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or

3. (c)
   there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then

4. (d)
   if an objection is taken for any such defect or variance, the justices shall; or
5. (e)
   if no such objection is taken – the justices may;
6. (f)
   make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.”

20. [20]
    It is apparent from the above that the learned Magistrate relied upon subsections (c) and (e) above in amending the complaint.

21. [21]
    In Hayes v Wilson, ex parte Hayes^[1] the Queensland Full Court conducted an exhaustive review of English and Australian Authorities empowering a court to amend a complaint under the equivalent of s 48 of the Justices’ Act.  The court held that the test to be applied in a case of an amendment pursuant to s 48 was whether the offence sought to be charged by the amendment is one cognate to the offence in respect of which an amendment was sought.  The then Chief Justice W. B. Campbell CJ set out a statement by Pape J in Kennett v Holt^[2] as to the meaning of the term “cognate offence” where His Honour said:

“The offence charged by the amendment was a cognate offence to that originally charged in that it was akin in origin and quality and allied in nature to the offence originally charged.^[3]”

22. [22]
    I find that the amended charge under s 138(1) of the Regulation was a cognate charge in that it was akin in origin and quality and allied in nature to the offence under s 132(3) of the Regulation so as to make the amendment by the Magistrate a legitimate one within his powers under s 48 of the Justices’ Act.

23. [23]
    Although s 48(e) empowers a Magistrate to make an amendment of his or her own accord if no objection to the then form of complaint is taken, it would be customary for the Magistrate to foreshadow any amendment and invite submissions before making a final decision.  In the present case, as I have outlined above, the learned Magistrate indicated to the prosecution and the appellant that a charge founded on crossing the one continuous line rather than two continuous lines was open and that he may well amend the complaint.  Whilst he did not formulate the proposed amendment and invite submissions on it, I am satisfied that there has been no unfairness to the appellant.  The amended charge related to the admission by the defendant that he executed a U‑turn over the traffic island.  I have already found that the finding by the Magistrate as to the one continuous line along the bottom of either side of that island was one which was open to him.

Extraordinary emergencies – Criminal Code s 25

24. [24]
    Section 25 of the Criminal Code provides:

“Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self‑defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise.”

25. [25]
    As I have outlined earlier, the appellant at the time of the incident had a number of drunken men in his Maxi cab drinking beer from beer glasses or beer bottles and they demanded that he “Turn now” even though the appellant had passed the right‑hand turning lane off Wardell Street, being the slipway into Pickering Street.  He said that it was as a result of that demand from the drunken passengers that he executed the U‑turn over the traffic island.

26. [26]
    It is clear that the learned Magistrate treated the above evidence from the appellant as putting forward a defence under s 25 of the Criminal Code.  He said^[4]:

“Mr Mbuzi fairly, of course, raised the issue of a threat with the police officers at the time of being apprehended.  There were, it would seem, certainly some four or five male persons in the vehicle.  It would appear they were intoxicated from what Torcetti said, and clearly what Mr Mbuzi is saying that they were intoxicated; that they had bottles of beer in their hands.  Senior Constable Torcetti does not say that he recollected that but it does not seem that he would be either necessarily denying that.

What the defendant says about this issue is this.  He says that he was – on that particular night, he picked up this group.  They stopped at a hotel, it would seem to buy more beer and this was apparently where Wardell Street crosses Samford Road.  They left the hotel and were heading north.  As they just passed the Pickering Street off‑ramp, which obviously goes to his right, there was a suggestion by at least one of the male persons that they must immediately go back to the pub.  The defendant says that the said that he cannot turn here and he was told to do so.  There was some further conversation and he was told to turn ‘now’.

He says that he felt he had no choice.  He immediately turned his vehicle.  He clipped the island and then swung his vehicle obviously to the right to do his U‑turn.  He did see the car lights coming from up further.  When he finished the U‑turn, he saw in the rear view mirror a police light and he slowed – he told the group he was going to report it to the police and they said ‘Well, we haven’t done anything wrong’, and he then obviously made the complaint to the police at some stage during this process.  While the ticket was being done, the people disembarked from the Maxi Taxi that he was driving.

By the evidence of, which will support the extraordinary emergency is that was told to go back to the pub.  He said he could not turn there and they said ‘Turn now’.  During the course of cross‑examination, he added to the evidence that – well agreed, firstly that there was no specific threats to hurt him, in other words no specific verbal threats.  He said that he took the circumstances of the case being some 10 o’clock at night with four or five males who had been drinking with beer glasses or with beer bottles in their hand, that a demand to ‘Turn now’ was in the form of a threat to him and as a result, he did what they told him to do and he just swung the vehicle even though it hit the traffic island.

I accept that he would not have been travelling at a great speed to do that but clearly, in so doing going over a traffic island, that clearly is an offence as I have suggested and I have made the appropriate amendment to the charge.

