Norman Manley Law School

Criminal Practice and Procedure

Manual

Hon. Ms. Justice Carol Edwards

Terrence F. Williams

Course Directors

1st September 2012

 PART I: GENERAL PRINCIPLES AND MATTERS PRELIMINARY TO
TRIAL

CHAPTER 1: SEARCH, ARREST AND DETENTION WITHOUT

CHARGE

1.1 Expected Outcomes

Student is expected to:

a. Understand the procedure to obtain a warrant to arrest or search and the

circumstances where a warrant is not required.

b. Appreciate the grounds that may cause detention by the police to be

unlawful.

c. Understand the legal basis of the writ of Habeas Corpus

d. Be aware of the Court(s) that have jurisdiction to order the writ

e. Be able to draft an application for the writ of Habeas Corpus

1.2 The Constitutional Position

Jamaica Constitution (as amended by Charter of Fundamental Rights and

Freedoms (Constitutional Amendment) Act 2011)

14.-(1) No person shall be deprived of his liberty except on reasonable grounds and in accordance
with fair procedures established by law in the following circurnstances-
(a) in consequence of his unfitness to plead to a criminal charge;
(b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a
criminal offence of which he has been convicted;
(c) in execution of an order of the Supreme Court or of the Court ofAppeal or such other court as
may be prescribed by Parliament on the grounds of his contempt of any such court or of another
court or tribunal;
(d) in execution of the order of a court made in order to secure the fulfilment of any obligation imposed
on him by law;
(e) for the purpose of bringing him before a court in execution of the order of a court;
(f) the arrest or detention of a person:
(i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of
his having committed an offence; or
(ii) where it is reasonably necessary to prevent his committing an offence;
(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his care and
protection;
(h) the detention of a person:
(i) for the prevention of the spreading of an infectious or contagious disease constituting a
serious threat to public health; or
(ii) suffering from mental disorder or addicted to drugs or alcohol where necessary for his care
or treatment or for the prevention of harm to himself or others; or
(i) the arrest or detention of a person:
(i) who is not a citizen of Jamaica, to prevent his unauthorized entry into Jamaica; or
(ii) against whom action is being taken with a view to deportation or extradition or other lawful
removal or the taking ofproceedings relating thereto.
(2) Any person who is arrested or detained shall have the right
(a) to communicate with and be visited by his spouse, partner or family member, religious counsellor
and a medical practitioner of his choice;
(b) at the time of his arrest or detention or as soon as is reasonably practicable, to be infonned, in a
language which he understands, of the reasons for his arrest or detention;
(c) where he is charged with an offence, to be infonned forthwith, in a language which he
understands, of the nature of the charge; and
(d) to communicate with and retain an attomeyat-law.
(3) Any person who is arrested or detained shall be entitled to be tried within a reasonable time and
(a) shall be
 (i) brought forthwith or as soon as is reasonably practicable before an officer authorized
by law, or a court; and
(Ii) released either unconditionally or upon reasonable conditions to secure his
attendance at the trial or at any other stage of the proceedings; or
(b) if he is not released as mentioned in paragraph (a)(ii), shall be promptly brought before a court
which may thereupon release him as provided in that paragraph.
(4) Any person awaiting trial and detained in custody shall be entitled to bail on reasonable
conditions unless sufficient cause is shown for keeping him in custody.
(5) Any person deprived of his liberty shall be treated humanely and with respect for the inherent
dignity of the person.

1.2a It is common throughout the region for the exercise of the police of its
powers of investigation, detention and arrest to frequently and inevitably
interfere with the liberty of the subject. However, the right to liberty of the
subject is not an absolute right.

1.2b Serieux v Zephyr unreported Supreme Court of Guyana decided October 23

1961 per Fraser J. (as he then was):

“The concept of individual freedom is enshrined in the constitution… however, it is

always to be borne in mind that the law also provides the measure to which liberty
may be restrained and it is perhaps correct to say that individual freedom exists in
proportion to lawful restraint. To hold the balance true is sometimes difficult
because of the ever present need to maintain the elements of vigilance,
decisiveness and efficiency in a police force whose duty it is to protect the public;
but these are factors, which, though admittedly vital, must never impinge, without
authority, upon the area of individual freedom”.

1.2c R v Central Police Station Lock Up, ex. p. Ramos, Falco and Blasco (1991) 28
JLR 646; applications for Habeas Corpus ad Subjiciendum. The applicants were
Cuban nationals who landed in Jamaica illegally from the United States. They each
were convicted for offences committed in Jamaica and served terms of
imprisonment. They were all detained in custody following the completion of
their sentences for the purpose of deportation. Neither Cuba nor the United
States would agree to accept them. Neither would any other country with the
result that no deportation order was made against them.

Held, on an application before the Full Court:

1. That although the power of detention existed for the purpose of

expulsion, extradition or other lawful removal such detention should
be avoided unless the alien is a threat to national security, or refuses
to leave or is likely to evade the authorities. Where an alien is
detained pending action as aforesaid, it was the duty of the state to
act expeditiously to secure the desired end and any unreasonable
delay renders the detention unjustifiable;
2. The applicants had been detained for periods that can only be
accurately described as excessive. It is doubtful whether in granting
the applications the court could, as was submitted by the
respondent, impose restrictions on the applicants and no authority
has been referred to on that point.

See also R v Governor of Durham Prison ex parte Singh (1984) 1All E.R. 983, at p.
985.

1.2d Peter Fleming v Detective Corp Myers and the Attorney General, 26 JLR,
525.

The appellant was arrested for murder 10th October 1979. He was not brought to
court until 23rd October 1978. He was remanded in custody by the magistrate and
later discharged following a preliminary enquiry. He sued for inter alia false
imprisonment and malicious prosecution.
Held: per Carey J: False imprisonment arises where a person is detained against
their will without legal justification. At common law a constable always had the
power to arrest without warrant a person suspected of committing a felony.
However, he was compelled to take the individual before a Justice of the Peace
within a reasonable time. False imprisonment may arise where a person is held for
an unreasonable period after arrest before being taken before a Justice of the
Peace or a Resident Magistrate.

Having considered s.23 and 24 of the Constabulary Force Act and section 15 of
the Constitution, Carey J concluded that there could be no hard and fast rule of
inflexible application laid down in absence of statutory provisions as to when a
person is to be taken before the court.

Per Forte J:

The words without delay should be examined in order to determine whether

the person arrested was brought before the court in a reasonable time. The
circumstances of each case must be the guiding principle in determining
reasonableness. The delay must not be unreasonable.

Morgan J refused to indicate what a reasonable time was. She looked at the
factors affecting time and decided that it was for a Judge to determine in the
circumstances of each case what is reasonable.

See also Edwards, Francis and Harris (1992) 29 JLR 386, per Smith J.

Findings by the court:

1. It is still the law that even where the initial detention is justifiable, if the
period of detention is found to be unreasonable an action for false
imprisonment will succeed.
2. No man is to be deprived of his liberty save in accordance with the law.
 3. A person arrested ought to be told the reason for his arrest-s.15(2)

1.2e See also the European Convention on Human Rights- Article 5 and Handyside
v UK 1 EHRR 737- declining to set a time limit when of how long a person can be
detained without charge instead adopting the proportionality test. The doctrine
of proportionality balances the demand of the general interest of the community
and the requirement of the protection the individual’s fundamental rights.

But see common law position on “as soon as practicable” below.

ARREST and DETENTION

1.2 Common law powers of arrest without warrant

The powers of arrest without a warrant are wider in felonies (arrestable offences)
than in misdemeanours (non-arrestable offences). This is so both at common law
and by statute.

1.2a Any person may arrest without warrant anyone who is, or whom he,
reasonably suspects to be in the act of committing a felony. Where a felony as
actually been committed any person may arrest without warrant anyone who is,
or whom he, reasonably suspects to be guilty of committing the offence.

A private citizen can arrest without warrant any one seen committing a breach of
the peace and before the affray is over and deliver the offender to a constable.
Such powers are granted to both private citizens and the police at common law.
See section 15 of the Constitution. See also Article 5 of the European Convention
on Human Rights.

1.2b There is power at common law to arrest without a warrant on reasonable

suspicion of committing a felony but not a misdemeanour. Power to arrest
without warrant for an actual breach of the peace or reasonable suspicion that a
breach is about to be committed. A constable has the power of arrest of a person
who commits a breach of the peace in his view but not after it is over unless he
reasonably believes that there is a likelihood it will continued or renewed but not
otherwise.

1.2c A constable may arrest any person obstructing him in the execution of his
duties, if the obstruction is such as to cause or is likely to cause a breach of the
peace, or is an obstruction calculated to prevent the lawful arrest or detention of
another person.

1.2d Where the police arrests a citizen on suspicion of an indictable offence

having been committed he is protected even if it turns out none had actually been
committed. In contrast a private citizen who does not actually see the act is only
protected if one had actually been committed.

1.2e R v Self (1992) 95 Cr App R 42, [1992] 1 WLR 657, [1992] 3 All ER 476, [1992]
Crim LR 572
For a citizen’s arrest to be lawful it must be shown that the offence (felony or
arrestable offence) was committed.
The defendant was acquitted of theft but was convicted for two counts of assault
with intent to resist lawful apprehension. The assault charge arose out of his
arrest by a member of the public and staff at a shop from which they had
suspected he had stolen chocolates. His acquittal for theft was related to those
chocolates.
The Court held that the conviction for assault could not stand as the lawfulness of
an ordinary citizen’s arrest for an arrestable offence (felony under the old law)
was dependent on proving that the offence was actually committed. That offence
having not been proven the defendant was within his rights to resist the attempt
to arrest him ( Walters v. WH Smith relied on)

1.2f Walters v W H Smith & Son Limited [1914] 1 KB 595,

"A private person is justified in arresting another on suspicion of committed a

felony if, and only if, he can shew that the particular felony for which he arrested
the other was in fact committed, and that he had reasonable and probable cause
for suspecting the other of having committed it."
…………..
at page 607:

“When a person, instead of having recourse to legal proceedings by applying for

a judicial warrant for arrest or laying an information or issuing other process
well known to the law, gives another into custody, he takes a risk upon himself
by which he must abide, and if in the result it turns out that the person arrested
was innocent, and that therefore the arrest was wrongful, he cannot plead any
lawful excuse unless he can bring himself within the proposition of law which I
have enunciated in this judgment.”

1.2g Hale's Pleas of the Crown (edition of 1800) where it is stated as follows:

"The third case is, there is a felony committed, but whether committed by B or not,
non constat, and therefore we will suppose that in truth it were not committed by
B but by some person else, yet A hath probable causes to suspect B to be the felon,
and accordingly doth arrest him; this arrest is lawful and justifiable, and the
reason is because if a person should be punished by an action of trespass or false
imprisonment for an arrest of a man for felony under these circumstances,
malefactors would escape to the common detriment of the people."
"But to make good such a justification of imprisonment, there must be in fact a
felony committed by some person, for were there no felony, there can be [no]
ground of suspicion."

1.2h A police constable may arrest without warrant any person who is, or whom
he reasonably suspects to be about to commit a felony.

1.2i Any person arresting without a warrant must make known to the person the
charge for which he is being arrested unless the circumstances are such that the
person arrested must know the substance of the alleged offence.

1.2j Christie v. Leachinsky (1947) AC 573 per Viscount Simonds,

“ In the first place, the law requires that, where arrest proceeds upon a
warrant, the warrant should state the charge upon which the arrest is
made. I can see no valid reason why this safeguard for the subject should
not equally be when the arrest is made without a warrant. The exigencies of
the situation, which justifies or demands arrest without a warrant cannot as
it appears to me justify or demand either a refusal to state the reason or a
mis-statement of the reasons.”

1.2k The following propositions have been established by the authorities:

1. Where a police constable makes an arrest without a warrant on reasonable

suspicion that an offence not requiring s warrant has been committed, he
must inform the person arrested of the true reason for the arrest. A person
is entitled to know on what charge or on suspicion of what crime he has
been arrested.
 2. If a person is not informed of the reason but is nevertheless arrested, the
constable, apart from certain exception, is liable to false imprisonment.
3. The requirement to give reason for arrest does not exist if the
circumstances are such that the person arrested must know the nature of
the offence for which he is seized.
4. No special form of words need be used in satisfying the requirement to give
information.
5. A person who makes it impossible or impracticable for the constable to
inform him of the reason for his arrest cannot thereby complain that he
was not so informed. (example by running away or immediately resisting).
6. A person arrested without a warrant must be taken before a court as soon
as practicable and if not practicable must be offered station bail.
7. A warrant charging a person with an offence may be executed by a
constable even though he does not have the warrant in his possession.

1.2l Where a man is arrested on reasonable suspicion of having committed a

felony, or an arrestable offence as the case may be, he should be promptly taken
before the relevant judicial authority. At common law the question is: Has the
arrestor brought the arrested person to a place where his alleged offence may be
dealt with as speedily as is reasonably possible? See the speech of Lord Porter in,
John Lewis and Co v Tims (1952) AC 676.

1.2m Sherman and Another (1981) 2 All ER 612, was a case involving an
application for habeas corpus. The court of Queen’s Bench held that the
requirement under the English Magistrates Courts’ Act (1952) that a person taken
into custody for an offence without a warrant shall be brought before a
magistrate as soon as practicable meant within 48 hours.

1.2n In John Lewis and Co v Tims (1951) 1 ALL ER 814 HL a woman suspected of
theft in a large department store was arrested outside by the store detective and
taken back into the store, where the Managing Director considered the matter
whether to prosecute then called the police and handed her over. It was held that
in as much as she was not detained beyond a reasonable time for the Managing
Director to make his decision, the owners were not liable in damages. Followed in
Wheatley v Lodge (1971) 1 ALL ER 173 recognizing a further exception to the rule
in Christie which was that if a police constable arrest a deaf person or a non
English speaker, all he has to do to communicate the reason for the arrest is what
any reasonable person would do in the circumstances.

1.2o In Dallison v Caffrey (1964) 2 All ER 610 pg. 617, Lord Denning said:

“When a constable has taken into custody a person reasonably suspected of

felony, he can do what is reasonable to investigate the matter and to see
whether the suspicions are supported or not by further evidence… so long as
such measures are taken reasonably…they are an important adjunct to the
administration of justice.”

Whereas in these circumstances the measures taken were reasonable the court
also found that 3 days was unreasonable in another case to allow a private
prosecutor to gather his evidence.

1.2p In Edwards Francis and Harris (an infant by his mother Yvonne Smith)
(1992) 29 JLR 386, action for false imprisonment and assault against the police;
Smith J. held that even where the initial detention was justifiable, if the period of
detention was found to be unreasonable an action for false imprisonment would
succeed. He also held that Harris was not given sufficient details to enable him to
understand why he was being arrested. The learned judge therefore found the
arrest was not in keeping with section 15(2) of the Constitution.
1.2q Confer Doris Fuller v. AG ( estate of Agana Barret) SCCA 91/95 October 1998
(1998) 56 WIR 337 as to constitutional redress for unlawful detention.

1.2r Magistrate’s Code (Antigua)

By s. 37,on arrest without warrant detainee to be taken before the Magistrate as

soon as practicable and, if not, within 24 hours officer in charge of station must
enquire into case and, if it is not serious, order release on bail to appear before a
Magistrate.

See common law position above1 for the meaning of “as soon as practicable”.

1.3 Statutory Powers of Arrest

1.3a Constabulary Force Act (Jamaica)

s.13 The duties of the police under this Act shall be to keep watch by day and by
night, to preserve the peace, to detect crime, apprehend or summon before a
justice persons found committing any offence or whom they reasonably suspect of
having committed any offence, or who may be charged with having committed
any offence..........

s.15 It shall be lawful for any constable, without warrant, to apprehend any
person found committing any offence punishable upon indictment or summary
conviction and to take him forthwith before a Justice who shall enquire into the
circumstances of the alleged offence, and either commit the offender to the
nearest jail, prison or lock-up to be thereafter dealt with according to law, or grant
that person bail in accordance with the Bail Act.

1.3b By section 16 a constable need not have the warrant in his possession when
arresting but must produce it as soon as is practicable thereafter. A constable has
further powers to apprehend without warrant someone he knows or suspects to
be in possession of specified dangerous drugs2.

1
Paragraph 1.2m

2
section 18
1.3c Section 23 provides for the procedure after arrest with a warrant:

(a) that person shall be taken to a Police Station or lockup;

(b) subject to paragraph (c), an Officer or Sub-Officer in charge of the Police
Station shall grant bail to that person in accordance with the Bail Act3;
(c) if the person refuses or is unable to give any security required as a condition of
such bail, it shall be lawful for the Officer or Sub-Officer to detain the person in
custody until he can be brought before a Justice and dealt with in a like manner as
is directed in the case of a person apprehended under this Act without warrant.

1.3d Section 24 deals with the procedure when person in custody without a
warrant: The officer in charge of station (whether or not the arresting officer)
“shall grant bail to that person in accordance with the Bail Act unless the person is
in custody on a charge of murder, treason or treason felony”. If bail denied person
must be taken before a Justice of the Peace4.

1.3e The Jamaican act also provides for special rules in areas under curfew. By
section 50F, in areas where Commissioner or Deputy Commissioner has ordered a
curfew a person arrested must be taken forthwith before a Justice of the Peace
(JP). The JP must determine whether there are reasonable grounds for detention
or arrest. If there are no reasonable grounds the JP may order release. If
reasonable grounds exist the JP may order continued remand for up to 24 hours
after which the detainee must be taken before a Resident Magistrate5

1.3f A Resident Magistrate may permit longer detentions for the holding of an
identification parade.

3
See paragraphs below
4
Section 25
5
s. 63(A) of the Judicature (RM) Act
1.4b .17 R v. Owen Sampson, 6 JLR 292

This case considered the Town and Communities Act and emphasized that at the
arrestor must actually see the offence being committed but notes the wide
statutory power under the Constabulary Force Act

On appeal of a case of the murder of a policeman during an arrest the question

arose as to whether the arrest had been lawful. If unlawful the conviction ought
to be for manslaughter not murder.

Under the Town and Communities Act a constable can arrest if the expletive was
uttered “within his view” and as it was uttered in his hearing but not his view
there was no power to arrest under that act.

The offence was a misdemeanour and at common law it had to have been
committed in the presence of the deceased constable or in circumstances where
a breach of the peace was about to be committed or renewed to make an arrest
lawful6. The common law powers were also inapplicable.

Police had the power to arrest under Constabulary Force Act for a summary
offence if the perpetrator was “found committing” any offence7. “Found
committing” means that the offence was being, or had freshly been, committed.

The appeal was dismissed.

See also R v. Berrisford Robinson and Everton Dunkley (1990) 27 J.L.R. 453

1.5 “Reasonable Suspicion”

Statute and cases frequently require that the Constable must have a reasonable
suspicion before arresting or searching.

6
The common law power for felonies is wider: reasonable suspicion that a felony had been committed
7
See 1.3a above
A reasonable suspicion must satisfy subjective and objective tests.
The subjective test: That the Constable must actually suspect. Suspicion being a
state of conjecture or surmise where admissible proof might be lacking.
The objective Test: That a reasonable person, possessed of the facts, would also
suspect.

1.5a Shaaban Bin Hussien and Others v. Chong Fook Kam And Another (1970)
AC 942
Reasonable suspicion (the test for arrest without a warrant) is not the same as
prima facie proof. Thus in an investigation the threshold for arresting may occur
before that for charging.
Lord Devlin:
‘Suspicion in its ordinary meaning is a state of conjecture or surmise where
proof is lacking: "I suspect but I cannot prove." Suspicion arises at or near the
starting-point of an investigation of which the obtaining of prima facie proof is
the end. When such proof has been obtained, the police case is complete; it is
ready for trial and passes on to its next stage. It is indeed desirable as a general
rule that an arrest should not be made until the case is complete. But if arrest
before that were forbidden, it could seriously hamper the police. To give power
to arrest on reasonable suspicion does not mean that it is always or even
ordinarily to be exercised. It means that there is an executive discretion. In the
exercise of it many factors have to be considered besides the strength of the
case. The possibility of escape, the prevention of further crime and the
obstruction of police inquiries are examples of those factors with which all
judges who have had to grant or refuse bail are familiar.’

1.5b O'Hara v. Chief Constable of the Royal Ulster Constabulary [1997] A.C. 286,
HL
The arresting officer must himself have formed a genuine suspicion that the
person being arrested was guilty of an offence.
There had to be reasonable grounds for forming such a suspicion; such grounds
could arise from information received from another (even if it subsequently
proves to be false), provided that a reasonable man, having regard to all the
circumstances, would regard them as reasonable grounds for suspicion.
A mere order from a superior officer to arrest a particular individual could not
constitute reasonable grounds for such suspicion.
The plaintiff was summarily arrested at his home on 28 December 1985 by a
detective constable of the Royal Ulster Constabulary under section 12(1) of the
Prevention of Terrorism (Temporary Provisions) Act 1984.1 Apart from
information received at a briefing earlier that morning, during which he was told
that the plaintiff had been involved in a murder, the constable had no basis for
suspecting that the plaintiff had been involved in the commission of acts of
terrorism. On 3 January 1986 the plaintiff was released without being charged
with any offence. In an action against the chief constable he claimed damages
for wrongful arrest. The trial judge held that the detective constable had a
reasonable suspicion of the plaintiff's involvement in the murder based on the
information given to him at the briefing and that the arrest was lawful under
section 12(1)(b). The Court of Appeal dismissed the plaintiff's appeal

Lord Goff:
“1) In order to have a reasonable suspicion the constable need not have
evidence amounting to a prima facie case. Ex hypothesi one is considering a
preliminary stage of the investigation and information from an informer or a
tip-off from a member of the public may be enough: Hussien v. Chong Fook
Kam [1970] A.C. 942, 949.
(2) Hearsay information may therefore afford a constable reasonable grounds
to arrest. Such information may come from other officers: Hussien's case, ibid.
(3) The information which causes the constable to be suspicious of the
individual must be in existence to the knowledge of the police officer , as Lord
Diplock described it in Mohammed-Holgate v. Duke [1984] A.C. 437, 446, vests
in the constable, who is engaged on the decision to arrest or not, and not in his
superior officers.”
………
 “Given the independent responsibility and accountability of a constable under a
provision such as section 12(1) of the Act of 1984 it seems to follow that the
mere fact that an arresting officer has been instructed by a superior officer to
effect the arrest is not capable of amounting to reasonable grounds for the
necessary suspicion within the meaning of section 12(1). It is accepted, and
rightly accepted, that a mere request to arrest without any further information
by an equal ranking officer, or a junior officer, is incapable of amounting to
reasonable grounds for the necessary suspicion. How can the badge of the
superior officer, and the fact that he gave an order, make a difference? In
respect of a statute vesting an independent discretion in the particular
constable, and requiring him personally to have reasonable grounds for
suspicion, it would be surprising if seniority made a difference. It would be
contrary to the principle underlying section 12(1) which makes a constable
individually responsible for the arrest and accountable in law”

1.5c Holgate Mohammed v. Duke [1984] AC 437

A constable may arrest during an investigation. Arrest may be a vital tool to

confirm or dispel suspicion.

Lord Diplock:
“My Lords, there is inevitably the potentiality of conflict between the public
interest in preserving the liberty of the individual and the public interest in the
detection of crime and the bringing to justice of those who commit it. The
members of the organised police forces of the country have, since the mid-
19th century, been charged with the duty of taking the first steps to promote
the latter public interest by inquiring into suspected offences with a view to
identifying the perpetrators of them and of obtaining sufficient evidence
admissible in a court of law against the persons they suspect of being the
perpetrators as would justify charging them with the relevant offence before a
magistrates' court with a view to their committal for trial for it.
The compromise which English common and statutory law has evolved for the
accommodation of the two rival public interests while these first steps are
being taken by the police is two-fold:
 (1) no person may be arrested without warrant (i.e. without the
intervention of a judicial process) unless the constable arresting him
has reasonable cause to suspect him to be guilty of an arrestable
offence; and arrest, as is emphasised in the Judges' Rules themselves,
is the only means by which a person can be compelled against his will
to come to or remain in any police station.

(2) a suspect so arrested and detained in custody must be brought

before a magistrates' court as soon as practicable, generally within 24
hours, otherwise, save in a serious case, he must be released on bail
(Magistrates' Courts Act 1980, section 43(1) and (4)).

That arrest for the purpose of using the period of detention to dispel or
confirm the reasonable suspicion by questioning the suspect or seeking further
evidence with his assistance was said by the Royal Commission on Criminal
Procedure in England and Wales (1981) (Cmnd. 8092) at paragraph 3.66 "to
be well established as one of the primary purposes of detention upon arrest."
That is a fact that will be within the knowledge of those of your Lordships with
judicial experience of trying criminal cases; even as long ago as I last did so,
more than 20 years before the Royal Commission's Report. It is a practice
which has been given implicit recognition in rule 1 of successive editions of the
Judges' Rules, since they were first issued in 1912. Furthermore, parliamentary
recognition that making inquiries of a suspect in order to dispel or confirm the
reasonable suspicion is a legitimate cause for arrest and detention at a police
station was implicit in section 38(2) of the Magistrates' Courts Act 1952 “

…………..

So whether or not to arrest Mrs. Holgate-Mohammed and bring her to the

police station in order to facilitate the inquiry into the case of the December
burglary was a decision that it lay within the discretion of Detective Constable
Offin to take.”
1.6 Effect of an illegal arrest

Where a warrant is improperly obtained or a constable had no power to arrest

without a warrant this will result in an illegal arrest. However, the illegality of the
arrest does not vitiate the charge unless the charge is dependent on a lawful
arrest. For example: a charge of resisting arrest or assaulting a constable in
execution of his duties. If the arrest is unlawful those charges may be dismissed.
In every other case, the victim may seek civil or constitutional redress. The
remedy for unlawful detention is the writ of Habeas Corpus.

1.7 Habeas Corpus

1.7a Introduction: The writ of Habeas Corpus ad Subjiciendum is a prerogative

writ by which the Sovereign (through the Courts) commands that any person or
authority having custody of a detainee bring up said detainee and explain the
legal basis for the detention. Where there is no legal justification the Court must
order the prisoner’s release.

1.7b The writ is intended to remedy an unlawful detention by bringing it to an

end. The writ’s purpose is not punitive.

The right to apply for habeas corpus is a constitutional protection recognised at

common law and statute (see for example Belize Constitution s. 5(2)(d) and Civil
Procedure Rule 57).

1.7c In the Resident Magistrate’s Court, the Judicature (RM Court) Act s. 286
speaks to an order to bring up prisoner akin to the Supreme Court’s Habeas
Corpus jurisdiction. Application may be made orally or in writing. The RM is
required to make the necessary inquiries and summon the supervising officer to
state to the court why the detainee should not be released.

1.7d Who May Apply

An application for the writ may be made by:

a. The detainee
 b. Any person legally entitled to custody of the detainee

c. Any relation or friend (normally not a stranger) on behalf of the detainee.

Such person may sign affidavit where access to detainee denied. Affidavit
should explain why detainee has not made an affidavit.

1.7e The Application and Hearing

In determining the matter the Court may have 3 hearings:

1. First, a without notice initial hearing on the application

2. Secondly, an inter partes hearing on the application to determine whether

the writ is to issue (but see below 1.7f)

3. Thirdly, the hearing on returned writ. The writ issued by the Court will have
a date when the prisoner is to be brought up and a written explanation
regarding the reason for the detention to be endorsed on or annexed to the
writ by the gaoler,

1.7f Procedure

The without notice application must be supported by an affidavit by the detainee

stating that he is illegally detained.

The application has priority over all other business of the Court:

“Habeas corpus is probably the oldest of the prerogative writs. Authorising its
issue in appropriate cases is regarded by all judges as their first duty, because we
have all been brought up to believe, and do believe, that the liberty of the citizen
under the law is the most fundamental of all freedoms. Consistently with this, an
application for a writ of habeas corpus has virtually absolute priority over all other
court business.”8

8
Lord Donaldson, MR in R v Secretary of State ex parte Cheblak [1991] 2 AllER
319
The court may immediately order writ to issue (i.e. order made for detainee to be
brought up and detention explained) at the initial ex parte hearing. This is
preferred in cases where issues are clear and delay might cause injustice.

Court may adjourn application so that notice can be given to gaoler for inter
partes hearing. Normally from this hearing the Court will decide whether to
release without formally ordering the writ to issue.

Where service to be done it must be directed to the person having control of the
detainee’s body (“the gaoler”) and/or the person who supervises or controls the
gaoler (e.g. the officer in charge of the station where the person is detained and
the Commissioner of Police).

Evidence is given by affidavit but the Court may order cross-examination.

Applicant has burden to first show a prima facie case of unlawful detention the
burden then shifts to gaoler to justify. Proof is on a balance of probabilities but
high degree required as the matter concerns the liberty of the subject9.

1.7g Grounds (Unlawful Detention)

The application must be based on an unlawful detention, for example:

a. Warrant invalid

b. Unduly long detention without charge (eg Holmes ex. p. Sherman [1981] 2
AllER 612 : Arrested person to be taken before Magistrate “as soon as
practicable” means within 48 hours.)

c. Conditions of detention are below minimum standards

d. Traditionally, improper refusal of bail was a ground but now Bail Act and
CPR procedures may replace the writ in popular usage

9
Re Bishop(Edward) (1997) 58 WIR 10
1.7h Enforcement

Failure to obey a Court order may be punished as a contempt of court.

SEARCH

1.8 At common law a court had the power to issue a search warrant to search
premises on sworn information as to the suspicion of the location of stolen items
on those premises.

This power is now provided for by statutory provisions found in almost all
jurisdictions for any offence.

1.8a Jamaica Constabulary Force Act Section 17 and 19 provide for a general
power of search without warrant in specified circumstances. See also Belize
Summary Courts (Jurisdiction) Act ss. 23 and 24 and St Kitts and Nevis
Magistrate’s Code s. 44.

1.8b AG v Danhai Williams (1997) 51 WIR 264, PC

JP must not only ascertain that Constable suspects but also that cause for
suspicion is reasonable (objective test).
“he must carefully consider for himself the grounds put forward by the revenue
officer and judicially satisfy himself, in relation to each of the premises concerned,
that these amount to reasonable grounds for suspecting etc. It would be quite
wrong to suppose that he acts simply as a rubber stamp on the revenue's
application." (applying Lord Wilberforce in Reg. v. Inland Revenue Commissioners,
Ex parte Rossminster Ltd. [1980] A.C. 952)
Although warrant should state statutory basis it is not invalidated by absence.

1.8c Search warrants take a particular form and must be addressed to a named
constable or any constable. If a specific constable is named he is the only one who
may execute the warrant. See R v Rolda Ricketts (1971) 17 WIR 306 and R v Chin
Loy (1975) 23 WIR 360.

1.8d There is no general common law right to search a person who has been
arrested, but a person may be searched if it is believed he has a weapon or
implement or if it is thought he may have material evidence in his possession. If
the person arrested resists search it is lawful to use only such force as is
reasonably necessary.

1.8e There is no common law power to stop and search before arrest unless
otherwise provided by statute.

Generally a search warrant is required for entry and search. At common law the
police have the power to enter private premises to effect an arrest without a
search warrant in limited circumstances. There is a common law right to break
down a door and enter premises to prevent a murder or the commission of a
felony and arrest the offender. A police officer may enter premises to prevent a
breach of the peace. They may enter to arrest a felon who has been followed into
a house or to follow a fleeing offender10.

1.8f Several jurisdictions have statutory provisions for search without warrant for
stolen or uncustomed goods.

1.8g Even if there is an illegal search the police are entitled to retain goods found
during the search if they constitute evidence of a crime. See Karuma v R (1955) 1
ALL ER 236, PC. In commonwealth jurisdiction illegally obtained evidence will not
be inadmissible merely because it was so obtained. See Herman King v R (1969) 1
AC 304, PC.

10
See generally Swales v Cox (1982) 72 Cr App R 171 (CA).
1.9 Stop and Question

The police have the right to stop and question persons in the course of
investigations. Citizens are generally expected to assist the police but may refuse
to answer questions. There is no power to detain for questioning without lawful
arrest11.

1.10 Seizure of Property

A constable may take, having entered the house pursuant to arrest:
a. Anything he reasonably believes to be material evidence in relation to crime for
which they are entering to arrest
b. Anything, found in the course of a search by warrant, not an object of warrant
but which may implicate for another crime (provided that they act reasonably)
c. Where no search warrant and no one arrested but “offence of first importance”,
article fruit/instrument of crime and person in possession not himself implicated:
Items may be retained
But there is no general power to search to see if crime committed. Police may not
keep longer than necessary to complete investigation or preserve item and must
return item at end of case12.

1.10a Ghani v Jones [1970] QB 693

Police inquiring into whereabouts of a missing woman missing requested
passports of her relatives and thereafter refused to return them in order to
prevent them leaving the country.
NB at this time no power to search in case of murder
Held, making orders for the return of the passports:
(1) the police must have reasonable grounds for believing that a serious
crime had been committed;

11
Ludlow et al v Burgess (1971) Crim LR 238.
12
subject to confiscation/forfeiture laws
 (2) they must have reasonable grounds for believing that the article was
either the fruit of the crime or the instrument by which it was committed
or was material evidence to prove its commission;
(3) the police must have reasonable grounds to believe that the person in
possession of the article had committed the crime or was implicated in it;
(4) the police must not keep the article or prevent its removal for any
longer than was reasonably necessary to complete their investigations or
preserve it for evidence; and
(5) the lawfulness of the conduct of the police must be judged at the time
and not by what happened afterwards. If the police wanted to prevent the
plaintiffs from leaving the country pending inquiries that was not a
legitimate ground for holding the passports.

1.10b Chic Fashions (West Wales) v. Jones [1968] 2 QB 299

Police had a warrant to search premises for a certain brand of clothing. They
entered and found items of another brand but had reasonable grounds to believe
that these were stolen or would be relevant evidence for the prosecution.
Held: police may seize and detain so long as reasonable grounds exist that there
might be a criminal charge pertaining to these items.

1.10c King v R [1969] 1 AC 304, 12 WIR 268

Statutory power to search does not imply power to search persons on premises.
Warrant must expressly so authorise but fact that search was illegal does not
mean evidence ipso facto inadmissible.
 CHAPTER 2: COMMENCEMENT OF PROCEEDINGS

2.1 Expected Outcomes

Student must:

a. Understand how a criminal case is commenced

b. Be able to identify defects in court process.

c. Assess the effects of such defects

2.2 Laying the information or complaint13

The laying of information (complaint) is the commencement of the prosecution.

It need not be in any particular form. It may be on oath, in writing or verbal.

An oral information is laid by going before a Magistrate or Clerk and giving the
allegations and it is written down. Once this is done a summons is issued. The
summons is a document addressed to the offender requiring him to attend the
magistrate’s court on a day named to answer the charge laid against him.

It must be in writing and on oath where the offence is indictable and a warrant is
asked for. See s. 31 of JP Act. Where it is in writing it is simply delivered to the
court.

13
Antigua Magistrate’s Code ss 8, 23 to 26 and 32

Belize Summary Jurisdiction (Procedure) ss21 and 127

St Kitts and Nevis ss 29 to 43

2.2a An information is laid when it is given to the Magistrate/Justices’ clerk, even
if it it is not then considered and the summons or warrant is not ordered
immediately (R v. Leeds JJ ex p. Hanson [1982] 74 Crim. L.R. 711). The information is laid
when its content is brought to the attention of the magistrate or clerk as part of
the prosecution process.

2.2b There are basically three ways in which a person may be brought or
commanded to appear before the court:

 By an arrest without warrant, followed by a charge and the laying of an

information/complaint containing the charge.
 By the laying of information on oath based on a complaint, followed by the
issuance of a warrant of arrest for the accused.
 By the laying of information whether on oath or not based on a complaint,
followed by the issuance of a summons for the appearance of the accused.

An accused appears before the court on a summons but is brought before the
court on a warrant.

2.2c A summons is a document addressed to the accused directing him to appear

before a particular court at a stated time and place. It must briefly state the
charge and be signed by the JP or Magistrate. The defendant must appear in
answer to the summons or on proof of proper service a warrant of disobedience
of summons may issue to compel him to attend.

2.2d Where a person is brought before a magistrate he may object that there is
no information laid in which case he is entitled to be freed unless one is present
and then laid. See R v Lewis SCCA (unreported) RM Miscellaneous Appeal
NO:2/05.

2.2e The prosecution commences once the information is laid. In Thorpe v.

Priestnal (1897) 1 QB 159; the Chief Constable gave consent orally to the laying of
information. After the information was laid he gave his consent in writing. The
relevant statute required consent in writing before an information can be laid.
Held, A prosecution was instituted when an information was laid and the
information laid without consent was improper.

2.2f Director of National Insurance v. Critchlow (1992) 44 WIR 38 at page 41-42

(CA Barbados)

Consent of the national Insurance required to lay information. A written consent

was attached to information and this was held to be proof of consent.

2.3a Who may lay a complaint/information? Generally any person may lay
information but usually this is done by the police. It involves giving the Justice or
Clerk a concise statement of the offence and the alleged offender. The
appropriate process will then be issued to procure the presence of the accused.
Most prosecutions are brought by the police in the sense that they either charge
the accused at the station or lay information against him.

