Martin Jno Baptiste v The King

• Jurisdiction: Montserrat
• Judge: Thom JA
• Judgment Date: 21 October 2022
• Judgment citation (vLex): [2022] ECSC J1021-1
• Docket Number: MNIHCRAP2019/0004
• Court: Court of Appeal (Montserrat)

Between:

[1] Martin Jno Baptiste

[2] Danny Henry

Appellants

and

The King

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. John Carrington Justice of Appeal [Ag.]

MNIHCRAP2019/0004

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Appeal of guilty plea — Circumstances where appellant can appeal guilty plea — Jurisdiction — Court's inherent jurisdiction — Whether the court had jurisdiction to try the appellants — Section 9 of the Criminal Procedure Code — Section 23 of the Magistrate's Court Act — Extraterritoriality — Penal Code — Whether section 226 of the Penal Code has extraterritorial effect — Duplicity — Whether charge against the appellants was duplicitous

The appellants, Mr. Martin Jno Baptiste and Mr. Danny Henry smuggled several Haitian migrants from Dominica to St. Maarten by boat. On their return to Dominica, the appellants encountered difficulties at sea and the boat eventually drifted into Rendezvous Bay on the Island of Montserrat. There the appellants were apprehended by members of the Coast Guard and the Royal Montserrat Police Service. A small amount of cannabis was found in a bag belonging to Mr. Baptiste. The appellants were subsequently charged with smuggling migrants contrary to section 226(1) of the Penal Code and importation of a controlled drug cannabis contrary to section (3) of the Drug (Prevention of Misuse) Act the commencement of their trial, counsel for the appellants, made an application to the learned judge that the charge be dismissed on the bases that section 226(1) of the Penal Code did not have extraterritorial effect and therefore the court did not have jurisdiction to hear the matter. The learned judge dismissed the application. Thereafter, Mr. Baptiste pleaded guilty to the offence of importing cannabis into Montserrat. Counsel for the appellants then sought a sentence indication hearing in relation to the offence of smuggling. The learned judge gave an indication of six (6) years imprisonment and that if there was a guilty plea on the same day, it would be considered to be a guilty plea made at the first opportunity and the appellants would receive a one-third discount thereby reducing the sentence to 4 years. The appellants pleaded guilty to the smuggling offence and were each sentenced to four (4) years imprisonment. No penalty was imposed on the appellant Mr. Baptiste for the offence of importation of cannabis.

The appellants being dissatisfied with the decision of the learned judge have appealed to this Court. The main issues that arise for this Court's determination are (i) whether the court had jurisdiction to try the appellants; and (ii) whether the charge against the appellants was duplicitous.

Held: allowing the appeal; quashing the convictions of the appellants; and setting aside the sentences of the appellants, that:

• 1. A guilty plea can be appealed successfully in limited circumstances including where (i) if the plea were to stand it would be inconsistent with the principles of fairness of the trial proceedings and safety of the conviction; (ii) there is a legal obstacle to the defendant being tried; and (iii) on the relevant facts the defendant did not commit the offence. The appellants' case falls within the second category of circumstances where a conviction based on a guilty plea may be quashed, since their trial amounted to an abuse of process, the court having no jurisdiction to try them. Section 226 of the Penal Code, the section under which the appellants were charged, does not have extraterritorial effect. While the presumption against extraterritoriality can be rebutted where there is express or implied wording within legislation which shows Parliament's intention to give such effect, section 226 of the Penal Code does not provide any such express or implied wording. Further, neither the court's inherent jurisdiction nor section 9 of the Criminal Procedure Code confers an extraterritorial jurisdiction on the court to try offences committed outside the territorial limits of Montserrat. Section 23 of the Magistrate's Court Act also does not apply in the circumstances as the offence of smuggling is not an offence punishable on summary conviction. Section 23 therefore cannot be deployed to ground jurisdiction of the court to try the appellants. The learned judge therefore had no jurisdiction to try the appellants for the offence of smuggling pursuant to section 226 of the Penal Code.

