Ebanks v R

• Jurisdiction: Cayman Islands
• Judge: Hull, J.
• Judgment Date: 19 June 1985
• Court: Grand Court (Cayman Islands)
• Date: 19 June 1985

Ebanks

and

R.

Hull, J.

Grand Court

Criminal practice and procedure - Fitness to lead — Inquiry by Court — Receipt of doctor's report diagnosing accuses condition but not dealing specifically with fitness to plead not sufficient inquiry under Criminal Procedure Code, s.44 — When real grounds for supposing unfitness to plead, trial should not proceed until issue ruled upon

Appearances:

P. Polack for the applicant;

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

Hull, J.

1 On an application for judicial review, the applicant must verify by affidavit the facts averred in the statement required under r.2(2) of the Grand Court (Applications for Orders of Mandamus, Prohibition, Certiorari and Habeas Corpus) Rules. Except by the subsequent leave of the Court, he is limited to the grounds of relief set out in his statement. Rule 7 requires that he should also, when applying to remove proceedings into the Grand Court to be quashed, verify by affidavit a copy of any order or conviction whose validity he questions, or account to the Court's satisfaction for not doing so.

2 These are important procedural requirements. The Grand Court does not interfere with the process of the lower Court by means of the extraordinary remedy of judicial review unless it is clearly shown that there is good reason to do so. The onus lies on the applicant to demonstrate this and his submissions must be supported by his pleadings.

3 In this case, the record of events in the lower Court, as brought before this Court by the applicant, was unclear. The statement asserted that on August 14 ^th, 1984 the magistrate ruled that the applicant was fit to plead and that he had no medical evidence before him on which he could properly have reached that view. The affidavits did not depose to the absence of any medical evidence at that time. The first affidavit did, however, contain two important allegations of fact, namely that the issue of the applicant's fitness was raised before the Summary Court on August 14 ^th, and that on that day the applicant subsequently pleaded not guilty. Neither of these allegations was set out in the statement of the grounds for relief. Nor has r.7 been complied with.

4 Having heard Mr. Polack's arguments (which of course the learned Chief Justice did not have to do when granting leave) I am of the view that the pleadings are insufficient to justify the relief sought. Ordinarily that would be the end of the matter. However, I think I am correct in saying that Mr. Smellie, for whose assistance I am grateful, was concerned to reply to the substance of the applicant's case, as expressed orally in Court by Mr. Polack. Although he did not file an affidavit to the effect (strictly, I do not think he was obliged to), he threw light on or acknowledged certain matters of fact. In the circumstances of this case, where it is obvious that there is a genuine issue as to the applicant's mental condition, I propose to, take the statement as amended to include all of the applicant's grounds as argued by his counsel, and to deal with the matter accordingly, subject to Mr. Polack's giving the undertaking to which I shall refer below.

5 ...