2.3b R v Rollins [2010] UKSC 39, 4 ALLER 880

Sir John Dyson SCJ noted that “every person has the right to bring a private
prosecution”. He went further to cite Lord Woolf MR in Broadmoor Hospital
Authority v R [2000] 2 All ER 727:

“The statutes only rarely provide expressly that a

particular public body may institute proceedings in
protection of specific public interests. It is usually a
matter of implication. If a public body is given
responsibility for performing public functions in a
particular area of activity, then usually it will be implicit
that it is entitled to bring proceedings seeking the
assistance of the courts in protecting its special interests
in the performance of those functions.”
2.3c The private right to institute prosecutions was recognized by the Trinidad
and Tobago Court of Appeal in Chokolingo v. Law Society14 where the standing of
the Law Society to initiate a prosecution for contempt of court was affirmed
despite the fact that the constitutional law officer had declined to prosecute and
there was no specific power under the Society’s statute to bring criminal charges.
It was held that, given the Law Society’s mandate to support and protect the
character of the legal profession, they had a sufficient interest to bring charges.

2.3d In Rohan Ellis v. R [2012] JMCA Crim 8 the Jamaican Court of Appeal held
that the fact that public service regulations required a Permanent Secretary,
where a criminal offence might have been committed in his ministry and before
instituting disciplinary proceedings, to seek the advice of the Attorney General as
to whether criminal proceedings should be commenced before instituting such
disciplinary proceedings, did not prevent the police from instituting criminal
proceedings without the Attorney General’s ruling.

2.4 For a summary offence where a warrant is being requested, the information
must be sworn or affirmed15.

2.4a Dennis Thelwell v DPP and AG SCCA 56/98, delivered 26th March, 1999 pp
13-26.

Forte JA after examining sections 272, 282, 291, 292 of the Judicature (RM) Act
and s. 64 of the Justices of the Peace (Jurisdiction) Act, concluded that at a trial in
a court exercising summary jurisdiction there must be a written information
which contains a statement of the offence charged, stating the section of law

14
(1978) 30 WIR 372
15
s. 9 of Justices of the Peace Jurisdiction
breached where applicable together with particulars of the offence set out in
ordinary language.

2.4b If offence is statutory it must refer to the section of the statute. It must
describe the offence shortly and in ordinary language. However, failure to do so is
not fatal. See Gould v Williams (1962) 5 WIR 122 T&T CA
Section 64 JP Act-sufficient if it contains a statement of the specific offence
together with enough particulars to give reasonable information as to the nature
of the charge.

2.4c R v. Ashenheim (1973)12 JLR 1066; defendant charged under the wrong
section of the Road Traffic Act.
Held: prior to section 64 an information was not required to contain the section of
the statute creating the offence. The information was therefore valid by virtue of
section 64 (4) which was a savings clause. The defect in the information by the
wrong section was only a defect in the particulars and did not render the
information void. The real issue was whether the defendant had been misled so
as to affect his fair trial.

2.4c Rohan Ellis16

The appellant was convicted for contravening section 80 (b) of the Customs Act.
The section criminalized bringing “prohibited articles” but the information
charged that he trafficked “contraband”. There was no evidence that any of the
items were prohibited.

The Court referred to section 64 of the Justices of the Peace (Jurisdiction) Act –
charge sufficient if it contains a statement of the offence and particulars in
ordinary language. Nevertheless, the Court held that the information was
inadequate and did not reflect the spirit and intent of the offence. Their lordships
ruled that the appellant was therefore misled and quashed the conviction.

16
2.3d above
 CHAPTER 3: PRINCIPLES GOVERNING THE GRANT OF BAIL

3.0 Expected Outcomes

Student must be able to:

a. Make or oppose an application for bail

b. Understand the principles for the grant or refusal of bail

3.1 Introduction

Bail may be defined as conditional pre-trial release in criminal proceedings. It may

involve the taking of sureties by a person authorised to do so, for the appearance
of an accused person at a certain day and place to answer to the charges.

The condition of the recognizance is the appearance of the accused. It may be

described as a contract. The accused is released into the custody of his surety
who has the option to seize him and surrender him for discharge of the bail. The
accused then has the option to find new sureties.

In practice the defendant signs a bond at the court office (bail bond) undertaking
to appear at his trial. He can also be released in his own surety.

3.2 The Entitlement to Bail

The proper test is whether it is probable that the defendant will appear to attend
his trial. Bail must not be withheld as a punishment17.

17
Noordally v AG [1986] MR 204, approved in Hurnam paragraph 5
3.2a In most of the Caribbean , and in Jamaica prior to 2000, the principles
governing the entitlement to bail were common law principles relying heavily on
judicial discretion.
These principles were:
1. the likelihood of appearance at trial
2. the nature of the evidence
3. likelihood of conviction
4. nature of the accusation
5. likely sentence
6. record of accused
7. likelihood of committing further offences while on bail
8. possibility of interference with potential witnesses
9. previous failure to answer to bail
10.the reliability of sureties

3.2b R v. Phillips (1947) 32 Cr. App. R. 47

Atkinson J said matters which ought to be taken into consideration include the
nature of the accusation, nature of the evidence and the severity of punishment.
Bail may be refused if caught red-handed or if there is no defence. The more
serious the offence, the less likely it is that bail will be granted, therefore, it would
not usually be granted for murder, except in exceptional circumstances.

3.2c R v. Pegg (1955) Crim. LR 308;

Bail was inappropriate where there was a bad record of previous convictions
because the defendant was sure to commit offences while out on bail18

3.3a Bail in murder cases

At common law bail was not granted for murder cases unless in exceptional
circumstances19. Some statutes have codified and enlarged the common law.

18
R v Wharton (1955) Crim. LR 56

19
Brookes v AG (Anguilla)
It is suggested that these provisions ought not to be treated as presumptions
against bail but as giving special weight to the factors against granting bail in the
Court’s balancing exercise20.
3.3b Hurnam v. State [2005] UKPC 49
PC allowed appeal from SC Mauritius that had reversed Magistrate’s decision to
offer bail. When bail was objected to there was no suggestion that he was likely to
abscond. PC opined that Magistrate was correct in taking into account the
seriousness of the offence but not treating it as conclusive. SC erred in treating it
as conclusive.
The interest of the individual is of course to remain at liberty, unless or until he
is convicted of a crime sufficiently serious to justify depriving him of his liberty.
Any loss of liberty before that time, particularly if he is acquitted or never tried,
will inevitably prejudice him and, in many cases, his livelihood and his family.
But the community has a countervailing interest, in seeking to ensure that the
course of justice is not thwarted by the flight of the suspect or defendant or
perverted by his interference with witnesses or evidence, and that he does not
take advantage of the inevitable delay before trial to commit further offences.
, that a person should normally be released on bail if the imposition of the
conditions reduces the risks referred to above –i.e. risk of absconding, risk to
the administration of justice, risk to society – to such an extent that they
become negligible having regard to the weight which the presumption of
innocence should carry in the balance. When the imposition of the above
conditions is considered to be unlikely to make any of the above risks
negligible, then bail is to be refused.”
Lord Bingham of Cornhill

3.3c The Barbadian Magistrate Court Act provides that bail may be granted for
murder only by a judge in accordance with the Bail Act21. In Trinidad and Tobago
no bail may be granted for murder or treason. See also St. Vincent Criminal
Procedure Code Cap 125, s. 43 as amended by Act 15 of 1993

20
see Bail and the Human Rights Act 1998 (Law Com. 269).

21
s. 75 and s. 5(4)
3.3dThe individual entitlement to bail is to be balanced against the denial of bail
in the interest of the public. In the frame work of the legislation (the Bail Act) it is
for the party who seeks to deprive the subject of his liberty to outline the grounds
for doing so. See Hurnam v The State, Privy Council Appeal 53 of 2004, appeal
from Mauritius.

3.4 Multiple Bail Applications

3.4a R v. Nottingham Justices ex parte Davies (1981) Q. B. 38

Judicial review of Justices refusal to reconsider bail on full facts:

Held; Justices considering a renewed application for bail had no duty to

reconsider matters previously considered but should confine themselves to
circumstances which had since occurred or matters not brought to their attention
previously. They should only investigate whether there were changes, as the
matter was res judicata upon the last application.

3.4b This case suggests that each court should not act as a court of appeal for the
other. Here, the court was considering section 4 of the Bail Act UK. In the
schedule to the UK Act it provides that “at a subsequent hearing the court need
not hear arguments as to fact or law which it has heard previously”. Compare with
S. 3 (5) of the Jamaican Act where there is no such stipulation.

3.4c In Slough Justices ex-parte Duncan ( 1982) 75 Cr App R 384, Ormrod LJ

suggested that the proper terminology by the court is “as there is no new
material before us relevant to bail, bail will be refused.” This will avoid giving the
impression that bail was simply not considered.
3.5 The Bail Act 2000 (Jamaica)
Section 3(1) of the Act provides that every person charged with an offence is
entitled to bail. Bail may be granted by a court or a police officer as the case may
require. Persons must not be kept in custody longer than 24 hours without bail
being considered.
Only a Judge or Magistrate may consider bail for murder or treason. An
application for bail may be made on every occasion that a defendant appears in
court in relation to the charge22.

3.5a A defendant is entitled to bail if charged for an offence not punishable with
imprisonment.

Some exceptions are:

a. for own welfare if a child or for own protection s.4 (4)(a);

b. if serving a sentence S4(4)(c);
c. if he has been arrested for failing to appear S4(4)(d);
d. if he absconded.

3.5b Section 4 (Jamaica)

Where the offence is punishable with imprisonment, bail may be denied if the
Court, Justice of the Peace or Police Officer believes:

1. a. Defendant will fail to surrender to custody;

b. Defendant will commit an offence whilst on bail;

c. Defendant will interfere with the witnesses or otherwise obstruct

the course of justice;

2. Defendant is serving a sentence;

3. The court needs more time for further information;
4. Defendant has been arrested for absconding bail;
5. Defendant has committed another offence while on bail for which he is
charged;

22
section 3(5)
 6. There is a need to keep him in custody for inquiries or reports;

To assist with the decision the court may take into account the following factors:

a. The nature and seriousness of the offence;

b. The character, antecedents, association and community ties;
c. record under previous grants of bail;
d. the strength of the evidence;
e. whether he a repeat offender;
f. any other factor including health.23

3.5c Stephens v Director of Public Prosecutions24

The accused was on a charge of larceny of cattle in the parish of St. Elizabeth.
However, he also had a previous charge of receiving stolen property pending in
the parish of Clarendon for which he was already on bail.

Sykes,J gave a considered judgement. He began with a review of the relevant

provisions in the Constitution of Jamaica and reminded that the Constitution is
the supreme law, and that section 15(3) gives the right to a trial without delay.
He also considered Lord Bingham’s judgement in Hurnam v State, PC, a case from
Mauritius which took the approach of balancing the interest of the individual
against the interest of the public. Lord Bingham considered 5 factors cited from
the European Court of Justice:

 Risk of absconding
 Risk of interference
 Crime prevention
 Preserving public order
 Necessity of detention to protect the defendant.

23
Subsection 2
24
HCV 05020 of 2006 delivered January 23, 2007
The court came to the conclusion that bail was a serious business which must be
“anxiously and carefully considered”.

Justice Sykes suggested this approach in considering whether or not to grant bail:

1. Begin with the constitutional norm of liberty in favour of granting bail.

2. Consider whether there are grounds to refuse bail.
3. Ask whether there are substantial risks.
4. If there are, can conditions adequately manage the risk?

3.5d Where a defendant is unrepresented, he is to be informed by the court of his

right of appeal where bail is refused25.

3.5e Antigua’s Magistrates Code s 62 provides that Magistrate (or JP see s 8(5))
must offer bail to anyone charged with a misdemeanour punishable by a fine or
imprisonment for 2 years.

3.5f The Jamaican Act creates an offence of absconding bail. (Also in the Bahamas
Act)

3.5g Trinidad and Tobago, Bahamas and Barbados all have a Bail Act. In Trinidad
and Tobago there is no jurisdiction to grant bail for the offence of murder; (Bail
Act s.5 read with Schedule 1, part 1): See Krishendah Sinan et al v State (No.1)
(1992) 44 WIR 359. A Magistrate in St. Lucia has no jurisdiction to grant bail for
the offence of murder but the defendant may apply to the High Court: See
Sharman Rosemond v AG, of St. Lucia, ECSC claim No SLU HCV 2003/0985.See
also section 5(4) of the Barbadian Bail Act.

3.5h The Resident Magistrate must give reasons for denying bail within 24 hours.
S.8. Also to be found in the Trinidad and Tobago, Barbados and Bahamian Acts. A
judge in chamber may review the denial of bail by a Magistrate, (S.11).

25
(s. 9)
3.5i The general principle under the Bail Act is the same as at common law that is:
whether the defendant will appear to take his trial. In Beneby v Commissioner of
Police (No. 28 of 1995) the Supreme Court of Bahamas judicially considered the
Bail Act vis a vis the common law principles and held that the Bail Act was an
enactment of the previous common law or some earlier statutory provisions.

3.5j Therefore the approach at first instance should see the judge or magistrate
beginning with constitutional norm of liberty, and leaning towards granting. The
court must then consider whether there are grounds for refusal, ask whether the
grounds for refusal are substantial and consider whether bail conditions can
manage the risk26.

3.6 Bail Conditions

Conditions must be necessary to secure aims of bail27. There must be real rather
than a fanciful risk28.
Commonly imposed conditions include residing at a certain place, reporting to
police station, staying away from complainant, surrendering travel documents and
a personal curfew29.
A higher court can review whether conditions are necessary.
Conditions may be imposed even where bail is by right30.
A surety will often be required. This person will be responsible to ensure
attendance at court and liable to pay sum of bond if defendant absconds.
Section 6(2) gives the offender the option to pay a specified sum rather than
provide a bond31.
26
Sykes, J in Stephens v DPP HCV 05020 of 2006

27
R (CPS) v Chorley JJ (2002) 166 JP 764
28
Mansfield JJ ex p Sharkey [1985] QB 613
29
see Bail Act (Jam) s. 6 (2)
30
Bournemouth Magistrate’s Court ex parte Cross (1989) 89 Cr App R 90
31
See also section 708 St. Lucia Criminal Code and the Bahamas Bail Act (Second Schedule)
3.7 Proof in Bail Applications
3.7a Thelston Brooks v AG (Anguilla)32 In bail hearings proof is on a balance of
probabilities
“It is well established that the civil standard may be applied with lesser or greater
strictness depending on the nature of the matter. I, for my part, consider that the
civil standard ought to be the applicable standard to bail applications and not the
criminal standard since in such applications there may be many factors and
circumstances which though highly relevant may be incapable, at such an early
stage of the proceedings, of proof beyond a reasonable doubt.”33 (George-Creque
J)

3.7b Ex-parte Sharky (1985) QB 613 at page 626

There is no formal requirement for evidence, it is sufficient for a police officer to

inform the court. On an application for bail the strict rules of evidence are
inappropriate and the court hearing the application is mainly concerned with
deciding whether there were substantial grounds for belief.

3.7c Re Moles (1981) Crim. L.R. 170: Police Officer may inform the court of
information in his possession of any threat by accused to other witnesses.
A Court may therefore act on hearsay evidence and even their personal
knowledge ( Mansfield JJ ex p Sharkey [1985] QB 613)

3.8 Judge’s Task on “Appeal”

Section 8 and 9 of the Bail Act of Jamaica speaks to the right to appeal the refusal
of bail. Section 11 gives the Judge in Chambers the authority to grant or refuse
bail or vary any condition of bail34.

32
ECSC unreported 15 January 2007
33
See also Rv Governor of Canterbury Prison [1990] 3 WLR 126

34
CPR 2002 Rule 58
3.8a Stephens v. DPP

The parties are able to reargue and not merely whether the RM could have made
the decision. Court must exercise its own independent discretion without ignoring
the views of the lower court.

3.8b R v Francis Young Suit No. M121/2002, Decided 11th October, 2002

The court opined that the role of the Judge in Chamber was not to substitute his
view for that of the Magistrate. The judge must consider whether the Magistrate
had considered matters not relevant to the issue of bail. He should review the
reasons given35.

3.8c Therefore whilst showing deference to lower court Judge not restricted to
only disturbing if Wednesbury unreasonable.If on weighing the factors the Judge
reaches a different conclusion he may interfere.

3.9 Bail pending appeal

At common law, bail after conviction was only granted in exceptional

circumstances36.Under the Bail Act, a person granted bail prior to conviction and
who appeals conviction may apply to a Judge or Magistrate before whom he was
convicted or a Judge of Appeal, for bail pending appeal37.

When notice of appeal is lodged with the Magistrate or Clerk of Court, bail may be
granted to attend the hearing of the appeal.

In the case of bail pending appeal different considerations apply. See Sinan et al v
The State (No. 1) (1992) 44 WIR 359, where Trinidad and Tobago considered the

35
See also Glenford Williams v R HCV 0814/2003, Delivered 26th May 2003, per Brooks J, looking at the
standard of proof. R v Norris Nembhard HCV 0814/2004 Delivered 7th June 2004 and Adrian Armstrong
v DPP HCV 1566/2004 Jud. Del. 29th July, 2004
36
R v Gregory (1928) 20 Cr. App. R 185
37
s.13 of the Bail Act
application of several convicted murderers for bail pending appeal, per Bernard CJ
at pg. 367.

Section 4(1) (b) specifically states that bail may be denied in those circumstances.
The grant of bail to persons who have been convicted should be sparingly used
and only in exceptional circumstances. A convicted person who applies for bail
has no entitlement to bail. In such a case the presumption of innocence no longer
exists38.

The UK Bail Act 1976 grants the right to bail in some cases of conviction. The
Criminal Appeal Act 1968 UK also speaks to the grant of bail by the Court of
Appeal. However this is sparingly granted.

See section 17 of the Justice of the Peace Jurisdiction Act for bail pending appeal
of a summary conviction.

3.10 The bail application

3.10a Applications for bail are made orally in the trial court but in writing for
review by the High Court39 .

3.10b A police officer can now grant bail under the Bail Act but not for a capital
felony. There can be no denial of bail by virtue of, where the offence is not
punishable with imprisonment40. Only the Magistrate or Judge can deny bail for
further information to be had by the court. Also only the court can deny bail to
await a report or inquiry.

38
State v Scantlebury (1976) 27 WIR 103
39
CPR Part 58
40
section 4(4)
3.11 Bail and the Constitution

3.11a The Trinidad and Tobago Constitution s. 5(2) provides for a constitutional
right to a reasonable bail unless for just cause. But note the provision in the Bail
Act prohibiting bail for the offence of murder.

3.11b The State v Abdool Rachid Khoyratty, SC of Mauritiu,s 22nd March 2006,
Privy Council appeal No. 59 of 2004; denial of bail by the executive by statute and
constitutional amendment whether unconstitutional. Bail being a judicial function
it should be left to the discretion of the judiciary. See also the arguments in
Sharman Rosemond and St. Lucia Constitution S. 3 (5).

3.12 Revocation of bail

3.12a R v Glenford Williams, charged with dangerous drugs. Bailed in the sum of
$10,000,000 but rearrested by the police. Brooks J considered Section 16 of the
Bail Act.

Section 16 (3) states that a person on bail may be arrested without a warrant by a
police officer where he has reasonable grounds to believe the person is not likely
to surrender. Such a person must then be brought before a Magistrate within
twenty four hours or at least at the next sitting of the court by virtue of sub-
section 4.

3.12b Under section 16(5)a Magistrate before whom such a person is brought on
her opinion that the person may not likely surrender or will commit or is about to
commit another offence or breach a condition of his bail, may remand such a
person in custody or grant bail on different conditions.
 3.13Bail in Extradition

In Norris Nembhard SC Suit No. 2004/HCV/1198, Brooks J considered the

question does the Supreme Court have the jurisdiction to hear an application for
bail in extradition matters?

Brooks J answered in this way:

 SC has inherent jurisdiction to hear bail applications

 Extradition act has not curtailed in any way that inherent jurisdiction
 Section 10(2) of the Extradition Act gives the Magistrate the power to
remand in custody or release on bail a person arrested on an
extradition warrant

The second question was whether the Bail Act applies to persons on extradition
warrants?
 Whereas 3.4(1) of UK Bail Act 1976 hold persons remanded under the
UK Extradition Act as excluded from the right to bail under the Bail Act
 There is no such provision in the Jamaican Bail Act.
The judge looked at the entitlement to bail under s.3 and found no distinction
between persons charged in Jamaica with an offence or Jamaicans charged in
Jamaica for offences outside of Jamaica.
Since persons charged under the Extradition Act are not specifically excluded
from the provisions of the Act, and section 10 of the Extradition Act charges the
committal court to treat the person as if he were charged with an offence within
the jurisdiction of that court, then the Bail Act applies.
A defendant who has been refused bail under the Bail Act by a Magistrate may
appeal to a judge in chambers. Part 58 of the CPR applies.
The third question was whether the bail application was correctly refused by the
Magistrate?
 The burden was on the defendant to show that the Magistrate erred in
principle;
 That relevant matters were not considered;
 That special circumstance had arisen since the refusal.
Brookes J underscored that the role of the Supreme Court Judge was one of
review and he cannot substitute his view of what the decision should be.
 CHAPTER 4 : ORIGINAL JURISDICTION

4.0Expected Outcomes

Students are expected to:

1. Appreciate the limits of the territorial jurisdiction of the

criminal courts in their country.

2. Have comprehensive knowledge as to which court may try a

particular criminal charge.

3. Understand how the passage of time might affect a criminal

cause.

4. Identify when a Court has spent its authority and is functus

officio

4.1 Introduction
Original Jurisdiction: “Original” refers to trial as opposed to appellate jurisdiction.
“Jurisdiction” means the court’s power/authority to adjudicate in a matter.
The original jurisdiction may be restricted to certain offences. This can be called
subject matter jurisdiction.
A court has jurisdiction for a particular geographical area. This is called territorial
jurisdiction.
Some Courts can only hear a matter if it is commenced in the required time. This
may be called “limitation” because of analogous rules in Civil Procedure.
A Court has no further jurisdiction when it has fully exercised its power. The Court
is said to be functus officio.

4.2 Subject Matter

4.2a Indictable Offences: An indictment is the common law remedy for offences.
Trial is normally by jury at the High Court (Circuit/Assizes). Normally indictment
may be lodged only after a committal proceeding.
4.2b Summary Offences: A statutory procedure where the charging document is
the information/complaint and trial before a Magistrate (or Justices of the Peace).
Normally summary proceedings employed for less serious offences.
Some offences are called “Hybrid” in that they may be tried either of these 2
ways. Statute will provide for election of defendant/prosecutor/magistrate (see
for example Antigua Magistrate’s Code s. 45 (1))

4.2c An offence is indictable if it is:

a. a common law offence
b. A statutory offence and the statute provides for trial by Indictment
c. An offence where no provision as to mode of trial as indictment only
excluded where statute prescribes another specific mode (Kakelo [1923])

4.2d A statute must expressly provide for summary jurisdiction.

Jamaica has two summary jurisdictions:
a. “Petty Sessions Jurisdiction” where two justices of the peace or a single
resident magistrate may sit (see also Antigua Magistrate’s Code s. 9).
b. “Special Statutory Summary” where the resident magistrate (but not the JP)
has jurisdiction. Statute may say e.g.: “ on summary conviction before a
Resident Magistrate”
4.2e In Jamaica the resident magistrate also has a special indictable jurisdiction for
some offences.
Jamaican RM whilst having these 3 jurisdictions he or she can only exercise them
separately.

4.3 Territorial jurisdiction

Basically courts only to concern themselves with offences committed within the
territory. There is a presumption that, outside of clear words, statute not to be
construed to criminalize conduct outside the state.Territory includes land and
coastal waters (see Pianka) and the Admiralty Jurisdiction

4.3a Deokinanan (1965 and 1966)

Offence committed on British Ship on river outside of B.G. Admiralty Jurisdiction
invoked but no averment in indictment. The Court of Appeal ruled that the trial
was a nullity.
The Crown re-indicted and upon conviction the matter was appealed for the
second time.
The Court of Appeal held that the Admiralty Jurisdiction was invoked where an
offence was committed on a ship registered to or owned by a British subject and
on High Seas, on river where “great ships go” or “as far as tide ebbs”.

4.3b Traditional view is that the “last act”,“gist”, or“essence” of offence must be in
state for that state’s courts to have jurisdiction. This includes where the “last act”
of an innocent agent was committed in that state.
4.3c The modern view recognises international comity. Each sovereign state
should not punish persons for their conduct within the territory of another state
where that conduct has had no harmful consequences within their territory.
Consequently, where offence requires that conduct should be followed by
consequences jurisdiction properly founded if either the conduct of the accused
or its consequences occurred in the state.
(see Lord Diplock in Treacy v. DPP [1971] A.C. 537)

4.3d Somchai Liangsiriprasert v. Government of the United States of America

[1991] 1 A.C. 225: There is local jurisdiction over inchoate offences wholly
committed overseas that intended to result in offences in that state.
4.3e R. v. Smith (Wallace Duncan) (No.4)[2004] 2 Cr.App.R. 17 : Even if “last act”
did not occur in a state that state might have jurisdiction where a “substantial
measure” of the activities constituting a crime take place there. But no jurisdiction
where, on the basis of international comity, the case should be dealt with by
another country.

4.3f Scantlebury and others v. AG (2009) 76 WIR 86

The USA sought the extradition of the appellant and others for drug offences
including, conspiracy to distribute 5KG of cocaine knowing or intending them to
be imported into the USA. The appellants objected to the proceedings on a
number of grounds but the Magistrate overruled most of the objections. They
applied to the High Court for JR but failed. They appealed to the Court of Appeal.

One of the grounds questioned whether the USA had jurisdiction to try the
offences as the appellants had not been present in the USA and had not
committed any acts there. Extradition practice has a “double criminality principle”
that requires the broad conduct alleged to have been committed in the
requesting state to also be a crime if it had been committed in the requested
state.

The evidence revealed:

“17. Hawkesworth was the head of this drug distribution organisation.

He oversaw the entire operation of the organisation in Barbados,
directing the transportation and distribution of cocaine, and arranging
for the drugs to be shipped out of Barbados or Guyana to the United
States and other countries. He was involved in several attempts to
deliver "test loads" of 1-3 kilograms of cocaine to the Confidential
Source through JFK Airport in New York. He admitted to confidential
sources that he wanted to ship 50 kilogram loads of cocaine to the
United States once the test loads successfully cleared the airport in
New York. He sold one kilogram of cocaine to the confidential source
on 30 March 2004 and fronted him an additional kilogram. After that,
he negotiated to sell an additional 5 kilograms of cocaine.

18. Scantlebury was the main associate or "lieutenant" for

Hawkesworth during the time that he worked with him. Scantlebury
would seek buyers of cocaine and introduce them to Hawkesworth. He
would meet with the buyers on behalf of Hawkesworth to negotiate
the delivery of cocaine. Scantlebury was supposed to travel to the
United States after the "test loads" of cocaine had been successfully
delivered to New York. He was then going to be in charge of overseeing
the receipt of the shipments of cocaine from Hawkesworth and
Douglas.

19. Gaskin primarily assisted Scantlebury in meeting with prospective

purchasers of cocaine from Hawkesworth. He was also supposed to
travel to New York and help oversee the shipments of cocaine sent
from Hawkesworth and Douglas to the United States.'
The Court relied on Somchai Liangisiriprasert v. Govt of the USA and R (Al
Fawwaz) v. Brixton Prison [2002] 1 AC 556 and held that Barbados courts would
in the circumstances alleged by the USA have jurisdiction over a conspiracy
abroad intended to have consequences in Barbados:

'[37] When the 1870 Act was passed crimes were no doubt largely
committed in the territory of the state trying the alleged criminal but
that fact does not, and should not, mean that the reference to the
jurisdiction is to be so limited. It does not as a matter of the ordinary
meaning of the words used. It should not because in present conditions
it would make it impossible to extradite for some of the most serious
crimes now committed globally or at any rate across frontiers. Drug
smuggling, money laundering, the abduction of children, acts of
terrorism, would to a considerable extent be excluded from the
extradition process. It is essential that that process should be available
to them. To ignore modern methods of communication and travel as
aids to criminal activities is unreal. It is no less unreal to ignore the fact
that there are now many crimes where states assert extraterritorial
jurisdiction, often as a result of international conventions.'

4.3g Eric Alexander v R [2010] JMCA 46

The resident magistrate’s statutory jurisdiction is to be found in the Judicature

(RM) Act

“267. For the purposes of the criminal law, the jurisdiction of every Court shall
extend to the parish for which the Court is appointed, and one mile beyond the
boundary line of the said parish”
The Criminal Justice (Administration) Act also provides that:

“9. (1) Every person who commits any indictable offence may be proceeded
against, indicted,

tried, and punished in any parish or place in which such person may be
apprehended, or may be in custody for such offence, or may appear in answer to
a summons lawfully issued charging the offence, as if the offence had been
committed in that parish or place, and the offence shall for all purposes incidental
to or consequential upon the prosecution, trial or punishment thereof, be
deemed to have been committed in that parish or place.”

Facts:

Appellant was wanted for acting as a JP in St Catherine when not commissioned.

He was escorted by police from his home in Portmore, St. Catherine to Fraud
Squad HQ in Kingston where he was arrested and charged. On being brought
before the Corporate Area Resident Magistrate’s court he pleaded guilty and was
sentenced.

EA appealed. The RM in preparing reasons conceded that she did not have
jurisdiction (this was not an original ground of appeal).

CA related it this way:

“ She stated, “I would not be bold as to indicate what ought to be done but
whatever you direct to be done to rectify this travesty of justice I will endeavour
to have it done.” It is abundantly clear from the statement made by the learned
Resident Magistrate that she was aware that she was functus officio, so she left
the matters entirely in the hands of this court.”

Submissions:

Not within 1 mile radius (s 267 J (RM) Act)

S. 9(1) CJ(A) Act not applicable as:

i. not apprehended in Corporate Area

ii. not summoned but bailed to attend court

iii. was granted station bail at Denham Town

Decision:

“There is clear evidence that the offences in this case were committed by the
appellant in the parish of St. Catherine. He was apprehended in that parish and
was taken to the Fraud Squad in Kingston where he was arrested and charged by
the police and then bailed to attend court. The question which therefore arises
for determination is this:

Was the appellant “in custody for such offence” pursuant to the provisions of
section 9(1) of the Criminal Justice (Administration) Act when he appeared before
the learned Resident Magistrate?

..................................

It is my view that once an accused person is held in a lockup, or surrenders to the

custody of the court, that individual would fall within the provisions of section 9
(1) of the Criminal Justice (Administration) Act.

[28] In my judgment, the appellant was in custody for the purposes of section
9(1) supra. At the time of his arraignment before the learned Resident Magistrate,
he had surrendered himself into the custody of the court and had voluntarily
pleaded guilty to the charges.

[29] It is therefore my judgment that the learned Resident Magistrate was in

error when she held that the conviction was a nullity for want of jurisdiction. She
did have the jurisdiction to hear and determine the charges preferred in the
indictment as her jurisdiction was extended by virtue of section 9(1) of the
Criminal Justice (Administration) Act.”
4.3h Time limitation
Delay is not an absolute bar at common law bar but can be ground for
discretionary stay as an abuse of process. For time limitation a statute must so
impose. A common provision is that summary offences must be brought within 6
months of their commission. In Jamaica this limitation does not apply to the
resident magistrate’s special statutory jurisdiction but only to the Petty Sessions
jurisdiction41.
4.3i Time starts when offence completed or on the last day of a continuing
offence. Time ends when complaint/information laid. Charge can be amended
after limitation period to allege new offence where no injustice caused42

4.4 Functus Officio

On a final and complete adjudication when a court (or jury) has spent all its
powers under the law no further jurisdiction exists. Thus court normally functus
upon conviction and sentence (where statute gives no power to review sentence)
or if the defendant acquitted or discharged but not functus if powers exercised
were a nullity. Court would not be functus on plea of guilty without sentence. The
key is determining when the final powers have been exercised.

4.4a Illustrations of Functus Officio

4.4b Batchelor 36 Cr App R 64

It was held that upon entry of final record of sentence the Court is functus.

4.4c Paynter v Lewis (1965) 8 WIR 318

Magistrate functus upon uttering conviction or acquittal it does not matter if not
sentenced.

Magistrate convicted for larceny but later recalled conviction and entered an
acquittal.

41
s. 10 JP (Jurisdiction)

42
R. v. Newcastle-upon-Tyne Justices , ex p. John Bryce (Contractors) Ltd.) [1976] Crim.L.R. 134-2
Per Wooding, CJ:

“In Ford v Pilgrim ((1913), 2 T'dad LR 254) the full court held that until a conviction
is formally drawn up or entered there is a locus penitentiae for a magistrate to
alter his judgment or call fresh evidence. That however is not the law. Once a
magistrate has accepted a plea of guilty or has adjudicated and found a
defendant guilty or not guilty, he is functus oficio as regards the commission or
non commission of the offence and accordingly he has no power to alter the
conviction or acquittal as the case may be: see R v Sheridan ([1936] 2 All ER 883

Accordingly, we hold that it is immaterial whether conviction has resulted from a

plea of guilty or from an adjudication after trial, or whether a conviction or
acquittal has been formally entered or not, or whether a conviction has or has not
been followed by the imposition of a sentence or the making of an order: once
there has been a conviction or acquittal, to borrow the language of Judge CHAPMAN
J ([1963] 3 All ER at p 951), "the guillotine falls and the court which has made that
adjudication is functus officio" so far as concerns such guilt or innocence”

4.4d Beswick v R (1987) 36 WIR 318

B pleaded guilty and sentenced by magistrate. B had previously pleaded not guilty
before another Magistrate thus sentencing Magistrate purported to reverse
conviction.

B unsuccessfully pleaded autrefois convict. Tried and sentenced by original

magistrate.

Held by the Court of Appeal, second magistrate had no jurisdiction and

intermeddled, as the first magistrate presided over the “not guilty” arraignment.

Held by the Privy Council, second magistrate could have taken on matter. He was
functus on taking the plea and sentencing.

On the “intermeddling” point:

“Their Lordships can, however, see no considerations in either the public interest
or in the interests of the defendant that make it unfair for a different magistrate
to accept a change of plea from "Not Guilty" to "Guilty" on an adjourned hearing.
If Miss Francis herself had been sitting on 26th October and the appellant had
offered a change of plea to "Guilty" it would have been her duty to accept it and
to record a conviction. Their Lordships can think of no circumstances in which she
could properly have exercised a discretion to refuse the plea, save possibly if she
thought that the appellant did not fully understand the meaning of what he was
doing. As the appellant is a practising member of the Bar this possibility does not
arise in the present case. If Miss Francis should have accepted the plea if she had
been sitting, why should not Mr Lopez accept the plea in her place?”

On the functus point:

“It follows that, as Mr Lopez had jurisdiction to accept the plea of "Guilty" on 26th
October, the conviction he recorded and the sentence he passed were not a nullity.
Once he had recorded the conviction and passed sentence Mr Lopez had
exhausted his jurisdiction to deal with the offence and was functus officio. His
further order of 2nd November was made without jurisdiction and of no effect.
The appellant was entitled to rely upon the plea of autrefois convict in respect of
the conviction and sentence passed on 26th October when he appeared before
Miss Francis on 6th March 1985”

4.4e Cummings v The State (1995) 49 WIR 406

Jury was undecided after deliberation; the judge discharged them and ordered a
new trial but jury asked for more time. They returned with guilty verdicts.

Held, on appeal, “as was held in relation to magistrates and to a judge of the
Crown Court we are of the opinion that the same principles ought to be applied to
a trial at the assizes since there is neither statutory provision nor a rule at
common law which gives the judge power or jurisdiction to recall the order made
for retrial to permit further consideration of the matter by the jury. Accordingly,
we allowed the appeals, quashed the convictions and sentences and ordered a
retrial of the three appellants.”
4.4f R (on the application of O) v. Stratford Youth Court [2004] EWHC 1553

Case called up at 11:30 am but Crown witnesses absent. No evidence was offered
and the case dismissed. Crown witnesses arrive shortly after and case
reconvened. Prosecution successfully asked Court to reconvene based on
“inherent power” and the dismissal rescinded.

Judicial Review of the decision was sought.

Held, “the crucial question which arises for determination today, as it seems to
me, is whether or not, the prosecution having offered no evidence and the court
having dismissed the charge, it was open to the court to reopen matters in the
way which they did. In my judgment it was not. Events having taken the course
which I have described, the court, as it seems to me, was functus officio and any
further hearing against the defendant in relation to this matter would inevitably
give rise to a plea of autrefois acquit on his part. It is unnecessary to go into the
authorities which support those conclusions.”
 CHAPTER 5: COMMITTAL PROCEEDINGS (and other procedures to prefer an
indictment)

5.0 Expected Outcomes

Students are expected to:
a. Appreciate the various methods and procedural rules by which an indictable
matter may be sent to trial.
b. Understand when a prima facie case is made out.
c. Critically assess the authorities on the consequences of breaching the
procedural rules

5.1 Introduction
A Preliminary Inquiry is a form of committal proceeding to test whether there is a
prima facie case against the defendant for an offence outside of the Magistrate’s
Jurisdiction. Although it may in some respects resemble a trial, it is not a trial.

5.1aThe Resident Magistrate when conducting a preliminary enquiry sits as an

examining Justice and not as a trial judge. The implication of this is that while
doing a PI:

a. He has no contempt power.

b. He has no statutory protection for acts done outside his jurisdiction.
Section 78 (not actionable unless malice shown if action within jurisdiction)
and 79 JP Act.(actionable without showing malice if outside his jurisdiction)
c. Magistrate’s decision may be challenged by way of Judicial Review.
d. It is not a trial therefore the magistrate has no discretion to reject
admissible evidence. Also cannot reject Dock Identification. Neither can he
reject a confession. Except in the clearest cases where Magistrate is of the
view that no judge properly directing himself could admit it 43.
5.1b On an information or complaint for an offence in the territorial
(Parish/District) jurisdiction of a Magistrate but outside of the subject matter
jurisdiction an order is made for a preliminary inquiry. The Crown calls witnesses
individually who will give a deposition (i.e. examinations, the witness’s evidence is
read over, corrections made, and the witness and magistrate signs). When the
43
R v Kings Lynn Magistrate’s ex parte Holland [1993] 2 All ER 377
Crown closes its case the Magistrate must give the defendant the statutory
caution. The defence may then put forward their case. At the end of all the
evidence the Magistrate makes the decision on committal.

