Frith et Al v The Queen

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Satrohan Singh, J.A.
• Judgment Date: 19 September 1994
• Neutral Citation: MS 1994 CA 2
• Docket Number: Crim. Appeal No. 2 of 1993
• Date: 19 September 1994

Frith et al

and

The Queen

Byron, C.J., Singh. J.A. and Joseph, JJ.A. (Actg.)

Crim. Appeal No. 2 of 1993

Court of Appeal

Practice and procedure - Amendment of indictment — Whether the amendment to count 4 of the Indictment at the close of the case for the prosecution prejudiced the fair trial of the first named appellant — Whether a count of receiving must relate to not more than one finite act — Whether the defence of the appellants was adequately put to the jury — Court found no prejudice to appellant=s case — Court also found that the act must not necessarily relate to one finite act — DPP v. Merriman(1972) 56 Cr. App. R. 766 applied — Defence adequately put to jury — Appeals dismissed.

Mr. Kharl Markham for the first and second named appellants.

Mr. H. Sargeant for the third named appellant.

Miss Esco Henry, Crown Counsel for the respondent.

Satrohan Singh, J.A.

1 On two occasions between June 1st, 1992 and October 21st, 1992, the business establishment of Letts Enterprises owned by John Dublin was burglarised and several items stolen therefrom. Ricaldo White and Irwin Skerritt, co-accused of the three appellants, pleaded guilty to the charges of Burglary and were convicted and sentenced, each to pay a fine of $3,000.00, in default to be imprisoned for 18 months. The sentencing took place during the trial of the appellants and in the presence of the Jury. In a mitigating plea on behalf of Skerritt, it s alleged in an affidavit sworn to by the Bailiff of that Court that Skerritt's lawyer Mr. John Kelsick said: -

“My client seems to have been led astray. I say no more”, and that John Dublin when asked by the Court if he had any sympathy in his heart for the two accused said: -

“Yes, but this leniency I have for White and Skerritt does not register for the other men accused.”

2 At the close of the case for the prosecution, at the trial of the three appellants, the learned judge, on the application of the Crown, made certain amendments to the Indictment. The one relevant to this appeal concerned the fourth count in the indictment wherein the first named appellant Frith was charged for dishonestly receiving 5 2 bags of tinset and four 5 gallon tins of oil paint. The amendment reduced the amount of tinset to 3 hags.

3 On November 19,1993, the three appellants were convicted by a jury before REDHEAD, J. of the Offence of Handling Stolen Goods, contrary to section 227(1) of the Penal Code, No. 12 OF 1983 in three separate counts. They were each sentenced to imprisonment for 3 years. The case for the prosecution was that appellant Frith on one occasion in September, 1992 dishonestly received from Skerritt, four 5 gallon tins of oil paint and three bags of tinset, the property of John Dublin, trading as Letts Enterprises, knowing or believing the same to be stolen. That the appellant Jones between June 1st and October 21 ^st, 1992, dishonestly received from White, other property from Letts Enterprises also knowing or believing them to be stolen goods. And that the appellant 0'Garro, in July, 1992 dishonestly received from Skerritt items from Letts Enterprises knowing or believing the same to be stolen goods. The evidence disclosed two separate acts of receiving by both O'Garro and Jones.

4 Having pleaded guilty and been sentenced, Irwin Skerritt testified on behalf of the Crown. He gave damning evidence against all three appellants, so damning that both Mr. Markham and Mr. Sargeant agree that this was an extremely strong case against each appellant. It is not surprising therefore that the challenge before this Court to the convictions rested on four main issues, none of which involve the evidential strength of the case for the prosecution. ‘These issues are:–

1

Whether the amendment to Count 4 of the Indictment at close of the case for the Prosecution prejudiced the fair trial of the first named appellant. 2. Whether a Count of receiving must relate to not more than one finite act. 3. Whether the Defence of the appellants was adequately put to the Jury. 4. Whether the alleged prejudicial statements of Mr. John Dublin and Mr. John Kelsick earlier mentioned prejudiced the fair trial of the appellants.

5 The appellants also challenge the wisdom of the sentence imposed on them.

1. THE AMENDMENT

6 This issue relates to the first named appellant and to COUNT 4 ONLY. Mr. Markham for this appellant submitted that the making of this amendment, at the stage of the proceedings when the case for the prosecution was closed and some nine days after, arraignment, was prejudicial and detrimental to this appellant.

7 Learned counsel contended that the amendment came too late, it made it impossible for the jury to determine which three of the 5 2 bags of tinsel in court were the stolen bags allegedly received by the appellant, and that the evidence having disclosed receipts from the appellant for two bags, that to amend at the stage to delete two bags from the indictment would be to convey to the Jury that there was a burden placed on the appellant to prove his innocent possession of the remaining three bags.

8 S6(1) OF the Indictments Act, Cap. 134 0F The Laws of Montserrat which is identical to s.5(l) of the Indictments Act, 1915 of the United Kingdom provides: -

“Where, before trial, or at any stage of the trial, it appears to the Court that the Indictment is defective, the Court shall make such order for the amendment of the Indictment as the Court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice”.

9 In ARCHIBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE, FORTY-THIRD EDITION PARAGRAPH 1 - 66 it is stated that an indictment is defective not only when it is bad on the face of it for example for duplicity or because the particulars disclose no offence, but also

1

) When it does not accord with the evidence before the committing magistrate either because of inaccuracies or deficiencies in the indictment or because the indictment charges offence not inclosed in that evidence or fails to charge an offence which is disclosed therein. (ii) When far such reasons it does not accord with the evidence given at the trial R. v. Hall(1968) 52 Cr. App. R. 528. R v Johal and Ram(1972) 56 Cr. App. R. 348. (iii) When the evidence led in support of the indictment discloses more than one offence R v. Jones and Others(1974) 59 Cr. App. R. 120.

10 In R. v. Radley (1974) 58 Cr. App. R. 394 C.A., the court observed that as no amendment should be made, if it could not be made without injustice, the trial court ought to give a fairly liberal meaning to the language of s. 5(1).

11 In Smith and Others (1950) 34 Cr. App. R. 168 Humphreys. at p.l77 said that s. 5(1) was passed mainly for the purpose of doing away with the technicalities and redundancies of pleading in criminal cases and that any alteration in matters of description and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the person. In Smith's case the amendment was in relation to the description of the thing obtained and was made at the close of the case for the prosecution, long after arraignment. But, it does not appear to have been argued that the time of the amendment was fatal to its validity, still less was it so decided.

12 In R v. Johal and Ram Associates Ashworth, J. referring to the decision in Harden (1962) 46 Cr. App. R. 9O, a case involving an application to amend at the close of the case for the prosecution said at p. 353:

“The effect of the decision is that when amendment of a particular count is under consideration it may be a question of degree whether the proposed amendment is no more than the correction of a misdescription or on the other hand involves the substitution of a different charge”.

13 His Lordship continued:–

“In the judgment of this court, there is no rule of law which precludes amendment of an indictment after arraignment either by addition of a new count or otherwise”.

“No doubt in many cases in which, after arraignment, an amendment is sought for the purpose of substituting another offence for that originally charged, or for the purpose of adding a further charge, injustice would be caused to the accused by granting the amendment, but in some cases …no such injustice would be caused and the amendment may be properly allowed….”.

“On the other hand this court shares the view expressed in some of the earlier cases that amendment of an indictment, during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby”.

14 The golden thread running through s. 6(1) and the authorities referred to above, is that the discretion of the court to grant amendments to an indictment, is a very wide and extremely flexible one provided that discretion is exercised with great care to ensure no injustice to an accused person. In the instant...