Attorney General v Donalds et Al
| Jurisdiction | Cayman Islands |
| Judge | Orr, J. |
| Judgment Date | 21 November 1997 |
| Court | Grand Court (Cayman Islands) |
| Date | 21 November 1997 |
Orr, J. (Ag.)
Grand Court
Criminal Law - Unlawful importation of drugs — Offence only triable summarily under Misuse of Drugs Law (1995 Revision) ss. 491) and 17(5).
Government Legal Department.
L.A. Sampson & Co. for the second defendant.
Orr, J. (AG.): 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 concerned 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 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 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.
Pursuant to the grant of leave, the Attorney General now seeks the 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 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.
(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:
(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.
(b) The magistrate was further led into error of law upon the face of the record and/or exceeded her jurisdiction by placing formal and express reliance upon and misinterpreting the decision in R. v. Whittaker.
The relevant sections of the Misuse of Drugs Law (1995 Revision) (“the Law”) are as follows. Section 4(1) states:
“Whoever, without lawful excuse or without being authorised in that behalf,—
(a) imports;
(b) exports;
(c) produces;
(d) stores;
(e) sells, buys or otherwise deals in;
(f) supplies;
(g) distributes;
(h) dispenses;
(I) issues a prescription for;
(j) administers;
(k) possesses, constructively or otherwise;
(l) consumes; or
(m) has in his possession, whether lawfully or not, with intent that it be supplied, whether by himself or some other person, and whether in the Islands or elsewhere to another person in contravention of this subsection,
any controlled drug, pipe, utensil or thing used in the preparation or consumption of any controlled drug, or who attempts, assists or is concerned in any of such matters is guilty of an offence.”
Section 17 (1) states:
“Subject to the provisions of subsections (2), (3) and (4) whoever is guilty of an offence contrary to section 4 ( 1) or (2) is liable on summary conviction to a fine of three thousand dollars and to imprisonment with hard labour for three years, and in the case of a third or subsequent conviction a fine of ten thousand dollars and to imprisonment with hard labour for ten years.”
Section 17(5) states:
“Notwithstanding subsection (1), whoever is guilty of an offence that —
(a) is contrary to any provision of this Law;
(b) is specified in Part B of the Second Schedule; and
(c) is in relation to a controlled drug that is a hard drug, is, on summary conviction liable to imprisonment and a fine in accordance with the provisions of Part B of the Second Schedule.”
Being concerned in the importation of cocaine is an offence contrary to s.4 of the Law. Cocaine is specified in Part B of the Second Schedule, and under s.2(1), “controlled drug” means a drug listed in the First Schedule and “hard drug” means any substance or product specified in Part 1 of the First Schedule. Cocaine is listed in Part 1 of the First Schedule under the heading “Controlled Drugs.” It is therefore a controlled drug that is a hard drug.
Part B of the Second Schedule provides a maximum penalty on a first conviction for being concerned in the importation of 2 oz. or more of a hard drug of 20 years' imprisonment and an unlimited fine.
Mr. Bulgin submitted that s.17 (5) of the Law confers exclusive summary jurisdiction and the Law makes no provision expressly or by necessary implication for the trial of the charge other than by summary process. In other words, the proper venue for trial is governed by s.17 (5) of the Law alone.
However, s.59 (1) of the Law states:
“Notwithstanding the provisions of any other section of this Law, where a person is charged with any offence of selling, dealing in, distributing, supplying, dispensing, storing, issuing a prescription for, administering, importing, exporting, producing or attempting, contrary to section 4 (1) which relates to a controlled drug that is a hard drug, then such offence shall be deemed, for the purpose of determining the mode of trial, a category B offence in accordance with section 5 of the Criminal Procedure Code.”
Section 5(1) of the Criminal Procedure Code (1995 Revision) states:
“For the purpose of determining the mode of trial before a Court, offences shall be classified into three categories —
Category A — offences triable upon indictment and not otherwise;
Category B — offences triable upon indictment, which, with the consent of the prosecution and the person charged (or all of the persons charged if there be more than one), may be tried summarily; and
Category C — offences triable summarily and not otherwise.”
The offence of being concerned in the importation of a controlled drug does not appear in s.59(1) of the Law.
Mr. Bulgin submitted that it was clear from the language employed in s.59(1) that the offence of being concerned had been expressly excluded from the section. Where the literal meaning of a statute produces an intelligible result, there is no ground for reading in words or changing words according to what might be the supposed intention of the legislature. He cited Lord Parker, C.J. in ( R. v. Oakes [1959] 2 Q.B. at 354–355):
“It seems to this Court that where the literal reading of a statute, and a penal statute, produces an intelligible result, clearly there is no ground for reading in words or changing words according to what may be the supposed intention of Parliament …. Lord Coleridge in Attorney General v. Beauchamp put it quite shortly in these words:
‘Unquestionably, when one is construing a penal statute, the first thing is to construe it according to the ordinary rules of grammar, and if a construction which satisfies those rules makes the enactment intelligible, and especially if it carries on the obvious intention of the legislature as gathered from a general perusal of the whole statute, that grammatical construction ought...
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