Lewis v R
| Jurisdiction | Cayman Islands |
| Judge | (Kellock, Ag. J.) |
| Judgment Date | 10 April 2003 |
| Date | 10 April 2003 |
| Court | Grand Court (Cayman Islands) |
(Kellock, Ag. J.)
L.A. Freeman for the appellant;
A. Roberts, Senior Crown Counsel, for the Crown.
(1) Merren v. R., 2000 CILR 234, dicta of Sanderson J. not followed.
(2) R. v. CollisonUNK(1980), 71 Cr. App. R. 249; [1980] Crim. L.R. 591, dicta of Widgery J. considered.
(3) R. v. Cross, [1971] 3 All E.R. 641; (1971), 55 Cr. App. R. 540, dicta of Waller J. considered.
(4) R. v. Gregory, [1972] 1 W.L.R. 991; [1972] 2 All E.R. 861, considered.
(5) R. v. HughesUNK(1927), 20 Cr. App. R. 4, dicta of Lord Hewart, C.J. distinguished.
(6) R. v. Johal, [1973] Q.B. 475; [1972] 2 All E.R. 449, dicta of Ashworth J. applied.
(7) R. v. Martin, [1962] 1 Q.B. 221; [1961] 2 All E.R. 747, considered.
(8) R. v. Piggott, [1999] 2 Cr. App. R. 320; (1999), 149 New L.J. 521, dicta of Waller, L.J. considered.
(9) R. v. RadleyUNK(1974), 58 Cr. App. R. 394; [1974] Crim. L.R. 312, dicta of Lord Widgery, C.J. considered.
(10) R. v. Sussex JJ., ex. p.Campbell, [1924] 1 K.B. 256; [1923] All E.R. Rep. 233, observations of Lord Hewart, C.J. applied.
(11) R. v. West, [1948] 1 K.B. 709; [1948] 1 All E.R. 718, applied.
Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.73: The relevant terms of this section are set out at para. 20.
s.74: The relevant terms of this section are set out at para. 58.
s.116(1): ‘Where, before a trial upon indictment or at any stage of such trial, it appears to the court that the indictment is defective, the court
shall make such order for the amendment of the indictment as the court considers necessary to meet the circumstances unless, having regard to the merits of the case, the required amendments cannot be made without injustice. Any such amendments shall be made upon such terms as to the court shall seem just.’
s.179: ‘The court may adjourn the hearing of the appeal, and may, upon the hearing thereof confirm, reverse, vary or modify the decision of the Summary Court, including the passing of some other sentence (whether more or less severe) or remit the matter to the Summary Court for retrial, or may make such other order in the matter as it may think just, and may, by such order, exercise any power which the Summary Court might have exercised, and such order shall have the same effect and may be enforced in the same manner as if it had been made by the Summary Court:
Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the court considers that no substantial miscarriage of justice has actually occurred.’
Misuse of Drugs Law (2000 Revision) (Law 13 of 1973, revised 2000), s.3(1): The relevant terms of this sub-section are set out at para. 3.
Criminal Law Act 1967, s.4: The relevant terms of this section are set out at para. 48.
Indictments Act 1915, s.5:
‘(1) Where, before the trial, or at any stages of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice …’
Criminal Procedure-charges-amendment-before deciding whether to amend charge under Criminal Procedure Code, s.73, court to consider all circumstances including desirability of adjournment and need to call witnesses to defend amended charge-overriding principle of right of accused to make full answer and defence
Criminal Procedure-charges-amendment-time of amendment-charge only to be amended under Criminal Procedure Code, s.73 before completion of Crown”s case (except highly technical amendments of form not substance)-alternative construction is that court may amend at any stage of trial provided no injustice to appellant-onus on Crown to show no likelihood of injustice
The appellant was charged in the Summary Court with possession of cocaine with intent to supply.
The appellant had been acquitted on two counts of possession of cocaine with intent to supply but the Magistrate then proceeded to amend the charges to ‘being concerned in the possession of cocaine with intent to supply.’ The amendments were made after all the evidence had been completed and the submissions of counsel heard. The defence was not given an opportunity to address the court as to whether or not the amendments should have been made. In an attempt to answer the amended charges, the appellant applied to introduce the evidence of a co-accused, who had not already testified. The Magistrate dismissed the application and ruled that the amendment had been made pursuant to s.73 of the Criminal Procedure Code (1995 Revision), which did not allow the
appellant to call a new witness. The appellant was found guilty on the amended charges.
