Gonzalez v R

• Jurisdiction: Cayman Islands
• Court: Court of Appeal (Cayman Islands)
• Judge: (Zacca, P., Kerr and Ross, JJ.A.)
• Judgment Date: 01 January 1984
• Date: 01 January 1984

GONZALEZ and SUAREZ

and

R.

(Zacca, P., Kerr and Ross, JJ.A.)

Court of Appeal

Criminal Procedure-summary trial-summary trial of indictable offences-Category C offence not converted into Category B offence by Misuse of Drugs (Amendment) Law, 1982, s.25 unless maximum custodial sentence exceeds 15 years-possibility of additional imprisonment in default of fine taking sentence over 15 years to be disregarded

Criminal Procedure-charges-addition of charges-charges in summary trial ‘defective in substance or form’ within Criminal Procedure Code, s.70(1) if all intended offences not included in original charges-addition of new charges allowed but must not prejudice defence

Criminal Procedure-charges-joinder-joinder of offences-Category B and C offences may not be tried together and entire trial nullity-if jurisdiction to try one category but not other, cannot sever and uphold valid trial only

Criminal Procedure-retrial-grounds for retrial-lack of jurisdiction-may order retrial although original trial nullity if public interest best served by bringing to justice and not allowing escape on technicality

Held, dismissing the appeals and ordering a new trial:

(1) The magistrate had jurisdiction to try the offence of unlawful possession of 2 oz. or more of the drug, without the consent of both sides, since it was a Category C offence and was not converted into a Category B offence by s.25 of the Misuse of Drugs (Amendment) Law, 1982. The statutory sentencing powers in respect of this offence envisaged a maximum custodial sentence of 15 years, plus a fine in default of payment of which a further period of imprisonment could be imposed. It was clear from s.6(4) of the Criminal Procedure Code and the authorities that these sentencing components should be treated separately and not cumulatively, i.e. the imprisonment as a custodial sentence remained distinct from the fine (and its imprisonment in default), which should be seen only as a pecuniary sentence. The appellants were therefore liable on this charge to imprisonment for a maximum of 15 years and no more and the offence remained a Category C offence which could be tried summarily (page 209, line 30 – page 210, line 27; page 224, lines 1–38; page 244, line 6 – page 245, line 11).

(2) Section 70(1) of the Criminal Procedure Code should be given a generous interpretation. A charge might be ‘defective’ for the purpose of the section if it did not, in the opinion of the magistrate, incorporate charges of all the intended offences, and the section then enabled him in the course of a summary trial to permit the presentation of additional charges to be heard with the charges in progress, provided that there was no unfairness or prejudice to the defence (per Kerr, J.A., page 229, lines 8–23).

(3) Although it was true that the magistrate could have heard several complaints together if he had jurisdiction to hear each of them individually, there was nothing in the Criminal Procedure Code which authorised him to try Category B offences and a Category C offence together. By purporting to do so, he had made the entire trial a nullity and since all parts of it were affected by the irregularity, it was not open to an appeal court to sever parts of it and hold them to be valid. The trial on the charge of unlawful possession, although within the jurisdiction of the magistrate, was therefore a nullity (page 214, line 29 – page 215, line 4; page 239, line 19 – page 240, line 2; page 252, lines 3–14).

(4) A new trial would be ordered on that charge as, even though the trial was a nullity, there was nothing to prevent the court from ordering

a new trial before a different magistrate. The hardship to the appellants must be weighed against the public interest, which was best served by bringing to justice those charged with serious crimes and not allowing them to escape merely by technical error (page 240, line 32 – page 241, line 18; page 255, lines 10–14).

Cases cited:

(1) Bain v. Commr. of PoliceUNK(1971), 17 W.I.R. 386, considered.

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

(3) Deokinanan v. R.UNK(1965), 8 W.I.R. 209, not followed.

(4) Emmanuel v. CoxUNK(1967), 10 W.I.R. 560, distinguished.

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

(6) Peacock v. BellENR(1668), 1 Wms. Saund. 73; 85 E.R. 84.

(7) R. v. BeesbyELRUNK, [1909] 1 K.B. 849; (1909), 25 T.L.R. 337; 53 Sol. Jo. 289; sub nom. R. v. Beesly, ex p. Grimmett, 78 L.J.K.B. 482; 100 L.T. 486; 73 J.P. 234; 22 Cox, C.C. 47, distinguished.

(8) R. v. BrownUNK(1970), 12 J.L.R. 139, followed.

(9) R. v. Carver, [1955] 1 W.L.R. 181; [1955] 1 All E.R. 413; (1955), 39 Cr. App. R. 27; 119 J.P. 204; 99 Sol. Jo. 150, followed.

