Prisoner Toronto Darrell won one-third of a legal battle yesterday when a magistrate was ordered to re-hear a charge that he attacked a policeman.

Lorenzo (Toronto) MacDonald Darrell, jailed for nine months for a breaking and entering offence in May, had original pleaded guilty to a charge of grievious bodily harm against the officer.

But his lawyer Phil Perinchief successfully argued in Supreme Court that the matter should be sent back to Magistrates' Court yesterday.

Darrell, of Random Lane, Warwick, claimed he was never given the choice of having the case tried in Magistrates' or Supreme Court.

Acting Puisne Judge Michael Mello ruled the original case magistrate, Arthur Hodgson, had not followed proper procedure.

Now Darrell, 33, will appear before magistrates in Plea Court again next Friday.

But Mr. Justice Mello will pass sentence today on charges that Darrell received a stolen $600 scooter, drove while disqualified and failed to stop for Police.

The charges arose from the same incident on December 8, 1996, on Middle Road in Southampton.

Darrell pleaded guilty, but Mr. Perinchief also argued the charges should have been sent back to magistrates.

But Mr. Mello said he had "no jurisdiction'' to transfer the entire case back to the lower court.

Darrell is also appealing against his breaking and entering conviction.

And Mr. Mello will pass his judgment on the appeal at the sentence hearing this afternoon.

He heard arguments from Mr. Perinchief and Crown Counsel Lesley Basden yesterday.

Darrell was convicted of breaking into a house on North Shore Road in Pembroke on October 15, 1997.

The court heard he jumped over the fence, with a bag over his back, into the neighbours' garden.

But Mr. Perinchief yesterday said the neighbours -- Steven Lewis and his sister Kathy-Ann -- did not agree with each others' evidence.

And he claimed Mr. Lewis was "a liar'', saying the witness denied attacking Darrell on a separate occasion despite other evidence.

He also said Mr. Lewis referred to Darrell as "the neighbourhood thief''.

And Mr. Perinchief said there was "no forensic evidence'' and no fingerprints linking Darrell to the crime, saying former magistrate Arthur Hodgson was wrong to convict.

Turning to Mr. Mello, he asked: "How could the learned magistrate satisfy himself so that he was sure that Mr. Darrell committed this offence? "What is the strength of the prosecution case? What was the evidential burden of proof? How was that satisfied? "We cannot apply the civil standard of the burden of proof to a criminal case. It is not about the balance of probabilities.'' Miss Basden added: "The Crown is submitting that little weight be given to the evidence of the defendant. The appeal in its entirety should be dismissed.'' Darrell was remanded in custody until this afternoon's hearing. He will also be kept in custody until next week's Magistrates' Court appearance.