On appeal, he submitted that (a) the Magistrate should have consulted the parties before amending the charges, so that they could have made submissions as to the potential injustice that might be caused by the proposed changes; (b) s.73 did not authorize the court to amend the charges after the defence had adduced its evidence, and the Magistrate had therefore erred in amending the charges too late in the trial; and (c) alternatively, the operation of s.73, restricting him to adducing only the evidence of witnesses who had already testified, prevented him from making a full defence to the charges as he was unable to call his co-accused.
The court also considered whether the Summary Court had the power to give an alternative verdict.
Held, allowing the appeal:
(1) The Magistrate had erred by not hearing the parties before making the amendments. The law provided that when amending indictments, there was an obligation on the court first to consult the parties and the same rule should be applied to amendments to charges in the Summary Court, as there was no reason why persons tried there should be afforded less protection, especially when facing charges carrying heavy sentences. The amendments should not have been made unless the court had concluded, after hearing the parties, that no injustice would ensue. The onus was on the Crown to convince the court that convictions on the amended charges could be registered without a likelihood of injustice, and any doubt was to be resolved in favour of the appellant (paras. 28–31; para. 56).
(2) Moreover, the Criminal Procedure Code, s.73 provided that amendments to charges could not be made after the defence had adduced its evidence, and certainly not after the completion of the evidence. Only highly technical amendments of form rather than substance could be contemplated after the close of the prosecution case. As all the evidence in this case had been completed, the only options available to the Magistrate had been to convict and sentence the appellant on the original charge, or to acquit him. The Magistrate had erred in making the amendments at that late stage, and the convictions would therefore be quashed. Alternatively, if the court were wrong-and the true interpretation of s.73 permitted amendments at any stage of the trial provided that a conviction could be registered on the amended charges without prejudice to the appellant-then it must be shown that the remedies for potential prejudice, limited by s.73(1) and (3), were adequate (paras. 37–40; para. 59).
(3) There was an overriding principle in criminal cases that the appellant had the right to make full answer and defence. If s.73 provided for amendments to be made after the completion of the evidence, there
was no reason why the defence rights should be limited to recalling evidence adduced in a different context. If the appellant were unable to answer the amended charges unless he could have adduced the evidence of a co-accused, and s.73 prohibited his calling that evidence, there would have been a miscarriage of justice. The preferable construction of s.73 was therefore that, while it authorized the court to amend charges, its language was permissive and the court should have taken account of all the circumstances, including the desirability of adjournments and the need to call witnesses. The court had not seen the co-accused”s statement, but it was not prepared to conclude that no substantial miscarriage of justice had resulted from the amendments, and for this reason too the convictions would be quashed (para. 31; para. 41; para. 57).
(4) The Summary Court did not, in any case, have power to give an alternative verdict. The appellant”s counsel was therefore entitled to concentrate on whether or not the Crown”s evidence established that the appellant had physical possession of the cocaine and had no need to cross-examine the prosecution witnesses in order to meet the entirely different charge of being concerned in possession (para. 63).
1 KELLOCK, Ag. J.: Deron Lewis appeals from his conviction and sentence on charges of violating the Misuse of Drugs Law (2000 Revision). The offences are said to have been committed on April 3rd, 2000. After a trial which proceeded over several days, but with lengthy adjournments, Lewis was found guilty on July 10th, 2000 of two offences, and found not guilty of two other offences. Several grounds of appeal have been raised, but the argument before me was ultimately restricted to the circumstances which led the learned Magistrate to amend the charges upon the basis of which the trial had been conducted, and that was done pursuant to s.73 of the Criminal Procedure Code which, for our convenience, I shall refer to as the ‘CPC.’
2 The relevant charges read as follows (before amendment):
‘1. Deron Lewis on the 3rd day of April 2000 at George Town, Grand Cayman had in his possession whether lawfully or not, with intent that it be supplied, whether by himself or some other person and whether in...
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