R v Whittaker

• Jurisdiction: Cayman Islands
• Judge: (Gordon, Ag. Mag.)
• Judgment Date: 25 July 1986
• Court: Summary Court (Cayman Islands)
• Date: 25 July 1986

Summary Court

(Gordon, Ag. Mag.)

R.

and

WHITTAKER and WATLER

A.S. Smellie, Crown Counsel, for the Crown;

N. Hill, Q.C. and D. Ritch for the first accused.

The second accused appeared in person.

Cases cited:

(1) Batt v. Mattinson(1900), 19 Cox, C.C. 532; 64 J.P. 615; 82 L.T. 800, followed.

(2) Gonzalez v. R., 198485 CILR 10; on appeal, 198485 CILR 197, dicta ofKerr J. A. followed.Kerr J. A. followed.

(3) R. v. Fisher, [1969] 1 W.L.R. 8; [1969] 1 All E.R. 100.

(4) R. v. StoneUNK(1977), 25 W.I.R. 458; on appeal, [1980] 1 W.L.R. 880; [1980] 3 All E.R. 148.

(5) R. v. West London Stip. Mag., ex p. Simeon, [1983] 1 A.C. 234; (1982), 75 Cr. App. R. 359.

(6) Whittaker v. R., 198485 CILR 153; on appeal, 198485 CILR 350, applied.

(7) Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553; [1982] 3 All E.R. 833, considered.

(8) Zoilner Ltd. v. Sydney Municipal Council, [1917] S.R. (N.S.W.) 164; (1917), 34 W.N. (N.S.W.) 65, considered.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.5: The relevant terms of this section are set out at page 191, line 32 page 192, line 8.

Schedule I: The relevant terms of this Schedule are set out at page 192, lines 1220.

Interpretation Law (Laws of the Cayman Islands, 1963, cap. 70), s.25(2): The relevant terms of this sub-section are set out at page 194, line 34 page 195, line 10,

Misuse of Drugs Law (Revised) (Law 13 of 1973, revised 1983), s.3(1), as substituted by the Misuse of Drugs (Amendment) Law, 1985 (Law 19 of 1985), s.3: The relevant terms of this sub-section are set out at page 193, lines 3841.

s.25, as substituted by the Misuse of Drugs (Amendment) Law, 1985 (Law 19 of 1985), s.9: The relevant terms of this section are set out at page 194, lines 1522.

Criminal Procedure-charges-survival of charges after repeal of law-Interpretation Law (cap. 70), s.25(2)(e) allows continuation of existing proceedings-charges also survive if re-enactment repeats repealed offences or facts charged fall within newly enacted definition

Criminal Procedure-indictable offences-retrospective change to Category B offence-retrospective change of offence from Category C to Category B enables accused already charged to elect trial on indictment

The first accused was charged in the Magistrates Court, George Town, with possession of and dealing in cocaine and the second accused with procuring the first accuseds dealing in cocaine, contrary to the Misuse of Drugs Law (Revised), s.3(1)(i)(e) and (k), as amended.

The offences were allegedly committed in 1983 and the accused were charged with and convicted of these offences. The Grand Court (reported at 198485 CILR 153) and the Court of Appeal (reported at 198485 CILR 350) allowed their appeals against conviction but ordered that they be retried. On the day on which the Court of Appeal affirmed the order for new trials, the Legislative Assembly passed the Misuse of Drugs (Amendment) Law, 1985, which inter alia repealed and replaced the offence of procuring with which the second accused had been charged and changed the offences of dealing in a hard drug, and procuring such dealing, from Category C to Category B offences within the meaning of the Criminal Procedure Code, s.5(1), thereby changing the mode of trial. The cases having been set down for retrial and the first accused having elected to go for trial on indictment, the Crown sought a preliminary ruling on the significance of the legislative amendments for the charges which had been laid)

The Crown submitted that all the offences with which the accused were charged survived the enactment of the 1985 Law, because (a) possession of and dealing in drugs remained offences under s.3(1)(i)(k) and (e) respectively of the principal Law; (b) although the 1985 Law substituted an offence of assisting or being concerned in other offences for the previously separate offences of causing, procuring, soliciting, etc.,procuring-involving as it did actions equivalent to being an accessory before the fact-could be charged as an offence of dealing in drugs and in any case clearly fell within the words assisting or being concerned in; and (c) the effect of the Interpretation Law (cap. 70), s.25(2)(c)(e) was that the previous offences and charges survived the passing of the 1985 Law.

