McLAUGHLIN and MONTAQUE v R
| Jurisdiction | Cayman Islands |
| Judge | (Williams, Ag. J.) |
| Judgment Date | 23 September 2019 |
| Court | Grand Court (Cayman Islands) |
| Date | 23 September 2019 |
(Williams, Ag. J.)
Criminal Procedure — bail — bail pending appeal — judge of Grand Court, sitting as single judge of appeal, has no jurisdiction to grant bail to applicants seeking permission to appeal to Judicial Committee of Privy Council against conviction and sentence
Held, refusing the application:
A judge of the Grand Court, sitting as a single judge of appeal, had no jurisdiction to grant or consider a grant of bail to convicted applicants seeking permission to appeal to Her Majesty in Council. The Cayman Islands (Appeals to Privy Council) Order 1984 applied only to civil appeals to the Privy Council. Even if the court had the jurisdiction to make the order sought by the applicants, s.6 of the Order concerned orders being made “in respect of any appeal pending before Her Majesty in Council . . .” whereas in the present case there was no appeal pending before Her Majesty in Council. What was in existence was an application for permission, which had been made out of time (paras. 15–23).
(1)Chung Chuck v. R., [1930] A.C. 244; (1929), 142 L.T. 266; 46 T.L.R. 134; 99 L.J.P.C. 71, referred to.
(2)Gonzalez v. R., 1984–85 CILR 256, followed.
(3)Holder v. R., [1980] A.C. 115; (1978), 68 Cr. App. R. 120; [1978] Crim. L.R. 685, referred to.
(4)Police Commr. v. Harris, C.A., Crim. App. No. 2 of 1978, July 27th, 1978, unreported, referred to.
Court of Appeal Law (2011 Revision), s.28:
“(1) Where an accused person tried on indictment is—
(a)discharged or acquitted by a trial judge sitting alone or by a jury (where such a jury has been directed to do so by the trial judge) including where the judgment or verdict of acquittal is as a result of a decision by the trial judge to uphold a no case submission or withdraw the case from the jury; or
(b)convicted of an offence other than the one with which he is charged, the Director of Public Prosecutions or the complainant may appeal to the Court of Appeal against the judgment of the Grand Court on any ground of appeal that the decision of the trial judge is erroneous on a point of law.
(2) A complainant shall not appeal under subsection (1) without the permission of the Director of Public Prosecutions.
(3) Upon the hearing of an appeal brought by the Director of Public Prosecutions or a complainant under subsection (1), the Court of Appeal may allow the appeal if it appears that the discharge or acquittal of the accused should be set aside on a ground of a wrong decision of law and, in any other case, shall dismiss the appeal.
(4) Where the court allows an appeal under subsection (1), it shall set aside the discharge or acquittal of the accused person and remit the case to the court of original jurisdiction to be retried.”
s.33: The relevant terms of this section are set out at para. 8.
Cayman Islands (Appeals to Privy Council) Order 1984 (S.I. 1984/1151), s.3: The relevant terms of this section are set out at para. 17.
s.6: The relevant terms of this section are set out at para. 5.
Constitution of Jamaica, s.110: The relevant terms of this section are set out at para. 18.
The applicants were convicted of possession of an unlicensed firearm.
The first applicant was convicted in the Grand Court of one count of possession of an unlicensed firearm and sentenced to 12 years’ imprisonment. The second applicant was convicted of two counts of possession of an unlicensed firearm and sentenced to 15 years’ imprisonment on each count, to run concurrently. Their appeals to the Court of Appeal against conviction and sentence were dismissed. They applied to the Judicial Committee of the Privy Council for leave to appeal.
The applicants applied for bail pending the appeal. The Crown submitted that (a) the Grand Court did not have jurisdiction to grant bail in circumstances where the Court of Appeal had finally determined an appeal from the Grand Court; (b) if any court had jurisdiction to consider bail pending appeal to the Privy Council, it must be the Court of Appeal; and (c) the Court of Appeal could only grant bail pending a determination of an appeal to the Court of Appeal itself. There was no provision for the grant of bail pending an appeal to the Privy Council.
The applicants relied on s.6 of the Cayman Islands (Appeals to Privy Council) Order 1984. Section 6(b) granted to a single judge of the Court of Appeal inter alia the power and jurisdiction “generally in respect of any appeal pending before Her Majesty in Council, to make such order and to give such other directions as he shall consider the...
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Between Wayne Carlos Myles Applicant v HM the King Respondent
...is equally applicable to the 1984 Order and we note in passing that this was also the view of Williams, Ag. J in McLaughlin v R [2019 (2) CILR 819]. It has not been suggested to us that there is any enactment in accordance with section 3(2)(b) which extends the provisions of section 3(2) to......
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Between Wayne Carlos Myles Applicant v HM the King Respondent
...is equally applicable to the 1984 Order and we note in passing that this was also the view of Williams, Ag. J in McLaughlin v R [ 2019 (2) CILR 819]. It has not been suggested to us that there is any enactment in accordance with section 3(2)(b) which extends the provisions of section 3(2) t......