Miller v Summary Court

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 17 May 1995
• Date: 17 May 1995
• Court: Grand Court (Cayman Islands)

Grand Court

(Smellie, J.)

MILLER

and

SUMMARY COURT, ex parte ATTORNEY GENERAL

P. Lamontagne, Q.C. and G. Hampson for the applicant;

M.B. Clarke, Crown Counsel for the respondent.

Cases cited:

(1) Anisminic Ltd. v. Foreign Compensation Commn., [1969] 2 A.C. 147; [1969] 1 All E.R. 208, considered.

(2) Armah v. Govt. of Ghana, [1968] A.C. 192; [1966] 3 All E.R. 177, considered.

(3) Beech v. JonesENR(1848), 5 C.B. 696; 136 E.R. 1052.

(4) Berry v. R., [1992] 2 A.C. 364; [1992] 3 All E.R. 881.

(5) Howard v. Canfield(1836), 5 Dowl. 417; 49 R.R. 716.

(6) O”Reilly v. Mackman, [1983] 2 A.C. 237; [1982] 3 All E.R. 1124, considered.

(7) Owen v. EdwardsUNK(1983), 77 Cr. App. R. 191, followed.

(8) R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Noncyp Ltd., [1990] 1 Q.B. 123.

(9) R. v. Bradford JJ., ex p. Wilkinson, [1990] 1 W.L.R. 692; [1990] 2 All E.R. 833.

(10) R. v. Gibson, 1988–89 CILR 336.

(11) R. v. Greater Manchester Coroner, ex p. Tal, [1985] Q.B. 67; [1984] 3 All E.R. 240, considered.

(12) R. v. Stipendiary Magistrate, ex p. Att. Gen., [1993] 4 LRC 140, considered.

(13) R. v. Surrey Coroner, ex p. Campbell, [1982] Q.B. 661; [1982] 2 All E.R. 545, not followed.

(14) R. v. Wells Street Stipendiary Magistrate, ex p. Seillon, [1978] 1 W.L.R. 1002; [1978] 3 All E.R. 257.

(15) Racal Communications Ltd., In re, [1981] A.C. 374; [1980] 2 All E.R. 634, considered.

(16) Senat v. Senat, [1965] P. 172; [1965] 2 All E.R. 505, considered.

Evidence-witnesses-refreshing memory-document used by witness to refresh memory (including document out of court) to be made available for cross-examination of witness-applicable to any document still operating on mind of witness at time of giving evidence

Courts-Grand Court-judicial review of Magistrate”s Court-decision of Magistrate”s Court made in error of law amenable to judicial review by Grand Court since thereby in excess of jurisdiction

Courts-Grand Court-judicial review of Magistrate”s Court-time for review-Grand Court may review error of law by Magistrate”s Court while proceedings still in progress in that court-desirable if continuing to conviction risks reversal on appeal

The applicant sought an order of certiorari to quash a decision made by the magistrate in the course of the trial of the applicant in the Summary Court and an order of prohibition preventing the trial from continuing until that decision was reversed.

During the trial of the applicant, the chief prosecution witness admitted in cross-examination that he had refreshed his memory by reading his written statement before coming to court. The applicant asserted a right to inspect the statement and Crown Counsel objected, although he offered to provide the statement by way of ‘disclosure,’ which would give rise to no right to cross-examine on the statement. The magistrate ruled that the applicant had no right to inspect the statement as it had not been used in the courtroom.

The applicant applied for an order of certiorari to quash the decision and an order of prohibition preventing the trial from continuing until the applicant was allowed to see the statement and cross-examine on it.

He submitted, inter alia, that (1) the magistrate had misdirected himself in law by ruling that the document had to have been used in the courtroom and had thus made an error of law which was apparent on the face of the record; (2) that error of law was committed in excess of jurisdiction and was therefore amenable to review; and (3) the Grand Court had jurisdiction to review the magistrate”s decision even though proceedings in the Summary Court were still under way.

Held, granting the order of certiorari:

(1) The well-established procedural rule that a document used by a witness to refresh his memory should be made available to the other side

so that it might cross-examine on it was not limited to the use of documents in the courtroom. Moreover, the other side could cross-examine upon it without making it evidence, unless the cross-examination went beyond the relevant parts of the document. It was a question of fact whether the consultation of a document was sufficiently close in time to the giving of evidence to give rise to the operation of the rule, and was to be determined by whether the use of the document was still operating on the mind of the witness when he came to give evidence. It followed that the magistrate had erred in law by refusing the applicant”s request to inspect the statement. Furthermore, that error was apparent on the face of the record of the proceedings (page 420, line 44 – page 422, line 21).

(2) It was, however, clear that decisions of inferior courts made in error of law were in excess of jurisdiction and amenable to review regardless of whether the error was on the face of the record, was committed within the jurisdiction or was an error going to the court”s jurisdiction. The presumption was that the court had no jurisdiction to make an error of law on which its decision depended. It followed that the magistrate”s decision was in excess of jurisdiction (page 422, lines 43–45;page 424, line 14 – page 425, line 14).

(3) The Grand Court had jurisdiction to intervene not only at the conclusion of the hearing in the lower court but also while those proceedings were still in progress. Although there were many good reasons why the court should be slow to do so, in this case it was more sensible to remedy the error at the present stage and allow the proceedings to continue than to await the outcome of the trial and risk the setting aside of a potential conviction on appeal by virtue of the procedural irregularity. The order for certiorari would therefore be granted and the decision of the magistrate quashed. It was, however, unnecessary to grant the order of prohibition as there was no further concern that the irregularity would not now be remedied by the magistrate (page 425, lines 23–29;page 425, line 45 – page 426, line 10).

SMELLIE, J.: By order of this court made on February 1st, 1995
pursuant to the Grand Court (Applications for Orders of Mandamus,
20	Prohibition, Certiorari and Habeas Corpus) Rules, leave was granted to
bring this application. The full application was heard and an order for
certiorari granted on April 12th, 1995.
The application arises from a decision made by the learned magistrate in
the Summary Court in the course of the proceedings of the trial of this
25	matter denying defence counsel”s application that he be afforded sight and
inspection of the statement of a witness from which that witness had
admittedly refreshed his memory prior to giving evidence.
The two grounds of the application are first that the Summary Court, in
making the decision, exceeded its jurisdiction and/or abused its powers in
30	that it made an error of law while purport ing to act within its jurisdiction
and that that error is apparent from the face of the record of the
proceedings. Secondly, that the decision amounts to a breach of the rules
of natural justice and of the duty to act fairly in that the applicant was
denied his right to cross-examine fully and effectively the said witness.
35	That witness, Const. Donnelly, was the chief prosecution witness and the
virtual complainant. The applicant therefore contends that he has been
denied the right to a fair trial.
Thus the fulcrum of this application is the well-established procedural
evidentiary rule that a document used by a witness to refresh his memory
40	must be made available in order that the opponent may have the benefit of
cross-examination upon it (Howard v. Canfield (5) and Beech v. Jones (3),
discussed in Phipson on Evidence, 14th ed., para. 12–46, at 278–279
(1990)).
It is a rule of evidence which, for the reasons which follow, I found to be
45	apposite to the circumstances of the case and, I might add in deference to

the apparent misapprehensions of the prosecution in that regard, one
which is to be immediately distinguished from the rules which govern the
general principles of discovery in criminal cases and which govern the
duty of the prosecution to give discovery of relevant material. That latter is
5	a subject most notably addressed by the time-honoured obligations of the

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