Bodden v Commissioner of Police

• Jurisdiction: Cayman Islands
• Judge: (Collett, C.J.)
• Judgment Date: 22 July 1988
• Court: Grand Court (Cayman Islands)
• Date: 22 July 1988

Grand Court

(Collett, C.J.)

BODDEN

and

COMMISSIONER OF POLICE and DIRECTOR OF PRISONS

R.D. Alberga Q.C. and C. Quin for the applicant;

A.S. Smellie, Principal Crown Counsel, for the respondents.

Cases cited:

(1) Delapenha v. R., Grand Court, Case No. S.C.A. 126/87, unreported.

(2) De Witt v. R., 1986–87 CILR 419, followed.

(3) R. v. Horseferry Road Stipendiary Magistrate, ex p. Adams, [1977] 1 W.L.R. 1197; [1978] 1 All E.R. 373; (1977), 121 Sol. Jo. 476, distinguished.

(4) Whittaker v. R., 1984–85 CILR 153, followed.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.86:

‘(1) If, after the examination of the witnesses called on behalf of the prosecution, the court considers that on the evidence as it stands there are sufficient grounds for committing the accused for trial, the magistrate shall satisfy himself that the accused understands the charge and shall ask the accused whether he wishes to make a statement in his defence or not . . . .’

s.87: ‘(1) Immediately after complying with the requirements of section 86, relating to the statement or evidence of the accused person, and whether the accused has or has not made a statement or given evidence, the magistrate shall ask him whether he desires to call witnesses on his own behalf.’

Extradition-extradition proceedings-order of committal-premature statement of committal-if mistakenly made before defendant given hearing not necessarily breach of audi alteram partem rule or of Criminal Procedure Code, ss. 86–87 but may give impression to defendant and to reasonable observer that final order biased even if defendant subsequently heard

Extradition-extradition proceedings-order of committal-magistrate not functus officio when making final order of committal if premature statement of committal mistakenly made before defendant given hearing provided opportunity to be heard given before final order made

Criminal Procedure-fair trial-procedural irregularity-breach of natural justice if procedural irregularity faces accused with dilemma of acceding to irregularity to secure acquittal and of simultaneously compromising possible appeal by waiver of irregularity

Extradition proceedings were commenced against the applicant in the Magistrate”s Court, George Town, at the instance of the Government of the United States.

The hearing of the proceedings lasted several months and the court heard evidence adduced by the US Government and submissions from both sides in connection with it. At the end of delivering its ruling on the last of the applicant”s submissions (which had sought his discharge on the ground of the weakness of the case against him), the court (Douglas, Senior Magistrate) rejected the submission and added that since it was satisfied that all the charges for which extradition was sought had been proved, the applicant would ‘therefore now be committed to prison to await extradition.’ At this juncture it was pointed out to the court that the applicant had not yet been given an opportunity to give evidence or call witnesses as he had earlier indicated he proposed to do.

After an adjournment until later the same day, the applicant protested at the magistrate”s premature statement and announced that in the light of it he no longer wished to make a statement or call witnesses. At the suggestion of the prosecution, the court nevertheless proceeded in accordance with ss. 86–87 of the Criminal Procedure Code and invited the applicant to present his evidence; when he declined to do so, the magistrate formally committed him to prison to await extradition.

The applicant then secured the issue of a writ of habeas corpus against the respondents challenging the legality of that order and subsequently

applied for orders quashing the return to that writ and directing his immediate release from custody.

He submitted that (a) he had been committed to prison without the benefit of a proper hearing, in breach of the audi alteram partem rule and a disregard of ss. 86–87 of the Criminal Procedure Code which had to be observed in these proceedings; (b) the magistrate could not rectify his mistake by allowing the applicant to give and call evidence after the adjournment, since, having already made his ruling, he had become functus officio and the subsequent proceedings were therefore a nullity; and (c) in any event, by prematurely announcing his intention to commit the applicant, the magistrate had given the impression of having made up his mind on his decision without hearing the applicant.

The respondents submitted in reply that (a) the applicant had been given an opportunity to present his case before the magistrate made the formal order of committal but had declined to do so; (b) the formal order was made at the first legitimate opportunity open to the magistrate to do so, since he had made no such order at any earlier stage of the proceedings, and he could not therefore be considered functus officio and lacking in jurisdiction; (c) his earlier statement was not a formal order of committal and, though irregular, did not involve a breach of ss. 86–87 since the procedure prescribed by those sections had subsequently been fully observed; and (d) the applicant had no reasonable ground for believing that the magistrate had made up his mind prematurely and would not give fair consideration to defence evidence, since in extradition proceedings the magistrate was only required to decide whether the prosecution had established a prima facie case and not to rule on its substantive merits.

Held, granting the orders sought:

(1) The magistrate”s statement that the applicant would ‘therefore now be committed to prison to await extradition’ should be considered as a statement of his intention to make a formal order to that effect at the end of the hearing. Had this statement been the order itself, given that it was made before the applicant had been offered the opportunity of making a statement and calling witnesses, the magistrate would have been in breach of the audi alteram partem rule and the requirements of ss. 86–87 of the Criminal Procedure Code. However, since he later afforded the applicant the opportunity to be heard, he had neither acted unlawfully nor become functus officio at that juncture, since he still had to make his final order (page 139, lines 24–40; page 140, lines 18–30).

(2) None the less, although the magistrate had attempted to correct his mistake, his premature indication of his intention to commit the applicant could reasonably have led a fair-minded observer to believe that the applicant might thereafter not receive a fair hearing, or that the final outcome had been prejudiced. Certainly it was sufficient to undermine the applicant”s expectation of fair treatment, since it resulted in his refusal to present any evidence and was unequivocal enough to justify his claim that he had been deprived of a fair hearing (page 142, lines 3–33).

(3)...