Gonzalez v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 06 March 1984
• Court: Grand Court (Cayman Islands)
• Date: 06 March 1984

Grand Court

(Summerfield, C.J.)

GONZALEZ and SUAREZ

and

R.

N. Hill, Q.C. and R. Voaden for the first appellant;

W.K. Chin See, Q.C. and N. Levy for the second appellant;

T. Kendall, Q.C., T. Scarborough, Crown Counsel, and Miss Dilbert, Crown Counsel, for the Crown.

Cases cited:

(1) Belcon v. R.UNK(1963), 5 W.I.R. 526, distinguished.

(2) Brangwynne v. Evans, [1962] 1 W.L.R. 267; [1962] 1 All E.R. 446; (1962), 106 Sol. Jo. 197; 126 J.P. 173, distinguished.

(3) Emmanuel v. CoxUNK(1967), 10 W.I.R. 560, followed.

(4) Hamilton v. R.UNK(1963), 5 W.I.R. 361, distinguished.

(5) Harding v. RamjattanUNK(1959), 1 W.I.R. 434, distinguished.

(6) R. v. Cockshott, [1898] 1 Q.B. 582; [1895–99] All E.R. Rep. 253; (1898), 67 L.J.Q-B. 467; 78 L.T. 168; 62 J.P. 325; 14 T.L.R. 264; 42 Sol. Jo. 346; 19 Cox, C.C. 3.

(7) R. v. Neal, [1949] 2 K.B. 590; [1949] 2 All E.R. 438; (1949), 65 T.L.R. 557; 113 J.P. 468; 93 Sol. Jo. 589; 48 L.G.R. 93; 33 Cr. App. R. 189, distinguished.

(8) R. v. Olivo, [1942] 2 All E.R. 494; (1942), 168 L.T. 112; 106 J.P. 284; 41 L.G.K. 70; 28 Cr. App. R. 173.

(9) R. v. StewartUNK(1971), 17 W.I.R. 381.

(10) R. v. WhiteUNK(1976), 24 W.I.R. 454, followed.

(11) Stefani v. John, [1948] 1 K.B. 158; [1947] 2 All E.R. 615; [1948] L.J.R. 221; (1947), 112 J.P. 45; 63 T.L.R. 612; 92 Sol. Jo. 41; 46 L.G.R.17.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.5(1): The relevant terms of this sub-section are set out at page 28, line 35 – page 29, line 5.

s.13(6): The relevant terms of this sub-section are set out at page 32, lines 30–35.

s.51(1): ‘ . . . [T]he judgment of any court in the exercise of its original jurisdiction in any criminal trial shall be pronounced, or the substance of such judgment explained, in open court either

immediately after the termination of the trial or at some subsequent time . . . .’

s.52(1): ‘Every judgment in a summary trial except as otherwise provided by this Code or any other law shall be written by the magistrate and shall be dated and signed by such magistrate in open court at the time of pronouncing it.’

s.70(1): The relevant terms of this sub-section are set out at page 34, lines 16–30.

Criminal Procedure-judgment-delivery of judgment-if written judgment read in court, should be made part of record-‘reasons for decision’ prepared later for purposes of appeal wilt not constitute ‘judgment’ within Criminal Procedure Code, s.51(1)

Criminal Law-drugs-charges-quantity of drug to be specified in charge when necessary for determining jurisdiction, mode of trial and sentencing range-quantity of drug itself without adulterant to be specified

Criminal Procedure-summary trial-summary trial of indictable offences-consent of prosecution and accused to summary trial to be expressly given before plea and recorded-mere acquiescence in continuation of proceedings insufficient

Criminal Procedure-retrial-grounds for retrial-no retrial if original trial nullity but prosecution may proceed with charge if thinks fit-court may refuse retrial if believes insufficient evidence

Criminal Procedure-charges-joinder-joinder of offences-multiple charges dealing with same matter separable-if trial of one charge nullity for lack of jurisdiction, trial of other charge with jurisdiction unaffected

Evidence-witnesses-witness in void proceedings-evidence not repeated in valid proceedings to be disregarded

Evidence-admissibility-trial of multiple charges-evidence on charge tried without jurisdiction only taints trial on other charges if prejudicial and misleads court-will not allow defence to rely on misreception of evidence if lack of jurisdiction results from defence failure to raise objection

The appellants and one other were charged in the Magistrate”s Court, George Town, with conspiracies to import and export cocaine hydrochloride, with jointly being in unlawful possession of the same drug and, in the case of the first appellant only, unlawful possession of the drug on a different occasion and offering to sell the drug.

