Gonzalez v R

• Jurisdiction: Cayman Islands
• Judge: (Carberry and Rowe, JJ.A., and Wright, Ag. J.A.)
• Judgment Date: 04 October 1984
• Court: Court of Appeal (Cayman Islands)
• Date: 04 October 1984

Court of Appeal

(Carberry and Rowe, JJ.A., and Wright, Ag. J.A.)

GONZALEZ and SUAREZ

and

R.

D. Muirhead, Q.C. for the applicants;

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

Cases Cited:

(1) Arnold v. R., [1914] A.C. 644; [1914–15] All E.R. Rep. 779; (1914), 111 L.T. 324; 30 T.L.R. 462; 83 L.J.P.C. 299; 24 Cox, C.C.297.

(2) Att.-Gen. (Ceylon) v. Perera, [1953] A.C. 200; (1953), 97 Sol. Jo, 78.

(3) Att.-Gen. (N.S.W.) v. BertrandELR(1867), L.R. 1 P.C. 520; 16 E.R, 391; 4 Moo. P.C.C.N.S. 460; 16 L.T. 752; 36 L.J.P.C. 51; 31 J.P. 531; 10 Cox, C.C. 618; 16 W.R. 9.

(4) British Coal Corp. v. R., [1935] A.C. 500; [1935] All E.R. Rep. 139; (1935), 153 L.T. 283; 51 T.L.R. 508; 104 L.J.P.C. 58; 79 Sol. Jo. 541, considered.

(5) Chung Chuck v. R., [1930] A.C. 244; (1929), 142 L.T. 266; 46 T.L.R. 134; 99 L.J.P.C. 71, followed.

(6) Commr. of Police v. Harris, Court of Appeal, Criminal App. No. 2 of 1978, July 27th, 1978, unreported, applied.

(7) Cordon-Cuenca v. R., [1944] A.C. 105; [1944] 1 All E.R. 411; (1943), 60 T.L.R. 241; 113 L.J.P.C. 52; 88 Sol. Jo. 170, followed.

(8) Billet, In reELR(1887), 12 App. Cas. 459; 56 L.T. 615; 3 T.L.R. 492; 36W.R. 81;16Cox, C.C. 241.

(9) Holder v. R., [1980] A.C. 115; (1978), 122 Sol. Jo. 681; 68 Cr. App. R. 120; [1978] Crim. L.R. 685, followed.

(10) Ibrahim v. R., [1914] A.C. 599; [1914–15] All E.R. Rep. 874; (1914), 111 L.T. 20; 30 T.L.R. 383; 83 L.J.P.C. 185; 24 Cox, C.C. 174.

(11) Lesmond v. R. (No. 2)UNK(1961), 10 W.I.R. 259.

(12) Nadan v. R., [1926] A.C. 482; (1926), 134 L.T. 706; 42 T.L.R. 356; 95 L.J.P.C. 114; 28 Cox, C.C. 167, considered.

(13) Oteri v. R., [1976] 1 W.L.R. 1272; [1977] 1 Lloyd”s Rep. 105, followed.

(14) R. v. GreenUNK(1969), 11 J.L.R. 305.

(15) Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965; (1956), 100 Sol. Jo. 566.

(16) Thomas x.ELRK., [1980] A.C. 125; [1979] 2 AH E.R. 142; (1978), 122 Sol. Jo. 696; [1978] Crim. L.R. 753.

(17) Townsend v. Cox, [1907] A.C. 514; (1907), 97 L.T. 620; 76 L J P C 98

(18) Woolworths (N.Z.) Ltd. v. Wynne, [1952] N.Z.L.R. 496.

Legislation construed:

Cayman Islands (Appeal to Privy Council) Order 1965 (S.I. 1965/1862), s.2(1): The relevant terms of this sub-section are set out at page 279, lines 14–17.

s.3: The relevant terms of this section are set out at page 288, lines 9–23.

Cayman Islands (Constitution) Order 1972 (S.I. 1972/1101), s.49(1): The relevant terms of this sub-section are set out at page 276, lines 9–15.

Court of Appeal Law (Law 9 of 1975), s.2: The relevant terms of this section are set out at page 276, lines 3–5; page 279, lines 2–5.

s.30: The relevant terms of this section are set out at page 275, lines 21–29.

Jamaica (Constitution) Order in Council 1962 (S.I. 1962/1550), s.110(5): The relevant terms of this sub-section are set out at page 275, lines 39–41.

Judicial Committee Act 1833 (3 & 4 Will. IV, c.41), s.3: The relevant terms of this section are set out at page 262, lines 24–35.

s.24: The relevant terms of this section are set out at page 262, lines 37–41.

Judicial Committee Act 1844 (7 & 8 Vict., c.69), s.1: The relevant terms of this section are set out at page 263, lines 3–16.

Criminal Procedure-appeals-appeals to Privy Council-Court of Appeal has no jurisdiction to grant leave to appeal to Privy Council in criminal case under Cayman Islands (Appeal to Privy Council) Order 1965, s.3(b)-Court of Appeal Law, s.30 does not empower court to exercise jurisdiction to grant leave conferred upon Court of Appeal for Jamaica

The applicants applied for leave to appeal to the Judicial Committee of the Privy Council in a criminal case.

