Magistrates Courts
| DOI | 10.1177/002201837604000203 |
| Published date | 01 April 1976 |
| Date | 01 April 1976 |
| Subject Matter | Article |
Magistrates Courts
Comments
on
Cases
CHANGE OF
MIND
AFTER
ELECTION
FOR
TRIAL
BY
JURY
Rv. William S. Tennant.
In this case
the
question
was raised
of
the
right
ofa
Defendant
to
change
his
mind
on Election for
Trial
under
section 41
and
ALSO
section 52
of
the
Magistrates'
Courts
Act
(N.!.)
1964.
Section 41 lays
down
that
where
a
defendant
is
summoned
at
a
Magistrates'
Court
to
answer
a
charge
which carries a
Penalty
of
more
than
six
months
imprisonment
he shall
have
the
right to
claim
Trial
by
Jury.
Section 52 provides
that
where a
Defendant
is
brought
before the
magistrates'
Court
for
any
of the
indictable
offences set
out
in the
third
schedule
to the Act he
may
consent to
Trial
at
a
Magistrates'
Court,
but
the
Prosecution
must
also
consent
and,
as well, the
Magistrate
must
agree.
The
defendant
in this case
appearing
on a
Charge
of
Dangerous
Driving elected
under
section 41 for
Trial
by
Jury.
The
case was
therefore
adjourned
so
that
papers
for
Preliminary
Enquiry
might
be
served;
This,
rather
than
Preliminary
Investigation, being requested
by the
Defendants
Solicitor.
On
a
subsequent
day, before the necessary
papers
for such pre-
liminary
Enquiry
were served, the
Court
was informed
that
he
had
changed
his
mind
and
now would have
Summary
Trial.
The
Resident
Magistrate
(Mr.
P. Maxwell)
held
that,
once
having
made
aclaim
under
section 41, he could
not
do so,
and
the
case
must
go forward for
Jury
Trial.
He
stated
that
the reasons for this
are
contained
in sub-sec 5
of
section 41 which lays
down
that
when a
person
so elects
'The
Court
SHALL
THEREUPON
deal
with
thecomplaintIN
ALL
RESPECTS as
if it were for
an
offence
PUNISHABLE
on conviction on
indictment
ONLY
.. .'.
'SHALL'
means
the
Court
has
no alternative, it
must
send
the
case forward;
'THEREUPON'
means
that
it
operates
at,
and
from, the
moment
the claim is made;
'IN
ALL
RESPECTS',
taken with
'ONL
Y',
means
that
the
court
is
constrained
to deal
with
the
case.as
ifit
never
was
a
summary,
but
'only
an
indictable
offence,
and
the
only
indictable
offences
which
can
be
dealt
with by a
Magistrates
Court
are
those
set
out
in
the
Third
Schedule to
the
Act,
'PUNISHABLE'
must
also be
taken
with
'ONLY'
and
this
means
that
it
must
go forward for
77
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