(10) 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. .

(11) R. v. FongUNK(1976), 12 J.L.R. 121.

(12) R. v. Fowler, ex p. WaltersUNK(1894), 63 L.J.M.C. 9; 15 R. 265.

(13) R. v. Johal, [1973] Q.B. 475; [1972] 2 AH E.R. 449; (1972), 116 Sol. Jo. 195; 56 Cr. App. R. 348.

(14) R. v. Junior, Court of Appeal of Jamaica, Case No. C.A. 25/83, July 20th, 1983, unreported.

(15) R. v. McDonaldUNK(1969), 14 W.I.R. 11, followed.

(16) R. v. MillerUNK(1913), 12 J.L.R. 1263.

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

(18) R. v. Rose, [1982] A.C. 822; [1982] 2 All E.R. 731; (1982), 75 Cr. App. R. 322; 126 Sol. Jo. 479; [1982] Crim. L.R. 696, distinguished.

(19) R. v. SavundraUNK (1968), 52 Cr. App. R. 637; reported on other grounds, sub nom. R. v. Savundranayagan, [1968] 1 W.L.R. 1761; [1968] 3 All E.R. 439.

(20) R. v. SpencerUNK(1966), 10 W.I.R. 115.

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

(22) R. v. WhiteUNK (1976), 24 W.I.R. 454; on appeal, sub nom. D.P.P. v. White, [1978] A.C. 426; [1977] 3 All E.R. 1003; (1977), 26 W.I.R. 482; [1977] Crim. L.R. 418, considered.

(23) Reid v. R.UNK(1978), 27 W.I.R. 254, distinguished.

(24) Roberts v. R.UNK(1969), 13 W.I.R. 50, followed.

(25) 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.4: The relevant terms of this section are set out at page 205, lines 28–32.

s.5(1): The relevant terms of this sub-section are set out at page 205, line 34 – page 206, line 4.

s.6(2), (3), (4): The relevant terms of these sub-sections are set out at page 209, line 35 – page 210, line 9.

s.13(1), (6): The relevant terms of these sub-sections are set out at page 211, lines 6–15.

s.70(1): The relevant terms of this sub-section are set out at page 228, lines 6–20.

Misuse of Drugs (Amendment) Law, 1982 (Law 10 of 1982), s.12(4): The relevant terms of this sub-section are set out at page 217, line 38 – page 218, line 3.

s.25: The relevant terms of this section are set out at page 206, lines 13–19.

Schedule, Part B: The relevant terms of this Schedule are set out at page 219, lines 1–41.

Penal Code (Law 12 of 1975), s.25(1), (2): The relevant terms of these sub-sections are set out at page 206, line 37 – page 207, line 12.

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 or 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.

The facts and history of the proceedings are set out in the report of the appeal to the Grand Court at 1984–85 CILR 10. The Grand Court (a) allowed the appellants” appeals against their conviction on the conspiracy charges and the first appellant”s appeal against his conviction on the charge of offering to sell, on the ground that these being Category B offences under s.5(1) of the Criminal Procedure Code, they should only have been tried by a magistrate with the consent of the prosecution and the appellants, which was neither sought nor given; and (b) refused to order a ‘retrial’ because the original trial had been a complete nullity and there was in any case insufficient evidence to support any of the charges. The court also allowed the first appellant”s appeal against conviction on the charge of unlawful possession (a Category C offence) since, although it had been tried jointly with the Category B offences, it

was a valid trial which could be severed from the void trial of the latter offences, but there was insufficient evidence in that valid trial of the guilt of the first accused. It held, however, that there was sufficient evidence of the appellants” guilt on the joint charge of unlawful possession, the trial of which had not been unduly prejudiced by the misreception of evidence relating to the void trial. The convictions and sentences on this charge, in the case of the first appellant of 12 years” imprisonment and a fine of $30,000 (with six months” imprisonment in default) and in the case of the second appellant of six years” imprisonment and a fine of £10,000 (with six months” imprisonment in default) were accordingly upheld.

On appeal, the appellants submitted that (a) the Grand Court was wrong to hold that the magistrate had summary jurisdiction to try the charge of unlawful possession of 2 oz. or more of the drug, since it was in fact a Category B offence requiring the consent of both sides, because (i) it was an offence which made the offender liable to ‘a term of imprisonment exceeding fifteen years’ and, by the Misuse of Drugs (Amendment) Law, 1982, s.25 such an offence was automatically a Category B offence, and (ii) it fell to be classified as such an offence because it was punishable by a maximum sentence of 15 years” imprisonment with...