5.2 Who may conduct a PI in Jamaica?

By section 64 of the Judicature (RM) Act: Every magistrate shall within his parish
take all preliminary examinations and depositions on charges or information for
offences triable in circuit court. He need not have a clerk of court lead the
evidence. But in practice this is done.

In Osmond Williams (1977) 25 WIR 466 at 471 and 475 the Court of Appeal held
that JPs and RMs have concurrent jurisdiction to hold a PI. But the PC in Grant v.
DPP (1980) at pp 306 said jurisdiction is RMs only. In practice only RMs conduct
PIs.

5.3 Securing Attendance of Witnesses

Accused may be remanded or granted bail. Witnesses are bound by recognizance

to appear at the trial at circuit44. If witnesses refuse they may be imprisoned until
trial.

5.4 Taking Depositions

Depositions are to be taken before the examining Justices in the presence of

accused. The Magistrate in the presence of the accused takes all the statements
on oath of witnesses in writing in the form of depositions. This is done on oath or
affirmation. The Magistrate also signs. Each page of the deposition must be
signed45.

When each witness has given evidence and has been cross -examined the
depositions are read over to them and they are signed by the witnesses46.
44
s. 38 JP Act
45
Section 34 JP Act
46
R v Bramble 1 WIR 4673 at 480
 5.5 If after all the witnesses have been examined a prima facie case is made out
against the accused the Resident Magistrate then asks him, after the necessary
caution, if he wishes to say anything. Whatever the accused says must be taken
down in writing. It must be read over to him and signed by the Magistrate47. If the
accused calls witnesses on the enquiry they shall be examined in the same way
and depositions must be read over and signed by them and the Magistrate48.

5.6 Committal

The defence may make a no case submission on the basis that a prima facie case
has not been made out.

The accused if committed is ordered to stand trial at the next session of the
Circuit Court. An endorsement to this effect is made on the information. A
committal to the current circuit is bad.

Depositions, information, statement of accused and recognizance are delivered to

DPP and Supreme Court.

The accused is entitled to a copy of the depositions on payment of reasonable

sum49.

5.6 Discharge

If in the opinion of the examining magistrate the evidence of the prosecution

does not present a prima facie case the magistrate must discharge the accused 50.

47
Section 36 JP Act
48
Section 37 JP Act
49
s. 45 JP Act and R v. Simmons and Truman 6 J.L.R. 299
50
Section 43
A discharge is not an acquittal and he may be subsequently charged for the same
offence51.

5.7 “Prima Facie” Case

A prima facie case is one where, on a possible view of the evidence, a reasonable
jury could convict. It is the same test a trial judge will employ at trial to
determine, on the close of the prosecution’s case, there is a case for the
defendant to answer. It is not for Magistrate to say whether he/she would convict
on the evidence52.

5.7a Lord Parker’s Practice Direction (1962) 1 WLR 227

There is no case to answer if there is no evidence to prove an element of offence,
or the evidence was so discredited or unreliable that no reasonable jury could
convict.

5.7b Lloyd Brooks v DPP:

Crown witnesses’ lack of credibility ought to rarely be ground for a ruling that
there is no prima facie case.

5.7c Galbraith (1981) 73 Cr App R 124

“(1) If there is no evidence that the crime alleged has been committed by the
defendant, the case should be stopped.
(2) If there is some evidence but it is of a tenuous character, i.e. because of
inherent weakness or vagueness or because it is inconsistent with other evidence
(a) where the judge comes to the conclusion that the prosecution evidence, taken

51
See LLoyd Brooks. Also R v. Manchester City Stipendary ex. p Snelson 1977 1 WlR 911, R v. Horsham
JJ ex. P. Reeves (1981) 75 Cr. App. R. 236

52
Varlack v DPP [2008] UKPC 56
at its highest, is such that a jury properly directed could not properly convict upon
it, it is his duty, upon a submission being made, to stop the case.

(b) Where, however, the prosecution evidence is such that its strength or weakness
depends on the view to be taken of a witness's reliability, or other matters which
are generally speaking within the province of the jury and where on one possible
view of the facts there is evidence upon which a jury could properly come to the
conclusion that the defendant is guilty, then the judge should allow the matter to
be tried by the jury.”

5.7d Taibo Ellis (1996) 48 WIR 74:

Although the case was “weak and confusing” on one view of the facts guilt was
possible then there was a case to answer.

5.7e Shippey [1988] CrimLR 676 :

Turner, J advised not to pick the “plums and leave duff behind” when deciding
whether there was a case to answer. Decision was at one time quite popular but
later cases have affirmed that Turner, J stated no new principles and that it was a
decision on the facts.

5.8 Does breach of statutory procedure in pi invalidate the trial?

5.8a R v Phillips et al (1939) 1 KB 6353 Defendant was arrested after the
preliminary enquiry had commenced against his co- accused. The Magistrate read
over the depositions taken so far to him. He was invited to cross examine.

Held; the committal was bad for the procedural irregularity as it breached an
imperative provision of statute. The subsequent trial was therefore a nullity.

5.8b R v. Gee and others (1936) 25 Cr. APP. R. 198: Examined from prepared
typed script. Nothing was taken down in writing by the magistrate.

Held; the committal was defective.

53
(1938) 26 Cr. App. R. 200
5.8c R v. Edgar et al (1958) 42 Cr. App. R. 192, (1958) 2 All ER 494, the judge did
not sign all of the pages of the depositions but, as there was sufficient evidence
on those pages signed to find a prima facie case, the committal was justified.

5.8d Maitland (1965) 7 WIR 525

Whether irregularities committed in a PI made subsequent proceedings a nullity
was dependent on the degree of departure from proper procedure.

5.8e Tiwari PC (2002)

Magistrate failed to give defendant opportunity to call witnesses at PI.
Held to be an irregularity but not sufficient to nullify subsequent trial.
'To adopt an expression of Lord Mustill, “we would exclaim in dismay at the
vision” of criminal proceedings which had in fact been conducted without any
unfairness, being nullified and having to be repeated because of what was in
essence a purely technical defect, more especially at the present time when
all the stakeholders are combining in an effort to reduce delays in our criminal
justice system. Happily we feel able to avoid such a situation consistently with
legal principle and precedent.’54

Tiwari reflects of modern trend to consider what parliament intended to be effect

of breach and not whether provision breached was mandatory or directory.

5.8f DPP v William Penn [2009] 2 LRC 90,[2008] UKPC 29

“The modern tendency is no longer to seek to identify or distinguish between
mandatory and directory acts, but the Board's judgment in the Montreal
Street Railway case underlines the need for careful examination of the
relevant legislation, to ascertain the purpose of statutory procedures for the
impanelling of an array and whether an intention should be attributed to the
legislature that non-compliance with such procedures should render a jury
trial a nullity, irrespective whether it may have occasioned potential
unfairness or prejudice.”55

54
De La Bastide in Court of Appeal
55
Per Lord Mance
5.9f Neill v North Antrin Magistrate’s [1992] 4 AllER 846
Committal could be quashed on judicial review where errors at the PI
“substantial” and “leading to demonstrable injustice”.

5.10 Must the Prosecution call all its witnesses at PI?

Unless a statute states otherwise, failure to call a witness at PI does not prevent
calling that witness at trial. Further the court cannot compel prosecution to call a
witness at PI.

5.10a R v Epping and Harlow JJ ex p Massaro [1973] 1 AllER 1011

Certiorari sought to quash a committal where principal witness, a young girl, was
not called at PI but the prosecution intended to call her for trial. Despite failure to
call there was sufficient evidence otherwise for prima facie case.
Held, the function of committal proceedings is to ensure that no one shall stand
trial unless a prima facie case has been made out. If the prosecution believe that it
is possible to make out a prima facie case without calling a particular witness,
even though the principal witness, that is a matter within their discretion and they
cannot be compelled to call the witness at the committal proceedings. There was
no breach of Natural Justice.

5.10b Abdool Salim Yaseen and Thomas v State (1990) 44 WIR 219
Witness not called at PI. No reasons were proffered for failure to call. A notice to
adduce this witness for trial was issued.
At common law failure to adduce evidence at PI did not render the evidence
inadmissible at trial but judge may exercise discretion to exclude.
However, Guyanese statute provided for a “special code” for disclosure of all
evidence at PI.
Following Gomes (1962) 5 WIR 7

“In sum, these provisions permit for the following opportunities to the
prosecution to lead new or additional evidence: (1) during the preliminary
inquiry when the court may adjourn from time to time or change the venue
in order to accommodate the reception of evidence; (2) at the request of
the prosecutor even after the accused has been committed to stand trial;
and (3) at the request of the Director of Public Prosecutions since the 1978
 amendment, up to six months after a copy of the deposition and other
documents have been received by him.” Per George, C

5.10c R v Clarke (1970) 11 JLR 534

Two witnesses at trial were not called at PI. One had been available for PI.

Held, witnesses’ evidence properly admitted. A prima facie case was made out at
the PI. Gomes not followed as it was based on peculiar provisions of the Guyanese
statute.

5.11 Converting PI to Trial

Section 276

“ On the other hand where the Magistrate begun the preliminary inquiry and it
appears the matter is within his jurisdiction and can be dealt with by him it is
lawful to vacate the order for preliminary inquiry and to make an order
endorsed on the information and signed by him that the accused be tried in
court, if the accused consent then or within 7 days after the order. In such a
case the evidence of any witness already taken need not be taken again but if
required may be called for cross or further cross.”56

5.12Indicting Following a PI
5.12a Criminal Procedure Code (Antigua)

“On receipt of the copy of the documents relating to the preliminary inquiry, the
Director of Public Prosecutions, if he sees fit to do so, shall institute such criminal
proceedings in the Supreme Court against the accused person which to him seem
proper.”

56
R v. Holmes RMCA 64/76
 5.12b Indictable Procedure (Belize) is to like effect:
“68.-(1) On receipt of the documents relating to the preliminary inquiry, the
Director of Public Prosecutions shall, if he sees fit to do so, institute such criminal
proceedings in the court against the accused person for any crime or crimes
disclosed in the depositions as to him may seem proper.
(2) Every indictment shall be presented to the court by and in the name of the
Director of Public Prosecution
(3) The Director of Public Prosecutions may charge the accused with the crime for
which he has been committed for trial, and in addition thereto or in substitution
therefor, with any other crime or crimes which may be supported by the evidence
and facts disclosed in any examination or deposition taken before an examining
magistrate in his presence, being crimes which may lawfully be joined in the same
indictment.
(4) A charge of a previous conviction of a crime may, notwithstanding that it was
not included in the committal, be included in any indictment.
(5) An indictment may include counts for crimes arising out of depositions taken at
two or more preliminary inquiries, but if the judge at the trial of the accused on
any such indictment considers that the inclusion of one or more of such crimes is
likely to embarrass the accused person in his defence, he may direct that the count
or counts for such crime or crimes be tried separately.”

Hence the DPP is not bound by the offences for which the Magistrate committed
but there must have been a committal prior to an indictment57.

5.12c Similarly in Jamaica the indictment is not limited to nor need include the
charge on which the PI was ordered but may include such counts as are disclosed
by the evidence or statement58.

57
Insanally 2 WIR 549

58
Section 43 JP Act
5.13 Alternatives to Committal by the PI

5.13a Resident Magistrate’s Indictable Jurisdiction (Jamaica)

Particular indictable offences are within the Resident Magistrate’s jurisdiction in
Jamaica and may therefore be tried by the RM on an indictment without a PI59.

Before the Magistrate makes the order she must satisfy herself that there is
sufficient evidential basis for so doing. The usual practice is for the Clerk of Courts
to open to the facts and to ask for an indictment based on those facts. The RM
will also consider whether the offence can be adequately punished should there
be a finding of guilt. If the order is made the information is so endorsed60.

In making the order for indictment, the Resident Magistrate is not limited to the
charge in the information but may direct the presentation of an indictment for
“any offence disclosed in the information or for any other offence or offences” 61.

However the information as laid must charge an indictable offence 62.

Note that the Magistrate has the power to examine exhibits and even documents
prejudicial to the defence before making the order. This is not usually done.

The indictment is drafted by the clerk of courts and signed.

The Clerk must ensure the order is signed by the Magistrate before he signs the
indictment and arraigns the accused.

59
Section 268 JRM Act

60
s. 272 Judicature (RM) Act
61
Monica Stewart (1971) 17 WIR 381, Josleyn Williams (1958) 7 JLR 129 and Tapper and Mckenzie v R
RMCA 28/07 delivered February 27, 2009.
62
R v. David Griffiths RMCA 178/70 cannot make an order for indictment on a information charging only
a summary offence.
5.13 b R v. Monica Stewart (1971) 17 WIR 381

Accused pleaded guilty to indictment for false pretences. No order for indictment
was signed and the point was not raised at the trial.

Held, on appeal, section must be strictly complied with. Non compliance renders
trial a nullity. Words in the section were a condition precedent to RM assuming
jurisdiction at all63.

Once the order is signed the magistrate who signed the order must be the one to
preside over the trial64.

Same rules apply to RM indictments as apply to High Court indictments 65.

5.14 Coroner’s Inquest

5.14a Coroner’s Act (Belize)
“15. Where an unnatural death is reported to, or comes to the knowledge of, the
coroner, he shall, subject to section 13, hold an inquest, except when he is
authorised or required under this or any other Act to hold an inquiry, and
then he shall hold an inquiry.
26. The jurors at every inquest, and the coroner at every inquiry, shall inquire
when, where, how, and after what manner the deceased person came by
his death, and also whether any person is criminally concerned in the
cause of the death.”

5.14b A Coroner’s Inquest is a judicial investigation to determine (inter alia) how

the deceased met his death66. Decision is of a jury but the Coroner, on some
statutes, may act without jury.
Unless specifically excluded by statute Coroner’s Inquest may commit to trial67.

63
R v. Williams (1958) 7 JLR 129 approved
64
But see R v. David Ebanks 4 JLR
65
For example, duplicity, joinder of offenders and joinder of offences.

66
e.g. Murder by Mr X, Murder by Person or Persons Unknown, Death by Misadventure
5.15 Voluntary Bill
By this exceptional procedure a High Court judge’s permission is sought to indict
where there had been no committal. Prosecutor must have good reason to depart
from normal procedure; the interest of justice rather than administrative
convenience must be considered.

5.15a Lloyd Brooks v DPP (1994) 44 WIR 332

LB discharged at PI but the prosecutor sought a voluntary bill without notice to
him. It was argued that DPP in Jamaica had the power to indict without a
committal or judge’s permission.
Held, by the PC, fact that DPP has power to act without permission68 does not
mean he could not seek permission.
Sensible for DPP to seek judge’s permission for example where DPP seeking to act
contrary to magistrate’s decision as that decision to be treated with greatest
respect.
DPP must balance public interest against interest of defendant. Procedure not an
abuse and DPP not required to give notice.

5.15b Application for a Voluntary Bill must include the bill of indictment (i.e. The
unsigned indictment), an affidavit explaining reason for the voluntary bill, and the
statements of the evidence relied on.

5.15c Special Jamaican Alternative (The “Direct Bill”)

Criminal Justice Administration Act (Jamaica)

s2
“(2) Directions to be observed in preferring indictments. No indictment for
any offence shall be preferred unless the prosecutor or other person
preferring such indictment has been bound by recognisance to prosecute
or give evidence against the person accused of such offence, or unless the

67
Re King’s Application (1988) 40 WIR 15, note that this common law power is excluded in Belize see
s.48

68
See 5.15c to e below
 person accused has been committed to or detained in custody, or has
been bound by recognisance to appear to answer to an indictment to be
preferred against him for such offence, or unless such indictment for such
offence be preferred by the direction of, or with the consent in writing of
a judge of any of the courts of this Island, or by the direction or with the
consent of the Director of Public Prosecutions, or of the deputy Director of
Public Prosecutions, or of any person authorised in that behalf by the
Director 'of Public Prosecutions.”

5.15d The statute recognizes three ways that an indictment may be preferred:
i. After a PI thus “bound by recognizance….for such offence”
ii. Voluntary Bill thus “preferred by the direction of…judge of any of the courts
of this island”
iii. “Direct Bill”69 thus “by the direction of….the DPP”

5.15e Grant v DPP 1980) 30 WIR 246

Establishes that DPP has a power to indict although a PI had not been held and
the defendants were not committed.
It did not matter that the prevailing practice was to hold PIs as the law was clear
that the DPP had this authority.

5.16 Paper Committal

5.16a Indictable Procedure (Belize) s. 33

“33.-(1) An examining magistrate shall, if satisfied that all the evidence for the
prosecution is in the form of written statements, copies of which have been given
to the accused at least fourteen days before the date of the inquiry, commit the
accused for trial for the offence or offences with which he is charged, without
consideration of the contents of those statements unless the accused or one of the
accused, as the case may be, has requested the court to consider a submission that

69
Not a term of art
the statements disclose insufficient evidence to put that accused on trial for that
offence or offences”70

5.16b This is a modern procedure (not yet available in Jamaica) that permits
committal proceedings based on statements submitted by the Prosecution.
No witness need be called. Statements must be taken in a particular form (as
statute directs) and served before hearing. Defendant’s consent is required under
some statutes. Some statutes do not require consideration of the evidence.

5.16c AG of Antigua v Hilroy Humphreys Crim Appeal 1 of 2007

The ECCA held that there was no right to a particular form of committal
proceedings and the fact that there could be no cross-examination of witnesses at
the committal hearing did not offend the rules of fair trial.
The PC sub nom Humphreys v AG [2008] UKPC 61 agreed71:
“[9] The basic premise, that a preliminary inquiry under the old system had to be
conducted fairly, seems to the Board uncontroversial and is supported by the
judgment of Peterkin JA in Halstead v Commissioner of Police (1978) 25 WIR 522
But, even allowing the widest effect to this proposition, the conclusion simply does
not follow. It is one thing to say that if the procedure for bringing someone
accused of an indictable offence to trial includes a preliminary inquiry, that inquiry
must be conducted fairly, by an impartial court and so forth. It is another thing
altogether to say that one cannot have a fair hearing without a preliminary
inquiry. In the Board's opinion it is a mistake to argue that because the old system
provided a fair hearing, the change or abolition of some element of that system
results in the new system being unfair. Systems of criminal procedure may differ
widely without being unfair. The question is not the extent to which the new
committal proceedings differ from the old preliminary inquiries but whether the
new system of committal proceedings and trial, taken as a whole, satisfies the
requirements of section 15(1).

……..

70
See also Barbados Magistrate’s Code s. 20
71
per Lord Hoffman
[11] The Board agrees with the Court of Appeal that they are. The committal
proceedings are not determinative of guilt but act as a filter to enable the
magistrate to screen out those cases in which there appears insufficient evidence
to justify a trial. They are conducted by an independent magistrate to whom both
sides may submit evidence and make submissions. The restriction to written
evidence applies to both prosecution and defence. The specific requirements of
section 15(2) of the Constitution are all satisfied by the composite procedure of
charge, committal proceedings, indictment and trial. In particular, the accused is
entitled at the trial to cross-examine the prosecution witnesses and give oral
evidence in accordance with section 15(2)(e). Although it is possible for all the
requirements of section 15(2) to be satisfied but the trial nevertheless to be in
some way unfair, the Board sees no grounds upon which this can be said of the
new procedure.”
 CHAPTER 6: COUNTS AND CHARGES

6.0 Expected Outcomes

Student is expected to be able to:

a. Draft indictments and information/complaints

b. Understand when it is appropriate to have joint trial of separate defendants

or offences.

c. Be aware of the circumstances where a court may amend charges or order

separate trials

6.1 The Indictment

An indictment is a written or printed accusation of crime which may be made at

the suit of the Queen against one or more person.
The form of the indictment is laid down in the act and the rules there-under.

6.1a Belize Indictable Procedure Act

“s.69 (1) Every indictment shall contain and be sufficient if it contains a statement

of the specific crime or crimes with which the accused person is charged, together

with such particulars as may be necessary for giving reasonable information as

to the nature of the charge.”72

6.2 Drafting the Indictment

6.2a Indictment Rules (Antigua) Cap 213

“3 . (1) The commencement of the indictment shall be in the following form-
The Queen v A. B.
In the Eastern Caribbean Supreme Court

72
To same effect: Antigua Indictment Act s. 4 and Jamaica Indictment Act s. 4
Antigua and Barbuda Circuit
A. B. is charged with the following offence [offences] -
(2) In the case of a criminal information the words Criminal Information by the
Director of Public Prosecutions shall be substituted for Indictment by the Director
of Public Prosecutions.

5. (1) A description of the offence charged in an indictment, or where more than

one offence is charged in an indictment of each offence so charged, are to be
of each offence so charged, shall be set out in the indictment in a separate
paragraph called a count.
(2) A count of an indictment shall commence with a statement of the offence
charged, called the statement of offence.
( 3 ) T h e statement of offence shall describe the offence shortly in ordinary
language, avoiding as far as possible the use of technical terms, a n d without
necessarily stating all the essential elements of the offence, and if the offence
charged is one created by statute, shall contain a reference to the section of the
statute creating the offence.
(4) After the statement of the offence, particulars of such offence shall be
set out in ordinary language, in which the use of technical terms shall not be
necessary:
Provided that where any rule of law or any statute limits the particulars of an
offence which are required to be given in an indictment, nothing in this rule
shall require any more particulars to be given than those so required.
(5) The forms set out in the appendix to the rules contained in the First Schedule
to the Indictments Act (Imperial) 1915, or forms conforming thereto as nearly as
may be mutatis mutandis shall be used in cases to which they are applicable, and
in other cases forms to the like effect o r conforming thereto as nearly as may
be shall be used, the statement of offence and the particulars of offence being
varied according to the circumstances in each case.
(6) Where an indictment contains more than one count the counts shall be
numbered consecutively.
6. (1) Where an enactment constituting an offence states the offence to be the
doing or the omission to do any one of any altered acts in the alternative, or the
doing or the omission to do any act in any one of any different capacities, or
with any one of any different intentions, o r states any part of the offence in
the alternative, the acts, omissions, capacities, or intentions, or other matters
stated in the alternative in the enactment, may be stated in the alternative in
the count charging the offence.
(2) It shall not be necessary, in any count charging a statutory offence, to
negative any exception or exemption from or qualification to the operation of
the statute creating the-offence.
7 . (1) The description of property in a count in an indictment shall be in
ordinary language and such as to indicate with reasonable clearness the property
referred to, and if the property is so described it shall not be necessary
(except when required for the purpose of describing a n offence depending on
any special ownership of property o r special value of property) to name the
person to whom the property belongs, or the value of the property.
(2) Where property is vested in more than one person, and the owners of the
property are referred to in an indictment it shall be sufficient to describe the
property as owned by one of those persons by name with others, and if the
persons owning the property are a body of persons with a collective name,
such as "Inhabitants", "Trustees", "Commissioners", o r "Club", or other such
name, it shall be sufficient t o use the collective name without naming any
individual. Any property of the Government may be described as "the property
of H e r Majesty."
8. T h e description o r designation in an indictment of the persons accused, or
of any other person to whom reference is made therein, shall be such as is
reasonably sufficient to identify him, without necessarily stating his correct
name, or his abode, style, degree, o r occupation; a n d if, owing t o the name
of the person not being known, o r for any other reason, it is impracticable to
give such a description o r designation such description o r designation shall
be given as is reasonably practicable in the circumstances, or such person may
be described as "a person unknown".
9 . Where it is necessary to refer to any document or instrument in an
indictment, it shall be sufficient to describe it by any name o r designation by
which it is usually known, o r by the purport thereof, without setting out any
copy thereof.
10. Subject to any other provisions of these rules, it shall be sufficient to
describe any place, time, thing, matter , act, omission whatsoever to which it
is necessary to refer in any indictment, in ordinary language in such a manner
as to indicate with reasonable clearness the place, time, thing, matter, act or
omission referred to.
11. It shall not be necessary in stating any intent to defraud, deceive or injure to
state an intent to defraud, deceive or injure any particular person where the
statute creating the offence does not make an intent to defraud, deceive or injure
a particular person an essential ingredient bf the offence.
12. Any charge of a previous conviction of an offence shall be charged at the end
of the indictment by means of a statement, that the person accused has been
previously convicted of that offence at a certain time and place without stating
the particulars of the offence.”

6.2b Parts of the Indictment

Commencement- The title of the case (e.g. Queen v. AB) and the court of trial
(e.g. In the Supreme Court of Judicature of Jamaica)
Presentment- Name of persons charged and introduces charge (eg AB is charged
with the following offence).
Counts- Each offence separated in a distinct count. Counts divided into Statement
of Offence and Particulars of Offence73. Where more than one count they are
sequentially numbered.

6.2c Statement of offence – States the crime and, where offence is contrary to a
statute, should include a reference to the statute (eg “Wounding with Intent
contrary to section 20 of the Offences Against the Person Act”).

6.2d Particulars of Offence- Avoiding technical language gives sufficient

particulars to give reasonable information as to the nature of the charge. Will
normally include:

a. name(s) of defendant(s)

b. the date offence was committed

c. the venue where the offence was committed

d. the nature of the offence in terms of the actus reus, mens rea and victim.
For some common law offences, e.g. murder, both might be contained in the
definition of the offence.

73
compare Belize “Statement of Crime” and “Particulars of Crime”
(e.g. “AB on the 9th of June 2007 in the parish of St Catherine unlawfully and
maliciously wounded CD with intent to cause him grievous bodily harm” and “ AB
on the 9th of June 2007 in the parish of St Catherine murdered CD”).

6.2e In Hodgson v R, Pollin v R (2008) EWCA Crim 895, Times 30 April the EWCA
held that failure to state intent in particulars not fatal. If the prosecution fails to
give sufficient particulars the Court can order further particulars74

6.2e Offences of fraud or deception normally require detailed particulars as to the

nature of the fraud or deception (e.g. “XY on the 5th November 2010 in the parish
of Kingston obtained from VC the sum of $50 000.00 by false pretences namely by
falsely pretending that he was an agent of a United Kingdom job placement
agency and was able to place candidates with job vacancies in the United
Kingdom when in fact he was not an agent of any United Kingdom job placement
agency and was not able to place candidates with job vacancies in the United
Kingdom.”)

6.2f Signature: The Indictment is preferred when it is presented and signed by the
proper officer. In England there was a statutory provision requiring that the
indictment be signed. Applying that statute the House of Lords held75 that failure
to sign meant that the trial was a nullity even if no injustice was caused. The UK
statute has since been amended.

Will a trial on an unsigned indictment in the Caribbean be a nullity? Caribbean

statutes do not specifically provide that an indictment should be signed although
they are usually signed.

74
Warburton –Pitt 92 Cr App R 136.
75
Clarke [2008] 2 Cr App R 2
6.3Joinder of offences76

Antigua Indictment Rules

“4. Charges for any offences, whether felonies or misdemeanours may be joined
in the same indictment if those charges are founded on the same facts, or
form or are a part of a series of offences of the same or a similar character.”77

6.3a Introduction

Joining separate charges in a single trial might be efficient as it could save time
and cause witnesses and defendants to be spared repeat trauma. However there
may be a risk of unfairness as the jury will hear a plurality of allegations despite
the fact that each offence must have separate consideration. The law attempts to
find the balance between these considerations.

6.3b Thus separate offences may be joined if they are founded on the same facts
or are part of a series of offences of the same or a similar character.

6.3c “founded on the same facts”

This means having the same factual genesis or a common factual genesis. The
easiest application of this limb is where a single act of the accused gives rise to
several offences.

6.3d Mansfield (1977)1 WLR 1102

M was charged on an indictment containing 10 counts. 3 counts were for arson,
alleging that on Dec 12, 1974 M started a fire in the Worsley Hotel and that on
the 19th December and 28th December 1974 he started a fire in the Piccadilly
Hotel in the west end of London. The 3 offences were a series of same or similar
character so these were rightly joined. Remaining counts were for murder of 7

76
Our laws are based on the English Indictment Rules rule 9
77
Jamaica Indictment Act schedule rule 3
people who died in Worsely fire. Since the counts were founded on the same
facts as the Worsely arson all 10 counts could properly be joined in one
indictment.

6.3e The rule will also apply where in a continuous course of conduct the accused
commits several offences or where one offence would not have occurred without
prior occurrence of another offence.
Thus the “subsidiary offence” could not be alleged without facts in “primary
charge”.

6.3f R v. Barrell and Wilson (1979) 69 Cr. App. R 280

B and W were charged with offences of affray and assault arising out of an
incident at a discotheque. W was further charged in a count in the same
indictment with perverting the course of justice in that he tried to bribe a witness
in the same case.

Held; It was proper to join despite the gap in time between the two offences. Had
it not been for the assault there would be no reason for W to attempt to pervert
the course of justice.

6.3g Williams [1993] Crim LR 533

VC indecently assaulted by D in London hotel. 5 days after VC forced on train by D:
a. Indecent Assault and B. False imprisonment held to be misjoined as separate
occasions and not of ‘same character”.
Acts must have a common factual origin.

6.3h R v Lockley and Sainsbury (1997) Crim. L. R. 455

Dangerous driving and conspiracy to commit burglary joined. The only connection
between the two charges was the dangerous state of the car used in the course of
the robbery.
6.3i Series of “same or similar character”
Charges should not be joined unless they are of a related character. The
authorities all point to the fact that an accused man should not be put in the
charge of a jury to answer charges of different types of offences in the same
indictment, where the evidence of some would be prejudicial to the accused on
the others.

Not necessary that evidence on one count admissible on other count before
joinder is lawfully possible offences must display a “nexus” making joinder in the
interest of justice.

6.3j Kray [1970] 1 QB 125

Do not give Rule a restrictive meaning as any injustice can be cured by Judge’s
power to sever.

No need for crimes joined to be part of a system of conduct but must exhibit
similar features that they can be conveniently and in the interest of justice be tried
together.
Two offences can be a “series”.

Such similar fact evidence is inadmissible if its only relevance is that it tends to
prove a disposition to wrong doing and nothing more. ie. if its prejudicial value far
outweighs its probative force.

But the rule is not restricted to mutual admissibility.

Interest of justice issues will consider the court’s time, witnesses’ interests, and
prejudice that might be caused by press reports of first trial.

6.3k Ludlow v. MPC [1971] AC 29

Attempted larceny at pub and robbery in neighbouring pub 16 days apart. Held;
offences of a “similar character”, must consider law and/or fact for “feature of
similarity”.
In this case both involved theft (or attempt to steal) in pubs in same vicinity
6.3l O’Brien (Robert Francis) Times (March 23, 2000)
Headmaster facing sexual allegation brought by former pupils but separated by 19
years.
Held; not properly joined. The greater the time lapse the more so the nexus must
be clearer; mutual admissibility of more significance in these cases.

6.3m Andrew Ryan Ferrell v R [2010] UKPC 20

Chemically similar cocaine was found in D’s car and at a wall he was seen visiting.
A small quantity of ecstasy was also found at the wall. It was discovered that over
the preceding 3 year period, the appellant had not been employed but had made
deposits in tranches of under GBP 1 000 that totalled over GBP 69 000. He also
owned 7 motor cars. He claimed that his wealth was from the illicit trade in
cigarettes.

Indictment had charges for cocaine possession, ecstasy possession, trafficking, and
money laundering offences. The jury convicted the appellant on all but the ecstasy
related charges.

Held:
(i) the question is whether there is a sufficient nexus between the offences,
where the evidence for one charge would be admissible for the other this is an
indication of this nexus but the absence of such mutual admissibility would
not, by itself suggest that there is no nexus, the charges must exhibit such
similar features that they can properly and conveniently be taken together
(Kray (1969) 53 Crim App R 569, Ludlow v Metropolitan Police Commissioner
[1971] AC 29 and Archbold 2010 paragraph 1-158 approved);

(ii) although the money laundering charges were not connected with the drug
trafficking offences it was open to the jury to conclude, in the absence of
credible explanation, that the appellant had a system of drug trafficking and
concealing the proceeds of this trafficking;

6.3n R v. Marsh (1986) Crim. L. R. 120

Common factual element of violence albeit violence against property and against
the person did not show series of offences of a similar character to be properly
joined.
For example there is no legal similarity between the offences of dangerous driving
and shooting with intent.

There must be a nexus between the offences. The nexus must arise from a
similarity both in law and in facts constituting the offence.

6.3oRv. Clayton Wright 33 Cr. App. R 22

The accused was charged with arson of a ship, arson with intent to prejudice
insurers, attempting to obtain money by false pretences from another insurer of a
stolen mink coat.

Held; a proper joinder as nexus could be found in the fraudulent acts aimed at
insurers constituted a series of offences of a same or similar character.

6.3p R v. Dennis Campbell (1972) 12 JLR

The appellant was charged with 3 counts of shooting with intent and illegal
possession of cartridges. The evidence was that hours after the shooting at, and
wounding of, the complainant the officer searched him and found the cartridges.
Held, proper to join as the counts were a series of offences of a similar character.
The firearm and cartridge to be used in a shooting are an integral part of the act
of shooting at a person.

Rule as to joinder required that the offences exhibit certain similarity of features
(or a nexus) to justify being charged together.
A sufficient nexus is present where as in this case the offences were so connected
together that evidence of one would be admissible on the trial of the other. They
also involved a series of offences of similar or same character.
On issue of severance the evidence of the finding of the cartridge was not so
prejudicial as to outweigh its probative value.
6.3q But even if they are founded on the same facts there is authority for saying
they should not be joined unless they are related in character. R v. John Thomas
(1949) Cr. App. R 74 where the court showed judicial disapproval of offences
against the road traffic act being included in an indictment for rape.

Even where the joinder is proper, the judge has discretion to sever. This discretion
would normally be exercised, where the accused may be prejudiced or
embarrassed in his defence, or there would be a risk of injustice.

6.4 Joinder of offenders78

At common law all persons jointly concerned in committing an offence may be
charged together in a single count.
Advantages of a single trial are the saving of time and convenience, and allowing
the full picture to be presented to the jury. There remains the risk of differing
verdicts before different juries on identical evidence.

6.4a R v. ASSIM (1966)2 QB 249

One charged with unlawful wounding of x the other with unlawfully wounding y.
Separate victims so separate counts. The defendants were the doorman and the
receptionist at a hotel and x and y were customers who wanted to leave without
paying. The offences were linked by proximity in time and place.
“where the matter constituting the individual offences of the several offenders
were on the evidence so related in time that in the interest of justice it was best
they be tried together then they should be.”

Although rule 9 deals with separate offences against the same defendant. And not
with joining separate defendants in one indictment similar principles apply.

78
See section 34-36 and section 39 and 41 of Criminal Justice (Admin.) Act.
Where, however, the matters which constitute the individual offences of the
several offenders are, on the evidence, so related, whether in time or by other
factors, that the interests of justice are best served by their being tried together,
then they can properly be the subject of counts in one indictment and can, subject
always to the discretion of the Court, be tried together.

“ Such a rule includes, but is not limited to, cases where there is evidence that the
several offenders acted in concert. Joint trials are appropriate to incidents which,
irrespective of there being a joint charge in the indictment, are contemporaneous
(as in cases relating to affray), or successive (as in protection racket cases), or
linked in a similar manner (as in the case of two individual defendants committing
perjury in the same trial with regard to the same or a closely related fact) but the
operation of the rule is not limited to such cases."

6.4b Joinder is a question of practice by the court’s inherent jurisdiction. Error an

irregularity and does not affect jurisdiction. Thus can dismiss appeal where
misjoined but no injustice caused, contrast debate with joinder of offences
pursuant to statute.

To join the offenders’ offences must be related in that they are contemporaneous,
successive, or acting in concert. There need not be a joint charge on the
indictment.

6.4c All parties to a single offence may be charged together in a single count as
principals or secondary participants79.
6.4d It is now settled practice that persons charged with offences committed in a
common enterprise are indicted together in one count80. R v. Moghal (1977) 65
Cr. App. R. 56, the CA held that separate trials of those charged jointly should be
done only in exceptional circumstances81.

79
see for example St. Kitts and Nevis ss.4 &8 Accessories and Abettors Act, Belize section 74 Indictable
Procedure Act, Jamaica ss 35 and 41 Criminal Justice (Admin) Act)
80
Lobban v. R (1995) 2 All E R 602.
81
See also R v Pieterson and Holloway (1995) 2 cr. App. R. 11.
6.4e It is lawful to join persons separately committed for trial for offences which
can lawfully be charged in counts in the same indictment 82 Offences must be
related in time or other factors or the defendants must have allegedly been acting
in concert.

6.4f DPP v. Merriman (1973) A.C. 584

Two accused of wounding indicted together. One pleaded guilty. On the trial of
the second the judge told the jury not to consider the issue of concert but to
convict if sure.

Held; either may be convicted on the basis that they committed the offence
independently of the others.
“A joint charge against two or more defendants alleges against each defendant a
separate offence committed on the same occasion and as part of the same
transaction, ……... Whenever two or more defendants are charged in the same
count of an indictment with any offence which men can help one another to
commit, it is sufficient to support a conviction against any and each of them to
prove either that he himself did a physical act which is an ingredient of the offence
charged or that he helped another defendant to do such an act, and that, in doing
the act or helping the other defendant to do it, he himself had the necessary
criminal intent.”
.....
“Where a person has been raped by more than one man on the same occasion, all
the accused should be charged together in one count with no mention of aiders
and abettors. This enables the jury to be told that it matters not whether an
individual accused physically committed the act of rape or assisted or encouraged
someone-else to. Thus several accused may be convicted where the jury is satisfied
only that each played a guilty part but not as to who committed the physical act.”

