Minzett v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Conteh, JJ.A.)
• Judgment Date: 09 September 2011
• Court: Court of Appeal (Cayman Islands)
• Date: 09 September 2011

Court of Appeal

(Chadwick, P., Forte and Conteh, JJ.A.)

MINZETT

and

R.

J. Stenning for the appellant;

Ms. T. Lobban, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Nottingham City Council v. Amin, [2000] 1 W.L.R. 1071; [2000] 2 All E.R. 946; [2000] 1 Cr. App. R. 426, followed.

(2) R. v. Horseferry Road Magistrates” Court, ex p. Bennett, [1994] 1 A.C. 41; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138, followed.

(3) R. v. Latif, [1996] 1 W.L.R. 104; [1996] 1 All E.R. 353; [1996] 2 Cr. App. R. 92, followed.

(4) R. v. Loosely, [2001] 1 W.L.R. 2060; [2001] 4 All E.R. 897; [2001] UKHL 53, distinguished.

(5) R. v. Maxwell, [2011] 1 W.L.R. 1837; [2011] 4 All E.R. 941; [2011] 2 Cr. App. R. 31; [2010] UKSC 48, referred to.

(6) R. v. Sang, [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222, followed.

Legislation construed:

Court of Appeal Law (2006 Revision), s.9(1):

‘. . . [T]he Court shall allow an appeal against conviction if it thinks-

(a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;

(b) that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal:

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.’

s.29(1): The relevant terms of this section are set out at para. 8.

Court of Appeal Rules (2004 Revision), r.54(2): The relevant terms of this sub-rule are set out at para. 8.

r.54(3): The relevant terms of this sub-rule are set out at para. 17.

Evidence Law (2007 Revision), s.40: The relevant terms of this section are set out at para. 23.

Criminal Procedure-stay of proceedings-abuse of process-improperly obtained evidence-power of Magistrate”s Court to stay proceedings for abuse of process confined to matters directly affecting fairness of proceedings, e.g. delay-abuses only arising from manner in which evidence obtained and more serious matters to be adjourned to Grand Court for determination-conviction not quashed for failure by magistrate to consider stay/adjournment if obvious that stay would not have been granted

Evidence-improperly obtained evidence-discretion of court-discretion in English Police and Criminal Evidence Act 1984, s.78 to exclude evidence improperly or unfairly obtained not incorporated into Cayman law by Evidence Law (2007 Revision), s.40-no power to exclude evidence obtained by entrapment unless prejudice of admission outweighs probative value, making trial unfair

The appellant was charged in the Summary Court with selling controlled drugs contrary to the Misuse of Drugs Law, s.3(1)(e).

The appellant had sold cocaine to an undercover police officer and was later arrested and charged. At his trial in the Summary Court, he withdrew instructions from his counsel and conducted his own defence, though his

former counsel was invited by the court to remain and act as amicus curiae. The Chief Magistrate accepted as credible the evidence of the undercover police officer, who was the only witness to the sale of drugs, convicted the appellant and sentenced him to five years” imprisonment on each count, to run concurrently. His appeal to the Grand Court (Quin, J.) against conviction and sentence, on the grounds that the evidence was insufficient and the sentence excessive, was dismissed.

On further appeal against conviction, the appellant”s appeal notice submitted that the Chief Magistrate”s reliance on the uncorroborated evidence of the undercover police officer, given the nature of the case, was highly irregular and rendered the conviction unsafe. He also applied, by the Court of Appeal Rules (2004 Revision), r.54(3), for permission to rely on several grounds not set out in his appeal notice, namely, that the conviction was unsafe because the role played by the amicus curiae in the Summary Court, and the failure to appoint an amicus curiae on appeal in the Grand Court, had made the trial and appeal hearing unfair, and the conviction unsafe; that the Chief Magistrate should have considered excluding the evidence of the undercover police officer; and that she should have considered staying the proceedings, because his entrapment by the police officer amounted to an abuse of process.

