Adel Muhammed el Dabbah v Attorney General for Palestine
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1944 |
| Date | 1944 |
| Year | 1944 |
| Court | Privy Council |
Palestine - Criminal law - Murder - Constitution of Criminal Assize Court - Statutory regulation - Witnesses named on information - Tender for cross-examination by defence - Discretion of prosecutor -
Regulation 3 of the Palestine Defence (Judicial) Regulations (No. 2), 1942, made by the High Commissioner for Palestine, which provides that the Chief Justice “may, either generally or for the hearing of any particular case, direct that the Court of Criminal Assize shall consist of the Chief Justice …. sitting alone ….,” is intra vires the powers given to the High Commissioner by the Emergency Powers (Defence) Act, 1939, as applied to Palestine by the
Further, the prescribing in the cause list of the Supreme Court of Palestine (which was approved by the Chief Justice) of the constitution of the court which was to try the appellant was a proper direction under reg. 3 by the Chief Justice in the exercise by him of the discretion vested in him by the regulation. This direction was not a “regulation or order” within s. 7 of the
The prosecution in a criminal case has a discretion as to what witnesses they shall call. It is consistent with that discretion that it should be a general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender for cross-examination by the defence witnesses whose names are on the back of the information but who have not been called to give evidence for the prosecution, but it remains a matter for the discretion of the prosecutor.
Interlocutory observation of Lord Hewart C.J. in Rex v. Harris [
Judgment of the Supreme Court of Palestine, sitting as a Court of Criminal Appeal, affirmed.
APPEAL (No. 66 of 1943), by special leave, from a judgment of the Supreme Court of Palestine (Copland, Rose and Khayat JJ.), sitting as a Court of Criminal Appeal (April 17, 1943), dismissing an appeal by the appellant from a judgment of the Court of Criminal Assize at Haifa (Gordon Smith C.J.) (March 24, 1943), whereby the appellant was convicted of murder contrary to s. 214 (b) of the
The case for the prosecution was that on the evening of May 7, 1942, the murdered man, Ya'Coub Nimer el Khazen, who was a prominent member of the village community of Binah, had been attending a conference at the Mukhtar's house. After the meeting he and others left to return to their houses in or near the village. They dropped off one by one, leaving the deceased to finish the end of his journey alone. Shortly afterwards, as he was nearing his own house, shots were heard, and immediately afterwards he was found lying dead within a few metres of the doorway to the courtyard of his house. On examination he was found to have received two bullet wounds from which he appeared to have died instantaneously. At or about the time of the shooting three men carrying rifles were seen in the vicinity. Five persons who gave evidence identified the appellant as one of the three men, some of them stating that they had seen him, as also the other two men, fire their rifles in the direction of the deceased's house. The appellant's defence was that he was not present at Binah at the time of the shooting, and he called witnesses to establish an alibi on his behalf. The Chief Justice sat alone to try the case by virtue of reg. 3 of the Palestine Defence (Judicial) Regulations (No. 2), 1942, which were made by the High Commissioner under art. 3 of the
By reg. 3 of the Palestine Defence (Judicial) Regulations (No. 2), 1942: “Whenever the Chief Justice considers it expedient so to do he may, either generally or for the hearing of any particular case, direct that the Court of Criminal Assize shall consist of the Chief Justice or a British puisne judge, sitting alone, or with any one or more judge or judges of the Supreme Court, or with a president, or relieving president, or any one or more Palestinian judge or judges, of the District Court.”
By the Emergency Powers (Defence) Act, 1939, s. 1: “(1.) Subject to the provisions of this section, His Majesty may by Order in Council make such regulations (in this Act referred to as ‘Defence Regulations’) as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community …. (3.) Defence Regulations may provide for empowering such authorities, persons or classes of persons as may be specified in the regulations to make orders, rules and byelaws for any of the purposes for which such regulations are authorized by this Act to be made, and may contain such incidental and supplementary provisions as appear to His Majesty in Council to be necessary or expedient for the purposes of the regulations. (4.) A Defence Regulation, and any order, rule or byelaw duly made in pursuance of such a regulation, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.”
1944. April 19, 20. Beyfus K.C. and Bassett for the appellant. The Defence (Judicial) Regulations, reg. 3, is ultra vires the powers given to the High Commissioner by the Emergency Powers (Defence) Act, 1939, as applied to Palestine by the
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