The applicants were convicted in the Magistrate”s Court, George Town of offences under the Misuse of Drugs Law, 1973. They appealed to the Grand Court (Summerfield, C.J.) (reported at 1984–85 CILR 10) and then to the Court of Appeal (Zacca, P., Kerr and Ross, JJ.A.) on the ground, inter fl//a,.that the magistrate had no jurisdiction to try the offences charged since he had not obtained the consent of both sides to a summary trial. The Court of Appeal (reported at 1984–85 CILR 197) allowed their appeal on the ground that a number of procedural irregularities had rendered their trial a nullity, but ordered a new trial before a different magistrate. The applicants then made the present application for leave to appeal to the Judicial Committee of the Privy Council against the decision of the Court of Appeal to order a new trial.

The court itself questioned whether, on a proper interpretation of the Cayman Islands (Appeal to Privy Council) Order 1965, it had jurisdiction to grant leave to appeal to the Judicial Committee of the Privy Council in a criminal case, particularly in view of the construction placed upon similar Orders in respect of other territories by the Judicial Committee.

The applicants submitted that the court had jurisdiction to entertain their application since (i) the Cayman Islands (Appeal to Privy Council) Order 1965, after providing by s.3(a) for appeals as of right in certain cases (admittedly confined to civil matters), provided by s.3(b) for appeals with the leave of the Court of Appeal ‘from any other judgment’ and this could properly be construed as allowing the court to grant leave to appeal in criminal cases since (a) ‘judgment’ was defined in s.2 as ‘a judgment of the Court given in the exercise of any jurisdiction conferred upon it by any law . . . ‘ and in view of the fact that the Court of Appeal Law conferred jurisdiction upon the court to hear and determine appeals from the Islands in both civil and criminal matters, the words ‘any jurisdiction conferred upon it by any law’ necessarily

meant any criminal or civil jurisdiction, and (b) the definition of ‘judgment’ in s.2 of the Order further stated that ‘judgment’ included ‘a decree, order, ruling, sentence or decision of the Court’ and the use of the word ‘sentence’ here was another indication that criminal cases were intended to be covered by the terms of the Order; (ii) under the Court of Appeal Law, s.30, in the absence of special provision, any jurisdiction in relation to appeals in criminal and civil matters was to be exercised by the court in conformity with the law and practice for the time being observed in Jamaica, and since Jamaica, by its own Constitution and legislation had given its Court of Appeal power to give leave to appeal to the Privy Council in certain criminal cases, when the Court of Appeal for Jamaica sat as the Court of Appeal for the Cayman Islands it could exercise that same jurisdiction.

Held, dismissing the application:

(1) The court, sitting as the Court of Appeal for the Cayman Islands, did not have jurisdiction to grant leave to appeal to the Privy Council in criminal cases. Appeals to the Privy Council from the Cayman Islands were regulated only by the terms of the Cayman Islands (Appeal to Privy Council) Order 1965 and s.3(6) of that Order closely resembled earlier provisions consistently construed by the Privy Council itself as applying only to civil cases. According to the established construction of the words ‘any other judgment’ in such provisions, the word ‘other’ referred back to the same sort of judgments as those referred to in s.3(a), i.e. judgments in civil cases only, and this construction was clearly appropriate since the next phrase in s.3(b) was ‘whether final or interlocutory’ which would not normally be used with reference to criminal cases. The definition of ‘judgment’ had to be read in the context of the Order as a whole and in the absence of any express provision for appeals with the leave of the Court of Appeal in criminal cases, the mere inclusion of the word ‘sentence’ in that definition could not properly be taken to indicate that criminal cases were intended to be included within the terms of s.3(6) (page 261, lines 20–25; page 268, line 41 – page 269, line 19; page 270, line 20 – page 273, line 8; page 274, line 36 – page 275, line 18; page 278, lines 2–7; page 283, line 31 – page 286, line 6; page 288, line 4 – page 290, line 16).

(2) The Court of Appeal Law, s.30 did not empower the court to exercise the jurisdiction vested in the Court of Appeal for Jamaica. Under the terms of that Law and the Cayman Constitution the court, when sitting as the Court of Appeal for the Cayman Islands, had to act within the jurisdiction conferred upon it by Cayman laws. Since neither the Cayman Constitution nor any other Cayman legislation made any provision for appeals to the Privy Council, the court could act only in accordance with the terms of the 1965 Order regulating such appeals. Furthermore, under the express terms of the Constitution of Jamaica, the relevant provisions related only to appeals from a court of Jamaica (page 275, line 19 – page 276, line 26).

(3) The application would therefore be dismissed but the applicants were not barred from making an application to Her Majesty in Council for special leave to appeal (page 276, lines 27–29; page 281, lines 34–36).

20	CARBERRY, J.A.: This was an application by the two above-
named applicants to this court, sitting as the Court of Appeal for
the Cayman Islands, for leave to appeal to Her Majesty in Coun-
cil, (that is to the Judicial Committee of the Privy Council)
against part of a judgment of this court, sitting in Grand Cay-
25	man-
‘ . . . delivered on June 28th, 1984, in the case brought
against the applicants for possession of 31 kg. of cocaine
hydrochloride, being a salt of cocaine, contrary to s.3(1)(k)
of the Misuse of Drugs Law, 1973, wherein the court
30	declared that the said offence was a Category C offence
under the provisions of s.5 of the Criminal Procedure Code
and not a Category B offence, which the magistrate would
have had no jurisdiction to try without the consent of the
prosecution and the appellants, and, because of the joint
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