Ramsay v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 20 June 1980
• Court: Grand Court (Cayman Islands)
• Date: 20 June 1980

Grand Court

(Summerfield, C.J.)

RAMSAY

and

R.

W. Brown for the appellant;

J. Martin, Senior Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Peace, [1976] Crim. L.R. 119, followed.

(2) R. v. Tottenham JJ., ex. p. Rubens, [1970] 1 W.L.R. 800; [1970] 1 All E.R. 879; (1970), 54 Cr. App. R. 183; [1970] Crim. L.R. 104, distinguished.

(3) R. v. Turner, [1970] 2 Q.B. 321; [1970] 2 All E.R. 281; (1970), 54 Cr. App. R. 352, distinguished.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.158:

‘No appeal shall be allowed in a case in which the accused person has pleaded guilty and has been convicted by the Summary Court on such plea, except as to the extent or legality of the sentence.’

s.176: ‘In any case of appeal the court may hear and determine the case upon the merits, notwithstanding any defect in form or otherwise of the conviction, order or judgment, and if the appellant is found guilty the conviction, order or judgment shall be confirmed and, if necessary, amended.’

Criminal Procedure-appeals-right of appeal-appeal lies against conviction on guilty plea despite Criminal Procedure Code, s.158 if plea allegedly void

Criminal Procedure-pleas-change of plea-change of plea remains voluntary despite attorney”s advice in strongest terms, provided accused retains ultimate choice-absence of proof of offence charged no bar to change of plea

Criminal Procedure-record-contents-by Criminal Procedure Code, s.176, omissions from record not fatal unless serious consequences prejudicial to accused

Criminal Procedure-sentence-fine-fines for related offences to take into account that arose out of same transaction-undesirable to expose offender to risk of lengthy imprisonment in default of payment

The appellant was charged in the Magistrate”s Court with unlawful importation of ganja and unlawful possession of the same drug contrary to the Misuse of Drugs Law, 1973, s.3(1)(i)(a) and (k) respectively.

At the trial, the appellant pleaded not guilty to both charges. After the first witness had given his testimony, defence counsel requested an adjournment, which was granted, during which he had a private interview with the appellant. He strongly advised the appellant to change his plea to guilty and warned him that if he did not and was convicted, his sentence would probably be longer. On returning to court, the appellant, according to the record told the court that he wished to change his plea. The record then stated that counsel for the prosecution set out the facts, defence counsel made a plea in mitigation and the sentences were passed.

On appeal, the appellant submitted that (a) the plea of guilty was a nullity as the decision to change his plea was not made freely and that he was therefore deprived of the opportunity of putting his defence before the court. Moreover, even if the plea were not a nullity, it was equivocal and should not have been accepted; (b) there were procedural irregularities fatal to his conviction, particularly that the record did not state whether he had in fact changed his plea to guilty, nor did it record a formal conviction or specify the offences and relevant provisions of the law; (c) in the light of the evidence up to the time of the change of plea the magistrate should have refused to accept the plea of guilty as the evidence demonstrated that the appellant had not been participating in the

offences with which he was charged, particularly that of possession; and (d) that the fine imposed for the offence of possession should be reduced to take into account the fact that the charges arose out of a single transaction.

The Crown submitted in reply that (a) it was contrary to s.158 of the Criminal Procedure Code to entertain an appeal after a guilty plea except as to the length or legality of the sentence; (b) advice given in strong terms was perfectly permissible so long as the plea was not forced upon the defendant and on the evidence, the appellant had been aware that he had complete freedom of choice as to his plea, his counsel had not exerted undue pressure on him coercing him to plead guilty, nor was the guilty plea equivocal; and (c) the procedural irregularities were mere technicalities and s.176 of the Criminal Procedure Code permitted the appellate court to hear the case on the merits despite such technicalities unless serious consequences flowed from the omission, the accused was prejudiced thereby, or was deprived of a fair trial.

Held, dismissing the appeal but varying the sentence:

(1) Despite the provisions of s.158 of the Criminal Procedure Code, an appeal against conviction would lie if there was an allegation that the plea of guilty was a nullity. However, the appellant”s guilty plea was not a nullity for although his counsel had properly advised him in the strongest terms that he would be likely to be given a more severe sentence if he persisted with his not guilty plea, he had made it clear that the choice was ultimately the appellant”s and there was no evidence that the appellant felt that he had been deprived of a free choice (page 54, lines 20–29; page 55, lines 16–23).

(2) A change of plea was validly made at that stage of the trial, since it could be made at any time in the course of the trial, even though the evidence so far adduced did not amount to satisfactory proof of the offences charged. In the present case, however, the evidence already adduced clearly demonstrated that the appellant was a principal in the offences charged (page 57, lines 4–18).

(3) Although a number of details had been omitted from the record, it was a necessary implication from the information contained therein that the procedure for conviction had been complied with, albeit not recorded. This failure to record the formalities did not render the conviction a nullity by virtue of s.176 of the Criminal Procedure Code, as no serious consequences resulted nor was the accused prejudiced, or otherwise deprived of a fair trial (page 55, line 1 – page 57, line 3).

(4) The fine for the offence of possession, although mandatory, would nevertheless be reduced to take into account the fact that the charges arose out of substantially the same transaction, it being important that the appellant should not be exposed to the risk of a lengthy term of imprisonment in the event that he defaulted on payment of the fine (page 57, lines 29–39).

20	SUMMERFIELD, C.J.: The appellant was convicted of the
offences of possession of a controlled drug (ganja) and import-
ation of that controlled drug contrary to s.3(1)(i)(k) and
3(1)(i)(a) respectively of the Misuse of Drugs Law, 1973. On each
count he was sentenced to a term of imprisonment of three years
25	and a fine of $3,000 or six months” imprisonment to follow in
default of payment of the fine. The sentences were ordered to run
concurrently.
At the trial the appellant pleaded not guilty to both counts at
the outset. He was represented by Mr. Ritch. The prosecution
30	was represented by Mr. Martin. After the first witness, a customs
officer, had completed his evidence-in-chief Mr. Ritch asked the
court for a short adjournment to consult with the appellant out-
side the court and this was granted. Mr. Ritch had a private inter-
view with the appellant in the robing room, only the two of them
35	being

...