Smith v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 01 January 1952
• Date: 01 January 1952
• Court: Grand Court (Cayman Islands)

Grand Court

(Summerfield, C.J.)

SMITH (BERTRAM)

and

R.

C.S. Gill for the appellant;

D. Ritch for the Crown.

Cases cited:

(1) R. v. BallUNK(1951), 35 Cr. App. R. 164.

(2) R. v. GumbsUNK(1926), 19 Cr. App. R. 74.

(3) R. v. Harrow JJ., ex p. Morris, [1973] Q.B. 672; [1972] 3 All E.R. 494, applied.

(4) R. v. Messias, Grand Court, Case No. 5 of 1978, unreported, applied.

(5) R. v. RaybouldUNK(1909), 2 Cr. App. R. 184.

(6) R. v. WhitemanUNK(1909), 2 Cr. App. R. 10.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.78:

‘A Summary Court upon recording a conviction by which any sum is adjudged to be paid, may do one or more of the following things . . .

Provided that, subject to the express provisions of any other law, a sentence of imprisonment imposed by a Summary Court for nonpayment of a fine shall not exceed six months.’

s.157(1):

‘When any person is convicted by a Summary Court, the magistrate shall inform him, at the time when the sentence is passed, of his right of appeal and the steps which must be taken by a party wishing to appeal and a note shall be made at the time by the magistrate that such information has been given by him to such person . . . .’

s.160: The relevant terms of this section are set out at page 273, lines 18–27.

Misuse of Drugs Law, 1973 (Law 13 of 1973), s.3(1)(i)(k): ‘Whoever without-

(i) lawful excuse . . .

(k) possesses, constructively or otherwise . . . any controlled drug . . . is guilty of an offence.’

Penal Code (Law 12 of 1975), s.24(c)(i):

‘In the case of an offence punishable with imprisonment as well as a fine . . . and in every case of an offence punishable with fine only . . . the court passing sentence may, in its discretion-

(i) direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence . . . .’

s.25(1): ‘In the absence of express provisions in any law relating thereto the term of imprisonment ordered by a court in respect of . . . the non-payment of a fine . . . shall be such term as in the opinion of the court will satisfy the justice of the case but shall not exceed in any case the maximum fixed by the following scale:

Amount Maximum period

Exceeding $100 6 months’

s.33:

“. . .

Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under section 24(c)(i) of this Law or any part thereof.’

Criminal Procedure-appeals-right of appeal-magistrate”s failure to observe mandatory requirement of Criminal Procedure Code, s.157(1) that make note for record of informing accused of right of appeal not fatal to conviction if does not operate to prejudice of accused who gives oral notice at once

Criminal Procedure-appeals-security for prosecution of appeal-appellant has right under Criminal Procedure Code, s.160 to elect to make cash deposit or give other security for prosecuting appeal-magistrate may not require it but role limited to deciding whether to accept as alternative to recognizance and to determining sufficiency of amount-deposit normally to be modest and substantial figure required only in exceptional cases

Criminal Procedure-sentence-previous convictions-offender not to be given heavier sentence merely because previous convictions-operate to determine whether leniency justified in present case-normal practice to disregard unrelated previous convictions

The appellant was charged in the Magistrate”s Court, George Town with unlawful possession of ganja contrary to s.3(1)(i)(k) of the Misuse of Drugs Law, 1973.

The appellant was a recurrent offender with 21 previous convictions for unrelated offences. For the possession of ganja he was sentenced to two years” imprisonment with hard labour and a fine of $2,000, with, in default of payment, a further sentence of two years” imprisonment with hard labour to run concurrently with the substantive term of imprisonment.

At the end of the trial the magistrate made no record of having informed the appellant of his right of appeal but the appellant, immediately following sentence, gave oral notice of appeal. In the purported exercise of his powers under s.160 of the Criminal Procedure Code, the magistrate fixed a cash bond in the sum of $1,000 to be paid within three days for the due prosecution of the appeal. The appellant was unable to raise this sum and the preliminary question arose on the appeal of whether the appeal could properly be heard.

The appellant submitted, inter alia, that (a) the magistrate had failed to comply with the mandatory requirements of s.157(1) of the Criminal Procedure Code by not recording tnat he had informed him of his right of appeal; (b) s.160 did not entitle the magistrate to order the payment of a

cash deposit as a condition of the prosecution of his appeal without his consent; (c) the...