Att Gen v Stewart (DO)

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Collett, JJ.A.)
• Judgment Date: 20 April 2001
• Court: Court of Appeal (Cayman Islands)
• Date: 20 April 2001

Court of Appeal

(Zacca, P., Georges and Collett, JJ.A.)

ATTORNEY GENERAL

and

D.O. STEWART

S.W. Bulgin, Solicitor General, and Ms. C. Richards, Crown Counsel, for the appellant;

Mrs. J. Samuels-Brown and P. Polack for the respondent.

Cases cited:

(1) De Witt v. R., 1986–87 CILR 419, applied.

(2) R. v. Williams, [1978] Q.B. 373; [1977] 1 All E.R. 874, applied.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.65(1): The relevant terms of this sub-section are set out at para. 10.

s.67: The relevant terms of this section are set out at para. 10.

Criminal Procedure-pleas-time for plea-conviction valid despite lack of formal arraignment before trial if not guilty plea tacitly conveyed during trial-Criminal Procedure Code (1995 Revision), ss. 65(1) and 67 to be broadly construed if accused not prejudiced

The respondent was charged in the Magistrate”s Court with being concerned in the importation of cocaine.

The respondent was charged with a number of offences relating to the importation and possession of drugs. At his trial, the Magistrate rejected a submission of no case to answer in relation to a charge of importing cocaine and convicted him only on the charge of being concerned in its importation.

The respondent appealed on the ground, inter alia, that having found that a prima facie case was shown in relation to importation, the Magistrate had not been at liberty to convict him of any other offence. The Magistrate provided a memorandum of her recollections of the trial to the Grand Court (Douglas, Ag. J.), in which she stated that it had been discovered at the stage of counsel”s closing addresses that no pleas had been recorded to the other charges and that ‘out of an abundance of caution’ the respondent was then asked to plead to those charges and his not guilty pleas were recorded. The Grand Court set aside the conviction for being concerned on the ground that since the respondent had not pleaded to that charge at the outset of the trial, as required by s.65 of the Criminal Procedure Code (1995 Revision), the trial was a nullity. The court rejected the respondent”s other grounds of appeal. The proceedings in the Grand Court are reported at 2000 CILR 213.

On further appeal, the Crown submitted that the trial before the Magistrate had not been a nullity, since (a) it was clear from the record that the charge of being concerned in the importation of cocaine had been before the court; (b) the respondent had been aware of the charges he faced, and even if he had not formally pleaded to them all he had tacitly conveyed his not guilty plea to the relevant charge in the course of the trial; and (c) in these circumstances, the respondent had suffered no prejudice and s.65 did not require there to be a formal arraignment on each charge.

The respondent submitted in reply that s.65 was to be construed strictly, in the interests of justice, and since there was no evidence that it had been complied with, the Grand Court had correctly set aside his conviction.

Held, allowing the appeal:

The Grand Court had erred in setting aside the respondent”s conviction, since the court”s failure to record his plea to the relevant charge at the outset did not render his trial a nullity under ss. 65 and 67 of the Criminal Procedure Code (1995 Revision), provided that there was some evidence that his plea was not guilty. It had not been proved that there had been no arraignment, and in any event, the respondent had tacitly conveyed his not guilty plea in the course of the trial. It was clear from the Magistrate”s rulings on the admissibility of evidence, the record of...