Brandon v Farrington (NO. 2)
| Jurisdiction | Cayman Islands |
| Judge | Summerfield, C.J. |
| Judgment Date | 05 June 1978 |
| Docket Number | 634 of 1970 |
| Date | 05 June 1978 |
| Court | Grand Court (Cayman Islands) |
Summerfield, C.J.
634 of 1970
Grand Court
Practice and procedures - Appeal — Recognisance to prosecute appeal —
Held: It was for the appellant to elect the alternative of making a cash deposit, for magistrate to decide whether to allow the alternative — Magistrate had no power to require cash deposit without consent of appellant — Appeal allowed to proceed notwithstanding appellant's failure to meet the cash deposit ordered.
Appellant convicted of unlawful possession of ganja — Immediately after sentence appellant gave verbal notice of appeal — Magistrate fixed a “cash bond” in the sum of $1,000 to be paid within three days for the due prosecution of the appeal — Magistrate purported to act under The Criminal Code s. 160 — S. 160 provided that appellant should enter into a recognisance before a magistrate conditioned to prosecute the appeal within three days, or if the magistrate thought it expedient the appellant could instead give other security by deposit of money —
Mr. Brandon in person representing himself.
Mr. MacDonald for defendant.
An examination of the record herein and related documents reveals the following state of affairs.
The applicant (in this application) was the successful claimant in plaint No. 28 of 1957 against the respondent (in this application) in a suit for damages for assault. That plaint was filed on the 25th April, 1967.
On the 22nd July, 1967, application was made before Mr. Justice Monteith by Mr. MacDonald, Counsel for the respondent for an order that the trial of that action be before a jury. The application was refused and so was an application for a stay of proceedings. On the same day Mr. MacDonald gave notice of appeal against refusal of the application and this can be referred to as appeal No.1.
The substantive case was fixed for trial on the 25th July, 1967. Mr. MacDonald filed a notice of withdrawal from the case. The respondent filed a notice of change of solicitor.
On the 25th of July, 1967, the trial date, neither Mr. MacDonald nor the respondent appeared and Mr. Justice Monteith ruled that the case be heard in default of appearance. The case proceeded in the absence of the respondent of any counsel for him. It was concluded on the 26th July, 1967 and judgment was reserved.
Mr. Justice Monteith sealed his typed judgment in an envelope which he lodged with the Clerk of the Courts within the 2 month period required by section 157 of Cap. 74, with instructions that the judgment was not to be read until after the decision of the Court of Appeal had been delivered.
The Court of Appeal gave judgment in appeal No. 1 on the 30th July 1968, dismissing the appeal.
On receipt of this decision Mr. Horsfall, then Judge of the Grand Court, arranged to open the envelope and to read the judgment sealed therein by Mr. Justice Monteith in open Court in the presence of Mr. MacDonald and the applicant. This was on the 23rd September, 1968.
Before Mr. Justice Horsfall read the judgment, however, Mr. MacDonald objected to its being read on the ground of absence of jurisdiction and also on the ground that, even if the judgment had been lodged within the prescribed two months, the present occasion was not the first opportunity when the judgment could have been read.
Mr. Justice Horsfall then ruled that he was satisfied that he could read the judgment, Mr. MacDonald immediately gave verbal notice of appeal; and this can be described as appeal No. 2.
Mr Justice Horsfall then informed Mr. MacDonald that he proposed to read the judgment and proceeded to do so.
There is an obvious discrepancy in the judgment,...
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