Wade v Chief of Police

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Lewis, C.J.
• Judgment Date: 31 October 1969
• Neutral Citation: MS 1969 CA 5
• Docket Number: Appeal No. 3 of 1969
• Date: 31 October 1969

Court of Appeal

Lewis, C.J. Gordon, J.A. St. Bernard, J.A.

Appeal No. 3 of 1969

Wade

and

Chief of Police

Practice and Procedure - Trial — Charge of larceny

Criminal Law - Appeal against conviction — Larceny

Facts: Whether a conviction should be quashed on appeal since the appellant ought to have been informed under section 71 of the Magistrate's Code of Procedure Act that he was entitled to be fined by a jury on the ground that he was charged under section 4 of the Larceny Act and not under section 31 of the Small Charges Act.

Facts: The appellant was convicted of larceny of a motor van wheel valued at $40 contrary to section 24 of the Larceny Act, Cap. 41. The appellant was ordered to pay a fine of $100 in one month or alternatively 1 month's imprisonment. The issue was whether the appellant ought to have been informed under section 71 of the Magistrate's Code of Procedure Act that he was entitled to be tried by a jury since the appellant was charged under section 4 of the Larceny Act and not under section 31 of the Small Charges Act.

Held: Where in the opinion of the police the offence was one which could adequately be dealt with by the Magistrate summarily the Small Charges Act and not section 4 of the Larceny Act applied.

Held: Section 45 of the Magistrate's Code of Procedure Act prescribed the conditions under which a person charged with the indictable offence created by section 4 of the Larceny Act may be tried summarily. Unless those conditions are observed, a summary trial and conviction for that offence is a nullity and the conviction must be quashed on appeal. Appeal allowed. Conviction quashed and sentence set aside. Case remitted to the Magistrate with directions to commence de novo.

Lewis, C.J.

1 The appellant was convicted on the 27 ^th May, 1969, by the magistrate, sitting at Plymouth, of the offence of larceny of a motor van wheel valued at $40 contrary to section 4 of the Larceny Act, Cap. 41.

2 That section reads as follows:

3 Stealing for which no special punishment is provided under this or any other Act for the time being in force shall be simple larceny and a felony punishable with imprisonment with hard labour for any term not exceeding three years.

4 The record before this court does not disclose at what stage a plea was taken from the appellant, but before evidence was tendered Mr. Kelsick, who appeared for the appellant before the magistrate, submitted that the charge had been brought under the wrong section as section 4 does not state an offence but merely prescribes a punishment. That submission was overruled and was not pressed before this court, Mr. Kelsick conceding that the section creates the offence of simple larceny.

5 The learned magistrate then proceeded to take evidence according to summary procedure. Having regard to the view that the court has formed of this case and the course it proposes to take it is not necessary to refer to the evidence other than to say that a witness gave evidence that the value of the property alleged to have been stolen was about $40.

6 At some stage of the hearing - the record does not state precisely when - Mr. Kelsick submitted that the appellant ought to be required to elect under s.71 of the Magistrate's Code of Procedure Act, Cap. 46, whether he wished to be tried by a jury. This section provides that “Where a person is charged with any offence punishable on summary conviction with imprisonment for a period exceeding six months the magistrate” is to inform him of his right to be tried by a jury, and if he elects to be so tried, the offence is to be deemed an indictable offence arid the magistrate is to proceed accordingly. It contains the following proviso: -

• Provided also that nothing in this section or Act contained shall in any way interfere with or curtail the summary jurisdiction of magistrates in trials of offences:

• (a) Under the Small Charges Act;

• …

• (c) Where the magistrate himself is given a discretion to try the case summarily or commit the offender for trial for an indictable offence;

• …

7 The learned magistrate overruled the submission on the ground that s. 71 did not apply by virtue of paragraph (c) of the proviso read together with section 31 of the Small Charges Acts, Cap. 74, which, she held, gives the Magistrate a discretion to try the charge summarily without election on the part of the defendant.

8 Section 31 of the Small Charges Act is as follows: -

Any person who commits any of the offences created by sections 4, 6, 7, 11, 15, 16, 17, 18, 19 and 25 of the Larceny Act, or who attempts to commit, aids, abets, counsels or procures the commission of any such offence where the amount or value of the property in respect of which the offence is committed in...