JUDGE Vieira who heard the Motion accusing the magistrate of preferring the Committal Order, blamed accused Gordon Gill for failing to rebut the presumption of regularity.

The hearing began after the calling of the indictable Felony case in January, 1971, but before the accused Gill and two others were arraigned on the larceny charge, the defence counsel moved a motion to quash the indictment on a bad and unlawful committal by the magistrate who had conducted the preliminary inquiry.
The defence counsel submitted that as nothing was recorded in the deposition to indicate that the magistrate did ask the accused whether he wished to call any witness on his behalf, in keeping with the requirements of s.66 (1) of the Criminal Law (Procedure) Ordinance Cap. 11, the purported committal of the accused was not lawful but was a nullity.
State counsel submitted that it was for the defence to prove that it was the magistrate’s duty to record the fact of the statutory compliance, and that the onus was on the accused to rebut the presumption of regularity.
Section 66 (1) of the Criminal Law (Procedure) Ordinance Cap. 11 provides:
“66(1) After the proceedings required by the preceding section are completed, the magistrate shall ask the accused if he wishes to call any witnesses”.
HELD: (i) there was no statutory duty imposed upon a magistrate to record the factum of his having asked an accused whether he wished to call any witnesses on his behalf;
(ii) a motion to quash the indictment could not be properly maintained without evidence being adduced on the part of the accused to rebut the presumption of regularity;
(iii) the accused had failed to lead evidence to rebut the presumption of regularity and, accordingly, the motion would have to be dismissed.
Motion dismissed.
N.J. Bissember for accused Gill.
Nos. 2 and 3 accused in person.
C. Kennard and L. Rockliffe for the State.

Delivering the Ruling, Justice Vieira said: The three accused are indicted for the felony of larceny- contrary to s. 164 of the Criminal Law (Offences) Ordinance, Cap. 10.
After this matter was first called but before
the accused were arraigned, Mr. Bissember, Counsel for No. 1 accused, moved a motion to quash the indictment on the ground that it was preferred on a bad and unlawful committal order, in that the Preliminary Inquiry before the magistrate was conducted in a manner that contravened the provisions of the Criminal Law (Procedure) Ordinance , Cap.11 (hereinafter referred to as the Ordinance) and, specifically, s.66 thereof.
His argument, as I understand it, is that as there is nothing recorded on the depositions to indicate whether the magistrate did in fact ask the No. 1 accused whether he wished to call any witness or witnesses on his behalf , which is a mandatory requirement under s. 66(1) of the Ordinance, then the purported committal of the No. 1 accused (and indeed of the other two accused as well) was not a lawful and/or a legal committal and accordingly amounts to a complete nullity.

He contends that after the statutory caution is put to an accused person by a magistrate under s.65 of the Ordinance, he must then enquire of the accused whether he wishes to call any witness or not, in accordance with s.66(1) of the Ordinance . He points out that the operative words in s.66(1) are “shall ask”, which , he submits , clearly indicates that the magistrate has no discretion in the matter at all and is therefore bound to make such a statutory requirement and privilege available to the accused.

Mr. Bissember stresses that the original depositions now before the court is not only the primary but, indeed, the best evidence, which cannot be varied, added to or altered by parole evidence, and he would strongly object to any attempt on the part of the State to call any witness to give evidence as to what actually took place before the magistrate and, in particular, whether the Magistrate did or did not in fact comply with the law.
Mr. Rockliffe, in reply submitted that the authorities cited were not relevant to the point in issue, and that it was for the defence to prove that the Magistrate was under a duty to record the fact whether he asked the No. 1 accused if he wished to call any witnesses or not.

He contends that the absence from the record of any indication whether the No. 1 accused was in fact asked by the Magistrate whether he wished to call any witnesses or not, is not conclusive or the fact that this was not in fact done. Sub-ss. (1) & (2) of s, 66 of the Ordinance imposes on the Magistrate a duty to make a record, only if a witness shall have testified.

He points out that the form for the statutory caution under s. 65(1) of the Ordinance is Form 3 of the Fourth Schedule and that the actual committal form (Magisterial # 221), is not in fact a statutory form but a mere administrative one.

Mr. Rockliffe further contends that as the point has been raised in this forum, the onus is upon the accused to rebut the presumption of regularity and, if no such evidence is called, then the submissions ought to be overruled and the trial should proceed in the normal way.
Justice Vieira concluded: In the course of his arguments, Mr. Bissember made it quite clear that the No. 1 accused would not be giving evidence neither would he be calling any witness to prove what actually took place before the magistrate. Equally, Mr. Rockliffe had emphasised that the State also would not be calling any witness on this particular issue.
In the final analysis, therefore, for the reasons I have given, I hold and rule that the onus is upon No. 1 accused (and indeed on all three accused ) to rebut the presumption of regularity that, to my mind, clearly arises in this matter by sworn evidence to the contrary before this court but, as the No. 1 accused has seen fit to decline to do so, then the committal by the magistrate must be taken to have been done both lawfully and legally and, therefore, the motion to quash the indictment is not sustainable and is, accordingly, dismissed.
Motion dismissed.