Judgment No. CCZ 3/2015 6 Criminal Appeal No. CCZ 227/11 PROPRIETY OF REFERRAL I advert, firstly, to the notice of application for referral, filed on 27 June 2011, wherein it is stated that “the applicant’s affidavit and annexures will be used in support of the application”. It is common cause that no such affidavit was ever filed. All that was attached to the notice were the submissions prepared by his legal practitioners, the request for remand, a bail deposit receipt, the charge sheet and the complainant’s statement. Following the application cum submissions, the State filed its opposing response, dated 6 July 2011, highlighting the procedural and evidential deficiencies besetting the application. Despite this, on 8 July 2011, the learned trial magistrate proceeded to issue his ruling (comprising a total of 4 lines) granting the application for referral to the Supreme Court. He did this without hearing argument from the parties or affording them an opportunity to present evidence on the factual circumstances bearing upon the application. The only “evidence” from the applicant that was before the Magistrates Court consisted of the allegations and assertions contained in the written submissions attached to the application. According to those submissions, the applicant was first charged in November 2005 and only summoned to court for trial in June 2011. The obvious implication is that he was available to attend trial throughout that period. As against this are the averments contained in the complainant’s statement, dated 8 May 2011, to the effect that the applicant had run away to South Africa in 2005 and