82
R v Groom (1977) Q.B. 6 and R v Townsend and others (1997) 2 Cr. App. R 540
6.4g DPP v. Fenwick

Two charged with rape. Held: it mattered not whether they had common
purpose to rape or each raped independently.

6.4h DPP v. Mohan (1967) 2 AC 187 (PC)

D was quarrelling with M when R who was D’s father ran out and attacked M with

a cutlass. While R was chasing M D went off and returned with a cutlass. Both

struck blows at m who died. He was wounded in his back and le. D and R were

tried together and both convicted of murder.. They both appealed on the ground

that as there was no evidence of a prearranged plan to attack M, the crown must

prove who struck the fatal blow.

Held, the two appellants were attacking the same man at the same time with
similar weapons and with the common intention to do grievous bodily harm. Each
was present aiding and abetting the other. In this case one struck the fatal blow
and the other was present aiding and abetting him. In such a case the prosecution
does not have to prove that- the accused were acting in pursuance of a
prearranged plan.

The rule included but was not limited to cases where they acted in concert.

6.4i A charge against two or more defendants in a single count is joint and
several. If therefore, in the case of any particular defendant, the evidence at trial
proves that he was guilty of the offence but was acting on his own and not in
concert with the others, he can nevertheless be convicted on the count as laid83.

6.4j Separate counts in same indictment

Here each count names a different defendant. There must be some link between
the offences to justify joining the offenders in one indictment. For example:
A) They were apparently acting in concert although committing separate
offences
B) Offences occurred in one incident (eg. An affray resulting in several
assaults)
C) Offences occurred successively.

6.4k R v. Edwards 11 JLR 398

Indictment had a joint count and 3 separate counts charging each defendant
individually with the same rape. Found not guilty on count one but each found
guilty on the 3 separate counts.

Held, the joinder was proper. Charges were in respect of a series of offences of
the same character committed successively within a short period of time.
“The joinder of all counts in one indictment was proper in all the circumstances.
The evidence showed that the complainant was sexually assaulted by each of the
appellants successively. These were a series of offences of the same character,
committed successively within a short time of each other and was therefore
proper for them to be joined.”

6.4l In charges for receiving and larceny two defendants can be charged together
in separate counts on same indictment.

See also section 65 (5) of the Larceny Act persons can be charged jointly for all
the goods found or separately for goods found on him.

83
DPP v. Merriman (1973) A.C. 584
6.4m On October 12, 1964 following Connelly v. DPP which disapproved Jones,
Lord Parker issued a Practice Direction to effect that the rule of Practice in R v.
Jones (1918), that other offences should not be included in an indictment for
murder or manslaughter is no longer in force. It is up to the prosecution to frame
the indictment as fitting with the Judge still retaining the discretion to order
separate trials.
Not applicable where number of jurors to be empanelled to try the offences are
different.

6.4n Inconsistent Counts

An indictment may contain counts in which the allegations made in one count are
inconsistent with allegations in other count. In such a case both counts should be
left to the jury and the jury will decide which is made out. R v Bellman (1989) A.C.
836 H.L.

6.5 Joinder in Summary Proceedings

Criminal Justice (Administration) Act (Jamaica)

“22(1) Where in relation to offences triable summarily persons are accused of:

(a) similar offences committed in the course of same transaction or are persons
accused of

(b )aiding and abetting, or attempting to commit such offence or are accused of

(c) committing different offences in the same transaction or arising out of the
same facts or closely connected facts

they may be tried together unless prejudicial

(2)(a) two or more offences from same transaction or acts so closely connected as
to form the same transaction

(b) single act or series and person is charged with each offence so that it is unclear
which offence the facts proved will constitute

Such charges may be tried together unless prejudicial.

6.5a R v. Traille (1969) 11 JLR 455
Where ganja was found in the room occupied by the appellant. In the same house
ganja was also found in a room occupied by the Walkers. No evidence of a
connection between the two parties. Both the Walkers and the appellant were
tried together on one information. The crown offered no evidence against the
Walkers. The accused was convicted.
Held, on appeal,section 22(1) was inapplicable to the case. The word different in
the para (c) was used in contra distinction to similar in para (a) . Offences charged
were similar and fell to para (a). However, transaction meant carrying on or
completion of an action or course of action. On the facts the several ganja by
several parties were separable and there was no evidence that possession by one
was known by the other. In those circumstances cannot be said offences were
committed in the course of the same transaction. Joint trial was a nullity.

6.5b R v. Fenwick Tucker (1971) 12 JLR

Appellant was charged alone for ganja on one information and on a separate
information he was charged with another for ganja. Both informations were in
respect to the same act of possession. There was a joint trial of both informations.

Held,case did not fall into the section for several offences arising from a single
act. Here there was one offence made the subject of two charges. There was no
statutory authority for joint trials. However, two informations charging the same
offence was not in breach of any law. He was not prejudiced by the joint trial.

6.5c R v. King and Cox RMCA (1992) 9 JLR 334

On one information King was convicted for the offence of being concerned in the
importation of a motor vehicles and parts. Both were convicted on an information
tried with others for the evasion of duties payable on goods. The issue was
whether these could be tried together without consent.

Held, section 22 now empowers an RM to try two informations together in certain

circumstances. In the instant case the facts in the two offences were closely
connected and formed part of the same transaction. Joint trial was allowable both
by statute and at common law.

6.5d Under Antigua’s Magistrate Court of Procedure s.25 that court can hear
summary offences together where the magistrate considers it necessary. Parties
may apply for severance on the basis of prejudice to a fair trial. It is in the public
interest that persons who are validly joined in the information be charged
together. It may save time and expense and accord fairness in sentencing.

6.5e Magistrate’s Code of Procedure (SKN)

s. 85 permits joinder if complaints refer to “same matter” or are “founded on
same facts” and the Magistrate thinks fit to join. But if the Magistrate believes,
before or during course of trial, that undue prejudice may be caused the
Magistrate can adjourn to separate the trial.

6.5f Common Law position

Where there are two or more separate informations against one accused, or
where two or more accused are each charged in separate informations and the
facts are sufficiently connected to justify joint trial, justices may try the
information together if it is fair and just to do so, without the defendants consent.

6.5g Chief Constable of Norfolk v Clayton (1983) 2 AC 473, 77 Cr.App.R.24

Two defendants charged on 5 information, 3 charging one defendant alone and 2
charging each jointly, the information was tried together without their consent.
They were convicted.
Held, justices should enquire of prosecution and defence whether there is an
objection to information being tried together. If consent is not forthcoming
Justices should consider the rival submissions. If a defendant is absent or not
represented, the views of the clerk or prosecutor must be considered and then
the Justices can rule as they think fit in the interest of justice. Justices should try
informations together only if related in time or other factors.

Per Lord Roskill

“Today I see no compelling reason why your Lordships should not say that the
practice in magistrates' courts in these matters should henceforth be
analogous to the practice prescribed in Assim's case (supra) in relation to trials
on indictment. Where a defendant is charged on several informations and the
facts are connected, for example motoring offences or several charges of
shoplifting, I can see no reason why those informations should not, if the
justices think fit, be heard together. Similarly, if two or mere defendants are
charged on separate informations but the facts are connected. I can see no
reason why they should not, if the justices think fit, be heard together. In the
present cases there were separate informations against the husband and the
wife and a joint information against them both. I can see no rational objection
to all those informations being heard and determined together.”

6.5h Before Claytons’ case the rule was that separate information should never
be tried together unless the defendants consented. R v Bardon (1964) 6 WIR 346
CA Ja. Considering Crim Jus (Admin) Act s.22 said no consent was necessary.
Principle in Chief Cons of Norfolk v. Clayton applies to joining separate
informations against same defendant as separate defendants on separate
informations.

6.5i Several accused may be tried together in the same information where it is
alleged they all participated in the offence charged.

6.5j Mcphail v. Jones (1914) 3 KB 239;

Husband and wife were charged together on a single information charging both
for knowingly making a false representation.
Held,information was valid, it was one offence charged against two persons84

84
see Paul v Summerhayes (1878) 4 QBD 91.
6.5k In Jamaica a summary information may not be tried together with a special
statutory offence triable by a magistrate only. R v. Donovan Alexander and Albert
Lee (1982) 19 JLR 61, R v. King and Harvey (1934-5) JLR 80, R v Motta (1920)
Clark’s Rep. 69

6.6Severance
The court has a discretion whether to order separate trials. This can be done at
any stage of trial or before trial (Jamaica s. 6(3) Indictments Act).

6.6a Indictable Procedure Act (Belize) s. 77

“(3) Where, before trial or at any stage of a trial, the Court is of opinion that a
person accused may be prejudiced or embarrassed in his defence by reason of
being charged with more than one crime in the same indictment, or that for any
other reason it is desirable to direct that the person should be tried separately for
any one or more crimes charged in an indictment, the court may order a separate
trial of any count or counts of that indictment”

6.6b If the accused may be prejudiced or embarrassed in his defence or where it

appears desirable to do so for any other reason the court should order
severance85.CA will not interfere unless there has been a miscarriage of justice86
Court may sever even where properly joined. Power to sever includes separating
defendants joined in single count. If the order is made during trial the jury can be
discharged.

6.6c Only in exceptional cases should persons engaged in joint enterprise be

separated.

85
R v. Simms (1946) K.B. 531
86
R v. Wilson 1958 Crim. L. R. 475
6.6d Hayter[2005] UKHL 6

“The practice favouring joint criminal trials is clear. It has been accepted for
a long time in English practice that, subject to a judge's discretion to order
separate trials in the interests of justice, there are powerful public reasons
why joint offences should be tried jointly: R v Lake (1976) 64 Cr App R 172,
175, per Widgery CJ. While considerations of the avoidance of delay, costs
and convenience, can be cited in favour of joint trials this is not the prime
basis of the practice.”

“ Instead it is founded principally on the perception that a just outcome is

more likely to be established in a joint trial than in separate trials. The topic
is intimately connected with public confidence in jury trials. Subject to a
judge's discretion to order otherwise, joint trials of those involved in a joint
criminal case are in the public interest and are the norm. This practice
hardly requires citation of authority but in recent times the practice has
been affirmed by the Privy Council in Lobban v The Queen [1995] 1 WLR
877, 884B-D and by the House of Lords in R v Randall [2004] 1 WLR 56, para 16,
61F.”

“Conceivably, in the present case, the middleman could have applied for an
order severing his case on the ground that he might be prejudiced in a case
in which a co-accused (Ryan) allegedly made a confession. The answer to
such an application would usually be that the judge would give appropriate
directions. In some cases such directions may include directions about the
editing of a confession. In the present case no application for severance was
made. If it had been made, it would almost certainly have been refused. It
was in the public interest that the three accused should be tried jointly. It
was a paradigm case for a joint trial”87

6.6e Examples from Ludlow v MPC where severance advisable are where charges
too numerous or complicated, to separate a scandalous count from other counts,
87
Per Lord Steyn
multiple counts confusing ,or the defendant may be prejudiced or embarrassed in
his defence.

6.7Effect of misjoinder
The law is somewhat unsettled. Three positions have been held:
i. Misjoined indictment a nullity,
ii. Misjoined indictment can be cured by amendment or severance,and
iii. Only if misjoinder is joining summary and indictable matters can there
be severance.
6.7a Smith (BP) (1997) (1997) 1 Cr. App. R. 390:
Misjoined summary offence may be quashed without affecting validity of other
counts on the indictment. Newland wrongly decided. Applied in Lockley and
Sainsbury (1997) and R v Ashton; R v. O’Reilly [2006] 2 Cr App R 2.

6.7b Archbold 1-163 considers issue revived by House of Lords in Clarke [2008]:
unsigned indictment a nullity. But is misjoinder similar to an unsigned indictment?
Did Parliament intended that defects cannot be cured?

6.7c The popular position is that misjoinder renders an indictment invalid in that
any conviction there from is a nullity but can be cured by amendment Rv.
Newland (1988) QB 402 followed in O’Reilly 90 Cr. App. R. 40.

6.7d R v. Smith (BP), obiter dictum seems to suggest Newland was wrong on the
point that all of the convictions on a misjoined indictment were bad. Smith was
applied in Rv. Lockley and Sainsbury (1997) crim. L. R. 455

6.7e But in the Jamaican case of Steven Bryan and Searchwell Smith v. R the C.A.
held Newland was still good law because of rule 3 and that otherwise it would be
difficult to decide which charges are to be disregarded as being misjoined.

6.7f Newland only applies to indictable charges joined in breach of rule 3.

In jurisdictions where it is allowed, a summary offence misjoined in an indictment
with an indictable offence does not render the whole indictment invalid. R v.
Callaghan (1992) Crim L. R. 191; 94 Cr. App R 226; joinder of summary and
indictable offences allowed by section 40 of the Criminal Justice Act 1988
England. No such provisions exist in Jamaica yet Callaghan was followed in Steven
Bryan and Searchwell Smith. The conviction on the wrongly joined count will be
quashed and the convictions on the remaining counts upheld.

6.8Rule against duplicity

6.8a Points to remember for duplicity

1. Each information/complaint or count of an indictment must have a single

crime.

2. The defendant must know the exact charge for which he is brought before
the court so that he will not be embarrassed or prejudiced in his defence 88.
It guards against uncertainty in the mind of the defendant and prevents
confusion in the presenting and answering of the charges 89.

3. The phrase “duplicity is a matter of form not evidence”90 means the draft of
the charge should be examined and not the evidence to be called to
support it

4. Avoid averring that offence committed on “divers days”91, and scrutinize

charges drafted “between this date and that date” unless the particulars
say “on a day unknown”.

5. Apply common sense-“single crime” means single criminal activity although

it may comprise many criminal acts e.g. multiple stabs on same occasion to
same victim may be charged as a single count.

88
Maff v Nunn(1987) Ltd (1990) Crim. L.R. 268
89
Amos v DPP (1988) R.T. R 198, DC at p.203

90
R v Greenfield (1973) 57 Cr App R 849
91
But see number 7 in this list
 6. Burglary and larceny is an exception but otherwise cannot join two
different crimes in a single count even if committed simultaneously.

7. Continuous offences may be charged over a period as this is an example of

many acts but one activity.

8. “General Deficiency” is another exception but limited to:

a. Stealing over a period

b. Unable to determine tranches in which money/thing was stolen

9. Remember that some older and newer cases hard to reconcile.

10.For statutory offences must interpret statute to determine how many

offences created by a section.

11.Objection ought to be taken before arraignment but Court must consider

objection taken after. Some cases suggest that when taken after
arraignment Court can consider the evidence in determining the issue.

12.On indictment it is settled that conviction on duplicitous count can stand

where no injustice as the defect makes the count irregular but not void)

13.For summary proceedings the view is unsettled. Some say it is the same as
on indictment but others say that prosecutor must elect which of the two
offences revealed on the information he intends to proceed before the trial
starts and if not the trial is a nullity even in the absence of any injustice.
Cannot be amended after trial starts. (see Edwards v Jones and Hargreaves
v Alderson). The argument being that: Duplicity goes to jurisdiction. If a
complaint/information or count of an indictment contains more than one
offence it is defective. Such information is arguably void ab initio92.

92
Antigua MCPA s. 230, Jamaica JP(J)Act s. 2
6.8b Tests for Duplicity (The Golden Rule Test)

The golden rule is to construe the legislation correctly, and to measure the
information against the charging section of the act. See Downer JA in R v Mark
McConnell and United Estates pg. 37-38 “dismisses, penalize or otherwise
discriminates” creates one offence. Is the charge framed conjunctively,
disjunctively or alternately?

6.8c Tests for Duplicity (The One Activity Test)

Several criminal acts may be alleged in one count if they are so closely linked
together as to form one activity or transaction. Whether there was one or more
than one activity is a matter of degree.
If these acts are part of one activity they may constitute one offence. Consider
whether:

(a) Does it constitute 2 different activities?

(b) If it is one activity it can be charged in one information even though the
activity involves more than one act.
(c) Is it a component of a single act?
(d) Is it one activity even though more than one act? One offence can be
committed by doing a number of acts.
Information is valid if the charge relates to one activity, even if the activity
involves more than one act. These acts must be committed at the same time and
place93.

In practice however, where the offence flows from one activity but there is more
than one victim of the offence, it is usual to have separate informations.

6.8d Tests for Duplicity (The Disjunctive/Conjunctive Test)

This is the same one activity test applied to statutory offences. Where two or
more offences are created by a section of a statute and the information charges

93
Jemmison v Priddle
more than one of these offences and is worded disjunctively i.e. in the alternative,
the information will be duplicitous94. Where the offences arise out of the same
act but are not charged in the alternative it is not duplicitous95.

Where the commission of two or more offences created by a section of a statute

arises out of a single indivisible activity and in the commission of one of the
offences the other offence or offences was also committed, they may be charged
in one information conjunctively and will not be duplicitous.

6.8e R v Herman Dormer 12 JLR 1072

“parking elsewhere than in a place provided or otherwise than in a manner

required by the authorized officer.”

held, on appeal, to be disjunctive creating two distinct offences.

6.8f R v Clow (1964) 1 QB 598

“causing death by driving in a manner and at a speed”

Held not to be duplicitous

6.8g Where commission of two or more offences created by a section of a statute

arise out of separate and divisible activities, even if these activities are
contemporaneous an information charging more than one of these offences will
be duplicitous whether or not they are charge conjunctively or disjunctively.
Modern trend is to charge separately.

6.8h Tests for Duplicity (The Alternative Modes Test)

Where a section of a statute creates one offence, but creates different or
alternative modes of committing the offence that offence may be changed in the
alternative and the information will not be duplicitous. Here the disjunctive “or”
94
Ware v Fox (1967) 1 All ER 100
95
Sookdeo v R (1963) 6 WIR 450 and Fox v Dingley (1967) 1 ALL ER 100; “smoking and dealing with
cannabis resin”
relates only to the mode of commission and does not denote separate and
distinct offences96.

6.8i If statute creates two or more offences and they are charged alternatively in
one information then it will be duplicitous (unless they can be charged
conjunctively). On the face of it the accused would have been charged with two
alternate and separate offences. The alternative nature of the charge makes it
clear that it is not one activity which is being alleged: “For the purpose of smoking
cannabis resin or for the purpose of dealing in canabis resin”. Two separate
alternative offences.

6.8j The question of whether there is more than one offence disclosed is a matter
of fact and degree.

6.8k Taylor v Khan (1969) 15 WIR 254

“wilfully secrets, or keep or detains”.

Held charge related to one offence of keeping a postal packet which was not your
own. It was alternatively descriptive of the nature of the offence and so was not
duplicitous.

6.8l R v Wilmot (1933) 24 Cr. App R 63

Charge: “driving a car recklessly or at a speed or in a manner dangerous to the

public,” was bad for duplicity. More than one offence was created by the section.

6.8m One count may charge alternate method of committing statutory offence97.
Where the alleged offence consists of a single act it is clearly not bad for duplicity
e.g. uttering a number of false receipts in a single bundle.

96
Thompson v Knight ; Wingfield v Jeffreys 91 ER 1087, “selling live cattle or causing them to be sold.”
Alternate ways of committing one offence. R v Mark McConnell (unreported) RMCA 17/99 July 31,
2001.
97
Rule 5 Indictment Act
6.8n Common law exception to the rule against duplicity permits the joining of
burglary and larceny in a single count. See for example Jerrick v. The Queen
(1968) 13 W.I.R 45 . Compare with R v. Nichols for warehouse breaking and
larceny held bad for duplicity, and Jones v. Sherwood (1942) 1KB 127; information
for assault and battery held to be bad.

6.8o R v. Wilson 1979 69 Cr App R 83

Two counts of theft (shoplifting) each count charged a number of separate items
stolen from different depts. in the store.

Held no duplicity, it is legitimate to charge in a single count one activity even

though it involved more than one act.

6.8p It is unusual, but not improper, for a count to name more than one victim of
the offence alleged98.

6.8q R v. Giddins 1842 Car and M 634

A count for robbing A of one shilling and B of two shillings was held valid, since
prosecution’s case was that the 2 acts of robbery were virtually simultaneous.

6.8r Jemmison v. Priddle

Information charged the “taking and killing of two red deer”. Appellant did not
possess a game licence shot a deer on B’s land with B’s permission. He fired 3
other shots one killing a deer after it had left B’s land the other killing a deer on
B’s land. The third shot missed.
Issue was whether it was duplicitous to have charged the killing of two deer in
one charge.

98
R v. Mansfield (1977) 1 WLR 1102
Held, the information was not bad for duplicity. A charge was only bad for
duplicity when it alleged facts constituting two different activities. It was
legitimate to charge in a single charge one activity even though that activity might
involve more than one act. Although the firing of each
shot could be regarded as a separate act, they had occurred within a very
few seconds and all in the same geographical location. It could be fairly
described as a component of a single activity ie. shooting deer without a
game licence. It was proper to join them in a single charge.

On the facts the deer were killed within a few seconds and in the same place, it
was therefore legitimate to charge as a single information an activity even
though that activity may involve more than one act.

6.8s Cullen v. Jardine (1985) Crim L. R. 668

It was held that an information charging the unlawful felling of a number of trees
over a number of days was not duplicitous, even though there were different
defences for the felling of different trees.

6.8t Ramjohn v Johnson (1966) 10 WIR 159

Defendant was charged for having both a stick and a cutlass in his possession. It
was held permissible to charge for both implements in one complaint.

6.8u R v Pitter 1934-35 JLR 89

Information charging having defective brakes dangerous to occupants and having

defective brakes dangerous to the public held to be bad for duplicity.
6.8v R v. Jones and Others, 59 Cr. App. R 120, the court held that a count charging
an affray in different streets at different times was bad for duplicity. In this case
even the evidence disclosed that there were different affrays.

6.8w Wingfield v. Jeffreys 91 ER 1087

Information charging for selling live cattle or causing them to be sold. Information
held good. Alternate ways of committing one offence.

6.8x Thompson v. Knight (1947) KB 336 being in charge of a motor vehicle

while under the influence of drink or drugs. The offence is driving while

unfit and the alternative ways of doing so was through drink or drugs.

Where statute creates alternative offences (not alternative methods of

committing one offence) they must be charged in separate counts.

6.8y Hargreaves v. Alderson (1964) 2 QB 159, (1962) 3 All ER 1019

Driving recklessly or at a speed or in a manner dangerous to public. 3 separate

offences. Amendment must be before trial commences because statute

prohibits justices starting a trial on a duplicitous information. Failure is a

matter of substance. No jurisdiction to allow amendment of a duplicitous

information after trial had begun.

R v. Surrey Justices: Driving without due care and attention, driving without
reasonable consideration. Two alternative offences.

Justices are to have the information amended by requesting the prosecution to

elect the charge on which to proceed and strike out the other. If they decline the
information will be held to be bad.

6.8z R v Johnson And Brown (1974) 22 WIR 470 Jamaica

Two shots were fired by each accused at two persons at the same location and
within seconds.

The particulars read:

“first count

Stanford Johnson on 1 May 1972 shot at Conroy Ford and Simeon Johnson
with intent to do them grievous bodily harm contrary to s 16 of the
Offences against the Persons Law, Cap 268;

second count

George Brown on the said day shot at Conroy Ford and Simeon Johnson
with intent to do them grievous bodily harm contrary to s 16 of the
Offences against the Persons Law, Cap 268”

On appeal counsel argued that the counts were bad for duplicity as when each
applicant allegedly shot at each constable these were separate and distinct
offences with respect to each constable. Further, even if it were accepted that the
two shots which were fired by each applicant were fired at the two constables
that transaction would be two separate and distinct acts and not one activity
achieved in one of two different respects.
Held by the Court of Appeal (applying Jemmison v Priddle) the counts were not
duplicitous:

“and that although as a nice debating point it might well be contended that
each shot was a separate act, indeed each killing was a separate offence, I
find that all these matters, occurring as they must have done within a very
few seconds of time and all in the same geographical location, are fairly to
be described as components of a single activity, and that made it proper for
the prosecution in this instance to join them in a single charge.”

6.8aa Social Security Board v Stout (1986) 37 WIR 169 Eastern Caribbean CA

Where a charge alleges that the defendant had failed to pay social security
contributions between two specified dates (which represented a failure to
make payment on each of some thirty occasions), the charge is not a nullity
even in the absence of an election by the prosecution as to which offence on
which he wished to proceed, but the charge would support only one
conviction for the offence.

The charge read:

“that between 1st April 1982 and 23rd October 1984, being an employer in the
British Virgin Islands duly registered with the Social Security Board, he failed to
pay social security contributions in respect of wages paid to his employees as
required by regulations 4(1) and 10(1) of the Social Security (Contributions)
Regulations 1980, contrary to section 35(1) of Social Security Ordinance 1979.”

Counsel argued that each failure to pay amounted to a separate offence and,
between 1st April 1982 and 23rd October 1984, there were about thirty such
failures to pay. In his view there ought to have been separate complaints in
respect of each of those failures which the complainant wished to pursue, but
there could not be one complaint in which the failures were lumped together.

Held by the ECCA objection for duplicity ought to have been taken before
arraignment but can be taken later:

“An objection to a complaint on the ground of duplicity is clearly one of form

and not of evidence; and, although we hold the view that it is best taken at the
outset and before a defendant pleads, yet we are persuaded to recall the
words of Lord Widgery CJ in Jemmison v Priddle [1972] 1 All ER 539 at page
543:
'… Now at the eleventh hour counsel for the appellant submits that the
information was in any event bad for duplicity … With some reluctance on my
part I feel bound to accept that it is open to counsel … to raise this matter in
this court notwithstanding the history of the case.'
As it was taken after evidence we can examine the evidence
Because the objection in the instant case was taken by counsel at the close of
the evidence we are of the view that we may look not only at the charge itself
but also at such facts and circumstances as were left for the consideration of
the magistrate. As it stood, the complaint alleged one failure to pay
contributions although it stated a period of time that may have involved or
included other failures. It was, in our view, one act of omission even if the
period stated would have Justified allegations of other similar occasions. Had
the charge read “that on the 15th day of each month between 1st April 1982
and 23rd October 1984”, then it would have alleged many distinct failures or
acts of omission; but reading as it did, in its entirety, only one offence was
alleged and only one form of punishment could have been imposed on
conviction. Put another way, an information or complaint which charged the
commission of the same offence even on a number of occasions, would
support only one conviction for such offence.”
6.8ab Moses Bhagwan v Bernel G Chester Detective Inspector Of Police (1977)
25 WIR 187 CA Guyana

The charge read:

“Statement of offence
Printing newspaper without declaration made contrary to Section 8 (2) of the
Publication and Newspapers Act, Chapter 21:01.
Particulars of offence
Moses Bhagwan, during the month of February 1975, at Georgetown in the
Georgetown Magisterial District knowingly and wilfully printed or caused to be
printed a newspaper under the name and Style Day Clean (Volume 1 No 11)
relating to which a declaration containing the matters and things required by
the said Publication and Newspapers Act, Chapter 21:01 to be therein
contained, had not been duly signed, made and delivered”

The duplicity point was not taken at trial.

Held by the Court of Appeal:

When to take objection:
It was not too late. It did not matter whether or not the appellant had had the
assistance of counsel at trial. Duplicity goes to jurisdiction of the court [Ware v
Fox ([1967] 1 WLR 379, Molloy ([1921] 2 KB 364 and R v Wilmot ((1933), 24 Cr
App Rep 54]

Whether duplicitous:

The statute reads:

'8.(2). Every person who knowingly and wilfully prints or publishes, or causes
to be printed or published, or either as a proprietor or otherwise, sells or
delivers out, any newspaper, relating to which a declaration containing the
 matters and things required by this Act to be therein contained, has not been
duly signed, made, and delivered when and so often as by this Act is required,
or any other matter or thing required by this Act to be done or performed has
not been accordingly done or performed, shall be liable, for each act so done,
to a fine of seven hundred and fifty dollars for every day on which that
newspaper is printed or published, sold or delivered out before or until the
declaration has been signed, made and delivered, or before or until the other
matter or thing has been done or performed, as by this Act directed.”

Whether “or” or “and” are used is not determinative of whether separate

offences intended.

“Do the words “print or caused to be printed” relate to one indivisible process, one
act, one activity, one transaction or to different acts, activities and separate
transactions?

Do they describe one offence which may be committed in different ways or two
offences of a different nature?

Are the constituent facts of printing and causing to be printed the same or
different? Can a defendant do one without doing the other?

But whether we call them tests or guidelines, in my opinion, they point all one
way, that is, that to print and to cause to be printed relate to two different
activities,

It is not difficult to conceive of circumstances where someone can cause a

newspaper to be printed and not be the printer of it himself.

And so it is that the words in s 8 (2): “every person who knowingly and wilfully
prints or publishes or causes to be printed or published” creates four separate
offences.”

.............................................

“This being so on the established authorities we must allow these eight appeals
and quash those convictions
Duplicity a fundamental error , cannot follow Sharma v Leacock (T&T) and hold
harmeless absent injustice.

Edwards v Jones [1947] KB 659, to be followed:

The provision in s. 1 of the Summary Jurisdiction Act, 1848, that no objection is

to be taken or allowed to any information for any alleged defect therein in
substance or in form does not mean that justices can proceed to hear an
information which charges two offences contrary to s. 10 of that Act.
In such a case the justices should have the information amended by requesting
the prosecutor to elect on which charge he will proceed and then striking out
the other charge. If the prosecutor declines to elect, the information is bad and
should be dismissed.

Per Lord Goddard, CJ:

According to the authorities the way they should do this is by asking the
prosecutor on which offence he elects to proceed. The prosecutor can then elect
to proceed on one offence, and thereupon the information should be amended
by striking out the other offence or offences charged, as the case may be, so that
the defendant is only called on to answer to the one offence. On the other hand,
if the prosecutor declines to elect, the information is bad, and the justices should
dismiss it. ‘”

6.8ac Sharma v Leacock (1970) 17 WIR 353 T&T

Various items missing over a 3 year period were found at employee’s house. It
was charged as single count. Argued on appeal to be duplicitous.

Held, English decisions that conviction on duplicitous count harmless where no

injustice to be followed.

“The principle underlying the question of duplicity in charges is that if it can be

shown that the party might have been prejudiced or embarrassed in his defence
then, of course, he is entitled to have the conviction quashed. In considering that
question one should look (inter alia) at the time, for example, at which the point
was raised. However, we are not suggesting that it is fatal to an appellant if that
point is not raised at the earliest possible time. One must look at the charge and
the evidence--all the circumstances, and see whether in fact it can be said that the
party was embarrassed or prejudiced in putting forward his defence.

Duke v R ((1966), 10 WIR 173) in which this court had to consider a case in which
the appellant was charged on indictment for larceny of fixtures. It was clear that
there was evidence to show that those fixtures may have been stolen at varying
times. Notwithstanding that this court dismissed the appeal and in doing so
referred to the English case of R v Ballysingh ((1953), 37 Cr App Rep 31) in which
also a similar question had arisen.
………..

duplicity is not a defence of a highly technical nature whereby a party who has no
merits is entitled to escape justice. It is something in the nature of a protection
which is given to a party in the interests of justice, if it can be shown that his
defence might be prejudiced in any way by the fact of this misjoinder. Then and
only then would he be entitled to invoke the principle to the extent of having
any conviction quashed.”

Wheatley and Penn v. Commissioner of Police ECCA MCRAP1 & 2 OF 2002

section 82 of the Criminal Code, 1997.

“Any person who, being in the public service, and being charged by virtue
of his employment with any judicial or administrative duties respecting
property of a special character, or respecting the carrying on of any
manufacture, trade or business of a special character, and having
acquired or holding, directly or indirectly, a private interest in such
property, manufacture, trade or business, discharges any such duties
with respect to the property, manufacture, trade or business in which he
has such an interest or with respect to the conduct of any person in
relation thereto, commits an offence and is liable on conviction to
imprisonment for a term not exceeding one year.”

The charge read:

“Wheatley, on the 10th day of January, 2002, being a person employed in
the public service of the Government of the British Virgin Islands, namely
Financial Secretary, and charged by virtue thereof with administrative
duties regarding property of a special character namely public funds for
public infrastructure and/or business of a special character, namely
public infrastructure construction, to wit: contract number 44 of 2001
between the Ministry of Finance and P&W Heavy Equipment, for heavy
equipment and trucking pertaining to the construction of a retaining wall
at Long Look, Tortola, and holding a direct or indirect private interest in
the said property or business by way of your interest in P&W Heavy
Equipment, discharged your public duties with respect to the said
property or business or with respect to the conduct of a person in
relation thereto in that you signed a payment approval form and voucher
authorizing payment in the sum of $7,123.72 to P&W Heavy Equipment
under the said contract…..”
It was submitted that the charge was duplicitous as the repeated use of “or”
indicative of more than one offence. The learned Magistrate’s assessment was
that
“…Section 82 clearly targets acting in conflict of interest. The section says that if
you have a certain status in the public service,
i.e. you have administrative or judicial duties with respect to a
matter and you have a private interest in that matter and you act
regarding that matter, whether [by] yourself or by directing
someone to act, you commit an offence…….
…the section creates a status, collides it with a private interest
and says if you act or cause someone to act in that state of
affairs, you commit an offence. The fact that the private interest
can take a number of forms, and that these various forms are set
out, whether conjunctively or disjunctively in the particulars of the
offence does not make the offence duplicitous”.

Held by the ECCA:

“The common law has gone beyond the upholding of strictly technical defects of
form such as have been raised here by Counsel for the Defence. And statute law
has in many instances given the court generous powers to amend and severely
curtailed one’s ability successfully to raise such points, particularly on appeal.
Not surprisingly, Counsel for the Defence quoted no modern authority in support
of his submission. In determining whether a charge is duplicitous, courts now take
the sensible approach of ‘applying common sense and … deciding what is fair in
the circumstances’.
Whether one, or more than one, offence is disclosed is really a question of fact and
degree”
(NB the PC affirmed conviction and ECCA’s view on this complaint)
6.8ad Continuous offence and general deficiency

Courts have approved charging one appropriation of property in one count where
the evidence on the depositions disclosed that the property had been or might
have been appropriated on two or more unknown occasions. Such a count is not
bad for duplicity.

In Dpp v. Mcabe (1992) Crim L R 885 (case of the stolen Library books).

Prof Smith’s Commentary explains:

“If a thief walks around a house putting a series of articles into his swagbag it
is clear that he commits a separate theft with each appropriation. He could be
charged with theft of any one of the articles appropriated. But it makes sense
and involves no unfairness to the offender if he is charged with a single theft of
all the articles taken on that occasion. It is regarded as a single "activity" and it
is legitimate to charge one activity in a single information even though it may
involve more than one act. A single activity may extend over a number of days
as in Cullen v. Jardine [1985] Crim.L.R. 668 where 90 trees were felled without
a licence over a period of three days.
The "general deficiency" cases seem to have a rather different basis, namely
the impossibility of identifying individual offences. As it is put in Cain, the law
permits "a continuous series of closely linked offences to be charged in a single
count where no particulars of the dates or amounts of individual takings could
be given." Expediency then requires that a charge alleging a general deficiency
should lie, because otherwise the defendants could not be charged at all. The
evidence shows only that the accused appropriated, say, GBP10000 of his
employer's money between January 1 and December 31 but no individual theft
can be identified.
But he does not agree with the application here as the “amounts” of the
individual takings were clear…
The defendant could have been charged with theft of any one of the books
between the dates specified. The case seems to depend on the single activity
principle. So the single systematic activity can extend over a period of more
than one year and possibly as many as 32 locations. Does it follow then that a
modern "Brides-in-the-bath" Smith could be charged with three murders, or
the "baby-farming" Makins with 14 murders, in a single count? Presumably the
answer is no, because, whereas it is possible to have a single offence of
stealing 76 books, the killing of two persons is necessarily two murders. There
 is no real factual difference but the law fictionally treats 36 thefts as one. The
thief could be sentenced for only one theft but a person convicted of murdering
two others would have to be given two sentences of life imprisonment”

6.8ae Where the exact date of the offence is unknown the date should be stated
as being on or about a particular date , or on a date unknown between x date and
y date. This will isolate the date of the offence as accurately as possible so that
the defendant is better able to answer the charge. The date of the offence should
never be alleged as between two stated dates as this may give rise to duplicity,
unless it is a continuous offence. Where a count alleges an offence was
committed on divers days it has been held to be bad for duplicity.

6.8af Rv. Lawson 36 Cr App R 30

Fraudulent conversion of client funds by attorney on days unknown between

various dates, charged for aggregate amount found stolen on accounting date.

6.8ag The rule is that if it is possible to trace individual instances and prove
conversion of individual property and money then charge separate counts. But in
a case where individual items cannot be traced in detail but evidence shows
fraudulent conversion you can allege in one count a general deficiency.

6.8ah R v. Tomlin 38 Cr. App. R 82

Stock taking revealed a cash deficiency between the last stocktaking and this one.
Appellant was convicted for embezzlement of the aggregate amount on a day
between two stock takings.

6.8ai Consequences of breaching the Rule Against Duplicity99

Argued that conviction on a duplicitous information cannot stand100. These

decisions based on the UK 1952 Act which specifically prohibited trial on

99
See 6.8a to 6.8c
duplicitous information by providing that the Court “shall not proceed to trial” on
a duplicitous information. There is no such clear prohibition in the
Commonwealth Caribbean. Therefore in Sharma v Leacock (1970) 17 WIR 353
upheld on appeal a conviction on a duplicitous information on the basis that there
was no prejudice. Sharma was not followed in Bhagwan.

6.8aj Where information is duplicitous prosecutor should elect which one of the
charges to proceed on. It cannot be amended once the trial has begun. Again this
is the English position.

