Att Gen v S

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 24 March 1994
• Date: 24 March 1994
• Court: Grand Court (Cayman Islands)

Grand Court

(Smellie, J.)

ATTORNEY GENERAL

and

S (A Juvenile)

A. Roberts, Crown Counsel for the Attorney General;

M. Alberga for the respondent.

Cases cited:

(1) Armah v. Govt. of Ghana, [1968] A.C. 192; [1966] 3 All E.R. 177, applied.

(2) Chance, In re, [1936] Ch. 266.

(3) Kutner v. Phillips, [1891] 2 Q.B. 267.

(4) London & Country Comm. Properties Invs. Ltd. v. Att.-Gen., [1953] 1 W.L.R. 312; [1953] 1 All E.R. 436.

(5) McCoy v. R., 1992–93 CILR N–12, applied.

(6) Pepper v. Hart, [1993] A.C. 593; [1993] 1 All E.R. 42, applied.

(7) R. v. Bullock, [1964] 1 Q.B. 481; [1963] 3 All E.R. 506.

(8) R. v. Guildhall JJ., ex p. Marshall, [1976] 1 W.L.R. 335; [1976] 1 All E.R. 767, dictum of Lord Widgery, C.J. applied.

(9) R. v. T.E.B., 1984–85 CILR 316.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.5: The relevant terms of this section are set out at page 112, lines 13–26.

s.180: The relevant terms of this section are set out at page 112, lines 29–32.

Juveniles (Joint Trial with Adults) Law (Law 12 of 1976), s.3: The relevant terms of this section are set out at page 114, lines 24–28.

Juveniles Law, 1990 (Law 19 of 1990), s.4(2): The relevant terms of this sub-section are set out at page 115, lines 12–16.

s.18: ‘Where a juvenile is charged with an offence triable summarily, jointly with a person who has attained the age of seventeen years . . . the charge shall be heard by the Magistrate”s Court, unless that Court is satisfied that the juvenile should be tried in a Juveniles Court.’

s.19: The relevant terms of this section are set out at page 112, lines 38–44.

s.20: The relevant terms of this section are set out at page 115, lines 39–42.

s.28(3): The relevant terms of this sub-section are set out at page 115, lines 22–25.

Prisons Law (Law 14 of 1975), s.11B, as added by Imprisonment (Amendment) Law, 1981 (Law 10 of 1981), s.11: The relevant terms of this section are set out at page 116, lines 27–32.

Criminal Procedure-juvenile offenders-court of trial-indictable offences-Juvenile Court has jurisdiction under Juveniles Law, 1990, s.19(1) to try all indictable offences on election of juvenile-election not restricted by Criminal Procedure Code, s.5

Criminal Procedure-juvenile offenders-sentence-indictable offences-provision for sentencing juveniles convicted of serious indictable offences limited to powers of Juvenile Court under Juveniles Law, 1990, s.9

Criminal Procedure-juvenile offenders-joint trial with adult-Juveniles (Joint Trial with Adults) Law, s.3 impliedly repealed by Juveniles Law, 1990, ss. 18 and 19(2)-separate trials necessary for adult jointly charged with juvenile electing trial in Juvenile Court

The respondent was charged on indictment in the Juvenile Court with grievous bodily harm.

The respondent had elected for trial in the Juvenile Court and his election had been allowed over the objections of the Crown.

On appeal, the Crown submitted that the Juvenile Court had no jurisdiction to try a juvenile charged on indictment with grievous bodily harm, which was classified as a Category A offence by the Criminal Procedure Code, since (a) although s.19(1) of the Juveniles Law, 1990 gave the Juvenile Court jurisdiction over indictable offences committed by juveniles, it had to be read subject to s.5(1) of the Criminal Procedure Code, which restricted election for summary trial to Category B offences; (b) the Juvenile Court did not have extensive enough sentencing powers to be able to deal adequately with Category A offences, which should therefore be tried in the Grand Court; and (c) trial in the Grand Court would still observe the general policy of separating the treatment of adults and juveniles, as s.11B of the Prisons Law prevented the detention of a juvenile in a prison.

The respondent submitted in reply that the Juvenile Court did have jurisdiction to try the indictment on his election because (a) s.28(3) of the Juveniles Law provided specifically that offences committed by juveniles were to be heard in the Juvenile Court unless otherwise stated in that Law, thus making it impossible to apply the restrictions of s.5 of the Criminal Procedure Code to juveniles; (b) to allow a juvenile to be dealt with in the Grand Court subject to the Code and the Penal Code would offend the prevailing legislative policy of separating the trial of juveniles and adults

and ignore the specific provision of s.180 of the Criminal Procedure Code which removed the Juvenile Court from the operation of the Code; (c) in any event, s.20 of the Juveniles Law restricted the powers of any court hearing ‘[charges or indictments] against a juvenile’ to those of the Juvenile Court and in particular to the sentencing powers prescribed by s.9 of that Law; and (d) since the restriction on the detention of juveniles in prison contained in s.11B of the Prisons Law was made subject to the repealed Juveniles Law, 1975 and the section made no sense without this reference, it could not be relied on.

Held, dismissing the appeal:

(1) The Juvenile Court did have jurisdiction to try the indictable offence of grievous bodily harm on the election of the accused, since it was plainly conferred by the Juveniles Law, 1990, s.19(1). That provision was not to be read subject to the restrictions of the Criminal Procedure Code, s.5 since (a) this would make nonsense of the Juveniles Law, 1990, s.28(3) which provided that offences by juveniles were to be tried in the Juvenile Court unless otherwise stated in the Law; (b) in any case, to apply s.5 would have been to ignore the prevailing legislative policy (exemplified by the Criminal Procedure Code, s.180) that juveniles should not be tried and sentenced pursuant to the same general provisions as adult offenders; and (c) there was nothing in the legislative debates in 1990 to suggest that this was the intention of the Legislative Assembly. The Prisons Law, s.11B had to be regarded as anachronistic since it imposed restrictions depending on the now-repealed Juveniles Law, 1975 and made no sense without this reference (page 113, line 18 – page 114, line 2; page 114, line 38 – page 115, line 32; page 116, lines 17–42).

(2) It was the case that the Juvenile Court did not have the same extensive sentencing powers as the Grand Court in respect of indictable offences committed by adults (especially offences in Category A)-but in any event by the Juveniles Law, s.20 the Grand Court”s powers in respect of juveniles would have been limited to those enjoyed by the Juvenile Court (including the sentencing powers prescribed by s.9). It might be that some provision of the kind formerly provided by the Juvenile Offenders Law, 1964 and the Juvenile Offenders Law, 1975, allowing a juvenile offender to be detained in prison on the Governor”s direction, was needed in respect of the sentencing of juveniles convicted of serious indictable offences but that omission from the modern legislation...