The question as to extraordinary emergency in s 25 has often come up in relation to motor vehicle cases.  Often the reference in the few cases that seem to be decided on the point relate to where someone drives in a manner which is considered, for instance, dangerous as a result of other drivers causing that person to be placed in a terrifying situation and in order to avoid risk of harm, they travel in a way which is considered to be dangerous in response to the fear that has been placed before them.  It is also clear that the test in relation to extraordinary emergency and the other section, the evidential onus, to some extent is placed on the accused to at least raise the defence which he has.  The prosecution has the onus of course of excluding it beyond reasonable doubt.”

27. [27]
    He later said^[5]:

“‘Turn now’ in my view objectively does not create a situation which it could be said is in any means, on itself or by itself, a threat or a threat of violence to a person, nor is it one which creates a situation that, in my view, is a sudden or extraordinary emergency.  It seems that the terrifying situation that is referred to in some of the case law is by no means met here.  A demand to ‘Turn now’ is far beyond – well under the test that would be applied in relation to a finding of extraordinary emergency or a fearful or sudden incident or situation occurring which would require [sic] him to perform an extraordinary or unusual driving of the vehicle.”

28. [28]
    In the result the learned Magistrate found that the circumstances did not create a situation sufficient to satisfy a s 25 defence.  That finding was clearly open on the evidence.

Justification and Excuse – Compulsion

29. [29]
    Later,^[6] he also considered whether or not the appellant had made out a defence under s 31 of the Criminal Code which, relevantly, provides:

“31(1) a person is not criminally responsible for an act, if the person does the act under any of the following circumstances, that is to say: -

1. (a)
   …

2. (b)
   …

3. (c)
   when the act is reasonably necessary in order to resist actual unlawful violence threatened to the person…;

4. (d)
   when: -

1. (i)
   the person does the act in order to save himself…from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

2. (ii)
   the person doing the act…reasonably believes he…is unable otherwise to escape the carrying out of the threat; and

3. (iii)
   doing the act…is reasonably proportionate to the harm or detriment threatened.” 

30. [30]
    In R v Smith^[7] the Court of Appeal unanimously construed the opening words of s 25 as excluding its operation where the provisions of the Code relating to acts done under compulsion are brought into operation, that is, where the act and what is said to be the compulsion required the application of s 31(1)(c) and (d).  In considering firstly s 31, the question arises as to whether or not the evidence adduced by the appellant brought into operation s 31 so as to then oblige the prosecution to exclude its operation.  In other words, once the evidence establishes a threat and an act done apparently in response to it, s 31 is triggered and the Crown is then obliged to exclude the operation of s 31(1)(c) and s 31(1)(d).^[8]

31. [31]
    In considering s 31 the learned Magistrate said:^[9]

“There is, of course, an issue that even if the threat was not – was a mistaken one, whether or not the defendant could have honestly and reasonably believed that there was a threat done.  Certainly, objectively, a demand from a person in the back of a vehicle to, ‘Turn now’, in my view objectively does not create a situation which it could be said is, in any means, on itself or by itself, a threat or a threat of violence to a person, nor is it one which creates a situation that, in my view, is a sudden or extraordinary emergency.  It seems that the terrifying situation that is referred to in some of the case law is by no means met here.  A demand to ‘Turn now’ is far beyond – well under the test that would be applied in relation to finding an extraordinary emergency or a fearful or sudden incident or situation occurring which would require him to perform an extraordinary or unusual driving of the vehicle.

It certainly objectively does not meet a threatening standard at all.

The next question is whether or not, notwithstanding that, in the circumstances, as I said, at that time of night with four or five people in the back of the vehicle intoxicated, whether or not that also should put him in a situation where he may have had an honest and reasonable albeit mistaken belief that that was the existence of the emergency at the time, but the evidence in relation to that is very sparse indeed.  A group of four or five male persons who may have been drinking, making a demand to ‘Turn now’, without any precursor which would indicate that threats were being made, without any addition to threats being made, he agrees that they didn’t threaten to hurt him, simply that the saying of ‘Turn now’ was enough for him to think that he was being threatened.  Again, I do not think that comes anywhere near the meaning of an extraordinary emergency or a threat within the terms of s 31 of the Criminal Code, and, in my view, the defence certainly is not made out.”

In my opinion the reflection of the S31 defence was open to the learned Magistrate.

S 24 – Mistake of Fact

32. [32]
    The above passage shows that the learned Magistrate also considered a possible defence under the Criminal Code s 24 (mistake of fact), which relevantly, provides: -

“31(1) a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent then if the real state of things had been such as the person believed to exist.

(2) the operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

33. [33]
    In the result, the learned Magistrate found that the evidence did not afford a defence to the appellant under s 24 as entitling the appellant to rely upon an honest and reasonable belief that he was at risk of a threat of violence.  That finding, in my view, was clearly open to the learned Magistrate.

34. [34]
    The question on appeal of course is not whether another court may have taken a different view of the facts, but rather whether the Magistrate fell into error in arriving at his decision. As was said in House v R^[10]:

“It is not enough that the judges composing the appellate court consider that, if they had been in a position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may to appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law opposes in the court of first instance.”

35. [35]
    For the above reasons I am not satisfied that the learned Magistrate’s discretion miscarried as to the alleged threat perceived by the appellant and the defences addressed by the learned Magistrate. Accordingly there is no warrant for my interfering with his decision.