6.8ak Marchese [2008] Crim LR 797, EWCA Crim 389

The count read:

“Statement of Offence
Threats to kill, contrary to section 16 of the Offences against the Persons Act
1861
Particulars of Offence
Maria Marchese on divers days between 1st October 2002 and 7th
September 2003 within the jurisdiction of the Central Criminal Court, without
lawful excuse you made to Deborah Pemberton threats to kill her intending
that Deborah Pemberton would fear that the said threats would be carried out

Held, by charging more than one threat count duplicitous but as no injustice
caused appeal dismissed

Per Lord Phillips (para 43):

“We accept the submission that count 2 of the indictment was technically
duplicitous. Duplicity is normally apparent from the face of the indictment,
and it was in this case. The indictment alleged repeated incidents of a single
offence on "divers dates" within a period that spanned nearly a year. The
threats relied upon during this period were numerous texts and other

100
See Edwards v. Jones and (1947) K.B 659 Hargreaves v Alderson
 messages, each of which would have been capable of being separately
identified in the indictment.”

.........

“Objection to the fact that a count is duplicitous should be taken before the
arraignment. If it is not and, as in this case, the trial proceeds to a verdict, the
question then arises as to whether the fact that a count was duplicitous must
automatically lead to the quashing of the conviction. Up to 6 February 2008
Miss Levitt would have had some difficulty in submitting that it should. It was
determined nearly 100 years ago in R v Thompson 9 Cr App R 252, by this court
that the fact that a count is duplicitous will not automatically lead to the
quashing of the conviction. In that case the appellant had been charged with
incest.”
….
“We do not accept that the effect of the reasoning of their Lordships in Clarke
and McDaid is to render a nullity a count in an indictment which is duplicitous.
Miss Levitt wisely did not suggest that failure to comply with the requirements
in relation to avoiding duplicity would have invalidated the entire indictment.
She submitted that, if a single count did not satisfy the requirements of the
statute and the rules, no subsequent trial in relation to that count could have
any validity. It has always, as we understand it, been accepted that a count
which does not comply with the rules can be amended in the course of a trial.
That of itself, so it seems to us, demonstrates that such a count is not devoid of
effect. We do not consider that Clarke and McDaid has overruled the clear
decision in Thompson which is entirely in point on the facts of this case.”

6.8al Therefore the issues to determine whether duplicity causes a fatal error are:
Did duple count lead to injustice and does the fact that no objection made at trial
show that there was no embarrassment?

6.9Amendment
The Indictment Act (UK) 1915 s. 5 has been adopted in Caribbean for example
Belize’s Indictable Proceedings Act:
“77.-(1) Where, before trial, or at any stage of a trial, it appears to the court that
the indictment is defective, the court shall make any order for the amendment of
the indictment which 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.”

(NB Antigua Indictments Act s 6. is to like effect)

6.9a Indictment Act (Jam) s. 6

“Before trial or at any stage of the trial an indictment can be amended unless
injustice will result. An amendment can cure a duplicitous information An
amendment of any kind may be made at any stage of the trial provided that,
having regard to the circumstances of the case and the power of the court to
direct a separate trial, the amendment can be made without injustice.”

6.9b The amendment may be ordered at any time (whether it will be is a question
of whether injustice will be caused). The longer after arraignment that the
amendment is sought the greater the risk of injustice. Immaterial amendment to
averments may be made even after verdict. For late material amendments court
should consider recalling witnesses.

Amendment can be made after verdict if it is of an immaterial averment (eg. a

date)

6.9c R v. Bonner (1974) Cr. L. R. 479,

It was held that amendment at summing up stage should not be encouraged.

6.9d Judge may invite addresses on necessity for amendment if no application is

made by either side101

101
R v. West and others (1948) 32 Cr. App. Rep 152
6.9e “Defective”

An indictment must be defective to permit amendment but “defective” has a

wide meaning not restricted to being “bad on its face” by clear drafting errors. An
indictment may also be defective where:

a. it does not accord with evidence given at committal proceedings or at trial

(eg inaccuracies, deficiencies or to add another offence disclosed)

b. it is desired to add a defendant who might properly be joined

6.9f R v. Johal (1972) 3 WLR 210,

In all cases before an amendment is made court must consider whether it will be
prejudicial to the accused.

Would an amendment after arraignment substituting one offence for another

cause injustice? Where an amendment is made after arraignment and it is of a
substantial nature, the arraignment should be repeated on the amended
indictment.

6.9g R v Osieh (1996) 2 Cr. App. R. 145

The English CA said that the power to amend extends to the addition of counts
charging offences that are not disclosed in the committal evidence but are
disclosed by evidence subsequently served.

6.9h The court also has the power to order an amendment which involves the
substitution of a different offence for that originally charged or the addition of a
new not for an offence not previously charged, at any stage of trial The power to
amend an indictment extends to the addition of a count or counts charging
offences not disclosed in committal papers102. This is subject to the question of
prejudice, the power to order separate trials and power to postpone a trial.

6.9i R v. Smith (1941) 34 Cr. App. R. 168

At trial of obtaining money by false pretences charge was amended at close of the

Crown’s to obtaining valuable security to wit a cheque. Held, no injustice was

caused.

6.9j R v. Jennings (1940)33 Cr. App. R 143,

Charge of using document with intent to deceive after no case submission charge
amended and a different document was substituted. Held prejudicial and
conviction quashed.

6.9k R v Ismail and others 92 Cr. App R, 92

A voluntary bill of indictment can be amended to add a defendant who has been
separately committed for trial on the same charge.

6.9l DPP v Stewart [1983] 2 AC 91

The indictment charged incorrect section of correct statute. The Court of Appeal
amended it after conviction.

At the PC Stewart’s argument that original indictment a nullity and that

amendment unfair failed.

“Their Lordships read that as meaning that amendment would cause no

injustice to the defendant. The Court of Appeal was clearly entitled to take

102
R v Johal and Ram 56 Cr. App. R. 348.
 that view as the defect in count 1 was of an essentially technical nature,
and the particulars of the offence gave full and correct notice to the
defendant of the facts alleged against him. Their Lordships see no reason
therefore to interfere with the decision of the Court of Appeal to amend
count 1.”

6.9m Joseph v State (1983) Dominica

Amendment to indictment to charge that defendants acting in concert and, after

verdict, to alter date (12 May 1981 to 12 February 1981)

Held, date not material and as amendment brought indictment in line with
evidence and no injustice caused appeal dismissed.

6.9n King (Milton) v. R (1999) 57 WIR 25

In a rape case the amendment was made extending dates of offence. The Judge
failed to take into account the possibility of prejudice.

Appeal allowed

6.9o R v Teong Sun Chuah and Teong Tatt Chuah (1991) Crim. L. R. 463, CA
Where appropriate charges were substituted for inappropriate charges at the end
of the prosecutions case; no injustice as substance of the allegation remained
unchanged and the defence was merely deprived of a technical acquittal.

6.9p R v Bonner;
Such late amendments should be made only after particular care has been taken
to ensure that defence has had ample opportunity consider whether it is
necessary to recall witnesses.

6.9q R v Nelson 65 Cr. App. R. 119 CA

Statement of offence defective in that it omitted to refer to statute alleged to
have been contravened. Amendment even after would be permissible.
6.9r R v O’Connor (1997) Crim. L. R. 516 CA
Held that it was wrong to permit addition of further count in order to put
prosecution case on a different basis, after a submission of no case; defendant
will be deprived of putting his case in a way that he would have done if the
prosecution had put its case in that way initially103.

6.9s Procedure to amend

Belize Indictable Procedure Act

s. 77(2) “Where an indictment is so amended, a note of the order for amendment

shall be indorsed on the indictment, and the indictment shall be treated, for the
purposes of the trial and for the purposes of all proceedings in connection
therewith, as if it had been originally framed as amended.”

If amendments are significant there should be a re-arraignment104. Failure to note

amendment on indictment does not invalidate105 but forgetfulness to make an
order does invalidate106.

6.9t Amendment of Information/Complaint

Where no explicit provision permitting amendment of information/complaint the
power to amend implied by the provision that, on appeal, defects in form are not
permissible as grounds of appeal so long as those could have been amended by
magistrate.

103
R v Piggot and Litwin (1999) 2 Cr. App. R. 320, wrong to allow amendment to a new charge after
successful no case submission

104
compare Radley 58 Cr App R 394 to Fyffe (1992) CrimLR 442

105
Ismail 92 Cr App R 92
106
Leeks [2010 1 Cr App R 5
Thus there is an implied jurisdiction to amend where no injustice caused.
Submitted that Indictment principles applicable.

6.9u See the proviso to section 2 of Justice of the Peace Act (JA).
…“provided also that no objection shall be taken or allowed to any information,
complaint, or summons for any alleged defect therein in substance or in form, or
for any variance between such information, complaint or summons and the
evidence adduced on the part of the informant or complainant at the hearing of
such information or complaint as herein-after mentioned.. But if any such variance
shall appear to the justices present at such hearing to be such that the party so
summoned and appearing has been hereby deceived or misled, it shall be lawful
for such justices upon such terms as he thinks fit, adjourn the hearing of the case
to some future date.”

6.9v Barbados’ Magistrates Court Act s. 256

“Subject to subsection (2), on any appeal from any decision of a magistrate,

no objection shall be taken or allowed to any proceedings before the
magistrate for any defect or error that might have been amended by the
magistrate, or to any information, complaint, plaint, summons, warrant or
other process to or of the magistrate for any alleged defect therein in
substance or form or for any variance between any information, complaint,
plaint or summons and the evidence adduced in support thereof before the
magistrate.”

(NB Antigua Magistrates s. 188 to like effect)

6.9w However Belize SJ(P) Cap 99 s. 127 explicitly provides:

Provided that if any variance or defect mentioned in this section appears to

the court at the hearing to be such that the defendant has been thereby
deceived or misled, the court may make any necessary amendments and, if
it is expedient to do so, adjourn, upon such terms as it thinks fit, further
hearing of the cause.
6.9x R v. Sandwell JJ ex parte West Midland Passenger Transport Board (1979)
Cr. L. R. 56
A constable charged the defendant for having a defective rear near side tyre on his
bus. The constable gave evidence at trial, refreshing his memory from his notes of
defects in the rear off side tyres. Prosecution applied to amend to rear off side
tyres. The def had brought the tyres to court. Defendant applied to stop the trial to
appeal on the grounds that amendment would create a new offence and would be
unjust as prosecuting it would be out of time.
Held: Applying New Castle Upon Tyne exparte Bryce Contractors(1976) 2 All ER
and Garfield v Maddocks (1974) QB 7 ; although it was one offence to have a
defective rear off side tyre and another to have a defective near side tyre, the
offence was a contravention of regulation 99(1) by having a defective tyre. The
justices may well have proceeded without a formal amendment for only one tyre
was involved, the defendant knew which tyre it was and had it in court. Only its
location had been misdescribed. No injustice had been committed.

It would have been a different case if the information had related to one
defective tyre and the evidence to another. In such a case it would not have been
possible to proceed without amendment because the evidence would show that
the defendant had committed an offence for which he had not been charged. In
this case there was only one tyre in issue both parties knew which tyre it was and
the only mistake was to its location on the vehicle.

6.9y New Castle Upon Tyme it was held that it was possible to amend to allow
what was effectively a new offence howsoever, that no injustice is done to the
defendant. There could then be no objection that the amendment was outside
the limitation period.

6.9z Section 190 Judicature (RM) Act: Power to amend all defects and errors in
any proceedings criminal or civil in his court. All such amendments necessary to
determine the real issues between the parties shall be made.
Section 302 It shall be lawful for the court of appeal to amend all defects and
errors in any proceedings in a case tried by a magistrate on indictment or
information by virtue of special statutory summary jurisdiction.

6.9aa Cases show that there are wide powers of amendment at any time before
conviction.
6.9abTechnical defects include
 Inaccuracies in date, place and time (Cross v Johnson (1964) & WIR 359.
 Name of defendant or victim incorrect
 Subject matter incorrect or value of item incorrectly stated.
 Wrong statute
Prosecution usually seeks the amendment. If amendment is granted the
defendant is entitled to adjournment.

6.9ac Jamaica’s Resident Magistrate’s power to amend an indictment is very

wide. See section 278

“At any stage of a trial for an indictable offence before sentence, the court shall
amend or alter the indictment so far as appears necessary from the evidence or
otherwise, and may direct the trial to be adjourned or recommenced from any
point, if such direction appears proper in the interest either of the prosecution or
of the accused person.”

6.9ad Rv. Egbert Wilson 6 JLR

Carberry J at 270: ” It has been held by this court that this section imposes a duty
on a RM to amend by adding counts where the evidence makes it necessary to do
so.”

.............................
 CHAPTER 7: OBJECTION TO CHARGES

7.0 Expected Outcomes

Students are expected to understand and differentiate between autrefois acquit
and convict and abuse of process.

7.1Introduction
Charges may be objected to on the basis that the defendant has been pardoned
and that the court has no jurisdiction. In this course we will concentrate on
objections for double jeopardy and abuse of process.

7.2 Autrefois Acquit and Convict

This is a “plea in bar” to any further proceedings against the accused for the same
offence for which he had previously been acquitted or convicted. The principle is
otherwise called double jeopardy. It is based on the common law maxim that a
man should not be placed in peril of legal consequences twice for the same
offence: “nemo debit bis puniro pro uno delicto”.

7.3 In some constitutions this is enshrined or it may be inferred from the

Interpretation Act107:

Section 9

“Where any act or omission constitutes an offence under two or more statutes or
both under statute and under common law, the offender shall unless the contrary
intention appears , be liable to be prosecuted and punished under either or any of
these acts or under the common law but shall not be liable to be punished twice
for the same offence.”

Section 7 of the Criminal Justice Administration Act gives the defendant the right
to plea that he has already been acquitted or convicted of the same offence. This
is done without formality. In England it is a formal plea.

107
And see section 20 (8) of the Constitution of Jamaica
It is immaterial whether the proceedings were on indictment or summary.

The words same offence does not mean same act. It is not the law that a man
shall not be convicted twice of the same act.

If the plea is successful it is a bar against all further proceedings against the
offender for the same offence.

The burden of proof rests on the accused on a balance of probability108.

The case must have been tried on its merit, if so the matter is res judicatem.

7.4 Connelly v. Dpp (1964) AC 1254

Lord Morris of Borth-y-Gest outlined the principles on which the plea is founded.
Two indictments from same incident (murder and robbery), defendant acquitted
on appeal for murder. Prosecution seeking to try for robbery and defendant
pleaded autrefois acquit. Plea rejected because robbery not the same or
substantially the same as murder.

House of Lords dismissed the appeal.

Current governing principles from lord Morris’ speech:

1. Man may not be tried for a crime for which he has been lawfully acquitted
or convicted
2. Man may not be tried for a crime for which he could have been previously
lawfully convicted (previously in jeopardy of a conviction for a lesser
alternative)
3. Offence in 2nd indictment must have been committed at the time of the
first trial
4. Earlier adjudication must have been:
A. on guilt or innocence,
B. from valid process (not a nullity),and
C. by a court of competent jurisdiction.

108
DPP v. Nasralla (1967) 2 All ER 161PC
7.5 Autrefois convict (What is a conviction?)
In the case of R v Gordon (1983) Crim. L. R. 735, the legal arguments on a voire
dire in absence of a jury centred on the meaning of conviction. It was held that a
conviction required a finding of guilt and a final disposal of the case (overruling
Sheridan).

7.5a R v. Lloydell Richards PC (1993) AC 217

“ having regard to the underlying rationale of autrefois convict which was to
prevent duplication of punishment , a plea of autrefois convict could not be
sustained by anything less than evidence that the offence with which the
defendant stood charged had already been the subject of complete adjudication
against him by a court of competent jurisdiction comprising both the decision of
guilt and also the final disposal of the case by a court passing sentence or making
some other order such as an order for absolute discharge. Accordingly, a finding of
guilt without proof of the court of the courts final adjudication by sentence or
other order was not sufficient to sustain a plea of autrefois convict”

7.5b The plea can only be set up if the accused was in actual peril of a penalty in
the first trial. If the second charge includes new facts constituting a different
offence the plea may not validly be brought.

7.6 Foreign Convictions

The authorities generally support the view that a conviction in a foreign court of
competent jurisdiction is a sufficient ground for a plea of autrefois convict109. But
as was said in Thomas (Keith) the defendant must in truth have been in jeopardy
abroad. Jeopardy has been held to mean simply a real risk of punishment
following conviction.

109
R v. Roche, (1775) 1 Leach 134, R v. Aughet, 13 Cr. App.R. 101 Regina v. Lavercrombie (1988) Crim. L.
Rev. 435 CA. and R v. Thomas (Keith) 1 Q B 604
7.6a Keith Thomas 79 Cr. App. R. 200
It was held that where T was tried and convicted in his absence abroad by an
Italian court and there was no risk of extradition, the plea could not avail him
when he was later charged for substantially the same offence in England.

The question for the judge and jury therefore, is whether the accused had
previously been placed in jeopardy in respect of the charge upon which he is now
arraigned.

7.7 R v. Burnham JJ ex parte Ansarge (1959) 3 all E R 505

Per Lord Parker:
“before the magistrate can decide whether to convict or not on the second
information they must enquire into the matter to see what are the facts; if having
enquired they find that the facts are the very facts giving rise to the first conviction
their proper course would be to proceed no further.”

7.7a Wemyss v. Hopkins- (1875) L.R.10 QB 378 at 381

Defendant convicted for causing hurt and damage by driving negligently but tried
again for unlawful assault.
Held, that the first conviction was a bar to the second and cannot be punished
twice for the same matter.

7.8 Same Offence A necessary incident of this test is that the offence charged in
the second indictment/information had been committed at the time of the first
charge.

7.8a Thomas (1950) 1 KB 26

T was convicted of feloniously wounding his wife and she later died. He was
subsequently charged for murder. He pleaded autrefois. The plea failed because
they were two separate offences occurring on separate occasions although the
evidence was based on the same facts.

7.8b It is not sufficient that the facts or the witnesses are the same. See Connelly
where Lord Devlin stated that it does not matter that the incidents and occasions
on the second trial are precisely the same as those on the first. The court is only
concerned with charges of offences or crimes.
7.8c R v. Kendrick & Smith 23 Cr. App. R.1
Charge of publishing photograph negatives with intent to extort money was not
the same as sending letters demanding money with menaces. Consequently on a
trial for one, though the facts in both were substantially the same the plea of
autrefois in the other was bad.

7.8d R v. Tonks (1916) 1 K. B. 443 or 11 Cr. App. R. 284

Convicted of wilfully neglecting a child, child died, accused then charged with
manslaughter.
Held: When death occurs after conviction on a lesser offence which is an
alternative to the offence charged on the second indictment and manslaughter is
preferred the jury can find guilty of manslaughter or not guilty.

7.8e The older cases are inconsistent as to the degree of similarity necessary for
the plea to succeed. In R v King 1897 18 Cox 447, obtaining Credit by False
pretences was held to be substantially the same as larceny of the same goods.
See also R v. Lavercrombie and Murray holding that the similarity of evidence as
opposed to the legal characteristics of the offence is immaterial.
In Rex v. Kupferberg 13 cr. App. R.166 cited in Connelly Lawrence J said each
offence must have the same essential ingredients. Facts constituting one must be
sufficient to justify the other.

7.8f Hale’s Pleas of the Crown (1778)ed. Vol 2 p.245-246 gives an illustration of
what would or would not be considered the same or substantially the same
offence;
“if A commits burglary in the county of B and likewise at the same time steal
goods out of the house, if he is indicted for larceny for the goods and
acquitted he may yet be indicted for burglary notwithstanding the acquittal
for larceny because they are different offences though committed at the
same time. Thus a man convicted of stealing a horse has not yet been
convicted of stealing the saddle though both are done at the same time.”
7.8g This debate may be considered as settled by Beedie110.

110
See below 7.13
7.9 Autrefois acquit (What is an acquittal?)
A verdict of not guilty is final adjudication and disposal of the case.
Similarly, allowing an appeal or a decision of a foreign court111.

7.9a The following are not bars to subsequent proceedings:

 Withdrawal of Summons at Magistrate’s Court before plea112.
 Quashing an Indictment
 Prosecution offering no evidence and laying alternate charge113
 Dismissal of information or indictment because so faulty no conviction
possible (see DPP v Porthouse (1988) 89 Cr App R 21 and Dabhade [1993]
QB 329).
 Jury discharged without giving a verdict
 Dismissal after parties not appearing.
 Dismissal of an information upon which the prosecution has offered no
evidence if information is so bad that defendant was never in peril on it114.
115
 Discharge after preliminary inquiry
 Trial in a court lacking jurisdiction as to make trial a nullity
7.9b If a man is tried and found not guilty by a court competent to try him, the
acquittal is a bar to a second indictment for the same offence.
The rule applies not only to the actual charge in the first indictment but to any
offence of which he could have lawfully been convicted on the first indictment. So
if acquitted for murder cannot be retried for manslaughter but may be tried for
arson arising out of the same facts.

7.9c Connelly v. DPP 1964 Ac 1254

Robbery and murder committed by four accused charged with murder and
robbery on separate indictments. Indictment for robbery abandoned. Conviction

111
Treacy v DPP [1971] AC 537, 562D
112
Bedford and Sharnbrook Justices, ex parte Ward [1974] Crim LR 109

113
Brookes [1995] Crim LR 630

114
DPP v. Porthouse (1989) 89 Cr App R 21
115
Manchester City Stipendiary Magistrate, ex parte Snelson [1977] 1 WLR 911, Lloyd Brooks 31 JLR 16
for murder quashed. Indicted and convicted of robbery. Held plea failed. The
doctrine of autrefois could not apply here as the facts and evidence necessary to
support a charge of murder are different from those required on a charge for
robbery.

7.9d This was followed in Requena and Flores v R (1981) 32 WIR 126 CA of Belize.

7.9e Principles apply equally to summary and indictable trials. R v. West (1964) 1
QB 15 Acquittal by a magistrate without Jurisdiction to try the case was not a bar
to subsequent trial and conviction.
7.9f Discharge of the accused by examining justices after committal proceedings is
not an acquittal (R v. Manchester City Magistrate exparte Snelson(1977) 1 WLR
911).

7.9g R v. Marsham ex parte Pethick Lawrence(1912) 2 KB 362 : Convicted for

assaulting a police officer but gave evidence without being sworn. The magistrate
later reheard the case on oath. It was held that the second conviction was not bad
because he was not legally convicted on the first hearing and was therefore not in
peril. A mistrial would have compelled a quashing of the conviction therefore the
first hearing was a nullity.

7.9h R v. Miles (1890) 24 QBD 42

Quashing an indictment is not an acquittal.
Prisoner after acquittal on indictment for larceny was tried again for a crime
under the crime prevention act based on the same evidence.
Held: First offence no bar to second trial. See also Lewis v Irish (1966) 10 WIR 500
TT CA.

7.9i Halstead v. Clarke the information disclosed no offence and prosecution

applied to amend information by putting in the word recklessly. Justices refused
and dismissed the charge. He was later summoned on an information for the
same offence in respect of same offence

7.9j R v. Humphreys;(1977)AC 1 HL,

Acquitted of driving while disqualified then charged with perjury. Prosecution
had to repeat the evidence given at the first trial. Held: plea not successful.
7.9k R v. Barron: 10 Cr. App Rep 81 at p. 88; buggery/gross indecency. Essential
elements in one charge not essential in the other.

7.9l Dismissal of an information by justices has the same effect as an acquittal

where dismissal is on the merits of the case (i.e. on valid process). See section 13
JP Act and Dennis Thelwell v Dpp et al SCCA NO: 56/98 decided March 1999,
judgement of Forte J.

7.9m Quashing of a conviction at C.A without order for retrial is same as an

acquittal. If original information is defective and it is necessary to present new
charges it is prudent to try the new information first before disposing of the old to
avoid the situation in Rv. Benson 4 WIR 128, where withdrawal of the information
after a plea of not guilty was held to be a dismissal.

7.9n It has however, been said that where there is a valid adjudication of the
matter whether there is a trial on the merits or not any dismissal is binding. R v
Pressick (1978) Crim L R 377. According to Pressick it would appear that if the
matter is dismissed because the prosecution offers no evidence on the charge it is
a binding dismissal and cannot be prosecuted again. See also Bowen v Johnson
(1977) 25 WIR 60. The litmus test seems to be whether the accused has been
pleaded or not so as to be placed in jeapordy. See De Gannes v Maharaj Maj App
No.124 of 1979 (unreported) cited in Seetahal. Key to resolving this issue is
understanding what is meant by “on the merits”.

7.10 Alternative Offences

Common Law or statute may make an offence an alternative to another offence.

An acquittal for an Offence is an acquittal for all its lesser alternatives even if
judge did not expressly leave the alternative to jury. However it is not so if jury
announced that they were undecided as to alternative116.

116
DPP v. Nasralla (Patrick)[1967] 2 A.C. 238
7.11 Procedure for pleading

At common law an oral plea may be made if the defendant is unrepresented or a

written plea if represented by counsel. A written plea is unnecessary in
Jamaica117.
The proper time to plea autrefois is at arraignment but can be made at anytime.
The court may raise the plea of its motion.The prosecution may admit the plea or
join issue and cause it to be tried.
The issue is tried by a jury except where current English law received or adopted
the issue is tried by judge alone118.
Burden of proof is on defendant on a balance of probabilities119. The defendant is
not restricted to bare record of previous conviction or acquittal but may call
evidence.

7.12 Autrefois and the Magistrate’s Court

No formal plea is required as in the Assizes or Circuit Court but the same
principles apply. A magistrate may: adjourn sine die, make a no order, dismiss or
discharge. Which of these resolutions is an acquittal?

7.12a Antigua Magistrate’s Code120

83. If he does not admit the truth of the charge the Magistrate shall hear the
prosecutor, and such evidence as he may adduce and shall also hear the
defendant and such evidence as he shall adduce in his defence …….

117
s7 Criminal Justice (Admin) Act JA
118
UK Criminal Justice Act 1988, s.122
119
R. v. Coughlan and Young,63 Cr.App.R. 33
120
St Kitts and Nevis sections 84 to 89, Belize 52
86. The Magistrate shall then consider the whole matter and determine the same,
and shall either dismiss thecharge or convict the defendant

88. If he shall dismiss the case upon the merits he may when required to do so
make an order of dismissal and give the defendant a certificate thereof which shall
without further proof be a bar to any subsequent charge for the same matter
against the same party.

7.12b Montserrat Criminal Procedure Ordinance restates autrefois principles121

and states that the Magistrate acquits by order of dismissal122.

7.12c Barbados’ Magistrate’s Code provides that a dismissal of an information for

want of prosecution shall not operate as a bar to any other proceedings in the
same matter123 and that:

“54. Where on the summary trial of an information for an offence

triable either way the magistrate dismisses the information, the

dismissal shall have the same effect as an acquittal on indictment.”

7.12d Jamaica’s Justices of the Peace (Jurisdiction) Act

“s.13…….. but if he do not admit the truth of such information or complaint as

aforesaid124, then the said Justice or Justices shall proceed to hear the prosecutor or
complainant, and such witnesses as he may examine, and such other evidence as
he may adduce in support of his information or complaint respectively, and also to
hear the defendant and such witnesses as he may examine and such other evidence
as he may adduce in his defence125,

121
ss 28 to 31
122
s. 73
123
s. 41
124
This is the arraignment
125
This is the trial
…….and the said Justice or Justices, having heard what each party shall have to say
as aforesaid, and the witnesses and evidence so adduced, shall consider the whole
matter, and determine the same, and shall convict, or make an order upon, the

defendant, or dismiss the information or complaint, as the case may be126; …….. it
shall be lawful for such Justice or Justices, if he or they shall think fit, being required so
to do, to make an order of dismissal of the same (according to Form (9)in the First
Schedule), and shall give the defendant in that behalf a certificate thereof (according
to Form (10) in the First Schedule), which said certificate afterwards, upon being
produced without further proof, shall be a bar to any subsequent information or
complaint for the same matters respectively against the same party127”

7.12e Thelwell v DPP JM 1999 CA 23

After dismissal of information on no evidence being offered issue was whether

double jeopardy applied to bar second proceedings.

Held, no bar as there was no proof of plea in first proceedings further there was
no abuse of process. Applying Lush J minority judgment in Haynes v Davis:

“on the merits” antithesis to dismissal on technical ground which would have
barred adjudication”

The Court opined that the defendant must have been in jeopardy by plea in
summary case or put in jury’s charge on an indictment trial. If charges were
previously dismissed, even without hearing on merits (e.g. prosecution unable to
proceed) no fresh proceedings are possible but not clear whether autrefois acquit
or abuse of process (Pressick relied on).

126
The verdict
127
autrefois
7.12f Patrick Bowen v Vernie Johnson (1977) 25 WIR 60 (Guy.)

Witness absent but no application made for adjournment, case “struck out” and
defendant discharged.

Per Haynes,C a dismissal on no evidence being offered is “on the merits”. The
dismissal must be after a plea for autrefois to bar subsequent charges. A dismissal
is not “on the merits” if there is a technical reason for dismissal.

7.12g English Position

For autrefois to attach in Magistrate’s Court plea required in first proceedings but
not necessary that witnesses called. Dismissal not “on the merits” when dismissed
for technical deficiency in proceedings

7.12h Magistrate’s Court Act 1980 (UK)

27. Effect of dismissal of information for offence triable either way

“Where on the summary trial of an information for an offence triable either way
the court dismisses the information, the dismissal shall have the same effect as an
acquittal on indictment.”

7.12i DPP v Porthouse [1989] Crim LR 224

First information defective for duplicity but plea was taken on it. Thereafter an
alternative information substituted and no evidence offered on 1st information.

Held, no bar for autrefois acquit.

7.12j R (on application of O) v Stratford Youth Court [2004] 168 JP 469, EWHC
Admin 1553128

After plea, there was an unsuccessful prosecution application for adjournment

and the charges were dismissed. Within minutes of order the witness arrived and
the Court acceded to prosecution’s request to relist.

Held, autrefois barred further proceedings.

7.13 Abuse of Process

Issue arises where proceedings would be unfair and oppressive. Staying
proceedings is at the court’s jurisdiction. Court has inherent (implied) power to
protect its processes from abuse. Magistrate’s Courts also have this power but
must be strictly confined to matters affecting fairness of trial (eg delay or
manipulation of proceedings).Should be raised upon plea but no reason why it
could not be raised later. Burden of proof on defendant upon a balance of
probabilities

7.13a Mohammed v R (1965) 8 WIR 169 (T&T)

M charged before the magistrate for manslaughter (indictable) and dangerous

driving (summary) and was discharged at PI for manslaughter. He was convicted
for dangerous driving. When subsequently charged again for manslaughter
autrefois was pleaded

Court ruled that second charge was barred for autrefois.

7.13b Mohammed relies on dictum of Lord Morris in Connelly which is now

regarded as examples of abuse of process rather than autrefois.

128
See also Barking Youth Ct [1999] EWHC Admin 741
“Third Principle: A man cannot be tried for a crime which is in effect the same, or is
substantially the same, as a crime of which he has previously been acquitted or
convicted (or could have been convicted by way of alternative verdict).” Lord
Morris (see pp. 1310–28)

Fourth Principle: Whether the evidence necessary to support the second

indictment, or whether the facts which constitute the second offence, would have
been sufficient to procure a legal conviction upon the first indictment either as to
the offence charged or as to an offence of which, on the indictment, the accused
could have been found guilty.

7.13c Beedie [1997] 2 Cr.App.R. 167

Establishes that the plea of autrefois convict is applicable only where the same
offence is alleged in the second indictment. However, the judge has a discretion
to stay the proceedings where the second offence arises out of the same or
substantially the same set of facts as the first. That discretion should be exercised
in favour of an accused unless the prosecution establishes that there are special
circumstances for not doing so. In the instant case, the judge failed to consider
whether there were special circumstances to depart from the general rule. But, in
considering the issues, there were no special circumstances.

7.13d Requena Flores (1981) 32 WIR 126

Defendant acquitted of murder and manslaughter but charged with robbery on

substantially the same facts.

Held, No rule that evidence adduced in respect of acquitted charge could not be
adduced at subsequent trial for different charge on same facts.

7.14 Examples of abuse of process:

a. Misuse/Manipulation of Proceedings: eg Beedie ; “no sequential trials for

offences on ascending scale of gravity”
 b. Entrapment129
c. Delay130
d. Charge after pardon even if pardon invalid131
e. Non-disclosure

7.10f Christian et al v R (Pitcairn Islands) [2006] UKPC 47

Defendants charged with numerous counts of sexual intercourse with underage

girls. Defendants claimed abuse of process as they did not know the law would
have been forced, delay, and inequality of arms.

per Lord Hoffman:

In exercising this discretion, it was necessary for the judge to weigh in the balance
"the public interest in ensuring that those who are charged with grave crimes
should be tried" and the competing public interest in not conveying an impression
that "the end justifies the means".

And whilst accepting that the lack of publication of the law could, in a proper
case, be an abuse the PC did not find reason to differ from lower courts
application of their discretions.

(On delay)

“but the Supreme Court found that the delay had not caused prejudice to the
fairness of the trials and although there was for a year or so uncertainty about
when and where the appellants would be tried, their Lordships agree with both of
the lower courts that the period was nowhere near long enough to make the
prosecutions an abuse of process.”

129
R v Loosely [2002] 1 Cr App R 29
130
Heron v DPP (2000) 61 WIR 319
131
AG v Phillip
 CHAPTER 8: FAIR TRIAL

DISCLOSURE

8.1a Development
Initially the rule could be sufficiently stated thus: Where the prosecution has
taken a statement from a person who they know can give material evidence but
decide not to call him as a witness they are under a duty to make that person
available as a witness for the defence. Formerly there was no further duty than to
supply the defence with a copy of this statement.

In R v. Bryant and Dixon (1946) 31 Crim App. Rep. 146 the prosecutions duty to
disclose unused material was here first formulated. The duty was later extended
in Dallison v Caffrey. The definition of unused material was later widened in R v
Saunders 1990 unreported (The Guiness) case and held that the defence was
generally entitled to matters that have or might have some bearing on the
offence charged. In Jamaica R v. Porter and Williams (1955) 9 JLR 141 followed
Bryant).

8.1b In the landmark case of R v. Ward 96 Cr. App. R 1, the CA further extended
the prosecutions duty to disclose and held that it was for the court not the
prosecution to judge whether matter may properly be withheld from the defence
on the ground of public interest immunity. (see also R v. Keane 99 Cr. App. R 1
and R v. Brown The Times June 20, 1994).

8.1c In Dallison v. Caffrey(1965) 1 KB 348 at 349 or 1964 Crim Law Rev 619( per
Lord Denning, MR) the Court defined the prosecutor’s duty as being to call the
witness if credible or make his statement available to the defence.

R v. Lawson et al (1990) CrimLR 662, it was held that failure to supply the
defence with statements may work an injustice.
8.2 R v. Mills and Poole [1998] 3 AC 382

The House of Lords considered the question of whether the prosecution had a
duty to disclose to the defence only the name and address of a witness who had
given a material statement but whom the prosecution considered unreliable and
would not be calling (rule in Bryant) and held that the duty was wider than this
and required prosecution to supply to the defence copies of such statements.

The House of Lords thus overruled the rule in Bryant in holding that there was no
discretion in the prosecution to withhold statements.

8.2a Richard Hall v R (1998) 1 LRC 631 PC

The Board questioned the wholesale application of English rules of disclosure to

Jamaica where witnesses were subject to killings or intimidation. The Board
expressed no opinion on whether the rule in Mills applied to Jamaica.

8.2b Nevertheless it seems that the basic English rules of fundamental fairness
have been held to be applicable in Caribbean courts. This is illustrated in the
Jamaican Court of Appeal holding in Mardio McKoy v. R [2010] JMCA Crim 27,
[2010] CCLD 2.31) that the Crown has a legal duty to disclose all relevant
information to the defence as the “fruits of the investigation” are not the
property of the Crown to secure a conviction but for public use to ensure justice is
done.

8.2c “Primary Disclosure”

Prosecution is required to disclose to the defendant the evidence that the
Prosecution intends to rely on. In Indictable and complex Summary Proceedings
this is done by providing a copy of the depositions and any statements or reports
that will be relied on.In ordinary Summary Proceedings a summary of the facts
may suffice.

8.2d “Unused Material”

Prosecution is required to disclose to the defence any material in the possession
of any agent of the State that may:
 i. weaken the Prosecution’s case (including the credibility of prosecution
witnesses),
ii. strengthen the defence case, or
iii. open a line of inquiry that could lead to either of the above

8.2e “Public Interest Immunity”

Prosecution may be allowed not to disclose material to the defence where there is
a public interest reason not to so disclose and the defendant will suffer no
injustice.

8.2f Must the defence disclose?

Unless statute otherwise provides (eg Notice of Alibi) there is no requirement for
the Defence to disclose to the prosecution but see below where a recent CCJ
decision opens the possibility of Defence disclosure of expert reports that they
intend to rely on.

8.3 Primary Disclosure

8.3a Linton Berry (1992) 41 WIR 244, (1993) 96 Cr.App.R. 77 PC

In a murder trial defence had depositions of Crown witnesses’ evidence but not of
statements those witnesses gave to the police. Defence surprised when statement
tendered.

PC ruled that:
a. It is for legislature to provide precise rules.
b. Nevertheless, the practice then prevailing of providing depositions and
giving statements only where there are significant inconsistencies may not
provide fair trial on all occasions.
c. Prosecution must also disclose police statements when they contain
material not foreshadowed in the depositions.

