Gonzalez v R

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

Court of Appeal

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

GONZALEZ and SUAREZ

and

R.

D. Muirhead, Q.C. and W. K. Chin See, Q.C. for the first appellant;

W.K. Chin See, Q.C. as amicus curiae for the second appellant;

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

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.

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

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 an additional mandatory fine, in default of payment of which a further six months” imprisonment could be imposed-effectively making the total possible sentence 15½ years; (b) the Crown was precluded from arguing that the use made by the magistrate of s.70(1) of the Criminal Procedure Code was correct, because the Grand Court had held that it was incorrect; (c) the entire trial was a nullity because, having started with charges over which the magistrate had no jurisdiction (the conspiracy charges), he proceeded to add further Category B and Category C charges and try them together, which was a procedure not allowed by Cayman law; (d) consequent upon the nullity there could be no severance of the valid from the invalid parts of the trial, since ali were fundamentally affected by the irregularity; and (e) the court had no power to order a new trial or a retrial since the original trial, never having properly commenced, was a nullity and, even if the court had the power, it would be harsh and unreasonable to submit the appellants to a ‘third ordeal’ when they had already been tried twice and been in custody since August 1983.

The Crown submitted in reply that (a) the magistrate had summary jurisdiction to try the charge of unlawful possession since it was not made into a Category B offence by the effect of s.25 of the Misuse of Drugs (Amendment) Law, 1982-the section only having that effect on an offence for which the maximum custodial sentence was 15 years, and it being impermissible to add to it a hypothetical sentence of imprisonment in default of payment of a fine, since such an additional sentence might never be passed; (b) s.70(1) of the Criminal Procedure Code should be interpreted broadly to justify the magistrate”s impleading the appellants on the additional charges and, in the case of a ‘defective’ charge, be treated as giving him powers of amendment similar to those the courts possessed in relation to the amendment of indictments; (c)

even if the trial were partly defective, it was not a total nullity and severance was possible in principle to save the valid parts of the trial-this should be done by ascertaining whether the offence which the magistrate had validly tried could be supported on its own facts without reference to the facts supporting the other charges, and then by determining whether the appellants would suffer any prejudice if severance were applied, which in the present circumstances they would not.

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...