Rondell Meade v The Commissioner of Police

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Williams JA
• Judgment Date: 28 November 2018
• Judgment citation (vLex): [2018] ECSC J1128-4
• Docket Number: MNIMCRAP2018/0007 MNIMCRAP2018/0009 MNIMCRAP2018/0010
• Date: 28 November 2018

Between:

[1] Rondell Meade

[2] Karina West

[3] Jennifer Meade

Appellant

and

The Commissioner of Police

Respondent

Consolidated With:

Karina West

Appellant

and

The Director of Public Prosecutions

Respondent

Rondell Meade

Appellant

and

The Director of Public Prosecutions

Respondent

Jennifer Meade

Appellant

and

The Director of Public Prosecutions

Respondent

[2018] ECSC J1128-4

Before:

The Hon. Dame. Janice M. Pereira, DBE Chief Justice

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

The Hon. Mr. Terrence F. Williams Justice of Appeal [Ag.]

MNIMCRAP2018/0007

MNIMCRAP2018/0008

MNIMCRAP2018/0009

MNIMCRAP2018/0010

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Starting the case de novo, (anew) — Whether new Magistrate had the jurisdiction to try the case anew — Whether new Magistrate had jurisdiction to try the matter anew on original charges — Whether new criminal charges had to be laid for the de novo trial — Validity of criminal charges — Interlocutory appeal from Criminal matters — Criminal Procedure Code Cap 4.01 Revised Laws of Montserrat 2013 — Supreme Court Act Cap. 2.01 Revised Laws of Montserrat 2013 — Magistrates Court Act Cap. 2.02 Revised Laws of Montserrat 2013

Appearances:

Mr. Kharl Markham, with him Ms. Chivone Gerald for the Appellants, Mr. Rondell Meade and Ms. Jennifer Meade

Mr. David Brandt for the Appellant Ms. Karina West

Mr. Oris Sullivan, Director of Public Prosecutions for the Respondents

REASONS FOR DECISION

Introduction

1 Williams JA [AG.]: These consolidated appeals arose from the same proceedings at the Magistrate's Court and raised issues concerning interlocutory appeals to this Court from the Magistrate's Court in a criminal matter and the procedure in a case left part heard upon the ending of a magistrate's tenure. The facts of the case are unimportant for the determination of these issues.

2 The appellants were charged on the 29 ^th January 2015 with assaulting a police officer, indecent language, disorderly conduct, and damage to property. The trial started before Magistrate, His Honour Mr. Wickramasooriya on the 9 ^th June 2015 but was adjourned on the 29 ^th March 2016, at the instance of the prosecution who were desirous of appealing the Magistrate's decision not to admit disputed evidence. On 16 ^th May 2017 the prosecution withdrew their appeal.

3 At the resumption of proceedings at the Magistrate's Court, Magistrate Wickramasooriya had demitted office and was replaced by the newly appointed Magistrate, Her Honour Ms. Chatoor. On the 1 ^st June 2018, the incoming Magistrate took charge of the matter and decided that she would hear the case de novo. The appellants objected, arguing that for Magistrate Chatoor to have jurisdiction, new charges would have to be laid. The prosecution submitted that there was no need for new charges.

Background

4 The appellants gave oral notice of appeal of the Magistrate's decision. The Magistrate stated a case which asked primarily whether her decision to assume jurisdiction on the existing charges was correct in law. These were the questions:

• (a) Whether the decision taken in the case as stated above was correct in Law;

• (b) If not, what is the correct interpretation?

• (c) Given section 201 of the Criminal Procedure Code, if a matter is to begin de novo on a new complaint, what is the ultimate effect?

• (d) Was the interpretation given to Except where a longer time is specifically allowed by law, correct;

• (e) If this interpretation is incorrect how is it to be interpreted and what is the ultimate effect?