8.3b Douglas Grey [2010] JMCA 15, [2010] CCLD 2.31

The Court of Appeal applied Berry and ruled that where the Crown is aware that
its witness will give different versions a new statement should be secured and
served on the defence.
8.3c Franklyn v. R and Vincent v. R (1993) 42 WIR 262 PC

Conjoined appeals from summary trial convictions where police statements were
not disclosed to the defence.
Held, constitutional right to Fair Trial codifies common law and when applied to
the principles of disclosure the general principles of fairness must be applied on a
case by case basis.
Practice not to disclose statements in summary matters is inappropriate.
Whether as regards the principle of “equality of arms” or “sufficient time and
facilities to prepare defence” it would often be required to disclose statements.
Certainly this would be so the more serious or complex are the charges.
In simple cases a summary of the facts ought to suffice.

8.3d Fergurson v AG (1999) 57 WIR 403 T&T CA

At the preliminary inquiry statements helpful to defence had not been disclosed.
They were disclosed at trial.
Trinidad and Tobago Court of Appeal held:
a. At common law there is a duty for prosecution to disclose statements of
witnesses they do not intend to call and these witnesses may be beneficial
to the defence.
b. This duty applied to committal proceedings.
c. But disclosure may be postponed to avoid risk of harm to maker of
statement.

“Fairness, therefore, which is said to be the key to the rules of disclosure, would
seem to require that material which the prosecution is under a duty to disclose
should be disclosed in indictable cases at or before the preliminary inquiry
(providing of course that it is available to the prosecution at that time). Even if it
means breaking new ground, I would hold that that represents the common law
position.”

Decision subsequently affirmed by PC (2001) 58 WIR 446. Their lordships further

held that there was no constitutional right to disclosure holding that it was
covered adequately by the common law.
8.4 Unused Material

8.4a Judith Ward (1993) 96 Cr.App.R. 1

Judith Ward was convicted for murder and explosives offences. The prosecution
had failed to disclose material pertaining to her alleged confession and certain
scientific evidence.

Prosecution failed to disclose scientific evidence that could have been helpful to
the defence.
EWCA held that the prosecution were obliged to make available:
a. Evidence they did not propose to call but which they knew could, or tended
to, either weaken the prosecution case or strengthen the defence case.
b. any scientific evidence which might arguably assist the defence.
There was a clear obligation on an expert witness to disclose evidence of any tests
or experiments which he had carried out or had knowledge of which tended to
cast doubt on an opinion he was expressing.

8.4b Winston Solomon (1999) 57 WIR 432132

Murder conviction quashed as police and State health authorities knew of
defendant’s mental instability and failed to disclose. It did not matter that the DPP
office was unaware. Further it did not matter that Solomon’s defence was that a
3rd party had killed wife.

8.5 Public Interest Immunity

In some instances the State may want to keep information from being disclosed to
the public to protect the public interest. Examples include the names of
informants and some covert means used to gather evidence. Obviously this may
132
see also PC decision in Sangster and Dixon v R (2002) 61 WIR 383
cause conflict with the defendant’s interest in getting material for his trial that
would ordinarily fall to be disclosed as unused material.

8.5a In Judith Ward the court held that the court, not the prosecution, must
decide whether immunity was to be allowed. It would be wrong for the
prosecution to withhold material without notice to the defence. The court could
then be asked if necessary to rule on the legitimacy of the prosecutions claim.

8.5b R v H [2004] UKHL 3, [2004] 3 ALL ER 1

The House of Lords laid down this test for judges:

1. What is the prosecution seeking to withhold?

2. Will it weaken the Prosecution or strengthen the Defence? If the answer is yes
then full disclosure is required (but see 3,4 and 5). If the answer is no then no
disclosure is required.
3. Is there a real risk of prejudice to an important public interest if disclosure is
made? If the answer is no then full disclosure is required,
4. If the answer to questions 2 and 3 is yes then ask: Can the defendant’s interest
be protected by partial disclosure and the public interest be yet protected?
Court can consider appointing special counsel to test prosecution’s claims.
5. If the partial disclosure at 4 is the minimum necessary derogation then do so. If
not then employ the minimum necessary.
6. If this limited disclosure/non-disclosure will render trial unfair then order
further disclosure even if this might cause prosecution to withdraw
proceedings to protect the public interest.
7. Even where the answer to 6 is no the court must continue to reassess the
matter during trial

8.5c Note that in this approach achieving a fair trial is paramount not balancing
public and private interests. In the long run the State’s remedy is to withdraw.
Further, note that the issue must be determined by the Court. A judge cannot just
take prosecution’s view without examining the issue.
Finally note that the procedure may see appointment of special counsel.

8.5d R v. Davis, Johnson and Rowe 97 Cr. App. R. 110,CA.

Sets out the procedure to be followed when public interest immunity is asserted.
8.6 Defence Disclosure

8.6a Frank Errol Gibson v The Attorney General [2010] CCJ Appeal No. 1
Case concerns whether State should pay for defence expert.
CCJ held that, in circumstances, and bearing in mind the equality of arms, the
State was required to provide such assistance to an indigent defendant.
Further, their lordships opined that neither side had a right to surprise the other
therefore the defence was required to disclose its expert report.

Other Fair Trial Issues

8.7 Public Funding for the Defence

Caribbean Constitutions133 and Article 6 of the ECHR guarantee a “Fair Trial”

specifying or including:

a. “adequate time and facilities for the preparation of his defence”

b. free legal assistance when the defendant cannot afford it and the interest of
justice so require . This does not imply absolute entitlement to state funded legal
assistance134.

c. “Equality of Arms” (implicit in “fair trial”): defendant must be given reasonable

opportunity to present his case such that he is not placed at a substantial
disadvantage.

133
e.g. Jamaica Constitution s. 20 (6), Barbados s.18, Antigua and Barbuda s. 15, Belize 6 , Montserrat
s. 7
134
see eg Barbados s. 18(12)
Whilst some Caribbean statutes provide for some form of legal representation at
public expense there was no known provision for the other expenses in preparing
a defence.

8.7a Frank Gibson v AG of Barbados [2010] CCJ Appeal No. 1, 2010 CCLD

Decision of CCJ landmark in providing that, in some circumstances, the State is

required to pay for the defence expenses.

Defence of poor prisoner sought public funds for defence expert on bite mark.
Crown’s bite mark evidence was crucial to their case. Judge granted order at first
instance but quashed on appeal.

CCJ in allowing appeal, held on this issue:

(i) neither the requirement for the provision of “facilities” in section 18 (2) nor
the principle of equality of arms gives an accused a right to the services
of an expert funded by the State (Article 6(3)(b) of the ECHR; Article
14(3)(b) of the ICCPR 16 December 1966, UN, Treaty Series, Vol. 999
(ICCPR); R v Bidwell Cr. App. No.50/90 (unreported) CA Jamaica
applied, Ake v. Oklahoma 470 US 68 not followed)

It (“facilities”) is usually interpreted to embrace such matters as:

a) tangible objects such as pen, paper, computer and books that will
assist in the preparation

of one’s defence;

b) save where the public interest or statute requires otherwise, a right

of disclosure to the prosecution’s file, an opportunity for the accused
to acquaint himself with the result of investigations carried out
throughout the proceedings, access to all relevant elements that have
been or could be collected by the competent authorities; and
 c) if the accused is in custody, conditions of detention that would
allow him adequately to prepare for trial. (per Saunders, J and Wit, J
paragraph 28);

(ii) however, where the inequality of arms is so serious as to infringe the

right to a fair trial then a court ought not to permit the trial to occur or
continue or, if on appeal, quash the conviction (Harrer [1995) 3 SCR 562)
and, in the instant case, given the seriousness of the charge, the
appellant’s poverty and the complex and controversial nature of the
science, a fair trial could not be had without the State assisting the
Appellant;

(iii) the principle of separation of powers does not prevent the courts from
making orders to redress or prevent breaches of the Constitution, indeed
this is expressly permitted by s. 24 of the Constitution (Gairy v AG of
Grenada (No. 2) (1999) 59 WIR 174;

8.8 Trial without counsel (or equally experienced counsel)

8.8a A-G’s Reference (no 82A of 2000) R v Lea, R v Shatwell [2002] 2 Cr App R 24

On this appeal the EWCA was asked to rule on the question as to whether it was
unfair for the Crown to be led by counsel of superior rank to the counsel retained
by public assistance.

Held, the principle of “equality of arms” did not demand the same rank of
representation but that the D have adequate representation.

8.8b Hinds v AG of Barbados [2002] 1 AC 854

D charged with arson. Legal aid refused by Judge either as case not likely to be
difficult (Crown’s recollection) or offence not one for which legal aid granted.
Tried, convicted and sentenced to 8 years.

Under the Community Services and Legal Aid Act (1981) Cap 112A offence
charged brought no automatic right to legal aid but Court had a discretion.

Fair Hearing guaranteed in the Constitution but did not mean an automatic
entitlement to free representation for all indigent defendants.

PC noted the distinction between ECHR and Barbados Constitution:

Section 18(2)(d) protects the rights of a criminal defendant to defend

himself before the court either in person or by a legal representative whom
he has chosen. But this right is to be interpreted in the light of section
18(12): such a defendant has no entitlement to be professionally
represented at the expense of the public. This subsection is not directed to
the choice of representative but to the responsibility for paying for the
representative chosen under section 18(2)(d). It is a provision included to
avoid doubt. If sections 18(1), 18(2)(a), 18(2)(b), 18(2)(c), 18(2)(e) and
18(2)(f) are compared with articles 6.1, 6.2, 6.3(a), 6.3(b), 6.3(d) and 6.3(e)
respectively of the European Convention on Human Rights, a close
correspondence will be found, often extending to the use of identical
language. But there is a striking contrast between section 18(2)(d) and
article 6.3(c). Section 18(2)(d), already quoted, provides:

"Every person who is charged with a criminal offence … shall be

permitted to defend himself before the court in person or by a
legal representative of his own choice."

This is indistinguishable in effect from the opening words of article 6.3(c):

"Everyone charged with a criminal offence has the following

minimum rights ... to defend himself in person or through legal
assistance of his own choosing".

But article 6.3(c) continues "or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require".
These words were omitted, plainly deliberately, from section 18(2)(d), and
section 18(12) leaves no room for doubt about the reason for the omission.
Barbados has adhered to this position when acceding to international
 human rights instruments. On its accession to the International Covenant on
Civil and Political Rights on 21 December 1972 the government of Barbados
expressly reserved

"the right not to apply in full, the guarantee of free legal assistance in
accordance with paragraph 3(d) of Article 14 of the Covenant, since,
while accepting the principles contained in the same paragraph, the
problems of implementation are such that full application cannot be
guaranteed at present."

Similarly, when ratifying the American Convention on Human Rights, the

government of Barbados with effect from 27 November 1982 made a
reservation that

"Barbadian law does not provide, as a minimum guarantee in

criminal proceedings, any inalienable right to be assisted by counsel
provided by the state. Legal aid is provided for certain scheduled
offences such as homicide and rape."

Appeal was dismissed as PC could not find that he had had an unfair trial
(including appeal where he had counsel)

8.8c Dunkley and Robinson v R (1994) 45 WIR 318

In a murder trial counsel withdrew after altercation with judge. No fault of

accused. Trial continued in his absence and accused was convicted.

PC held,despite 20 (6) (c) of Jamaica Constitution (right to defend in person or by

legal representative) and International Convention on Civil and Political Rights
no absolute right to have counsel at trial. Representation was however, highly
desirable.

Judge should endeavour to persuade counsel not to withdraw and should

consider whether D will suffer prejudice. An adjournment to “cool off” or to
retain new counsel might be advised. Almost always an adjournment will be the
correct initial decision.

8.8d Nevertheless a trial without counsel is not ipso facto unfair. In Robinson v. R
(1985) 32 WIR 330 PC had decided similarly to Dunkley and Robinson

"In their Lordships' view the important word used in section 20(6)(c) is 'permitted'.
He must not be prevented by the state in any of its manifestations, whether
judicial or executive, from exercising the right accorded by the subsection. He must
be permitted to exercise those rights. It is apparent that no one could have done
more than the judge to secure the defendant's representation by counsel of his
choice”

8.8e In Dunkley the conviction was unsafe as although Judge did not encourage
counsel to withdraw he made no attempt to dissuade him and does not seem to
have considered adjournment for alternative representation.

8.8f John Mitchell v. R (1999) 55 WIR 279

In a murder case counsel withdrew through no fault of the accused. The PC

reiterated that Judge must consider whether D will suffer significant prejudice
and that normally an adjournment ought to be granted to secure alternative
representation.

8.9 Defendant’s presence at, and involvement in, his trial: Screening witness (or
other efforts towards anonymity)

8.9a Constitutions provide that a defendant shall have the right135:

“to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him”

135
e.g. Barbados 18 (e), Belize 6 (3) (e), Article 6(3)(d) ECHR
8.9b R v Davis [2008] 1 AC 1128 UKSC

Conviction based largely on evidence of anonymous witness. Held, subject to

common law and statutory exceptions there is a common law principle that
defendant must be able to confront his accuser by way of cross-examination. It
was not competent for the Courts to employ its inherent jurisdiction and permit a
witness to be anonymous. This was a matter for Parliament. The use of
anonymous evidence would not in all circumstances be contrary to Fair Trial
principles. The question in each case would be the degree that the witness
anonymity handicapped the defendant at trial.

A conviction based solely on the evidence of an anonymous witness could not be

regarded as fair.

8.9c UK has Youth Justice and Criminal Evidence Act 1999 s. 19 permits various
special measures including screens and video links which could be applicable to
your territory if English Procedure received where local law is silent136.
Bermuda137 has similar legislation but note below that there is a common law
basis.

8.9d Terrance Vancouver Caines v R Crim. App. No. 11/09 Court of Appeal
[2010] CCLD

The Appellant was the husband of the child complainant’s mother, but not her
father. The child was nine years of age at the time of the offences and eleven
when she gave evidence. The Appellant was charged with four counts of sexual
exploitation of a young person by a person in a position of trust, contrary to
sections 182(B)(1)(a) and 182(B)(1)(a) of the Criminal Code. At the trial, the
prosecution applied for and were granted an order under section 542A(1) and (2)
of the Criminal Code that the complainant be permitted to give her evidence

136
e.g. s. 47 Antigua Criminal Procedure Law
137
Criminal Code s 542
behind a screen. A social worker involved in the case gave evidence of the child’s
reluctance to face the Appellant during her testimony. Her evidence was given
while she sat behind a screen and she could not see him; he could only see a
blurred outline of her.

He was convicted and sentenced to five years’ imprisonment on each count to run
currently. The Appellant appealed and on appeal argued that his constitutional
right to fair trial under section 6 of the Constitution had been breached in that he
was not able to see and confront his accuser.

Held: (i) To satisfy section 542 the trial judge must be “of the opinion that
such arrangements for the use of a screen are necessary for a full and
candid account of the act complained of “and in the instant case although
the evidence was brief, the judge was entitled to form her opinion based on
it and it was not necessary or even desirable for the judge to hear the child
asked about it in chambers;

(ii) The section was devised to secure a way to properly balance the goal of
ascertaining the truth and the protection of children as well as the rights of
the accused and there was no infringement of the principles of
fundamental justice nor of the right to a fair trial; Levogiannia v. The Queen
1993 (160N R 371); R.v. Smellie (1919) 14 Cr. App. R. 128

8.9e R (D) v. Camberwell Green Youth Court [2005] I WLR 393 138

UK Act does not offend Constitutional principles. Although it is normal for D and
W to have “face to face” confrontation, this is neither required nor essential as
there is also a public interest in ensuring that vulnerable witnesses can give their
evidence without fear.

138
see also A-G for Sovereign Base Areas v. Steinhoff [2006] 2 LRC 368
8.9f R v Smellie (1919) 14 Cr. App. R. 128

Court had inherent power to send a defendant out of eyesight but within hearing
to permit frightened witness to give evidence freely.

8.10 Defendant’s presence at, and involvement in, his trial: Defendant’s absence
at trial

8.10a Lloyd Chuck (1991) 28 JLR 422

Only in exceptional cases should felony trial be conducted in absence of the

defendant. But if clear he has absconded the defendant cannot complain if the
trial continues in his absence

8.10b R v Jones [2002] UKHL 5, 2 ALLER 113

Defendant absconded before his trial started, his counsel withdrew and the case
was adjourned for 6 months. He was tried and convicted in absentia. Issue on
appeal was whether there could be a fair trial where the defendant was absent
from start.

House of Lords held, where a defendant of full age and sound mind voluntarily
absents himself this does not automatically suspend criminal proceedings against
him.

There was a discretion to continue in D’s absence it must be exercised with great
care and caution.

If absence involuntary (e.g. illness) rarely proper to continue in absence. Possible

exception to this is a case where the defendant has counsel and requests trial to
start.

Seriousness of offence not a relevant consideration either way as Judge must

always be concerned that trial fair to defendant in circumstances.
8.10c Shaw [1980] 1 WLR 1526

Counsel’s instructions are not extinguished by the absence of his client. Counsel
must decide whether, given the state of his instructions, he can continue. Counsel
should be encouraged to remain and continue.

8.10d Kepple [2007] EWCA Crim 1339

Where counsel continues to represent an absent defendant he should conduct

the trial on his instructions as if the defendant was present but had decided not
to give evidence. Defence witnesses can be called but counsel must not, either by
suggestion in cross-examination or in address, insinuate what the defendant
would have said if he was present.

8.10e Counsel may even rely on instructions received after the defendant had
absconded139.

139
Pomfrett [2010] 2 AllER 481
 CHAPTER 9: ARRAIGNMENT

9.1 Introduction Each defendant must be called by name and each count
(complaint or information) read to him. Plea is required separately. In the case of
alternative counts, i.e. where the defendant cannot be guilty of both (eg cannot
be thief and be receiver/handler) and the defendant pleads guilty to the first of
the alternatives do not put the second as no verdict is required.

9.2 The plea must be entered personally. Contrast Ellis (1973) 57 CrAppR 57
(nullity where judge proceeded to sentence without plea of guilty although
defence counsel had expressed basis of guilty plea) ;Williams [1978] QB 375(trial
fair despite failure to arraign); and Boyle [1954] QB 292: (no miscarriage where
plea taken on whole indictment and not on individual counts).

9.3 Prisoner standing mute and fitness to plea140

When on arraignment the defendant is silent. The issue for the Court will be
whether he is mute of malice (deliberate) or by visitation of god (incapacity). A
prisoner mute by act of God can be tried if fit to plea, is sane, can read or write or
communicate and understand by words or signs.The issue usually arises at
arraignment and must be tried by a jury. Witnesses may be called on behalf of
the accused and counsel for accused may address the issue. If the jury finds mute
by malice a plea of not guilty is entered and trial may proceed.

9.3a If found mute by act of God the same jury is sworn to determine fitness to
plea. In Pritchard (1836) 7 C&P 303 and in King v. Governor of His Majesty’s
Prison ex parte Emery [1909] 2 KB 81 the approved procedure saw the same jury
that found mute of malice being sworn again to try the issue of fitness to plead

140
See e.g. Antigua Cap 117 s. 20, Barbados Cap 127 s. 7(2) and Jamaica CJ(A) Act s. 11
9.3b To be fit to plead the defendant must be able to plead to the indictment, able
to understand the course of proceedings, capable to instruct counsel, able to
challenge jurors, and able to understand evidence (see Friend (1997))
Burles (1970) 2 QB 191: Must be of sufficient intellect to comprehend
proceedings, make proper defence and understand the evidence.
8.2c If fit but mute by visitation of god (e.g. physical impairment) trial may
proceed if can communicate by other means (e.g. sign language).
If accused is unfit he is kept at the courts pleasure (formerly the Governor
Generals pleasure but no more since Kurt Mollison (2))

9.3c R v. Schleter (1866) 10 Cox 409

Prisoner stood mute. Jury found mute by malice. Court entered a plea of not
guilty. Police evidence showed that the prisoner spoke through an interpreter at
the previous trial. Translator gave evidence also the doctor.

9.3d Burden of proof is normally on the prosecution to prove malice to a standard

beyond a reasonable doubt. For example in R v. Sharp 41 Cr. App. R. 197,
defendant was charged with offences against young girls but stood mute. Salmon
J instructed the jury that the prosecution must prove malice.

9.3e Ex-parte Emery1902) 2 KB 81

Defendant was totally deaf and could neither read nor write and stood mute
upon arraignment. The jury found him mute by visitation of god. Jury sworn again
to see if he was fit to plea and found that he was not fit to plea as he was insane.
Emery ordered to be held at His Majesty’s pleasure.

9.3f Fitness to plea may arise before arraignment if prosecution raises it as a

preliminary issue. In R v. McCartney a deaf mute whose conduct before the jury
was sworn caused the judge to ask for a medical evaluation. At the hearing the
medical report showed defendant not fit to plea. Neither defendant nor
prosecution had raised the issue. Held no disability had arisen at his trial.

9.3g Court may postpone determining issue. In R v. Burles defendant was severely
subnormal and communicated with his arms and grimaces. Defence asked that
fitness to plea to be postponed until no case submission. Jury found him unfit.
Judge should have considered strength of prosecution case. Prosecution’s case
was weak and trial of the issue should have been postponed until after no case.

9.3h R v. Podola If a defendant claims unfitness it his burden but on the balance
of probability. Berry [1977]: If raised by defence then they must prove on a
balance of probabilities. Mc Carthy [1967] 1 QB 68: Judge on his own volition but
no clear authority on standard of proof. It is respectfully submitted to be proof
beyond reasonable doubt.

9.4 Plea of guilty to a lesser offence

9.4a On arraignment to an indictment for any offence an accused who can
lawfully be convicted on that indictment for another offence not charged in such
indictment can plead not guilty to the offence charged and guilty to the other
offence141.
He is then discharged on the offence for which he was indicted and sentenced on
the lesser offence. On indictment effect of an accepted plea is a conviction of the
lesser and acquittal of greater offence.
Prosecution should only accept such a plea if there is an evidential basis.
It’s always in the Judge’s discretion to refuse to accept such a plea especially
where there is no such evidential basis but their ought to be some judicial
restraint.

9.4b Such a plea is not an option at a summary court unless statute expressly
permits142. Prosecutor could try to facilitate by filing a new complaint/information
if still within the limitation period.

9.4c R v. Soanes (1948) 32 Cr. App. R 186:

Prosecution ought not to accept a lesser plea unless, on the papers, there is an
evidential basis.

141
Section 10(2) Crim. Jus. Act.

142
Lawrence v Same (1968) 2 QB 93
Defendant killed her child and threw it in a canal. She wanted to plea to
infanticide and prosecutor was amenable. Judge refused to accept plea to lesser
offence. Jury returned verdict on infanticide.

Held, Judge was right to insist on a charge of murder. It is for the jury if they see
fit to return a verdict on the lesser charge.

9.4d R v. Cole (1965) QB 388, 2 ALL ER 29

Three counts were on the indictment; the third count being a lesser alternative to
the others. A plea of not guilty entered to first two but guilty to the third. Judge
refused to accept plea and matter was set for trial and Cole was convicted.

Held: Plea of guilty not a conviction until judgement. Judge had discretion to
refuse a plea of guilty to a lesser offence. The proper course of action where plea
refused is to try defendant for counts where he pleaded not guilty. If found guilty
he would be sentenced on those, but if found not guilty, the Court can sentence
on count that he had pleaded guilty to.

9.4e R v. Dolan [1976] 62 CrAppR 36

Charged for theft and receiving. During the trial def pleaded guilty to receiving.
Count of theft still left to the jury. Found guilty of theft but also returned verdict
on receiving. Held two counts in alternative, once guilty of theft no verdict should
have been returned on the receiving.

9.4f If the prosecutor is desirous of accepting the proffered plea could a judge
compel the prosecution to refuse it and try the case? The Farquharson
Committee 1968 (UK) recommended that:
a. It is for prosecuting counsel to decide whether to offer no evidence.
b. If the prosecutor invites the Judge’s approval then the prosecutor must
abide by the Judge’s decision.
c. If the prosecutor does not seek approval; Judge may express his dissent and
ask for reconsideration.
d. In extreme cases Judge may decline to proceed until prosecutor consults
with the DPP.
9.5 An unaccepted plea of not guilty to a lesser offence not on the indictment is
of no procedural significance; it must be treated as withdrawn and a nullity.

9.5a Hazeltine [1967] 2 QB 857143

Defendant pleaded guilty to unlawful wounding on an indictment charging
wounding with intent the plea was not accepted. He was tried and his defence
was self defence (note inconsistency with unaccepted plea). Defendant was
acquitted of Wounding with Intent but the judge sentenced him to 9 months for
unlawful wounding.
Held, unaccepted plea a procedural nullity and impliedly withdrawn. If the
prosecution had led evidence to prove that H had pleaded guilty to unlawful
wounding then jury could have been told of it as it was inconsistent with his trial
defence.

9.5b R v. Thompson 1980 Crim LR 188

Plea tendered of not guilty to reckless driving but guilty of careless driving.
Careless driving was not charged and the prosecution did not accept the plea.
Defendant was acquitted by the jury on reckless driving. Careless driving was not
left to the jury but the Judge fined him on his plea of guilty to that offence.

Held: Plea of guilty once not accepted should have been treated as withdrawn

9.6 Mixed plea

Where defendant pleads guilty to some counts the prosecution may accept the
plea and offer no evidence on the other counts. Alternatively the prosecution may
proceed to trial on the others.

143
see also Lee [1985] Crim LR 798
9.6a Where A and B are jointly charged and A pleads guilty and B not guilty. The
judge may adjourn sentence of A until B’s trial finished to be in a better position
on facts and to assess degree of culpability144.

But what would the position be if A is to give evidence against B? Confer Payne145
and Pipe (1966) 51 CrAppR 17 (a case of separate indictments) where the
suggested answer is to sentence A before he gives evidence against B so that A’s
evidence not coloured by a possible desire to mitigate his sentence.
But this approach is now disapproved146.

9.7 Change of Plea

Changing plea from not guilty to guilty is possible at any stage before verdict. Jury,
once put in charge, must return a formal verdict of guilty147.
From guilty to not guilty is possible before sentencing as court would not be
functus. This is discretionary and a judge ought to permit change if it is shown that
plea not voluntary or that the defendant did not understand nature of plea148.

9.8 Factual basis for sentencing on plea of guilty

On plea of guilty the prosecution will normally set out the facts to court. But what
if the defendant, whilst admitting guilt to the charge, does not agree with the
prosecution’s version? The leading case, Newton (1983) 77 Cr App R 13 advises
one of three possible solutions:

1. Enter a plea of not guilty and try the case,

2. Judge hears the disputed evidence and determines what he/she will rely
on, or
144
Payne [1950] 1 AllER 102, Weekes (1980) 74 CrAppR 161
145
ibid
146
Turner (1975) 61 CrAppR 67, Weekes (supra) and PC decisions in Chan Wai Keung [1995] 2 CrAppR
194 (Hong Kong) and Tillet (Belize) [1999] UKPC 27.

147
Compare Heyes [1951] 1 KB 29 and Poole [2002] 1 WLR 1528
148
Revitt v DPP [2006] 1 WLR 3172
 3. Rely on submissions of counsel but where substantial conflict exists the
defendant’s version must be preferred

Newton has been followed in Jamaica in R v Pearlina Wright (1988) 25 JLR 221.

9.8a Tolera [1999] 1 CrAppR 29

It was held that the onus was on the defence to make it clear that they desire that
sentence be passed on a factual version different than the prosecution’s. A
Newton Hearing is to be held where there is “real divergence” that will have
potentially significant effect on the level of sentence”. The prosecutor must show
beyond reasonable doubt that the defence version is incorrect. The defendant
calls evidence and the prosecutor (acting amicus) tests same by cross –
examination.

9.9 Seeking indication as to possible sentence prior to guilty plea

9.9a Goodyear [2005] Cr App R 281

The EWCA ruled that a Judge can give an indication but only if sought by
defendant. Nevertheless a judge can remind counsel. A Judge may refuse to give
an indication or reserve until has better understanding of facts. The indication
must be as to the maximum if a plea of guilty is offered at around that time. An
advocate should not seek an indication without written signed authority from
client and should ensure that client does not plead guilty unless he is actually
guilty. The indication binds another judge who might shortly take the matter up.

9.9b Goodyear was followed in Cayman Islands in Dilbert v R delivered March 29,
2010.
 CHAPTER 10: THE JUDGE AND MAGISTRATE

10.1 Reasoned decision

Must a Magistrate (or a Judge sitting without a jury) give reasons for their trial
decisions such as the verdict or as to the admissibility of evidence?

10.1a Alexander v Williams (1984) 34 WIR 340149

A was convicted by magistrate but no reasons given. An action was brought for
reasons.

Held, although no specific statutory requirement a Magistrate must give reasons

when appeal lodged as where liberty of the subject is concerned due process
requires that magistrate give reasons for decision (approving Aqui v Pooran
Maharaj).

Such reasons must show awareness of issues, assess material evidence, and
display an appreciation of relevant law.

The appeal was allowed.

10.1b Cedeno v Logan [2000] 58 WIR 411 [2001] 4 LRC 213

Quashing of a conviction for absence of reasons is not automatic if the basis of

the decision is clear and an appeal court can evaluate the basis of the conviction
without it. Conviction could be quashed in cases with complex issues of law and
fact.

10.1c In Jamaica there was no general practice to give reasons until the law was
amended150 which now requires a statement in summary form of his findings of

149
Followed in Graham v Police ECCA [2010] 79 WIR 288
150
s. 291 Judicature (RM)
fact on which the verdict of guilty is founded. For application see Bernal and
Moore (1996) 50 WIR 296.

10.1d R v Lloyd Chuck (1991)

Provides this guidance to Magistrates:

a. Where evidence conflicts state reasons for resolution.

b. State primary facts from which inferences drawn.
c. Show awareness of legal issues.
d. If required to warn findings must demonstrate that he warned himself.

10.1e Christian [2006] UKPC 47

This does not mean that RM or Judge (without Jury) must formally warn
themselves as if instructing a jury.

Lord Hoffman at paragraph 28:

“The second application was on behalf of Terry Young on a ground not raised in
the Court of Appeal, namely that the trial judge, who sat without a jury, should
have said expressly in her reasons for judgment that she had cautioned herself
that telling lies is not necessarily an admission of guilt. Otherwise, it was said "she
may have treated lies as an implied admission of guilt". Their Lordships do not
accept that this was necessary. The law requires, as a matter of caution, that a
jury of lay persons should be warned about how lies should be treated. A judge
requires no such warning and it is unnecessary that she should encumber her
reasons with express statements that she has avoided all the fallacies into which
untutored persons may lapse. Unless the contrary appears from the reasons for
judgment, it is assumed that she did so

……

His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the
law or to give (perhaps at the end of a long trial) a full and balanced picture of the
facts for decision by others. His task is to reach conclusions and give reasons to
support his view and, preferably, to notice any difficult or unusual points of law in
order that if there is an appeal it can be seen how his view of the law informs his
approach to the facts."

10.1f Human Rights law presumes that a Judge will give reasons where they are
decisive to the outcome of the case.

10.1g Wallace and Fuller (1996) 50 WIR 387

Caution statements were admitted after a voire dire but no reasons were given. It
was argued that reasons were required for all rulings.

Held, there is no general rule that conviction must be quashed absent reasons.
Effect of failure depends on the nature of the decision. Where decision a question
of law court must give sufficient reasons to enable review; if mixed law and fact
then state the findings of fact so law may be put in context. When judicial
discretion has been exercised the judge must give brief reasons to account for
exercise. But for issues of pure fact reasons not ordinarily necessary.

10.2 Summing up

10.2a Lawrence [1982] AC 510

Advises that summing up should include:

a. reference to the burden and standard of proof,

b. explanation of the role of Judge and Jury,

c. a succinct but accurate summary of issues of fact as to which decision required,

d. a correct but concise summary of the evidence and arguments on both sides,

e. a correct statement of possible inferences from primary facts, and

f. such legal directions custom built for the case.

10.2b Byfield Mears 97 Cr App R 239

The issue was not whether the jury’s function was usurped . This was too high a
test. The issue was one of balance. Although Judge may comment on facts these
must be balanced and not seem to advocate a particular verdict. the PC ruled that
imbalance was not saved by the judge saying “but it is a matter for you”.

10.2c Wang [2005] 1 WLR 661 HL

A Judge is never permitted to direct a guilty verdict except where a defendant has
changed his plea from not guilty to guilty.

Thus if a defendant has evidential burden and has not discharged it, the issue can
be withdrawn from the jury’s consideration but they cannot be directed to
convict.

10.2d Prosecuting counsel is under a duty to point out mistakes or omissions from
summing up151. Not clear if defence counsel has same duty. Judge may also seek
assistance before summation or point out directions that will be given. It would
be wise to “canvass” before closing speeches to put both parties on notice as to
expected summation152.

10.3 Alternative verdicts and Defences

At common law an alternative exists where lesser offence included in definition of

greater. Alternatives may also be created by statute. The judge must also consider
possible defences indeed he/she is bound to leave all possible defences and
alternative offences that arise. The threshold is a low one.

151
McVey [1988] Crim LR 127
152
see Mears 10.2b
10.3a Von Stark [2000] 1 WLR 1270

Disputed statement that woman killed under influence of drugs. PC held that, if
believed, this would have reduced murder to manslaughter. Note that defence at
trial was a denial of involvement and judge did not leave manslaughter. On appeal
of murder conviction, per Lord Clyde at paragraph 12:

“The function and responsibility of the judge is greater and more onerous than the
function and the responsibility of the counsel appearing for the prosecution and
for the defence in a criminal trial.

.......

It is his responsibility not only to see that the trial is conducted with all due regard
to the principle of fairness, but to place before the jury all the possible conclusions
which may be open to them on the evidence which has been presented in the trial
whether or not they have all been canvassed by either of the parties in their
submissions

If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable

jury could reasonably accept it, then of course the judge is entitled to put it aside.
The threshold of credibility in this context is, as was recognised in Xavier v. The
State (unreported), 17th December 1998; Appeal No. 59 of 1997, a low one

.... if there is evidence on which a jury could reasonably come to a particular

conclusion then there can be few circumstances, if any, in which the judge has no
duty to put the possibility before the jury. For tactical reasons counsel for a
defendant may not wish to enlarge upon, or even to mention, a possible
conclusion which the jury would be entitled on the evidence to reach, in the fear
that what he might see as a compromise conclusion would detract from a more
stark choice between a conviction on a serious charge and an acquittal. But if
there is evidence to support such a compromise verdict it is the duty of the judge
to explain it to the jury and leave the choice to them.”
10.3b Once the evidential burden is met is does not matter whether defence does
not desire that particular defence be put153.

153
Coutts [2006] 1 WLR 2154
 CHAPTER 11: THE JURY

11.0 Introduction

Caribbean law is a combination of statutory and common law principles .Some

fundamental principles:

a. Random selection
b. Impartial tribunal
c. Secrecy of deliberations
d. Supremacy on facts

Each jurisdiction may have slightly different statutory provisions as to:

a. The procedure for making up the Jury List.
b. Qualifications for, and exemptions from, jury service.
c. Whether the prosecution has peremptory challenge or merely right to
“Stand By”.
d. The number of peremptory challenges (if any).
e. The number of jurors to make up a panel (including the minimum number)
f. Offences for which majority verdicts are acceptable
g. The minimum period that a jury must deliberate before a majority verdict
may be taken.
h. The minimum period that a jury must deliberate before the trial judge can
discharge them as being hopelessly deadlocked (“Hung Jury”).

11.1 Empanelling the jury

11.1a Mere error on the part of the Registrar in making up Juror’s list is not a
ground of challenge.

11.1b DPP v William Penn [2008] UKPC 29

Registrar disobeyed statutory procedure but such disobedience does not

invalidate verdicts where no injustice caused.
“On an appeal after a trial during which such failures went unobserved by those
responsible for trying the issues of law and fact and all appeared entirely in order,
the question is whether the default now identified is such as to require the trial
and verdict to be set aside. Highly regrettable though it was, there is no ground
for considering that the default had or could have had any impact on the eligibility
to serve, randomness, impartiality or ultimate decision of all or any of the
members of the jury

.......

The authorities draw this distinction, and make clear that merely to establish
after conviction some reason why a juror should not have sat will not suffice to
have a jury's verdict set aside. Thus the presence on the jury of someone
disqualified by conviction for felony from sitting (R v. Kelly [1950] 2 KB 164) or
of someone who mistakenly answered to the wrong name when the jury was
being impanelled (R v. Mellor (1858) Dears & B 468, by a narrow majority) will
not suffice in the absence of any injustice, unfairness or real prejudice (R v.
Mellor, 499, 508, 514, 517, 518-9 and 522-3, per Erle, Crompton, Crowder,
Willes, Channell and Byles JJ; cf also R v. Comerford [1998] 1 CAR 235, 244D).
Deliberate impersonation of a juror by another person will in contrast lead to
the verdict being set aside (R v. Kelly; R v. Wakefield [1918] 1 KB 216).”

11.1c From the list (or book) of eligible jurors a shorter list is chosen by ballot.
This shorter list is called the array. From this array a poll (potential juror) is
selected in the defendant’s presence. The poll may be challenged by either side,
asked to stand by (in some territories), or excused by the trial judge.

The permissible challenges are: for cause to the array and for cause to the polls,
and peremptory(without reason) challenge to the polls.

11.1d In some jurisdictions potential jurors will be told the names of witnesses for
them to ascertain any connections. Further note approval of a jury questionnaire
in Tibbets (below) to ascertain bias.
11.2 Challenge for cause to the array
This must be in writing so the other party can demurr or counter plead it. The
challenge may be made either by the prosecutor or the accused. It is either a
principal challenge or for favour. Such a challenge for cause must be tried by the
judge before whom the accused is indicted. Burden of proof is on the person who
makes the challenge. When the challenge is made witnesses are called to support
or defeat the challenge. Juror may be examined on the voir dire.