Agents of the US Drug Enforcement Agency made contact with the first appellant with a view to buying cocaine from him on the basis of a sample he had given to a witness. The first appellant took the agents to

his factory, where he introduced the second appellant as his chemist and the second appellant answered a question about the purity of the cocaine available. The agents were shown a suitcase containing 31 packages of white powder weighing approximately 1kg. each, from which random samples were taken: analysis showed them to be 90% pure cocaine hydrochloride. The appellants were later arrested but the packages were never recovered despite a widespread search.

The appellants and four others were originally charged in the Magistrate”s Court with offences comparable to those which were the subject of the present proceedings. Although three of these were Category B offences, the consent of the prosecution and the accused to summary trial was not sought, nor did the defence seek to raise the issue of consent, and the trial proceeded as if the magistrate had jurisdiction to try the offences. After a number of other irregularities had occurred, the prosecution offered no evidence against three of the accused who were then discharged. Following a radio broadcast which he believed was likely to have a prejudicial effect on the trial, the magistrate stopped the proceedings, disqualified himself and ordered the commencement of the trial de novo before another magistrate.

At the beginning of the new trial the appellants and the remaining other accused were asked to plead to charges of conspiring to import and to export cocaine hydrochloride and all pleaded not guilty. The question of consent to summary trial, these being Category B offences which could only be tried summarily with the consent of the prosecution and the accused, was never raised, the defence did not object and the trial proceeded. After the examination-in-chief of the first prosecution witness, which related to the allegation that the first appellant had given a sample of cocaine to that witness, the magistrate realised that he had not asked the appellants to plead to all the charges which were to be tried and, over the objection of the defence, proceeded to put additional charges to them, purporting to act under s.70(1) of the Criminal Procedure Code. The first additional charge charged the first appellant alone with unlawful possession of an unspecified quantity of cocaine hydrochloride; the second charged the first appellant with unlawfully offering to sell an unspecified quantity of cocaine hydrochloride; and the third charged both appellants with unlawful possession of an unspecified quantity of cocaine hydrochloride. The appellants were not asked to consent to the summary trial of these additional charges, refused to plead to them and pleas of not guilty were entered. The prosecution then formally withdrew all the charges laid in the original trial.

The prosecution disclosed in open court the quantities of drug concerned in each of the three additional charges-3g., 70kg. and 31kg. respectively-and the rest of the prosecution case was heard. On a no case submission the other accused person was acquitted; the appellants both made unsworn statements from the dock denying the charges and called no other evidence. The first appellant was convicted on all charges; the second appellant was acquitted on the charge of conspiracy to import but convicted on the other charges of conspiracy to export and unlawful possession. Heavy sentences were passed.

In giving his verdict the magistrate read from a manuscript document, which he amplified and supplemented extemporaneously. That document was not, however, made part of the record of appeal but instead, once the appeal had been lodged, written reasons for his decision were prepared and made part of the record. There was no accurate transcript of the magistrate”s extemporaneous comments. At the hearing of the appeal the Grand Court took steps to obtain and transcribe the manuscript document from which the magistrate had read and by agreement it was made part of the record of appeal.

On appeal, the appellants submitted inter alia that (a) the magistrate”s failure to make his judgment part of the record of appeal was a breach of the requirements of the Criminal Procedure Code, ss. 51 and 52; (b) the three additional charges were defective insofar as they failed to specify the quantities of drug involved, which was required both to give the court notice of its jurisdiction and of its sentencing powers; (c) the magistrate”s failure to obtain the consent of the prosecution and the appellants to the summary trial of Category B offences had deprived him of jurisdiction to try them and resulted in the trial of those charges being a nullity; (d) the consequence of the nullity was that the entire trial-including the trial of the Category C offences which the magistrate could try without consent-was tainted and all the convictions should be set aside; (e) impleading the appellants on the three additional charges once the trial had started both showed bias on the part of the magistrate and was not authorised by s.70(1) of the Criminal Procedure Code since there was nothing apparently defective in the substance or form of the two charges on which the appellants were until then being tried; (f) since the evidence of the first prosecution witness was given before the appellants were impleaded on the three additional charges and was not repeated thereafter, it should be disregarded and without it there was insufficient evidence to convict the first appellant on the charge of unlawful possession against him alone; and (g) the improper trial of the several offences together resulted in the prejudicial misreception of evidence and vitiated the trial, especially the trial of the final charge of unlawful possession against...