If they survived, the Crown further submitted that the offences

remained Category C offences only triable summarily, since (a) the 1985 Law did not make procedural but substantive amendments concerning the jurisdiction of the courts; but that (b) these amendments only affected accrued rights in so far as those rights were specifically dealt with by the Interpretation Law, s.25, sub-s. (2)(e) of which preserved the status of proceedings already begun.

The accused submitted in reply that (a) the changes made by the 1985 Law were procedural and it followed that since the procedural law to be applied was that in force at the time of the trial, the charge of dealing in hard drugs had now become a Category B offence which the first accused was entitled to have tried on indictment; (b) the presumption against the retrospective effect of legislation did not apply to procedural legislation-on the contrary, procedural legislation was to be construed as having retrospective effect unless there was a clear indication that this was not the intention of the legislature; and (c) there was in fact a clear indication in the present circumstances that the legislature had intended the amendment to have retrospective effect, since it had not limited the application of the amendment to subsequent proceedings, as it had specifically done in other statutes.

Held, ruling that the charges could be tried on indictment:

(1) The charges against both accused survived the amendments in the 1985 Law. The effect of the Interpretation Law (cap. 70), s.25(2)(e) is that if proceedings have been started under a law subsequently repealed, they may be continued as if the repealing law had not been passed. The survival of the charges in the present case was even more emphatic: the offences of possession of and dealing in drugs were unaffected by the Misuse of Drugs (Amendment) Law of 1985 and the facts alleged to support the charge of procuring the dealing in drugs fell within the scope of the offence of assisting or being concerned in an offence introduced by the 1985 Law (page 197, line 5-31).

(2) The charges having survived the enactment of the 1985 Law, the effect of the substitution of s.25 of the Misuse of Drugs Law (Revised) by the 1985 Law was that the offences charged had become Category B offences. The changes made were clearly procedural and the intention of the legislature that the changes should be retrospective was apparent from an examination of the statutory language and the legislative scheme being pursued. No words had been used to limit the procedural effects of the 1985 amendments to subsequent proceedings (as had been done in other cases) and the seriousness of the sentences available on conviction of the offences charged suggested that the jurisdiction and procedures available should be those of trial on indictment. Both accused were therefore in a position to opt for trial on indictment (page 202, line 18 page 203, line 14).

30	GORDON, Ag. MAGISTRATE: The Criminal Procedure Code
provides in s.5:
(1) For the purpose of determining the mode of trial
before a court, offences shall be classified into three categor-
ies as follows:
35	Category A- offences triable upon indictment and not
otherwise;
Category B- offences triable upon indictment which, with
the consent of the prosecution and the person
charged (or all of the persons charged if there
40	be more than one) may be tried summarily;
and

Category C- offences triable summarily and not other-
wise.
(2) Where any law creating an offence fails to prescribe
the mode of trial, the mode of trial shall be as prescribed in
5	Schedule I.
(3) Notwithstanding the provisions of any other law, the
offences set forth in Schedule I shall fall into the categories
therein prescribed . . . .
Schedule I of the Code lists, inter alia, offences, the mode of
10	trial, category and the maximum punishment for each offence.
The Schedule ends with the note:
CLASSIFICATION OF OFFENCES AGAINST OTHER
LAWS WHERE NO MODE OF TRIAL PRESCRIBED.
15	When the maximum punishment exceeds ten years
imprisonment A
When the maximum punishment is one year imprisonment
or a lesser punishment C
20	All other offences B.
Offences under the Misuse of Drugs Law are not mentioned in
Schedule I of the Criminal Procedure Code. This Law prescribes
the mode of trial of offences and is not caught in the omnibus
classification at the end of Schedule I of the Code.
25	After a number of amendments were made to it, the Misuse of
Drugs Law was consolidated and revised on June 21st, 1983. The
defendants are charged with breaches of this Law. The offences
were allegedly committed on or about August 15th, 1983. They
were tried and convicted in the Summary Court for three
30	breaches. They challenged their convictions on appeal and the
appellate court ordered a new trial. On May 29th, 1985, the day
on which the Court of Appeal ordered a new trial in these cases,
the Misuse of Drugs (Amendment) Law, 1985 was passed in the
Legislative Assembly. Section 25 of the principal Law was
35	thereby repealed and replaced by a new s.25 (now s.26 of the Mis-
use of Drugs Law (Second Revision)).
The cases are set down for retrial on the 28th instant. The 1985
Law makes fundamental changes as regards the category of the
offences charged under the Misuse of Drugs Law and the pros-
40	ecution now seeks the ruling of the court on the import of the
amendments in relation to the charges now pending.

Mr. Smellie submitted that, as the law was immediately before

the amendments of 1985, all the

...