11.2a Principal challenge for cause to the array must be founded on some
manifest partiality or error in the process server, and if proved the court will at
once quash the array whilst a Challenge for Cause for Favour to the array is
appropriate where the position of the summoning officer is not inconsistent with
indifference and bias may be suspected.

“The only ground…..unindifferency or default of the sherrif” (O’Connell v R 5 St.

Tr. (NS) 1, 799)

For example the officer making up list is the prosecutor or virtual complainant.

Officer making up list biased or acting in favour of one party

Thus default does not have a wide meaning. Must offend random selection or the
prohibition of bias.

11.3 Challenge to the polls for cause

This is also for favour or principal. The grounds for principal challenge for cause to
the polls:

a) propter affectum- presumed or actual partiality in a potential juror

b) propter deffectum-on account of some personal objection e.g. infancy or
non qualification. Juror may challenge himself by stating that he is not
qualified and the court will examine him on oath.
c) propter delictum- on account of some conviction
d) propter respectum- where a lord of the realm is empanelled to try a
commoner
11.4 Challenge to the polls for favour.

These challenges are unlimited and available to both sides if there is a cause (a
reason) to ask a juror not to serve. As discussed above a party may challenge the
array (challenge to entire prospective panel as a collective). Sufficient cause in
both regards will often surround a suggestion of bias.

11.4a The test for bias is that approved in Porter v. Magill; Weeks v. Magill
([2001] UKHL 67 ) namely, whether a fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility that the
tribunal was biased154.

11.4b Tibbetts v. Attorney-General of the Cayman Islands [2010] UKPC 8

The fact that the wives of a juror and of a Crown witness were very close friends
and had holidayed together not discovered until during trial. This occurred
despite the fact that a jury questionnaire had been used to detect bias.

“The question is whether the fair-minded and informed observer, having

considered the facts, would conclude that there was a real possibility that the jury
were biased: Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, per Lord Hope at
paras 102 and 103. The fair-minded and informed observer must adopt a balanced
approach and is to be taken as a reasonable member of the public, neither unduly
complacent or naïve nor unduly cynical or suspicious: R v Abdroikof [2007] UKHL
37, [2007] 1 WLR 2679 per Lord Bingham at paragraph 15. The appellant's case is
that there is a real possibility that one of the jurors was biased in favour of one of
the witnesses. It is common ground that the question to ask is whether the fair-
minded and informed observer ('the putative observer'), having considered the
facts, would conclude that there was a real possibility that the juror was biased,
such that he might have accepted the evidence of that witness as a result”

154
biased see also R. v. Abdroikov (Nurlon);R. v. Green;R. v. Williamson[2008] 1 Cr.App.R. 21
Held, Given the fact that witness’s evidence was uncontested a putative observer
would conclude that juror would accept his evidence for that reason and not
because of prior relationship.

11.4c When a challenge is made the burden of proof is on the party alleging. After
a challenge is made the poll may be examined on a voir dire as to qualification or
the leaning of his affection. Witnesses may be called but a prima facie case must
first be made out155. On challenge for cause witnesses may be called and poll in
question may be examined.

Normally said party is not allowed to “fish” for basis of challenge and must
establish a prima facie case before the poll may be examined. Chandler (1964) 48
Cr App R 143,151: Right to have jurors stand by before challenging for cause not
available to the def but in discretion of judge to allow. Also there must be a
foundation laid to support his ground of challenge.

11.4d Kray (1969) 53 Cr App R 412

In exceptional circumstances where there has been substantial unfair pre-trial

publicity the polls may be questioned without a prima facie case of bias in the
individual poll having been first established.

The previous trial was extensively reported and it was feared that this would
influence the jurors in the second trial. These concerns did not ordinarily provide
a case for bias but as the newspapers, learning of the second trial, had dug up
discreditable allegations from the first trial which were extensively reported there
was a prima facie case of bias and defence counsel had the right to examine
jurors as they came to be sworn156.

11.4e McCann (1991) 92 Cr App R 239: Crown may engage in jury vetting
(investigate jurors on list) in order to exercise right to stand by.

155
R v. Solomon 12 JLR
156
see also note at end of Grant v DPP [1980] 30 WIR 246 and the Canadian case of Williams [1998] 4
LRC 183
11.4f No ground of appeal to say that juror could have been successfully
challenged for cause when no such challenge was made.

11.5 Peremptory Challenges

These are made to the polls (i.e. to the individual juror as he comes to the poll to
be sworn). The number of peremptory challenges allowed in Jamaica is 7 in the
case of murder, and otherwise 5. Jurors empanelled to try collateral issues are not
subject to peremptory challenges. Denial of the right to this challenge will mean
that the trial was a nullity157. In some jurisdictions the Crown has no peremptory
challenges.

11.5a R v. Harrington 64 Cr.App.R. 1

Challenge is made as the poll comes to the book to be sworn and before he takes
the oath158 but the judge has the discretion to permit it before the reading of the
oath is concluded.

11.6 Talesmen
Where there are insufficient polls to make up the jury the court has the power to
add to the panel as many bystanders not disqualified or exempt this is “praying
the tales”. Thus when the list of potential jurors is exhausted but the jury is not
fully seated the court may order that persons in the vicinity, who are qualified to
be jurors, be immediately brought to court for possible seating on the jury
without written notice. These are “talesmen” or “tales”.

A jury cannot be completely made up of tales men159.

157
R v. Williams (1925) 19 CrAppR 67
158
e.g. section 12 (3) Jury Act(Jamaica)
159
Solomon [1958] 1 QB 203, 42 Cr App R 9
11.7 Stand by

In some jurisdictions the Crown has no peremptory challenge but may ask the
poll to stand by, i.e. stand aside to see if the jury can be made up without them160.

11.8 Achieving a Balanced Jury

The judge may, in his own discretion, excuse or stand a juror by but it is not open
to a judge to use this power to achieve a desired racial or sexual balance161.

11.9 Discharge of Jury or Jurors

Once seated an individual juror may be discharged by the court for such high
degree of need such as illness, death or misconduct.

Jury Act (Jamaica)162

Section 45:

“ in cases of necessity such as when a Juror is taken ill during any trial and
the number of its members is reduced by more than one or a prisoner is by
illness or other sufficient cause incapable of remaining at the bar, or for
other cause deemed sufficient by the judge, the judge may discharge the
jury.”

Section 31(2):

“ On trials on indictment before the circuit court for any criminal case
other than murder or treason seven jurors shall form the array.”
160
see R. v. Chandler[1964] 2 Q.B. 322 ,48 Cr.App.R. 143
161
Broderick [1970] Crim LR 155, R. v. Ford (Royston James)[1989] Q.B. 868 ,89 Cr.App.R. 278 , CA . See
also R. v. Tarrant (James Nicholas)[1998] Crim.L.R. 342 , CA ; and R. v. Smith (Lance Percival)[2003] 1
W.L.R. 2229
162
See also section 28 Antigua; Barbados ss34-35; Belize s 36(1)
Section 31(3)

“ Where in the course of a criminal trial any member of the jury dies or is
discharged by the court through illness or any sufficient cause, the jury shall
nevertheless so long as the number of its members is not reduced by more
than one, be considered as remaining properly constituted for all the
purposes of that trial and the trial shall proceed and the verdict may be
given accordingly.”

Section 31(4) goes on to state that where a juror has died or has been discharged
the verdict of 6 jurors in a trial other than murder or treason is a unanimous
verdict and that a verdict of 5 jurors may be received and entered as a verdict of
the jury.

11.9a R. v. Richardson [1979] 1 W.L.R. 1316 , CA

A juror was discharged after notifying the judge that her husband had died the
night before. Discharge was not done in open court and counsel were unaware.
Defendant was convicted.

Held, not necessary for discharge to have been done in open court and the
decision to discharge was not exercised capriciously.

11.9b The entire jury may be discharged if they hear prejudicial evidence, their
number falls below the statutory number or if they are unable to agree a verdict.
The judge’s decision to discharge not subject to review or appeal163 but failure to
discharge may be a successful ground of appeal if “unreasonable”164.

11.9c Necessity may be described as a high degree of need for such discharge
made evident in the judge’s mind165.

What amounts to a necessity is essentially a matter for the judge’s discretion and
it is not in practice difficult to show that it exists166. There must be a high degree
of need in the reason to discharge. A juror was discharged after the case started
because she failed to turn up for trial on time because of transportation
problems. The Judge had no power to discharge under those circumstances
therefore it was a nullity rather than a mere irregularity.

11.9d Rv. Hambrey (1977) 3 All ER 561, 65 Cr. App. Rep. 233

A capricious discharge of a juror may render a conviction unsafe.

A juror was discharged because the trial was long and her holiday plans were
being interfered with.

The C.A. approved the judge’s decision to discharge her. Relevant considerations
to the exercise of the discretion were that trial by jury depends on the co-
operation of the public. If the administration of justice can be carried out without
unduly inconveniencing them, it should be. Furthermore an aggrieved and
inconvenienced juror is not likely to be a good one.

11.9e A juror can also be discharged after one of several verdicts had been
returned and the remaining jurors may return valid verdicts167.

163
Beadell (1933) 24 Cr App R 39,43
164
Hambery[1977] Q.B. 924 ,65 Cr.App.R. 233 , CA
165
Rv. Winsor L.R. 1 QB 289 at 394
166
State v. Baichandeen (1979) 26 WIR 213 at 219 (T&T)
167
R v Wood and Furey (1997) Crim. L. Rev. 229 C.A.
11.9f Rv. Horsey (1990) Cr. L. Rev. 731

The discretion to discharge a juror can be exercised even after the jury has
retired.

The appeal was on the grounds that the trial Judge had been wrong to discharge a
juror on the basis of illness after the jury had retired. It was held that there was
no general practice which required the judge not to exercise his discretion to
discharge a juror after retirement. The Court of Appeal considered section 16(1)
of the Juries Act 1974 which is mutates mutandis with section 31(3) and said if
parliament had intended such a restriction it would have been written into the
section.

11.10 Investigation

If there is friction amongst the jury making it impossible for them to come to a
verdict the whole jury should be questioned in open court as to their capacity to
arrive at a just verdict168.

If there is any suspicion of an improper approach having been made it is the duty
of the judge to investigate the matter including questioning the individual jurors
and even the jury as a whole as to whether they have been compromised. The
judge will then make an informed exercise of his discretion as to whether all or
any of them should be discharged. See generally Rv. Blackwell (1995) 2 Cr. App
Rep. 625 , R v. Putnam 93 Cr. App. R. 281 where the CA described the courses
open to a judge if it emerges at the trial that a jury has been improperly
approached. R v Appiah 1998 Crim L. R. 134 where it was held that it was proper
after discharging one juror to ask the rest if they thought they could continue, for
if they felt unable to do so trial would be aborted.

168
R v Orgles 98 Cr. App. Rep. 185 CA
The duty to investigate only arises when there is some indication of something
untoward happening. R v. Oke (1997) Crim. L. R. 898, held that the mere presence
of a relative or friend of the juror in court did not trigger that duty.

11.10a Where it is accidentally elicited during the course of the case that the
prisoner has previously been convicted the jury is usually discharged in the
interest of the defendant. The same applies where the jury sees documents they
should not see.
11.10b Rv. Peckham 25 Cr App R 125169
A witness inadvertently made a statement prejudicial to the accused it was held
that the jury should have been discharged when counsel for the defence made
the application. Where no application is made the question of discharge is at the
discretion of the judge. An undefended accused should be told by the judge of his
right to make such an application. It is the discretion of the judge to decide
whether to grant it or not.

169
See Weaver (1963) 1 QB 353; R v Pratt and Morgan (1984) 21 JLR 321, Peter McClymouth v R 51 WIR
178
 CHAPTER 12:WITNESSES AND THE COURSE OF TRIAL

12.1 Demurrer
Defendant may argue that even if facts are true they do not constitute an offence
known to law. The plea must be in writing and cannot be made orally. Objection is
to the form and substance of the indictment. Chief Justice Lord Parker in R v Inner
London Quarter Sessions ex p Metroploitan Police Commissioner [1970] 2 QB
80,85 has since remarked that he hopes “that demurrer in criminal cases will be
allowed to die naturally.”

12.2 Motion to quash

Defendant may apply to the court to quash indictment on grounds of defect, e.g.
duplicity. Where indictment is preferred without jurisdiction or has a substantial
defect the court will quash it on motion by the accused after plea and even after
the case for the prosecution has closed. Prosecution can prefer a new indictment
or a suitable amendment made.

Witnesses

12.3 Attendance

Where there have been preliminary proceedings before the magistrate,

examining justices or the coroner, the witnesses are usually bound over by
recognisance to appear at the trial and give evidence and if a witness fails to
appear, his recognizance may estreated and the penalty levied. Otherwise the
presence of a witness may be secured by a witness summons or subpoena170.

A witness may be subpoenaed to attend at trial to give evidence. The procedure

should the witness disobey is the same as if a defendant disobeys an ordinary

170
see section 37 of JP Act
summons. Except where the information was not laid by the police it must be
shown that the witness’s cost was paid.

If the JP is satisfied by evidence on oath or affirmation that a witness will not

attend unless compelled to do so he may issue a warrant in the first instance171.

12.4 Subpoena duces tecum

Where the evidence required is in the possession of someone other than person
charged it may be possible to issue a subpoena duces tecum. A party issued with
such a subpoena can refuse where there is a valid reason.

12.5 Notice to produce

If the document is in the defendant’s possession a notice may be served on him to

produce the original. If he refuses then the prosecution can adduce a copy 172.

12.6 Oaths and affirmation

Persons testifying must either take the oath or affirm. A witness may affirm if they
have no religious belief, the oath does not bind their conscience, or they have a
religious belief but it’s contrary to their belief to take the oath173.

171
section 47 of the JP Act
172
Attorney General v Le Merchant (1772) 2 T. R. 201n
173
See section 3 and 6 of the Oaths Act Jamaica and Athlee Swaby et al v R (1982), 19 JLR 413.
12.6a R v Hines and King (1971) 17 WIR 326

Hines a Rastafarian wanted to give sworn evidence at his trial. However he

refused to take the oath administered to him which was “I swear by almighty
God’ instead he wanted to swear by “ Almighty God King Rasta”. The Judge was
of the view he could not allow him to swear thus as such an oath was unlawful.
He rested his case and was convicted.

On appeal it was Held: The trial judge erred in refusing to allow him to swear in
the manner binding on his conscience. Therefore, he was deprived of his right to
give sworn testimony in his defence.

12.6b R v. Athlee Swaby 19 JLR 413

Rules also permit a person to affirm under certain conditions.

Soldier charged with mutiny. The main witness at the court martial was asked by
the trial judge if he wished to swear or affirm, he said affirm. He gave evidence on
affirmation. At a subsequent trial at the Supreme Court he chose to swear.

On appeal of the conviction at court martial the CA held inter alia, that a witness
may be permitted to affirm where it is clear that he does not believe that the
taking of an oath imposes any solemn obligation on him to speak the truth and
where it is clear that he understands that the occasion demanded of him an
obligation to speak the truth (see section 21 (1) and (5) of the Constitution).

12.6c Witnesses must take objection to it and the judge investigates why and, if
satisfied, the judge will allow it. If a man says the oath will not bind him it is
permissible to affirm. Affirmation has the same force and effect as an oath.
12.6d Child taking the oath

A child of tender years may give evidence without having taken the oath or
affirmed if they do not understand the nature of the oath but are possessed of
sufficient intelligence to justify the reception of their evidence and they
understand the duty of telling the truth.

12.6e Under the Child Care and Protection Act section 20 “child” is defined by
section 2 as being under the age of 18. “Child of tender years” is defined in
section 20(3) as a child under 14. See R v Khan (1981) Crim. L. R. 330. The
unsworn evidence of a child of tender years may be received unless it appeared
to the court that the child is incapable of giving intelligible testimony.

12.6f G v DPP (1997) 2 All ER 775

It was held that following the legislative changes in England a court may not
adjudge a child incompetent on the basis of age alone and expert evidence is
inadmissible on this issue. Such evidence if given for the prosecution must be
corroborated. See s.20 subsection (2). In England Legislation has abolished any
requirement for the judge to give the jury a warning about the danger of
convicting on the uncorroborated evidence of a child: s.34 Criminal Justice Act
1988.

12.6g A child of tender years may give sworn evidence where they sufficiently
understand the nature of an oath. The child must appreciate the seriousness of
the occasion; and the added responsibility to tell the truth involved in taking the
oath, over and above the duty to tell the truth in ordinary day to day life.
Sufficient care ought always to be taken to ensure that a child before being sworn
measures up to the required capacity. It is for the judge to decide whether a child
of tender years can be sworn. Whether a child is of tender years is a matter of
good sense of the judge. The test is whether the child has sufficient appreciation
of the solemnity of the occasion and the added responsibility to tell the truth
which is involved in taking the oath. A voire dire must be held to make this
determination.
12.6h R v. Hayes (1977) 1 W.L.R. 234

A boy of twelve was sworn after he said he was ignorant of the existence of God
but he understood the particular importance of telling the truth.

Two principles were enunciated: (a) That the child had sufficient appreciation of
the seriousness of the occasion and (b) he had a realization that taking the oath
involved more than the duty to tell the truth as in ordinary day to day life.

The court in Hayes held that awareness of divine sanction is not necessary to an
understanding of the nature of an oath. It was sufficient that the child had a
proper appreciation of the solemnity of the occasion and the added responsibility
to tell the truth which is involved in taking the oath, over and above the duty to
tell the truth which is an ordinary duty of social conduct.

12.6i R v. Abrahams 1992 43 WIR 142 CA

Eastern Caribbean Court of Appeal held that where a child has had no religious
education can use a secular approach, that is, the judge must be satisfied that the
child understood the added responsibility to tell the truth which is involved in
taking the oath, adopting the dictum of Lord Bridge in Hayes.

12.6i R v. Whitely (1978) 27 WIR

The CA held that it ought not to be presumed that a child under 12 was possessed
of sufficient understanding of the nature of an oath in such a case there should be
a voire dire. Appellant was convicted on the uncorroborated evidence of a boy of
twelve. He was sworn without a voire dire. He later recanted his testimony. Since
section 3 of the Juvenile Act (repealed) (see now s. 63 Child Care and Protection
Act) presumes that a child between the ages of twelve to fourteen lacks capacity
such a child should not be presumed to understand the nature of an oath, then
the practice of having a voire dire for children under 14 should continue (see also
R v Campbell (1983) Crim.L.R. 174).
12.6j Fazal Mohammed v R (1990) 37 WIR 438

As a matter of practice once a child is under 14 voir dire should be held to ensure
that the child has sufficient understanding of the nature of an oath and the
solemn obligation to tell the truth the oath implies, before the child is allowed to
give sworn evidence.

12.6kThe judge through questioning the child satisfies himself whether or not the
child can be sworn174.

Age is not necessarily the only test of competency. Idiots, lunatics, deaf and dumb
may still be examined even though they are adults. The question is whether the
witness possesses sufficient understanding of the nature and moral obligation of
an oath. If they are incompetent to give evidence they cannot be heard: R v Lee
(1988) Crim. L.R. 525

12.6l R v. Cyrus (1968) 12 WIR 97

Luckhoo J said the court has a right to have a voire dire if there is reason to
believe competency does not exist irrespective of age.

12.6m R v. Campbell: where in a case of indecent assault a 9 year old was allowed
to be sworn after being questioned by the judge. It was held that a voir dire
should have been held on the nature of the oath and the necessity to tell the
truth and on the solemnity of the occasion. The court noted that the principles in
Hayes ought to be followed:

 Seriousness of the occasion

 Understanding the nature of the oath as something more than the duty to
tell the truth in everyday life.

174
R v Dunne 21 Cr. App. R. 176, R v Surgenor 27 Cr. R 175
The court asked: if a child understands the duty to tell the truth but not the oath
should he be sworn? In Hayes it was said that the child need not understand the
divine sanction of the oath. So if the child is ignorant of the existence God, the
judge may permit the child to be sworn if he is satisfied that that the child
appreciated the solemnity of the occasion and the duty when on oath to tell the
truth.

Since Campbell and Hayes it is no longer necessary to inquire into the child’s
appreciation of the divine sanction of the oath.

12.6n No witness is competent who by reason of drunkenness or mental

challenge and the like is prevented from understanding the nature of the oath
and giving rational testimony.

12.6o R v Dunning 1965 Crim L.R.372

Witness had a mental defect and the court heard evidence as to the witness
mental competence. This was done in the presence of the jury, as the court said,
to enable them to determine what weight to give to the evidence.

12.6p R v Bellamy (1986) Crim L.R. 54

Low mental ability of the complainant resulted in a voir dire being held. Evidence
was given by a social worker and the complainant was affirmed She was deemed
competent to affirm because she did not have sufficient knowledge of God.

It was held that as she was competent she should have been sworn. However, it
was not viewed as a material irregularity.

12.6q The enquiry must be in open court and recorded for transcript in presence
of the jury ( confer R v Reynolds (1950) 1 K.B. 606). But in R v Hampshire (1995) 2
Cr. App. R. 319 the CA said the voir dire should be held in the absence of the jury
on the occasions where the competency of a child may be doubted. It doubted
whether following the changes in the law in England it is still necessary to hold a
voir dire as a matter of practice for children of tender years. Such inquiry would
only be necessary if objection is taken to the competence of the child or if it
appears to the court that there may be doubt as to competence. See section
33A(2A) Criminal Justice Act 1988. In Hampshire the court was of the view that a
judge may find it appropriate in the presence of the defendant and the jury to
remind the child of the importance of telling the truth.

12.7 Accused as a witness

An accused is not compellable to be called as a witness for the prosecution.
Neither can his co-accused as long as he is a co-accused. A co- accused may be
called by the prosecution to give evidence against another co- accused in the
same trial if he has pleaded guilty or they are tried separately.

12.8 Spouse of the accused

Not normally competent or compellable to give evidence for the prosecution. At

common law a spouse is only competent in cases of personal violence. Spouse is
competent to give evidence for the defence and competent for a co-accused with
consent of the spouse175. Even where the spouse is competent they are still not
compellable176. R v Pitt held that once the spouse has waived the right to
incompetence they cannot refuse to continue giving evidence and can then be
compelled.

175
But see the Evidence Act s. 9 (c), R v. Mount (1934) 24 Cr. App. R. 135. And see also R v. Pitt (1982) 3
All ER 63 and first schedule to Evidence Act.

176
Hoskyn v Commissioner of Police of Metropolis (1979) A.C. 474
 Course of Trial

12.9 Prosecution Opens

When the accused is put in charge of the jury the prosecution then opens its case
to the jury. Rules as to content of opening speech largely based on convention but
prosecutor will normally:

a. Outline leading facts on which prosecution will rely.

b. Explain the charges
c. Deal with burden and standard of proof
d. May introduce parties and their roles
e. Unusual to otherwise address on law177

12.9a Should not open to evidence where admissibility in issue. Thus for a
confession D should indicate his objection prior to opening

12.9b Prosecutor should avoid inflammatory or emotive language (as the

prosecutor is a minister of justice) and should present the case as coolly and
unemotionally as possible. He or she should avoid sensationalism at all cost.
Judge has discretion to discharge jury if opening is prejudicial to a fair trial.

12.9c If new material is discovered after the opening the prosecution may adduce
the evidence without making another opening speech178.

177
Lashley [2005] EWCA Crim 2016 should remind jury that matters of law for judge
178
R. v. Courvoisier(1840) 9 C. & P. 362
12.9d Wheatley and Penn v. COP ECCA MCRAP 1 and 2 of 2002

The crown had opened its case on the basis that no wall was built for the contract
let by government. After opening it was discovered that a wall had been built but
that the public officer had contracted with his own company to do the work.

Per Saunders, JA:

“31……It was submitted to the court below that the Prosecution should have been
bound by their opening. In my view, the Magistrate rightly rejected this
submission. Prosecuting counsel’s misleading statements in the opening
were a direct consequence of the mis-statements made to the police by the
accused themselves. As the case unraveled it was made clear that the
Prosecution was no longer suggesting that no wall was built. Moreover, it
must at all times be borne in mind that this case was tried before a single
Magistrate and, adopting the words of Lord Chief Justice Hewart in Driscoll
(1928) 20 CrAppR 161
“it is idle to suggest that after a [seven month] trial the expressions complained of
[during Opening by the Prosecution] could have dominated the opinion of
[an experienced judicial officer]”.

12.10 Prosecution’s Case

Generally the prosecution ought to call, or offer to call, the witnesses who give
direct evidence of the primary facts in issue unless they regard the witness’
evidence as not being credible. This is a matter for the prosecution to decide. A
witness’s evidence is not to be considered incredible simply because it is at
variance with the other witnesses. A prosecutor properly exercising his discretion
need not call witnesses simply to give defence material to attack the prosecution
case. No duty on the prosecution to call such witnesses to give evidence. Judge
cannot force the prosecution to do so.

12.10a Where witness statements have been served on the defence as unused
material the prosecution is under no duty to call these witnesses. Where the
name of the witness appears on the back of the indictment he prosecution must
call the witnesses or have them in court available to the defence. He is not bound
to call all the witnesses who gave evidence at the preliminary enquiry but if he
places them on the back of the indictment he must call them or have them
available in court for the defence.Therefore care must be taken in drafting the
indictment if not sure about the witnesses.

12.10b There is a wide discretion in the prosecution in deciding which witnesses

to be called and in calling them whether to merely put them up for cross-
examination or to have them examined in chief.

There is no duty on the prosecution to call witnesses if in so doing it imposes on

him the function of both prosecutor and defence179.Prosecution has a fettered
discretion and the court will not interfere with its exercise unless it can be shown
that the prosecutor has been influenced by oblique motives.

12.10c R v. Haringey JJ ex p DPP (1996) QB 351

A police officer was a direct witness to an issue and the DPP refused to call him
because he was on suspension. The defence wanted to question him and in the
circumstances it was not reasonable to have him called on the defence case. It
was wrong for the prosecution not to call him.

Held: the Judge should have called him. See also Daniel and Matthew Brown
(1997) 1 Cr. App. R. 112 and paragraph below 12.16 .

12.10d R. v. Russell-Jones (Kenneth)[1995] 1 Cr.App.R. 538

Leading authority instructs that the prosecutor must:

a. Have all witnesses present whom the prosecution gave prior notice that
they would rely (i.e. on the back of the indictment or subject of a notice to
adduce but not for witness merely disclosed as unused material

179
R v. Nugent (1977) 2 All E R 662
 b. If the prosecution has taken all reasonable steps but witness absent Court
has discretion whether or not trial to continue.
c. Prosecution has discretion as to which witnesses to call or tender for cross-
examination but not an unfettered discretion.
d. Prosecutor must direct his mind to overall duty of fairness and not be
guided by “oblique motive”
e. Generally must call or tender all credible witnesses (including where only
part of evidence credible) as to primary facts but it is for prosecutor to
decide on these matters and whether evidence marginal
f. Not obliged to call witness to merely discredit case

12.10e Steven Grant v. R [2006] 2 WLR 835, [2007] 1 AC 1, 20 BHRC 243, [2006]
UKPC 2

Crown tendered statement of 1 of 2 absent witnesses (ie B but not K) but both
were on the notice to adduce. K was the only witness as to how the incident
started and was somewhat favourable to Grant.

Held by the PC, (approving Russell-Jones) no duty to call repetitive, irrelevant or

incredible witnesses but the appellant was entitled to have his case assessed, and
his own evidence evaluated, in the light of all the available evidence. The Board
felt bound to conclude that prosecuting counsel mistook the nature and extent of
her prosecutorial discretion.

The trial judge failed to discharge her duty to ensure the overall fairness of the
proceedings. She could have invited prosecuting counsel to adduce K's statement
in evidence.

Had that invitation, improbably, been declined, the judge could, on grounds of
fairness, have declined to admit Bryant's statement unless K's statement were
also admitted or could, in the last resort, have introduced the statement of K
herself (R v Oliva [1965] 1 WLR 1028, 1035-1036).
12.11 Calling a witness who had not deponed

A witness who did not give evidence at the preliminary enquiry nevertheless may
be called by the prosecution at the trial.

12.11a R v. Clarke 11 JLR 534

Defendant was charged for rape. At his trial prosecution introduced 2 witnesses
who had not deposed. Notice to adduce was given along with statements.

Held their evidence was admissible.

12.11b Such a witness is not on the back of the indictment. It is the practice that a
notice of intention to adduce the evidence of that witness with a copy of the
evidence (statement) proposed to be adduced, should be served on the
defendant and the court within a reasonable time before the evidence is called.
Failure to give such a notice is however not fatal. The judge may adjourn the trial
in the interest of justice to give defence time180.

12.12 Close of prosecution’s case and submission of insufficient evidence

For the appropriate test see section on prima facie case test for the preliminary
inquiry.
The submission is to be made in the absence of jury unless the defence desires
otherwise, but difficult to think of any legitimate reason181 and jury not to be told
that submission was made or result where refused similar principles may apply to
other submissions made to judge182.
Judge to consider whether prima facie case made out even if no submission made
If no prima facie case made out at this stage conviction cannot be grounded on
evidence on defence case.
In extraordinary cases submission may be made or repeated at the close of
defence case

180
R v. Vernon Mason 12 JLR171
181
see Crosdale v. R.[1995] 2 All E.R. 500 , PC
182
Mitchell (David) v. Queen, [1998] A.C. 695 , PC
Jury (or Magistrate/Judge of fact) has power to stop case at this stage if they do
not believe it credible. Judge may remind jury of this but is quite unusual.
If submission is successful the jury must be directed to return a formal verdict of
not guilty.

12.13 Defence case

Defence counsel may open when the defendant intends to call at least one
witness as to fact (not character) but not including the defendant.
Defendant’s evidence/unsworn statement must be first to reduce him “trimming”
his evidence to conform to his witnesses’183 but formal or uncontroversial
witnesses may be called before the defendant.

12.14 Re-opening the Prosecution’s case

General principle is that Prosecution must call all its evidence before the closing
of its case. But the prosecutor may call rebuttal evidence if a matter arose ex
improviso (i.e. the Crown could not reasonably foresee that the matter would
arise).

12.14a R v Esmond Mc Kain (1984) 47 WIR 290

Jamaican Court of Appeal overturned conviction where prosecutor permitted to

tender rebuttal evidence contradicting alibi as the alibi was evident from cross
examination.

12.14b R v. Black 50 Cr. Ap. R. 280

In a trial for robbery B’s explanation as to why he was found at the scene was that
he went to use the bathroom. A juror who knew the area passed a note to the
judge saying that the lavatory was closed at that time. Prosecution was allowed to
call rebutting evidence of closure.

Held, the evidence was properly admitted.

183
Joan Smith (1968) 52 Cr.App.R. 224
12.14c Usually reopening allowed (outside of ex improviso principles) where:

a. Evidence was inadvertently omitted

b. Crown omitted to put in a statutory instrument.
Leave for this exceptional p is generally restricted to evidence of a formal,
technical or non-contentious nature.

12.14d R v. Gainsborough Justices ex parte Green (1984) 78 CrAppR 9

Appellants faced two charges, one for which he had an excuse. Prosecution
accepted and closed its case. Submission of no case to answer was made and
Justices rejected it. Court allowed the prosecution to re-open and call evidence on
the second charge.

Held: Should be allowed to call further evidence only in exceptional

circumstances. Where it was merely a case of a technical matter the right is not in
dispute. In this case the matter was one on its merit and the justices had
exceeded their jurisdiction in allowing the prosecution to re-open.

12.14e R v. Francis 1990 Crim LR 431

Defendant charged for robbery in a case with identity evidence in issue.

Identification parade was held but D was not initially pointed out. Witness later
indicated man at number 20. Defence made a no case submission. Prosecution
allowed to call evidence as to who was standing under number 20.

Held, Conviction must be quashed.

12.14f Malcolm v DPP [2007] 2 Cr App R 1:

“That the prosecution is obliged to prove its case in its entirety before closing its
case, and certainly before the end of the final speech for the defence, had an
anachronistic, and obsolete, ring. Criminal trials were no longer to be treated as a
game, in which each move was final and any omission by the prosecution would
lead to its failure.

It was the duty of the defence to make its defence and the issues it raised clear to
the prosecution and to the court at an early stage. That duty was implicit in rule
3.3 of the Criminal Procedure Rules 2005……………….

It was clear that the magistrates' court, like other courts, had a discretion to
permit either party to a criminal case to adduce further evidence at any time
before they retired, provided no injustice would be done; after retirement they
could only justify permitting the prosecution to re-open its case where there were
special circumstances.

To determine whether there were special circumstances it was necessary to take

into account the overall objective of criminal procedure, as set out in r.1.1 of the
Criminal Procedure Rules 2005, which was that criminal cases had to be dealt with
justly.

In the present case, where counsel had wished to raise an issue as to whether the
warning had been given, she should have addressed that matter in cross-
examination. She should also have objected to the admission of the officer's
evidence as to the proportion of alcohol in the defendant's breath. As she had
done neither of those things, she should not have been permitted to raise the issue
under s.7(7) in her final speech unless the prosecution had been given the
opportunity to call evidence to deal with the point. To take that point in the final
speech was a classic and improper defence ambush of the prosecution.”
12.14g Jolly v DPP [2000] EWHC Admin 316

Driving whilst intoxicated trial where evidence from computer analysis. There was
no proof of the proper functioning of the computer as required by law and the
prosecution was permitted to reopen its case after defence submissions.

Held:

“The starting point is clear enough. In our adversarial system, it is for the
prosecution to identify the matters which have to be proved, and then to take such
steps as are necessary to ensure that what is not admitted is proved by means of
oral evidence or written evidence before the close of the prosecution case. That
enables the defendant, before he opens his case, to know the totality of the case
he has to meet. If an issue is raised for the first time during the defence case, the
prosecution may be able to call evidence in rebuttal, but otherwise once the
prosecution case is closed, it should remain so. But what if, perhaps by oversight
or for some other reason, the prosecution fails to adduce some necessary piece of
evidence before it closes its case, and seeks later to have that evidence submitted.
What attitude should be adopted by the court? To what extent should it regard
the normal structure of a criminal trial as sacrosanct, and to what extent should it
have regard to the wider interests of justice - the need to ensure that those who
are defendants are required to answer the full weight of the potential case against
them, as well as the need to ensure that no defendant is unfairly prejudiced by
having to meet additional prosecution evidence at a late stage?

..........................................................

In my judgment any trial court must recognise that it is the duty of the prosecution
to call its evidence before closing its case. But it is now beyond argument that
there is a general discretion to permit the calling of evidence at a later stage,
which extends in a Magistrates Court up to the time when the Bench retires.
Before exercising that discretion, the Court will look carefully at:-
(1) the interests of justice overall, and in particular -
(2) the risk of any prejudice whatsoever to the defendant.

The result will be that the discretion will be sparingly exercised, but I venture to
doubt whether it assists any longer to speak in terms of "exceptional
circumstances". Each case, as the authorities show, has to be considered on its
own facts, and so considered I have no hesitation in this case at the end of the
argument, in answering the question posed by the Case Stated in the negative. It
follows, as we indicated at the end of the hearing, that the appeal fails and is
dismissed.”

12.14h R v. Dolan

If evidence unexpectedly becomes available to the Prosecution after the close of

its case the Court may , in exceptional circumstances grant leave

After close of his case the crown counsel was informed that 2 persons in the court
could give evidence relevant and that they had just realized this.

Held: permissible as, although not arising ex-improviso, the Crown could not have
known of their existence before closing his case.

12.15 Recalling witnesses

Judge has the discretion to recall or allow the recall of witnesses at any stage of
the trial prior to the summing up. The Court of Appeal will not interfere unless
there is an injustice.

12.15a R v. McKenna (1956) 40 Cr App R 65

M was charged with exporting manufactured goods mainly of iron and steel. A
witness for the prosecution was recalled in order to give evidence of the material
of which the articles were made. Judge then ruled a case to answer. Held: Appeal
dismissed. The Judge had complete discretion to recall a witness who had given
evidence after prosecution closed their case and no case submission was made.
C.A. would not interfere unless injustice results.

12.15b R v. Sullivan (1923) 1 KB 47

The accused was tried for murder of a woman. His defence was an alibi. The
prosecution had evidence that the accused was seen near the locus shortly before
the crime and several times before. Judge allowed the recall of several witnesses
to rebut the accused evidence. Defence counsel suggested to the jury that it may
have been the husband of the accused who did it. The husband was recalled to
rebut that evidence and two police witnesses were recalled to repeat their
evidence.

Held: Witnesses were properly recalled to rebut the defence suggestions and the
accused man’s evidence and the right existed even after defence closed its case.

12.15c The defence is allowed to cross-examine the prosecution witnesses

recalled on the new evidence given. Judge may allow recall of witnesses to rebut
assertions by the defence which were unsupported by the evidence.

12.15d R v. Joseph (1972) 56 Cr. App. R. 60

Assertions were made in the defence opening.

Held: The matter relating to the recall of the witness arose ex-improviso. Once
the matter arose ex-improviso the defendant can also be recalled.
12.16 What orders may be made where the prosecution refuse to call a witness?

If the Judge is of the view that the prosecution not exercising their discretion
properly a Judge may ask/invite prosecution to re-think their decision not to call
the witness, but cannot order. The Judge may call the witness as the court has a
wide discretion to call witness not called by either side if calling the witness is in
the interest of justice. The judge does not need the consent of the parties but this
power should be exercised sparingly.

12.16a The judge ought not to call the witness after the close of both cases unless
issue arose ex improviso (Harris [1927] 2 KB 587, Cleghorn [1967] 2 Q.B. 584) or
where injustice could be caused to the defendant.

12.16b An illustration of an appropriate circumstance to call after close of both

cases is to call a witness that the defence had urged the prosecution to call184.