The appellant submitted that (a) his appeal notice raised the question of law whether the Chief Magistrate had erred in relying upon the uncorroborated evidence of the undercover police officer, and that evidence should have been excluded; (b) leave should be granted to appeal on the grounds raised orally but not set out in the appeal notice; (c) the Chief Magistrate had erred in not considering whether, as a matter of her discretion, to exclude the evidence of the undercover police officer; and (d) the Chief Magistrate had erred in not considering whether, as a matter of discretion, to stay proceedings on the grounds of an abuse of process by the police.

The Crown submitted in reply that (a) the appellant”s appeal notice did not raise an issue of law, as required by the Court of Appeal Law (2006 Revision), ss. 9(1)(b) and 29(1), and, even if it did, there was plainly no legal requirement that uncorroborated evidence obtained in the course of entrapment should be excluded; (b) leave should not be granted to appeal on the grounds raised orally but not set out in the appeal notice; (c) the Chief Magistrate had not been required to consider whether to exclude the evidence of the undercover police officer, since Cayman courts had no power to exclude evidence merely by reason of how it had been obtained; and (d) the Chief Magistrate had not been required to consider whether to stay proceedings on the grounds of an abuse of process by the police and, if the matter had been considered, the trial would not have been stayed.

Held, dismissing the appeal:

(1) The appellant”s appeal notice did not raise a question of law, as required by the Court of Appeal Law (2006 Revision), ss. 9(1)(b) and 29(1) before an appeal could lie from the Grand Court against a conviction in the Summary Court. Further, even if the appeal notice were interpreted

as raising a question of law, it was plain that the courts were not, as a rule, required by law to exclude uncorroborated evidence obtained by entrapment (paras. 8–16).

(2) Moreover, leave would not be granted, under the Court of Appeal Rules (2004 Revision), r.54(3), to raise any further ground of appeal unless it raised a legal question. Whether the Chief Magistrate ought, as a matter of discretion, to have considered excluding the undercover officer”s evidence, and whether she ought to have stayed proceedings because of an abuse of power by the police, were legal questions on which leave to appeal would be granted (paras. 17–19).

(3) The Chief Magistrate had not been required to consider excluding the undercover officer”s evidence on the ground that he had obtained it through entrapment. The court could only exclude evidence if its prejudicial value outweighed its probative value and made the trial unfair, as the discretion to exclude evidence improperly or unfairly obtained, contained in the English Police and Criminal Evidence Act 1984, s.78, had not been incorporated into Cayman law by the Evidence Law (2007 Revision), s.40 (paras. 20–28).

(4) Further, the Chief Magistrate had not been required to consider staying the proceedings. In considering a stay, both the manner in which the evidence was obtained and its prejudicial effect on the fairness of the proceedings could be considered by the court. However, the Summary Court”s power to stay proceedings for abuse of process was confined to matters directly affecting the fairness of the trial, such as delay. Abuses of process arising from the manner in which the evidence had been obtained and more serious matters should be adjourned to the Grand Court for determination. Had the matter been tried in the Grand Court, which had the primary responsibility for preventing abuses of process, the court would have been required to consider staying the proceedings. However, it was unnecessary to decide whether the Chief Magistrate should, of her own motion, have adjourned the matter to the Grand Court because, had she done so, it was obvious, on the present facts, that it would not have stayed the proceedings (paras. 34–42).

1 CHADWICK, P., delivering the judgment of the court: On June 30th, 2010, after a trial before the Chief Magistrate (Mrs. Ramsay-Hale), Carlos Eugene Minzett was convicted in the Summary Court of five offences of selling controlled drugs, contrary to the Misuse of Drugs Law (2000 Revision), s.3(1)(e). He was sentenced to a term of five years” imprisonment in respect of each offence, the terms to be served concurrently. He appealed to the Grand Court against conviction and sentence. That appeal was heard and dismissed by Quin, J. on March 25th, 2011. By notice filed on April 1st, 2011, Mr. Minzett sought leave to appeal. When that application came before this court for hearing on August 5th, 2011, counsel informed us that the application for leave to...