Hydes v Att Gen

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 17 April 2000
• Court: Grand Court (Cayman Islands)
• Date: 17 April 2000

Grand Court

(Smellie, C.J.)

HYDES

and

ATTORNEY GENERAL

J.H. Furniss for the appellant;

Miss J.A. Rowley, Crown Counsel, for the Crown.

Cases cited:

(1) Briggs v. R., Grand Court, S.C.A. No. 20 of 1998, not followed.

(2) Copeland, Ex p., In re CopelandENR(1852), 2 De G.M. & G. 914; 22 L.J. Bcy. 17.

(3) R. v. LoxdaleENR(1758), 1 Burr. 445; 97 E.R. 394, dicta of Lord Mansfield applied.

(4) R. v. PalmerENR(1785), 1 Leach 352; 168 E.R. 279.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.66: The relevant terms of this section are set out at page 210, lines 14–19.

s.74: The relevant terms of this section are set out at page 210, lines 20–30.

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.41(1): The relevant terms of this sub-section are set out at page 209, line 43 – page 210, line 4.

s.41(2): The relevant terms of this sub-section are set out at page 210, lines 5–8.

(3): The relevant terms of this sub-section are set out at page 210, lines 9–11.

Traffic Law (1991 Revision) (Law 24 of 1991), s.71(1): The relevant terms of this sub-section are set out at page 210, line 32 – page 211, line 3.

s.71(2): The relevant terms of this sub-section are set out at page 211, lines 4–16.

s.72(8): Whoever, without reasonable excuse fails or refuses to provide a specimen-

(a) of breath for a breath test after having been required to do so under paragraph (a) of subsection (2); or

(b) of blood or urine for a laboratory test after having been law-fully required to do so under paragraph (b) of sub-section (2),

is guilty of an offence . . . and in any event . . . shall be disqualified from holding or obtaining a drivers licence for twelve months or such longer period as the Court may order . . .’

Road Traffic-driving under influence of drink-sentence-mandatory disqualification under Traffic Law, s.71 preserved by proviso to Criminal Procedure Code, s.74-discretion to dismiss charge under Penal Code, s.41 or Criminal Procedure Code, s.66 impliedly excluded

The appellant was charged in the Magistrate”s Court with driving under the influence of alcohol.

The appellant was found injured in his car with a blood alcohol level above the legal limit. He pleaded guilty to the offence of driving whilst intoxicated contrary to s.71 of the Traffic Law, but claimed by way of miti-gation that there were medical reasons for his condition. The Magistrate found that the medical evidence which he adduced did not support his claim and convicted him, imposing the mandatory disquali-fication from driving required by s.71. She rejected his request for an unconditional discharge on the additional basis that a discharge would be inconsistent with the proviso to s.74 of the Criminal Procedure Code (1995 Revision) (applicable on a not guilty plea), preserving the mandatory consequences of conviction under s.71.

On appeal, the appellant submitted that the Magistrate had misdirected herself in ignoring her discretion to discharge him, since (a) s.41 of the Penal Code (1995 Revision) empowered her to dismiss the charge, having regard to his medical condition and the extenuating circumstances of the offence, and s.66 of the Criminal Procedure Code (1995 Revision) allowed her to waive conviction and sentence following his guilty plea if mitigating factors warranted it; and (b) the discretion existed

notwithstanding the proviso to s.74 of the Criminal Procedure Code, since in the past the court had, in reliance on s.41, refrained from convicting an accused of refusing to provide a breath sample contrary to s.72(8) of the Traffic Law, which also carried mandatory disqualification.

The Crown submitted in reply that (a) the discretion in s.41 (and s.66 in cases where a guilty plea had been entered) did not apply to the offence of driving under the influence of alcohol, since it was impliedly precluded by the proviso to s.74; (b) mandatory disqualification under the Traffic Law, s.71 was an essential deterrent factor in sentencing policy; and (c) since s.72(8) was not mentioned in the proviso to s.74, the court”s previous decision in relation to the offence of refusing to provide a breath sample was irrelevant.

Held, dismissing the appeal:

(1) The Magistrate had no discretion under s.41 of the Penal Code or s.66 of the Criminal Procedure Code to dismiss the charge against the appellant on the grounds of extenuating circumstances (s.41) or his representations in mitigation following the guilty plea (s.66), since these provisions were impliedly excluded by the proviso to s.74. Since the Penal Code and Criminal Procedure Code were statutes in pari materia, they were to be construed together as one system and therefore the proviso related not only to the broader powers of discharge available to the court under s.74 but also to those under ss. 41 and 66. The proviso recognized and deferred to the policy underlying s.71 of the Traffic Law, and the Magistrate had properly refused to interpret s.41 in conflict with it. The court”s decision in the earlier case under s.72(8) of the Traffic Law was not significant, since s.74 had not been brought to its attention, and no reasons were given. Nevertheless, the apparent contradiction between the different statutes might be resolved by legislative amendment (page 211, line 17 – page 213, line 3).

(2) Even if the discretion contended for...