Att Gen v Donalds

• Jurisdiction: Cayman Islands
• Judge: (Orr, Ag. J.)
• Judgment Date: 21 November 1997
• Court: Grand Court (Cayman Islands)
• Date: 21 November 1997

Grand Court

(Orr, Ag. J.)

ATTORNEY GENERAL

and

DONALDS and GOODEN

S. Bulgin, Senior Crown Counsel, for the applicant;

H.D. Murray for the second respondent.

Cases cited:

(1) Abel v. LeeELR(1871), L.R. 6 C.P. 365; 23 L.T. 844, dicta of Willes J. applied.

(2) Colquhoun v. BrooksELR(1888), 21 Q.B.D. 52; 59 L.T. 661, considered.

(3) Cuno, In re, Mansfield v. MansfieldELR(1889), 43 Ch. D. 12; 62 L.T. 15, considered.

(4) Goldshack v. Shore, [1950] 1 K.B. 708; [1950] 1 All E.R. 276.

(5) Grey v. Pearson(1857), 6 H.L. Cas. 61; 10 E.R. 1216, considered.

(6) R. v. Oakes, [1959] 2 Q.B. 350; [1959] 2 All E.R. 92, dicta of Lord Parker, C.J. applied.

(7) R. v. Whittaker, 1986-87 CILR 189, explained.

(8) Warburton v. LovelandENR(1832), 2 Dow & Cl. 480; 6 E.R. 806, dicta of Tindal, C.J. applied.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.5(1): The relevant terms of this sub-section are set out at page 498, lines 4–11.

Misuse of Drugs Law (1995 Revision) (Law 13 of 1973, revised 1995), s.4(1): The relevant terms of this sub-section are set out at page 496, line 33 – page 497, line 8.

s.17: The relevant terms of this section are set out at page 497, lines 10–23.

s.59(1): The relevant terms of this sub-section are set out at page 497, line 40 – page 498, line 2.

Criminal Law-drugs-mode of trial-being concerned in importation of hard drug triable only summarily under Misuse of Drugs Law (1995 Revision), ss. 4(1) and 17(5)-not converted to Category B offence under s.59(1), since not included in exhaustive list of offences so converted

The Attorney General applied for judicial review of the magistrate”s decision to permit the second respondent to elect trial on indictment.

The second respondent was charged in the Magistrate”s Court, George Town with being concerned in the importation of cocaine, contrary to s.4(1) of the Misuse of Drugs Law (1995 Revision). The magistrate ruled that he could either be tried summarily or could elect to be tried in the Grand Court since the charge was included in the definition of ‘any offence of…importing cocaine’ under s.59(1) and was therefore deemed to be a Category B offence within the meaning of the Criminal Procedure Code (1995 Revision), s.5(1).

The Crown submitted that the magistrate had erred in her interpretation of the legislation since (a) under s.17(5) and Part B of the Second Schedule to the Misuse of Drugs Law (1995 Revision), any person committing an offence under s.4(1) relating to a controlled hard drug was triable summarily only; (b) on the ordinary grammatical construction of s.59(1), the offences deemed to be Category B offences under the Criminal Procedure Code, s.5(1) did not expressly or impliedly include being concerned in the importation of cocaine; and (c) if the intention of the legislature had been otherwise, an amendment or repeal of s.4(1) would have sufficed to give the right of election in respect of all offences under it.

The second respondent submitted that (a) hitherto all offences under s.4(1) had been Category B offences for the purposes of their mode of trial; (b) a literal interpretation of s.59(1) would lead to absurdity and injustice, since persons charged with different offences under s.4(1) would have different rights as to their mode of trial but would be liable to the same penalty under the Second Schedule; and (c) furthermore, s.59(1) could not, without express words, remove his previously existing right to trial by jury, thereby ousting the Grand Court”s jurisdiction.

Held, quashing the magistrate”s decision:

Since it was clear from ss. 4(1) and 17(5) of the Misuse of Drugs Law (1995 Revision) that the offence of being concerned in the importation of a controlled hard drug was triable only summarily, the magistrate had erred in ruling that the second respondent could elect trial by jury. The

ordinary grammatical meaning of s.59(1) of the Law and the application of the maxim ‘expressio unius est exclusio alterius’ revealed the legislature”s intention that certain specified offences under s.4(1), including importing a hard drug but excluding ‘being concerned in’ such importation, were henceforth to be triable either way at the option of the accused. The latter offence was one of a number for which the mode of trial remained unchanged. The section did not operate to remove existing rights, since s.4(1) offences had not previously been Category B offences. The magistrate”s decision would therefore be quashed and the matter remitted to the lower court with a direction that it proceed summarily (page 501, line 22 – page 502, line 5).

40	ORR, Ag. J.: On June 17th, 1997 the second respondent, Peter O”Neil
Gooden, appeared before the Honourable Grace Donalds, the first
respondent, on a charge that he, on Friday January 17th, 1997, was con
cerned in the importation of more than 2 oz. of a controlled drug into the
Cayman Islands, namely over 2 lbs. of cocaine, contrary to s.4(1) of the
45	Misuse of Drugs Law (1995 Revision).

It was submitted on behalf of the second respondent that the offence
was one which entitled him to elect trial on indictment in the Grand
Court. Counsel for the Crown submitted that the offence was triable
summarily and not otherwise. The magistrate reserved her decision and
5	on June 18th, 1997 she ruled that the second respondent had the right to
elect trial on indictment on the charge and she ordered the holding of a
preliminary enquiry upon the charge. In her ruling she placed reliance on
R. v. Whittaker (7).
Pursuant to the grant of leave, the Attorney General now seeks the
10	following relief:
‘(1) An order of certiorari to remove to the Grand Court the
decision of the magistrate to permit Peter O”Neil Gooden to elect
trial in the Grand Court, the proceedings whereby Peter O”Neil
Gooden elected trial in the Grand Court accordingly, and the
15	decision to order the holding of a preliminary enquiry in these
circumstances, for the purpose of quashing the said decisions and
proceedings.
(2) A declaration that the aforesaid charge is triable summarily
and not otherwise.
20	(3) An order of mandamus to remit the matter to the Summary
Court of the Cayman Islands with a direction that it reconsider the
matter and reach a decision in accordance with the findings of the
Grand Court.’
The grounds on which the relief is sought are:
25	(a) The magistrate made an error in law, which appears on the face of
the records, in the reasoning which she gave for her decision or, in the
alternative, she exceeded her jurisdiction.

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