Walter Jordan McLaughlin v R

• Jurisdiction: Cayman Islands
• Judge: Frank Williams
• Judgment Date: 13 September 2019
• Court: Grand Court (Cayman Islands)
• Docket Number: IND. NO: 0042+42D/2015

Walter Jordan McLaughlin

Keith Rohan Montaque

and

Regina

Before:

Justice Frank Williams (Actg.)

IND. NO: 0042+42D/2015

CRIMINAL APPEAL: 22/15

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CRIMINAL SIDE

HEADNOTE

Criminal Law — Cayman Islands (Appeals to Privy Council) Order 1984 — Court of Appeal Law (2011 Revision).

Appearances:

Mr. Rupert Wheeler of Samson Law for the Appellants

Mrs. Candia James Malcolm for the Crown/Respondent

JUDGMENT: IN THE MATTER OF BAIL PENDING APPEAL TO THE PRIVY COUNCIL: DOES THE GRAND COURT HAVE JURISDICTION TO HEAR AN APPLICATION FOR BAIL PENDING APPEAL TO THE PRIVY COUNCIL

1 This matter has come before me as an application for bail pending appeal to the Judicial Committee of the Privy Council.

2 By notice of application filed on the 22 ^nd July, 2019, the Applicants have sought, from the Board, permission to appeal. That application has not yet been heard.

3 By way of brief factual background: The applicants were tried on firearm charges in October of 2015 and were acquitted on a submission of no case to answer. The Crown appealed pursuant to s.28 of the Court of Appeal Law (2011 Revision) and was successful in obtaining a re-trial. On their second trial, the applicants were convicted by a jury on the 31 ^st March 2017. The first applicant/proposed appellant (Walter McLaughlin) was convicted of one count of possession of an unlicensed firearm and was sentenced to 12 years' imprisonment. The second applicant/proposed appellant (Keith Montaque) was sentenced to 15 years' imprisonment each on two counts of possession of an unlicensed firearm, with the sentences to run concurrently. Their appeals to the Cayman Islands Court of Appeal (CICA or “the Court”) against conviction and sentence were dismissed on the 5 ^th November, 2018. It is that decision that they seek special leave to appeal.

The Crown's Preliminary Objection

4 The Crown has taken a preliminary objection to the making of this application for the grant of bail pending appeal to Her Majesty in Council. In a nutshell, the Crown's position might be seen in paragraphs 6, 7 and 10 of its submissions dated 13 ^th September 2019. They read as follows:

• a. [T]he Grand Court has no jurisdiction to grant bail in circumstances where the CICA has finally determined an appeal from the Grand Court.

• b. [I]f there is jurisdiction held by any court to consider bail pending appeal to the Privy Council, this must reside with the CICA.

• c. [T]he CICA can only grant bail pending a determination of an appeal to the CICA itself. There is no provision for the grant of bail pending an appeal to the Privy Council which is unsurprising given that the CICA cannot grant leave to the Privy Council in criminal cases.

Summary of the applicants' Case on this Application

5 In making this application, the applicants are placing reliance primarily on s.6 of the Cayman Islands (Appeals to Privy Council) Order 1984 (hereafter referred to as “the Order”). That section, at sub-section 6(b), grants to a single judge of the CICA, inter alia, the power and jurisdiction:

• “6 (b) generally in respect of any appeal pending before Her Majesty in Council, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require…”

6 The substance of the Applicants' application might be seen in paragraphs 12, 13 and 20 of the written submissions dated 11 ^th September 2019. This is how they read:

• “12. Where an appeal is pending before the Privy Council, section 6 of the Order allows a Single Judge of the [CICA] to make “such order […] as he shall consider the interests of justice or circumstances of the case require.”

• 13. This gives the Single Judge a broad discretion to make any order that meets those criteria. That would include an order that a person is admitted to bail pending an appeal, if such an order was in the interests of justice.

• …

• 20. The Court can hear the application and will be asked to grant bail in the interests of justice. The interests of justice call for the grant of bail due to the strength of the appeal before the Privy Council.”

Common Ground between the parties

7 Both the Crown and the Applicants have advanced the position that jurisdiction lies in a judge of the Grand Court to sit as a single judge of the CICA in matters relating to bail.

8 That position arises from a consideration of sections 2, 3 1(1)(d) and 33 of the Court of Appeal Law (2011 Revision) (“The Law”). In summary, s.2 defines “Judge” as a Judge of the CICA; and s.31(1)(d) indicates that the powers of the full Court of Appeal in relation to the grant of bail, may be exercised by a single judge of the court. Section 33 (so far as is relevant) reads as follows:

“All the powers conferred by this Law, any other law or rules of court on a single Judge may, for all purposes, be exercised by a judge of the Grand Court in the same manner as they may be exercised by a single Judge and subject to the same provisions and such exercise shall, for all purposes, be as valid as if that power had been exercised by a single Judge…”

9 So no issue lies with the fact of the constitution of the tribunal hearing the application. Where the issue is joined is in respect of the applicability or otherwise of s.6 of the Order to a matter such as this.

10 The arguments show that the issue might be even narrower. For the applicants it is contended that s.6 and indeed the entire Order, relate to criminal as well as civil matters. For the Crown, on the other hand, it is contended that s.6 and the Order in which it is stated, relate to civil matters only and cannot be used as a basis for this application.

Discussion

11 In relation to the Crown's contention that the CICA cannot grant leave to appeal to the Privy Council, the case of Gonzalez & Suarez v R 1 was cited. Before embarking on a brief discussion of that case, however, it should be noted that, on behalf of the applicants, it was not being contended that the CICA has power to grant leave to appeal to the Privy Council. In fact, it was the applicants' contention that such leave would be (or has been) sought pursuant to s.22 of the Order, which reads as follows:

“22. Nothing in this Order contained shall be deemed to interfere with the right of Her Majesty upon the humble petition of any person aggrieved by any judgment of the Court to admit his appeal therefrom upon such conditions as Her Majesty in Council shall think fit to impose.”

12 The facts of the case of Gonzalez & Suarez v R are not that important to a resolution of this application. However, apart from confirming that this court has no power or jurisdiction to grant leave to appeal to the Privy Council (which, I repeat, the applicants were not contending), the case also contains a helpful discussion of, and useful dicta on, the question of whether the Order applies to criminal appeals. Its usefulness is reinforced by the fact that the case is a decision of the then Court of Appeal for Cayman — that is, the Jamaican...