• (f) Can a nolle prosequi be entered accompanied by a voluntary bill? (This being a procedure used in indictable matters)

5 When these matters came up for hearing before this Court, the DPP submitted that the Court had no jurisdiction to hear the appeals. The appellants contended that their appeals were brought pursuant to s. 242 of the Criminal Procedure Code 1 which provides:

“242. (1) Save as hereafter in this Code provided, a person who is dissatisfied with a judgment, sentence or order of the magistrate's court in a criminal cause or matter to which he is a party may appeal to the Court of Appeal against the judgment, sentence or order either by motion on matters of law or fact (or both), or by way of case stated on a point of law only, as hereafter provided and the Court of Appeal shall have jurisdiction to hear and determine any appeal in accordance with the provisions of this Part.” (Emphasis added)

6 In oral submissions, the appellants stressed that their appeals were by motion and not by way of the case stated by the learned Magistrate. This is inconsistent with the written submissions filed on behalf of Rondell Meade, Jennifer Meade, and Karina West which, in the first paragraph, states “The Appeal is by way of case stated. The case stated was filed 21 ^st June 2018”. Nevertheless, there is no moment in this distinction as the grounds of appeal are fully consistent with the case stated.

7 The Court asked the appellants to consider the DPP's objection and to explain why they contended that the incoming Magistrate could not try the matter on the original charges. The appellants eventually conceded that she could. The appeal was dismissed. This judgment explains this Court's reasons.

Interlocutory Appeals in Criminal Matters?

8 The jurisdiction of the Eastern Caribbean Court of Appeal to hear appeals from criminal proceedings in the Magistrate's Court is governed, in addition to s.242 of the Criminal Procedure Code, by s. 30 of the Supreme Court Act 2 and by s. 108 of the Magistrates Court Act. 3 Section 242 is already set out above. These are the other provisions:

“30. (1) Subject to the provisions of the Magistrate's Court Act, the Criminal Procedure Code and to rules of Court, an appeal shall lie to the

Court of Appeal from any judgment, decree, sentence or order of a magistrate in all proceedings.

108. An appeal shall lie to the Court of Appeal from any judgment, sentence or order of the Magistrate's Court in any criminal cause or matter in accordance with, and subject to the provisions of Part 10 of the Criminal Procedure Code.” (Emphasis added)

9 The referenced sections all refer to appeals from “judgment, sentence or order”, while s. 30(1) adds the word “decree”. The crucial question is whether these sections, on their true construction, are confined to decisions of the Magistrate which are dispositive, i.e. which conclude the case, or whether they include any decisions that are made during the course of proceedings in the Magistrate's Court.

10 The words “judgment, sentence, and order” clearly refer to the final decisions of a Magistrate. By the Supreme Court Act, s.2, “order” includes “decision and rule”. In legal terms a “rule” is a declaration deciding on a point of law. In R v Recorder of Oxford, Ex parte Brasenose College 4 the decision of justices to dismiss a complaint was held to be an “order” for the purposes of s.31 and 72 of the Offices, Shops and Railway Premises Act 1963 5 permitting an appeal to Quarter Sessions as the justices were entitled to determine the complaint in this manner.

11 In England and Wales s. 111(1) of their Magistrates Court Act (1980) provides:

“(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices com-posing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31 December 1879 is final.” (Emphasis added)

12 Linguistically, section 111(1)'s “conviction, order, determination or other

proceeding” imports a broader access to appeal than the phrase “judgment, sentence or order” in the Montserratian statutory provisions extracted earlier. It shall shortly be explained that the Courts of England and Wales have construed s.111 (1), and its precursor, s.87 of the Magistrates Court Act 1952, to deny appeals of interlocutory decisions. The English authorities hold that applying for judicial review is the appropriate course. Determining the true construction and settling on the appropriate procedure is especially important in the instant case as although the England Wales Queen's Bench has jurisdiction, at first instance, in judicial review and, on appeal, from the Magistrates Court, this Court does not have first instance jurisdiction in judicial review.

13 The appropriate starting point is the majority decision of the House of Lords in Atkinson v. U.S. Govt.. 6 The case concerned a committal for extradition which applied the ordinary rules for committal for local crimes. Their lordships opined that the statute was a consolidation of pre-existing law and that the phrase “conviction, order, determination or other proceeding” was to be construed as confined to final decisions. Lord Morris of...