  Section 226 of The Penal Code of Montserrat Cap. 4.02 of the Revised Laws of Montserrat 2019 applied; Section 9 of the Criminal Procedure Code Cap. 4.01 of the Revised Laws of Montserrat 2019 applied; Section 23 of the Magistrate's Court Act Cap. 2.02 of the Revised Laws of Montserrat 2019 applied; R (on the application of KBR, INC) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2 applied; Al Sabah v Grupo Torres-SA [2005] UKPC 1 applied; Masri v Consolidated Contractors International Company SAL and Others (No. 4) [2009] UKHL 43 considered; Al-Skeini and others v Secretary of State for Defence [2007] UKHL 26 considered; Connelly v DPP [1964] AC 1254 applied; IH Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 24 applied.

• 2. A count is not to be held bad on its face for duplicity merely because its words are logically capable of being construed as alleging more than one criminal act. While the agreed facts of the case are logically capable of being construed as alleging more than one criminal act, it is clear that it was part of a single transaction of smuggling and therefore the prosecution was not required to draft a separate count in relation to each person. The charge against the appellants for smuggling migrants is not duplicitous.

  Jemmison v Priddle [1972] 1 QB 489 considered; Blackstone's Criminal Practice 2023 at D11.49 applied; Carrington Carr Ltd v Leicestershire County Council (1993) 158 JP 570 considered; DPP v Merriman [1973] AC 584 applied.

• 3. A breach of the rule against duplicity does not automatically result in an indictment or count being quashed, as the prosecution could seek an amendment. Where no application was made by the defence to quash the indictment or count in the court below, an appellate court would be cautious to quash the conviction unless the appellant has demonstrated that as a consequence, he has suffered prejudice at the trial which resulted in a substantial miscarriage of justice and the conviction was therefore unsafe.

  R v Thompson 9 Cr App Rep 252 applied; Section 118 of the Criminal Procedure Code Cap. 4.01 of the Revised Laws of Montserrat 2019 applied; R v Marchese [2009] 1 WLR 992 applied

Appearances:

Mr. Warren Cassell for the Appellants

Mr. Oris Sullivan, The Director of Public Prosecutions for the Respondent

Thom JA

1 This is an appeal against conviction after a guilty plea as entered by the appellants for the offence of smuggling migrants contrary to section 226(1) (formerly 210(1)) of The Penal Code of Montserrat (“the Penal Code”). 1

Background

2 The background to this appeal, which is not in dispute, is that the appellants, citizens of the Commonwealth of Dominica (“Dominica”) agreed to smuggle several Haitian migrants who were in Dominica to St. Maarten by boat. The appellants were the captain and the engineer of the boat. They did so successfully. On their way back

to Dominica, the appellants encountered difficulties at sea and the boat eventually drifted into Rendezvous Bay on the Island of Montserrat. The appellants were apprehended by members of the Coast Guard and the Royal Montserrat Police Service. A small amount of cannabis was found in a bag belonging to the first appellant Mr. Baptiste

3 The appellants were charged with smuggling migrants contrary to section 226(1) of the Penal Code and importation of a controlled drug cannabis contrary to section 5(3) of the Drugs (Prevention of Misuse) Act. 2

4 At the commencement of their trial, Mr. Cassell who represented both appellants, made an application to the learned judge that the charge be dismissed on the bases that section 226 of the Penal Code did not have extraterritorial effect and therefore the court did not have jurisdiction to hear the matter. The learned judge having heard submissions from both sides, dismissed the application. Thereafter, the appellant Mr. Baptiste pleaded guilty to the offence of importing cannabis into Montserrat. Counsel for the appellants Mr. Cassell then sought a sentence indication hearing in relation to the offence of smuggling. The learned judge gave an indication of six (6) years imprisonment and if there was a guilty plea on the same day, it would be considered to be a guilty plea made at the first opportunity and the appellants would receive a one-third discount thereby reducing the sentence to 4 years. The maximum sentence for conviction of smuggling is twenty (20) years. The learned judge also indicated that if the appellants were convicted by the jury the sentence could be as high as eight (8) years.

5 The appellants pleaded guilty to the smuggling offence and were each sentenced to four (4) years imprisonment. No penalty was imposed on the appellant Mr. Baptiste for the offence of importation of cannabis. The prosecution withdrew the count of importation of cannabis in relation to the second appellant Mr. Henry and the learned judge further ordered the boat to be confiscated.

6 The appellants being dissatisfied with the decision of the learned judge appealed on the following grounds:

• (a) The learned judge erred when he failed to uphold the submission made on behalf of the appellants that the facts alleged against the appellants did not amount to a criminal offence under the Penal Code.

• (b) The proceedings were a nullity by virtue of the fact:

  • (i) That there was no...