R v Perez

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 23 March 2009
• Court: Grand Court (Cayman Islands)
• Date: 23 March 2009

Grand Court

(Henderson, J.)

R.

and

PEREZ

T.N. Ward, Senior Crown Counsel, for the Crown;

A. Akiwumi for the accused.

Cases cited:

(1) R. v. Clarke, [2008] 1 W.L.R. 338; [2008] 2 All E.R. 665; [2008] 2 Cr. App. R. 18; [2008] Crim. L.R. 551; [2008] UKHL 8, distinguished.

(2) R. v. Gee, [1936] 2 K.B. 442; (1936), 25 Cr. App. R. 198; [1936] 2 All E.R. 89, not followed.

(3) R. v. MungaribiFLR(1988), 92 FLR 264; 55 NTR 12, referred to.

(4) R. v. Phillips, [1939] 1 K.B. 63; [1938] 3 All E.R. 674; (1938), 26 Cr. App. R. 200, referred to.

(5) R. v. Sekhon, [2003] 1 W.L.R. 1655; [2003] 3 All E.R. 508; [2003] 1 Cr. App. R. 34; [2002] EWCA Crim 2954, referred to.

(6) R. v. Soneji, [2006] 1 A.C. 340; [2005] 3 W.L.R. 303; [2005] 4 All E.R. 321; [2006] 2 Cr. App. R. 20; [2005] UKHL 49, referred to.

(7) Tiwari v. StateUNK(2002), 61 W.I.R. 452; [2003] 2 LRC 1; [2002] UKPC 29, applied.

Legislation construed:

Criminal Procedure Code (2006 Revision), s.86: The relevant terms of this section are set out at para. 2.

s.91(1): The relevant terms of this sub-section are set out at para. 3.

s.92(1): The relevant terms of this sub-section are set out at para. 3.

s.92(6): The relevant terms of this sub-section are set out at para. 3.

Criminal Procedure-preliminary inquiry-committal for trial-if failure to comply with mandatory procedural requirements, proceedings not automatically nullity-significance of each deficiency to be assessed individually and court to balance prejudice to accused caused by failure to comply against implications of nullity-setting aside committal not warranted by failure to ask if accused understands charge (Criminal Procedure Code (2006 Revision), s.91(1)), wishes to give evidence (s.91(1)) or call witnesses at inquiry (s.92(1)) or at trial (s.92(6))

The accused was charged with murder.

The accused had chosen to have a long form preliminary inquiry at which he was committed for trial by the Grand Court. The magistrate failed, however, to comply with the requirements of ss. 91 and 92 of the Criminal Procedure Code, which resulted in the accused not being asked (a) if he understood the charge; (b) if he wished to give evidence in his defence or call witnesses at the inquiry; and (c) if he intended to call witnesses at the trial. The magistrate subsequently realized her error but, being then functus officio, had no jurisdiction to remedy the defects.

The accused sought to set aside the indictment on the ground that the failure to comply with these mandatory requirements made the committal for trial a nullity.

The Crown submitted in reply that under the modern law a failure to comply with mandatory procedural rules no longer had the automatic effect of making further proceedings a nullity but required the court to consider the significance of each of the procedural failures and none of them here demanded, in the interests of justice, a rehearing of the inquiry.

Held, dismissing the application:

(1) The application to set aside the indictment would be dismissed. Under the modern approach, a procedural failure no longer automatically rendered proceedings void ab initio. Instead, when considering the consequences of procedural errors at the preliminary inquiry, the court had to look beyond the mandatory language of the statute and, in the circumstances of the particular case, balance the prejudice to the accused caused by the procedural failures against the implications of nullification. The significance of each of the deficiencies had to be assessed individually and in the light of these considerations (paras. 9–10; para. 16).

(2) The failure to ask the accused if he understood the charge (Criminal Procedure Code, s.91(1)) was inconsequential since it was inconceivable he had not understood it, given its simplicity and that he had been represented by an experienced practitioner throughout the inquiry. Further, there was no indication in the preliminary inquiry that the accused wished to give evidence (ibid.) or call witnesses (ibid., s.92(1)), or would be likely to do so if the preliminary inquiry were to be repeated. It was therefore unlikely that this deficiency had in any way prejudiced his position at trial. The final omission, the failure to ask about the accused”s intentions to call witnesses at trial (ibid., s.92(6)), was also inconsequential as this was only intended to protect unrepresented accused persons, whom the court would assist by issuing witness summonses. Since the accused had been represented, this was again irrelevant because his counsel could obtain...