Allegation of assault by police prosecutor

36. [36]
    Not surprisingly, this was not argued by the appellant in the appeal, as there is no evidence of anything approaching an assault. What the defendant did at trial was to bring to the attention of the court the fact that Sergeant Hodge, the police prosecutor, had approached him in relation to the possible raising by the appellant of the s 25 defence of extraordinary emergency.  The transcript shows the following:^[11]

“DEFENDANT:Thanks, your Honour.  And your Honour the second thing relates to a preliminary issue.

BENCH:Mmm-hmm?

DEFENDANT:That may not directly relate to this matter.

BENCH:Mmm-hmm?

DEFENDANT:Before I came here I was like anyone else, waiting outside.

BENCH:Mmm-hmm.

DEFENDANT:And Sergeant Hodge approached me to say he knows I’m not represented, but he wanted to tell me that if I intended to rely on the provision a emergency – and that was by his own study – and then he wanted to continue from there.  Now, I told him that I felt that was inappropriate.  And I say that I believe reasonably because one – what relates here is some adversarial relationship.  I cannot understand how a Police Prosecutor, who is prosecuting me, can be attempting to guide me as to how I should run my case.  And therefore, I pointed to him that that was inappropriate.  And honestly, I believe it is not only inappropriate, I believe it’s foolishness, as well.  And so I said, ‘Look, I don’t believe you should do that, I’m not interested.’  He pointed to me, said, ‘I can do anything to you’ now …

BENCH:What submission are you trying to make here?  What’s the preliminary point?

DEFENDANT:The preliminary point is that when litigants come to court, they need court protection.  This is not a police station where litigants should be intimidated and harassed by the police.

BENCH:Well, if you think that’s the case, you probably should put a – you can put a complaint in, no doubt there is a complaint section of the Commissioner’s office, and you should put that in.  I don’t know if it’s a matter for me to deal with you see.

DEFENDANT:The only reason your Honour is – because this will be noted, if indeed I were to take that offer.  I would indicate that I’d brought this complaint to the court.

BENCH:Yes, it’s being recorded, so no doubt ---

DEFENDANT:I don’t intend to take any more time.

BENCH:--- no, that’s all right, no, but certainly you can put your complaint in, like everyone else.

DEFENDANT:Thanks, your Honour.

BENCH:Now well we’ll proceed thank you, Sergeant.”

37. [37]
    As can be seen from the above, the learned Magistrate sensibly suggested that the appellant lodge a complaint with the office of the Commissioner of Police in relation to the matter he raised. There is nothing further to be said on this issue.

Police witness in court

38. [38]
    The appellant also raised the fact that the only police witness called by the prosecution in the trial was sitting in court listening to evidence and proceedings in which he was later to give evidence. This ground was not pursued by the appellant on the hearing of the appeal and, again that is not surprising because in my view there is nothing in it. In cross‑examining the sole prosecution witness Senior Constable Torcetti, the appellant asked him if he was aware that there would only be one prosecution witness, to which Torcetti replied yes.  When asked then by the appellant how he knew that, the witness replied that he had been sitting in the back of the court when the prosecuting officer stated it to the court.  The appellant then responded by saying:

“‘So, you had the privilege to listen to some of the issues that were – regarding the matter before you are called as a witness?’”^[12]

39. [39]
    The following exchange with the Bench immediately followed that exchange:

“BENCH:No, Mr Mbuzi, I don’t know whether he was in the back of the court but -----

DEFENDANT:That’s what he said, your Honour.

BENCH:----- it’s quite traditional and quite usual for me to ask of a prosecuting prosecutor how many witnesses are there to be called in a case before me, so that I can get some idea as to which matters go first.

DEFENDANT:I have no problems with that, your Honour.

BENCH:Okay.

DEFENDANT:My problem is, it is my understanding that a witness should not have – should not have access to any details of the matter in court before he is called.  He has just admitted that he was here listening to that.

BENCH:As everyone else was.

DEFENDANT:But he is a witness, your Honour.”

40. [40]
    There is nothing improper or untoward about witnesses being in court at a time when the court is ascertaining from the prosecution the number of witnesses, order of witnesses, and the like. The principle which the appellant relies upon is that which prohibits a witness, other than an expert witness, being in court and hearing either a detailed opening of evidence or the actual evidence of witnesses who go before that witness on the same issues the witness will later testify to. That is not what happened here. All the learned Magistrate was doing was conducting a call over to ascertain from the prosecutor what witnesses would be called so that the learned Magistrate could prioritise the cases to be heard that day by reference to the anticipated length of time they may take.

41. [41]
    The appellant has conflated the principle of a witness sitting in court during a detailed opening or evidence, with the other circumstance which happened here, namely the preliminary call over.  There is nothing in this ground of appeal.

1. (a)
   In all the circumstances I can find nothing in the decision of the presiding Magistrate to support any of the grounds of appeal.  Accordingly I dismiss the appeal and order that the appellant pay the respondent costs in the sum of $1200.