12.16c In the alternative the judge could order the prosecution stayed for an
abuse of process but this would be rarely done given the judge’s power to call the
witness185.

12.16d In an appropriate case the Court of Appeal could quash conviction.

12.16e Grant v R (PC, Jamaica)

Prosecution tendered 1 of 2 absent witnesses’ statements. Should they have

tendered the other?

“[24] But the statement of Bryant did not stand alone. There was also the
statement of Kinglock. That statement was highly pertinent to the jury's
deliberations, since he was the only independent witness claiming to have seen
the beginning of the fatal incident, and the only independent witness whose
evidence bore on the answer to the first question the jury had to resolve (see para
3 above). That was a very significant question, since if answered adversely to the
Appellant his defence necessarily failed. But Kinglock's statement in large measure

184
Tregear 51 Cr App R 280
185
R. v. Haringey Justices Ex p. DPP[1996] Q.B. 351
corroborated the Appellant's account, given to the police at once and repeated in
evidence, of how the incident began. Thus the question arises whether it was fair
to admit the statement of Bryant, apparently damning for the Appellant, and
leave the jury ignorant of Kinglock's statement which was much more favourable
to him. The prosecution's notice to adduce assumed that the s 31D conditions
were satisfied in Kinglock's case also, and the contrary has never been suggested.
[25] The extent of the duty on a prosecutor to call witnesses named on the back of
an indictment was fully reviewed in R v Russell-Jones [1995] 3 All ER 239, [1995] 1
Cr App Rep 538. The principles there summarised were not criticised in argument,
and provide authoritative guidance. That summary need not be repeated. Plainly
the prosecutor has a discretion. It is a discretion to be exercised by the prosecutor
acting as a minister of justice, in the interests of fairness. Thus the prosecutor
need not call witnesses who are incapable of belief, or whose evidence is pure
repetition (R v Haringey Justices, ex parte Director of Public Prosecutions [1995]
QB 351, 356, [1996] 1 All ER 828), or whose evidence is not material (R v
Harris [1927] 2 KB 587, 590, 20 Cr App Rep 86, Ziems v The Prothonotary of the
Supreme Court of New South Wales (1957) 97 CLR 279, 307-308). The general rule,
however, was that stated in R v Russell-Jones, above, at p 245:
“The next principle is that the prosecution ought normally to call or offer to call all
the witnesses who give direct evidence of the primary facts of the case, unless for
good reason, in any instance, the prosecutor regards the witness's evidence as
unworthy of belief. In most cases the jury should have available all of that
evidence as to what actually happened, which the prosecution, when serving
statements, considered to be material, even if there are inconsistencies between
one witness and another. The defence cannot always be expected to call for
themselves witnesses of the primary facts whom the prosecution has discarded.
For example, the evidence they may give, albeit at variance with other evidence
called by the Crown, may well be detrimental to the defence case. If what a
witness of the primary facts has to say is properly regarded by the prosecution as
being incapable of belief, or as some of the authorities say 'incredible', then his
evidence cannot help the jury assess the overall picture of the crucial events;
hence, it is not unfair that he should not be called.”
In the present case the names of Bryant and Kinglock did not appear on the back
of the indictment, but their inclusion in notices to adduce made clear the Crown's
intention to rely on their evidence; and there has never been any suggestion that
either was regarded as incapable of belief or immaterial.
[26] It is, in the Board's opinion, plain that fairness required the admission of
Kinglock's statement. If admitted, it might not have been understood to exonerate
the Appellant.”

12.16f R v Wills [2011] EWCA Crim 1938, [2012] 1 Cr App Rep 16

Defence wanted witness RF to be called by prosecution or judge. Defence had

only been notified of prosecution’s change of mind at the start of the trial.

The EWCA applied Russell-Jones

“42. The principles to be applied to decisions by the prosecution to call witnesses

have been set out in R v Russell-Jones [1995] 1 Cr App R 538. Those seven
principles are essentially based on an underlying theme that the prosecution has a
discretion as to which witnesses it wishes to call but that such discretion must be
exercised in the interests of justice so that the trial is fair and that injustice to the
defendant is avoided. On that basis the court will only interfere if the discretion
had been exercised in a way which is wrong in principle.
43. In this case Mr Barnes submitted that he was entitled to take the view that
RF should not be called by the prosecution because her evidence was not
necessary, she was reticent to provide the truth and was thirteen and had suffered
previous sexual abuse. He summarised her evidence as being that she, personally,
was not abused by the appellant although she was present on one occasion when
the appellant had behaved inappropriately towards JP in relation to count 1. On
other occasions when she and the other complainants had been together with the
appellant at his home she said that no abuse had been perpetrated against herself
and gave no evidence of abuse being perpetrated against others, although other
complainants described abuse occurring to both themselves and to RF on such
occasions. Mr Barnes says that he took the view that RF's evidence should not be
relied upon by the prosecution and there was nothing wrong in principle with that
decision.
44. Mr Linford submits that RF should have been called by the prosecution,
alternatively should have been called by the judge. It is to be noted that no
application was made for RF's statement in the form of her ABE interview to be
admitted as a hearsay statement.
45. Mr Linford referred us to that ABE interview of RF. It provided some support
for the prosecution on Count 1 and evidently provided general support for the
other counts although it did not provide support for the particular allegations
which formed the relevant counts. What is quite evident is that RF was not a
witness whom the appellant could consider calling.
46. As stated in Russell-Jones the question whether or not the Prosecution call a
witness is a matter for the discretion of the prosecution. In this case there was and
could not be any suggestion that the prosecution acted in bad faith in making the
decision not to call RF. In exercising that discretion, as Stuart-Smith LJ said in R v
Haringey Justices, ex parte Director of Public Prosecution[1996] 2 WLR 114 at 356:
“They must decide how they prove the case; they should not call unnecessary
witnesses. For example, there may be a large number of witnesses of some major
disaster from whom a selection should be made. There may be special reasons
why they do not wish to call even an important witness, for example because of
the extreme youth of a complainant and the likely adverse consequences or
because the witness is too frightened and refuses to give evidence.”
47. For the reasons which he gave, Mr Barnes took the view that RF was not a
witness upon whom the prosecution should rely and we see no grounds for saying
that such a decision was wrong in principle.
48. It follows, in our judgment, that there was no reason for the judge to
intervene and either to seek to persuade the prosecution to call RF or take the
unusual step of calling a witness himself, in circumstances where, despite the
judge's view that the prosecution should call a witness, the prosecution did not
then call that witness.
49. In any event having gone through the detail of the ABE interview with Mr
Linford we do not consider that the absence of the evidence of RF can possibly be
said to have given rise to unfairness to the appellant. If anything, the evidence
would have supported the prosecution case and the most the appellant could have
said was that there were some further inconsistencies between that evidence and
other evidence. There is certainly no question of the absence of that evidence
giving rise to any unfairness rendering the conviction unsafe.
50. It follows that we dismiss the appeal on this ground.
51. We were invited by Mr Barnes to say that the decision in Russell-Jones might
be revisited in the light of current practice. He said that the pressures of work and
inadequate staff numbers which currently beset the Crown Prosecutors mean that
it is now far from unusual for witnesses to be notified whom trial counsel, when
instructed later, would not wish to call. He submits that in these circumstances the
discretion not to call a witness who previously would have been “named on the
back of the Indictment” should be relaxed. We do not consider that the facts of
this case provide any basis for revisiting Russell-Jones and, indeed, it might be
argued that those principles should be upheld even when there are administrative
difficulties.
52. We would however observe that if a decision is made not to call a previously
notified witness, that decision should be made and notified to the defence as soon
as possible, if for no other reason than that it causes unnecessary disruption to the
smooth preparation for and conduct of the trial.”

12.17 Judge may call witnesses

The Judge has a right to call a witness not called by the prosecution or the
defence, without their consent if in his opinion it is necessary in the interest of
justice.

However, the judge should not call such a witness after the defence has closed its
case except where in the course of the defence case a matter has arisen ex-
improviso.

12.17a R v. Harris (1927) 2 KB 587

After close of the defence case fresh evidence is restricted to matters ex-
improviso. This applies to the crown and also to the judge who calls a witness.
Held: Irregular and calculated to do injustice to the appellant.

12.17b R v. Tregar (1867) 2 QB 574

Defence urged the prosecution to call two witnesses called in the court below but
they refused. The defence called one and at the close of the defence case the
judge called the other.
Held: As the Judge was not seeking to supplement the prosecution’s case by
calling the witness not objectionable.

12.17c R v. Foster 11 JLR 121

Defendant tried for possession of ganja. Crown witness was cross-examined as to

where ganja was found. Defence closed its case. Resident Magistrate called
witness who he said he believed over the defendant.

Held: Judge had a discretion to call witness not called by either party but should
not do so at the end of the defence case unless some matter arose ex-improviso.
Nothing arose ex-improviso in this case and injustice was done to the appellant.
At that stage the judge was in doubt and if it were so the judge ought to have
given the benefit of the doubt to the appellant.

12.17d R v. Rampasad 15 JLR 253

L purchased two wrecked cars and left them on DW’s premises. He removed
parts and claimed to have done so with DW’s permission. L was charged with
larceny. DW was not called by the prosecution. After the close of the defence case
the RM called DW who denied giving permission.

Held, allowing the appeal as DW’s evidence did not ex improviso. The result was a
miscarriage of Justice.

12.17e R v. Cleghorn (1967)1 ALL E R 996

On a charge of rape the Judge called a witnesses not called by either party at end
of defence case. Case took on a different aspect, conviction quashed.

12.17f Discretion should be carefully exercised. Witness should not be called after
the jury have been enclosed. If Judge calls a witness neither party can cross-
examine him without leave of the Judge but where evidence is adverse to either
party leave should be given. Fresh evidence rebutting evidence not previously
available may be allowed but care must be taken to avoid injustice.

12.18 Prosecution’s Closing

12.18a Allie Mohammed v. R [1998] UKPC 4

The prosecutor informed the jury of his view that the appellant was plainly guilty.
He made emotional appeals for sympathy for the deceased and his family. He
demanded that the jury should not let the appellant “get away with it”. He
repeatedly “urged” the jury to convict. His speech contained many inflammatory
passages. The prosecutor had commenced his speech by saying “I act as a minister
of justice”. The contrary is the case: the prosecutor made a wholly improper
speech.

The judge’s interventions during the speech were perfunctory. And in his
summing up the judge did not direct the jury to disregard the speech.

12.18b Order of Speeches

The “right to reply” is the right to make the final speech before the judge’s
summation. Previously in England the A-G had this right in all circumstances but
now abolished in England. ECCA jurisdictions should note recent decision in
Maureen Peters v R HCRAP 2009/005.

12.18c Jamaica continues much of the pre-independence UK practice in that the

prosecutor only has last word where the defendant has called a witness as to fact
apart from the defendant himself. Further the prosecutor may not give closing
address where the defendant is unrepresented
12.18d In Montserrat the prosecution always address before defendant186 and
unrepresented accused may address but not Crown counsel187.

12.18e In Antigua (CPC s23) and St. Kitts and Nevis (CPC s28) the Crown
addresses first except where the defendant called a witness for fact other than D
but DPP etc. always retains the “right to reply”.

12.18f By s.107 of Belize’s Indictable Procedure the prosecution has the right to
reply when the defendant called a witness as to fact other than the defendant.

186
CPC s.141
187
CPC 140
 CHAPTER 13: DELIBERATION AND VERDICT

13.0 Introduction

After closing speeches the trial judge will sum up the case and ask the jury to
retire to consider their verdict. The jury must have the judge’s summation before
rendering their verdict unless it is a verdict of not guilty188. Whilst it is possible for
the jury to confer and render a verdict in the box without retiring but the judge
cannot ask them if they want to remain there as this is considered to be implying
that there is nothing much for them to consider.

There are 7 guiding principles that run through the law in this area:

1. The jury must not be pressured in arriving at a verdict.

2. The jury’s deliberation is absolutely privileged.
3. It is impermissible for the juror’s to communicate with anyone outside their
number whilst they are deliberating.
4. No evidence must be received after the jury has retired and the jury cannot
employ its own fact finding measures or conduct experiments.
5. Ordinarily the first verdict of the jury must be accepted by the judge
6. It is assumed that all jurors agreed with the verdict as delivered in their
presence by the foreman.
7. After delivering the verdict and being discharged by the judge the jury is
functus officio and cannot alter their verdict.

13.1a Rupert Crosdale [1995] UKPC 1

Asking the jury whether they want to retire although consistent with existing
practice was an irregularity as it could place undue pressure on the jury.

At the close of the evidence these events transpired:

188
R v Young [1964] 2 All ER 480, 48 Cr App Rep 292
“HIS LORDSHIP: Please consult among yourselves if you wish to go to the jury
room to consider your verdict and let me know.

MR. FOREMAN: (Nods)

HIS LORDSHIP: You wish to retire? Very well."

“31. The judge commented at some length on the inherent improbabilities

in Crosdale's account. Those observations did not exceed the bounds of
permissible judicial comment. On the other hand, it was the contextual scene
against which the concluding question of the judge to the jury must be seen. The
judge asked the jury to consult among themselves to see if they wanted to go to
the jury room to consider their verdict. It is true that the jury did retire but counsel
for Crosdale submitted that they did so on the basis that the judge conveyed to
them by the clearest implication that there was really nothing to discuss.

32. Mr. Guthrie, Q.C., who appeared before the Board for the prosecution, said
that it may be thought generally unnecessary and perhaps unhelpful to ask a jury
if they wish to retire, but that there is no reason to suppose that any prejudice was
caused in this case. Their Lordships feel compelled to go further. The judge should
not have asked the jury whether they wished to retire. It is a cardinal rule of
criminal procedure that a trial judge must avoid any hint of pressure on a jury to
reach a verdict. R. v. Watson [1988] Q.B. 690, at page 700b. In the context of a
summing up, which trenchantly exposed improbabilities in the defence case, the
judge's remarks fell foul of this principle. In the nature of things it is impossible to
prove that the judge's remarks caused prejudice. It is an imponderable factor. But
their Lordships cannot exclude the possibility that one or more jurors understood
the judge to be conveying to them that there was really nothing to discuss. In
these circumstances the conclusion cannot be avoided that the judge's question
whether the jury wished to retire was a material irregularity”
13.2 Pressure
The judge must not give time limits for the jury’s deliberation. In R v McKenna
[1960] 1 QB 411, 43 Cr App Rep 63, CCA a trial judge’s setting time limits for
agreement led to the conviction being quashed. See also Shoukatallie v R [1962]
AC 81, [1961] 3 All ER 996, PC and R v Thomas [1983] Crim LR 745, CA)

13.2b Defour v State UKPC [1999] UKPC 4

“31. The irregularity, in their Lordships’ judgment, did not end with the Clerk’s
intervention. The jury, having retired, deliberated from 11.45 a.m. to 2.45 p.m., a
period of three hours. They were then brought back into court. The foreman
indicated that they had not reached a verdict. The transcript discloses that some
of the jury were troubled by the sufficiency of the evidence, the credibility of David
Gibson and the possibility of a "site visit".

32. The judge felt that he could not assist the jury further and he went on:-

"Mr. Foreman a question of a site visit at this stage does not arise. … I am now
going to give you an additional thirty minutes to return to the Jury room and
consider your verdict."

33. A short discussion with the Bar took place whereupon the judge said:-

"Mr. Foreman, please stand. I asked you when you indicated to the clerk that you
did not arrive at a verdict upon which you all agreed whether given additional
time, you would be likely to come to a verdict. You answered in the affirmative. If
given additional time, is it likely you would arrive at a verdict?"

34. The foreman replied "Yes", whereupon the judge said:-

"Thank you. I am giving you an additional thirty minutes."

35. In their Lordships’ judgment the imposition of a time limit of thirty minutes
was a material irregularity. No one can say for certain what effect it had upon the
minds of individual jurors but within 20 minutes a verdict of guilty was returned.

36. The researches of counsel unearthed only one authority where it was recorded
that the judge had fixed a time limit for further deliberation by the jury and it
came from the Court of Appeal of Trinidad and Tobago: Reg. v. David Michael
(1975) 27 W.I.R. 307. In that case, too, the jury were given thirty minutes. Phillips
J.A. considered that the course taken appeared to be unprecedented and the
conviction was quashed.

37. In the opinion of the Board there is an appreciable risk that the imposition of a
time limit of thirty minutes placed the jurors under pressure to reach a verdict,
although this would not have been the intention of the judge, and influenced some
jurors to agree to a verdict to which they would not have subscribed if more time
for deliberation has been allowed to them. Moreover after the jury were brought
back to court and the foreman referred to some matters which troubled them, the
jury were not reminded that in the event of an irreconcilable disagreement it was
their duty to say so. Accordingly their Lordships consider that the conviction was
unsafe and should be quashed.”

13.2c Further, the judge ought not to send the jury out to deliberate too late,
particularly in a complex case, as this might also cause undue pressure to return
an early verdict189.

13.3 No Evidence after retirement

This rule prevents new evidence after the jury has retired and juror’s conducting
their own investigations or experiments. The jury may however examine exhibits
with items that would ordinarily be in a person’s pocket.
189
see Holder[1996] 49 WIR 450
13.3a Davis (1976) 62 Cr App R 194
During deliberation the jury asked for the statement of a Crown witness. This
statement had not been tendered in evidence.
The Court of Appeal held that this was an irregularity but dismissed the appeal.
Once retired jury cannot have any new evidence but they can return for the judge
to repeat evidence already given. Where an irregularity occurs the Court of
Appeal must consider whether a miscarriage of justice was thereby caused. If not
then the proviso can be applied.
Although the statement had not been tendered its content had been read to the
jury during the trial.

13.3b Corless 56 Cr App R 341

The jury after retirement requested information as to the distance between two
points. Defence counsel provided the information in open court. The conviction
was quashed for breach of the rule against additional evidence after retirement.

13.3c Devichand [1991] Crim LR 446

This rule was also applied to quash a conviction where the jury, having examined
a tendered paint can during their deliberation, discovered that it refuted an
element of the Crown’s case.

13.3d R v Gearing 50 Cr. App. R. 18

Jury permitted to see the co-defendant who had pleaded guilty. Conviction
quashed.

13.3e R v Lawrence 52 Cr. App. R 163

The jury inspected a vehicle which was not in evidence. The conviction was
quashed.

13.3f These cases emphasise that the rule’s rationale is not merely to bring
finality to the proffering of evidence but also to ensure, as a matter of fairness,
that the defendant has a chance to answer or explain arguments made against
him.
13.3g When the jury seek to have exhibits this request should be done in open
court in the presence of the defence.A jury cannot rely on the specialist
knowledge of one of its number in arriving at their verdict 190.

13.3h Rv. Owen (1952) 36 CR. App. R. 16

As no additional matter should be given to the jury after retirement it was
irregular to have a witness called or recalled after retirement.

13.3i R v. Stewart Sappleton 89 Cr. App. R 273

Jury asked for scales to weigh exhibited drugs. Judge granted the request. The
conviction was quashed as it was improper to give the jury equipment to conduct
their own experiments in the jury room.

13.3j R v. Maggs 91 Cr. App. R. 243 : It is permissible for jury to use material
normally carried in pockets. Judge need not ask why.

13.4 Further Instructions

The judge may ask the jury to return to give them further directions or to correct
directions. Similarly, on the jury’s request, the judge may send for them to assist
them. It does not matter whether the jury’s problem is a matter of law or fact.

13.4a Berry v R [1992] 2 AC 364

The jury returned seeking assistance from the judge. The judge asked if it was a
matter of law or fact. The jury answered that it was the latter and the judge
merely reminded them that facts were a matter for them.
The PC disapproved reminding that the judge had a continuing duty to provide
appropriate assistance.
13.4b The jury’s request ought to be by way of a note to the judge. Where the
note does not concern the deliberation or imparts unnecessary information the
judge need not share its contents with counsel.
190
Karakaya [2005] EWCA Crim 346 and R v Fricker [1999] AllER (D) 673
13.4c Gorman [1987] 1 WLR 545

Practice suggested removes any suspicion as to nature of communication.

If matter unconnected with trial can be dealt with without reference to counsel

Otherwise to be read and responded to in open court without reference to any

confidential information (eg voting figures)

13.4d Ramstead v R [1999] 2 AC 92

The PC approved Gorman

Jury gave judge notes with their proposed verdict but that seemed to doubt basis
of that verdict “the rider” but defence counsel was not made aware.

“It is a cardinal principle of criminal procedure that once a jury have retired there
must be no secret communication between the jury and anyone, not even the
judge: Reg. v. McCluskey (1993) 98 Cr.App.R. 216, at page 222. Any
communication between the judge and the jury had to take place in open court in
the presence of the entire jury, both counsel and the appellant. It was therefore a
material irregularity for the judge to discuss the proposed verdicts of the jury and
the rider with the foreman of the jury in his chambers.

20. In agreement with the Court of Appeal their Lordships have no doubt that the
judge should have shown the rider to counsel before the jury were asked to
announce their verdicts. Moreover the judge should have invited counsel’s
submissions on the rider in the absence of the jury. It is sufficient to say that the
case plainly did not fall within any of the narrow exceptions where a note from a
jury need not be disclosed or be disclosed in full. And, as the Court of Appeal in
effect held, the note would have been disclosable even if it had been unambiguous
and supportive of a verdict of guilty. The fact is that it had a bearing on the issues
in the trial. It follows that the judge’s failure in this respect constituted a material
irregular”
13.5 Jury Separation

When retired the jury must remain together in jury room unless judge permits
separation ( Jury Act (Jam) s 47). Reflects change to common law position where
separation only for “evident necessity” e.g. medical attention.

13.5a If Judge permits separation the jury should be:

a. Reminded that they must decide the case only on the evidence and
arguments seen and heard in court.
b. Evidence is closed and it would be wrong for juror to seek or receive any
further evidence
c. They should not talk with anyone about the case except with other
members of the jury during deliberation
(see Oliver [1996] 2 CrAppR 514)

13.5b The Officer of Court (bailiff) sworn to keep them together and free from
interference. If leaving jury room or some reason to separate (eg bathroom,
medical attention) juror must be in bailiff’s charge

13.5c Separation without permission could cause the jury to be discharged or a

conviction to be quashed. If discovered before verdict the Judge ought to have an
inquiry in open court. Where misconduct by one of the jurors is discovered before
verdict the judge may discharge the jury. So where a juror leaves the box and the
court without permission and the jury was discharged it was held that this was
the proper course. R v Ward 10 Cox 573.

13.5d R v Ketteridge (1915) 1 KB 467.

A juror after summing up accidentally separated from the jury for a quarter of an
hour before rejoining them. Held: this was an irregularity and the jury should have
been discharged and began afresh; that it was not necessary to consider whether
the defendant had been prejudiced.

13.5e R v. Goodson 60 Cr App Rep. 266

Improper separation of one juror after retirement to make a phone call affected
the safety of the conviction.
 13.5f R v Knotts The Times Feb. 6, 1992
The trial judge refused to discharge a jury where a juror had been drunk and
disorderly at their hotel the night before. The Court of Appeal in the
circumstances declined to interfere but expressed the view that the better course
was to have discharged the individual juror. There was no need to discharge the
entire jury191.

13.5g Alexander [1974] 1 AllER 539

A juror left the jury room to retrieve an exhibit. The bailiff was unaware. Shortly
thereafter the judge was advised but no application was made for discharge.

Held, irregularity but not materially so, conviction affirmed

13.5h Farooq (1994) The Times 12 May 1994

A juror made 2 calls to ask about sick child. The judge asked the clerk to make
enquiries and clerk advised counsel informally.

Held on appeal, there was no reason to disbelieve juror but judge’s approach
incorrect as court should have been reconvened, the relevant facts stated in open
court and counsel given the opportunity to ask for further clarification.

Nevertheless as no injustice was caused the appeal was dismissed.

13.6 Majority Verdict

A judge can take majority verdict if:

1. The jury has deliberated for at least the minimum period required by
statute (in Jamaica not less than 1 hour). The time is measured from the
time the case was finally left to the jury.

191
See also R v Box and Box (1964) 1 QB 430; R v Hood (1968) 1 WLR 773; R v Prime (1973) 57 Cr. App. R
632; R v Dubarry (1977) 64 C
 2. The charge is one where a majority verdict is permitted by statute (in most
countries for offences other than murder but in Jamaica only for capital
murder must the verdict be unanimous).

3. The judge must have given a majority direction.

The acceptable majority for a seven man jury is 5-2, 7-2 for a nine man or 9-3 for a
twelve man192.

13.6a Flavia Richardson v. Regina HCRAP 2009/019 ECCA September 1, 2010.

The Appellant was convicted for manslaughter. In leaving the case to the jury the
trial judge directed them thus:

“it is important that you reach if you can a unanimous verdict.

Unanimous mean[s] a verdict of which all of you are in agreement.
That is all of you are saying the same thing, either not guilty or guilty.
Now if you are unanimous, that is, if you all agree on same verdict,
you may return at any time. However, if you cannot all agree and you
are in agreement 8:1 or 7:2, meaning eight (8) saying one thing and
one (1) saying another, then you can only return after you have
considered the matter for two full hours. If you are divided 6:5 or 5:4,
you have not arrived at a verdict. If after three hours you cannot
agree on a verdict, I may recall you, I may give further directions if
that is necessary or I may discharge you from this case. Remember if
you are unanimous, you can return at any time. If you are divided 7:2
or 8:1, then you must consider the matter for at least two full hours
before you can return to deliver your verdict.”

192
Section 44(3), (2)
The appeal considered whether this direction was appropriate or, whether the
direction were improper in that it put undue pressure on the jury and failed to
advise them of their entitlement to disagree.

Further, there was no record as to when the jury retired or returned with their
verdict.

Held: (i) where a judge stipulates a deadline for deliberations the verdict is liable
to be set aside for undue pressure (Baker (1997) EWCA Crim 2966);

(ii) the jury must not be led to feel that their failure to agree will cause
inconvenience (Watson 87 Cr App R 1, Walhein disapproved (1952) 36 Cr
App R 167); the directions failed to make it clear that they were entitled to
disagree as, when being told of the desirability of consensus a judge must
ensure that the entitlement to disagree is reiterated (Rafick Mohammed et
al v. The State unreported Trinidad and Tobago Court of Appeal 42, 27, 68
and 49 of 1989);

(iii) in the absence of local provisions on the timing of majority verdicts the
English practice and procedure applied (s 3(2) of the Criminal Procedure Act
Cap. 125 ), receiving s. 17 (4) of the Jury Act (England) and the Practice
Direction: Criminal Proceedings Consolidation [2002] 1 WLR 2870 thus:

(a). the minimum period for accepting a majority verdict being 2

hours,

(b). before the jury retires the direction ought to be:

 “As you may know, the law permits me in certain

circumstances to accept a verdict which is not the verdict of

you all. Those circumstances have not as yet arisen so that

when you retire I must ask you to reach a verdict upon which

each one of you is agreed. Should, however, the time come

when it is possible for me to accept a majority verdict, I will

give you a further direction.”

c. should the jury return before 2 hours and 10 minutes (or such
longer period that the judge thinks fit) without having arrived at a
unanimous verdict they should be asked to continue attempting, if
they can, arrive at a unanimous verdict,

d. after the jury have deliberated for 2 hours and 10 minutes (or such
longer period that the judge thinks fit) the jury may be directed that
they should continue to attempt to arrive at a unanimous verdict but
that the court will accept a verdict of the statutorily approved
majority;

e. whenever the jury returns the senior officer of the court must
announce, in open court, the time of retirement, return and the total
period of their deliberation;

(iv) it is for the judge’s discretion, after the minimum period has passed, to
decide when to give a majority direction but, whilst it is erroneous to
 indicate this to the jury before that time has passed, the error is not always
fatal (Thomas The Times August 4, 1983 and Guthrie Times 23 February
1994); and

(v) the errors in practice were serious.

The appeal was allowed, conviction and sentence quashed, new trial ordered.

13.6b R v. Macdonald and Haye, 11 JLR 201

At a trial for robbery, the jury retired for 46 minutes and were recalled by trial
judge for further directions on character that he had forgotten to give. He also
gave further directions on the law and reviewed the facts relating to identification
the jury retired and returned 16 minutes later with a majority verdict of guilty.

Held: The time the case was finally left to the jury was the second occasion and
the statutory period therefore should run from that time. Trial was a nullity.

13.6c R v. Raymond Failey 13 JLR 39

Appellant convicted of rape by majority verdict. Jury retired 46 minutes after

summing up then returned to court. At the time they were divided 6-1. Judge told
them he could not accept verdict and told them to retire for another 13 minutes.
However he asked the foreman whether there was a matter which troubled
them. Foreman said they were troubled by the appellants mask falling off. He
gave them further directions on how to approach that question. Jury retired for
18 minutes and returned a majority verdict.

Held: Second retirement was when the case was finally left to the jury.

13.6d R v. Adams and Hogan 52 CR. App. Rep 588

Jury returned majority verdict two hours and one minute after second retirement
having come into court 3 minutes after first retirement. Question whether 3
minutes should be deducted.

Held, time to receive further instructions and to travel to and from jury room
need not be deducted

For time to break judge must have given further directions.

To avoid argument judge should add a short period (say 10 minutes)to the
minimum period before giving a majority direction (see Bateson (1970) 54
CrAppR 11) .

13.7 Refusing a verdict and Inconsistent Verdicts

If the Judge refuses to accept the first verdict and the jury alters their verdict the
second verdict is the operative one.

13.7a In Rv. Percival Moore 12 JLR it was said, per curiam, that a judge is at
liberty to decline to accept a first verdict on the under mentioned grounds.
Whether the judge was wrong depends entirely on the evidence and his
discretion is subject to review.

Read dissent of Graham Perkins, JA

To refuse verdict must have been patently inconsistent or ambiguous

No longer the law that judge not bound to accept first verdict of jury unless they
insist
13.7b Neither should a judge question the jury as to the basis on which they
arrived at that verdict. (Rv. Larkin (1943) KB 174)

13.7c The judge can only refuse the first verdict if it is:
a. Not open to the jury (i.e. not one that they can lawfully bring),
b. ambiguous, or
c. inconsistent in that verdicts on separate counts seemingly cannot be
reconciled.

Burden of proof of the inconsistency is on the applicant. If there is a possible,

though unlikely view of the evidence on which the verdicts can be supported, the
judge should accept them.

13.7d R v. Robinson 60 Cr. App. Rep. 108

Where the verdict of the jury is plain, unambiguous and unequivocal the judge
has no power to reject it however much he disagrees with it.

Where the verdict is ambiguous, or two verdicts are inconsistent or the verdict is
one which on the evidence or indictment cannot be lawfully returned, the judge is
entitled, unless the jury insists, to refuse to accept the first verdict. The jury is
asked to reconsider and if they change their verdict the second verdict is
recorded.

13.7e R v. Walters 12 JLR 44

Two accused men were charged with murder. Manslaughter left to the jury in
respect of one but not the other. Provocation not left to the jury. Verdict of
manslaughter for both accused was rejected by the judge.
 Held: following R v. Harris, that where a verdict that may lawfully be returned on
the indictment and the evidence is unambiguous and not inconsistent with other
verdicts only in exceptional circumstances can a trial judge refuse to accept it193.

13.7f R v. Lester (1940) 27 Cr. App. R 8

The appellant was tried on an indictment charging larceny and receiving. The

Judge considered the evidence pointed only to stealing directed the jury on

larceny only. The jury returned a verdict of not guilty of larceny but guilty of

receiving. Judge refused to accept the verdict on receiving and ordered a retrial.

Held: the judge had no power to refuse the verdict.

193
see also R v. Steele 13 JLR 252 and R v. Taylor 25 JLR 247
13.7g R v. Harris (1964)Cr. L.R 54
H was charged with aiding and abetting causing death by dangerous driving and
aiding and abetting dangerous driving. H was tried with F the principal. H was the
supervisor for F who had a learners licence. F drove fast and killed a pedestrian. H
said he told F he was driving too fast but he took no heed. The jury found F guilty
of causing death by dangerous driving and H not guilty of aiding and abetting that
count. They found H guilty of abetting dangerous driving. The judge refused that
verdict and gave them further directions. They returned a verdict of guilty of
aiding causing death.
Held: that the judge was correct because the verdict was not one the jury could
properly arrive at. Either H was not guilty at all or guilty of aiding and abetting the
offence for which F was convicted.

13.7h R v. Joseph Pat Tenn 13 JLR 192

First count shooting at K, second count wounding G with intent to do K grevious

bodily harm

Found guilty of the first count not guilty on the second count.

Held: Count charging wounding involved precisely the same intent as the first
count. Since both counts depended on the same factual basis the verdicts were
inconsistent.

13.7i R v. Burrowes; On joint counts of theft and handling all three were
acquitted of theft and one found guilty of handling. The judge refused to accept
the verdict as inconsistent. CA. held it was not inconsistent as the jury may have
found the purse was stolen but were not sure by which of the three.

13.7j Steele (1975) 13 JLR 252

Jury returned verdicts of not guilty robbery but guilty of Indecent Assault. The
issue at trial was identification. Trial judge asked them to reconsider and they
returned a verdict of guilty on all counts

Held, first verdicts were not inconsistent as the jury could have found that items
were not stolen but lost and jury functus officio when they delivered
unambiguous verdict for offence(s) open to them.

13.7k Shirley (1964) 6 WIR 561

Defence relying on diminished responsibility. When the jury asked verdict on

Murder and answered “Guilty”. Registrar wrongly asked verdict on Manslaughter
and jury said “Not Guilty”. On appeal it was argued that the verdicts were
inconsistent.

Held, the verdicts were inconsistent as not guilty on manslaughter negatives

unlawful killing. The Court of Appeal rejected Crown’s submission that the jury
was functus after returning guilty to murder.

13.8 Finality of the Verdict

The jury may before the verdict is recorded or soon thereafter alter their verdict
and it will stand as amended. This may be done even after the prisoner was
discharged but before the jury leaves the box.

13.8a Nanan (1986) 35 WIR 358

Jury returned a unanimous guilty verdict. On the following day the foreman and
another member claim that they had not understood “unanimous” and that the
verdict was 8-4 (unacceptable). Four jurors swore an affidavit.

Held, presumption that verdict given in sight and hearing of entire jury without
dissent correct. Court would not receive contrary evidence.
13.9 Jury’s Deliberation Private

A jury’s deliberations are absolutely privileged. Even if can be shown thereby that
jury racially biased194 or that the jury read prejudicial information in the jury
room195.

13.9a Young [1995] QB 324

Evidence could be heard that jury consulted Ouija board as this was done at hotel
and not during the deliberation

194
Mirza [2004] 1 AC 1118
195
Thompson [1962] 1 AllER 65
 CHAPTER 14: SENTENCING

14.0 Introduction

The purposes of sentencing are:

a. Punishment

b. Reduction of crime and deterrence

c. Reform or rehabilitation

d. Reparation for victims and society: compensation/forfeiture/confiscation

e. Protection of the public

14.1General Procedure

After a guilty plea or a finding of guilt the court clerk will read the allocutus calling
on the convicted person to make his mitigation. The convicted person will then
address the court in an attempt to mitigate his sentence. In some jurisdictions
there may be victim impact statements and the court may seek the prosecutor’s
assistance.
Modern sentencing practice encourages the Judge to seek the assistance of social
inquiry reports. This may be specifically required by some statutes.
The Court must pronounce the sentence for each count in open court and give
reasons196.

196
Miller v. COP, Bain v. COP [2010] CCLD 3.05
14.1a Gittens v R [2010] CCJ 1 [AJ] [2010] 1 CCLD 1.01

The Barbados Court of Appeal reduced a murder conviction to manslaughter and

imposed sentence of 20 years without hearing from appellant or receiving pre-
sentence reports

Held, the plea in mitigation was a fundamental requirement of due process.

Failure to get reports would not always invalidate sentence but the failure to
order a report was in this case irrational.

Further, the Court of Appeal’s failure to advise in open court of the custodial
sentence invalidated it.

14.1b This decision, although based on Barbados’ Penal System Reform Act,
follows fundamental principles.

14.2 Role of Prosecutor and Victim

The prosecutor has duty to assist court with sentencing guidelines and tariffs197.
The prosecutor must no longer be reticent198 this was said in context of
jurisdictions where the prosecution having right to appeal sentence.

Victim Impact Statements are routinely admitted in the United Kingdom and is a
growing practice in Caribbean199.

14.3 Sentencing Factors

In arriving at the appropriate sentence a court should take into account:

a. The circumstances of offence and degree of participation,
b. Previous convictions or lack of,
197
(AG’s Ref (52 of 2003) Webb [2004] Crim LR 306)
198
AG’s Ref (7 of 1997) Fearon [1998] 1 Cr App R(S) 268
199
see AG’s Reference No 2 of 1995 [1995] Crim LR 835
 c. Whether there was a plea of guilty as this will normally mean up to 1/3
reduction for an early plea,
d. Assistance to police: There is no set scale but discount should be substantial
where it leads to prevention of crime, capturing of others, or risk to
offender, and
e. The prevalence of offence.

14.4 Consecutive or concurrent sentences

The judge must consider sentences on different counts as a whole. Consecutive

sentences may cause unduly long sentence.

14.4a Normally where convictions arise from same incident sentences should be
concurrent200. Thus convictions for the principal offence and resisting arrest may
be consecutive201 but in a robbery with firearm the sentences should be
concurrent202.

14.5 Suspended Sentence

Criminal Justice Reform Act [Jam].

Section 6

“A court which passes sentence of imprisonment on any offender for a term of not
more than three years for any offence may order that the sentence shall not take
effect unless, during a period specified in the order , of not less than 1 year or
more than 3 years from the date of the order, the offender commits in Jamaica
another offence punishable with imprisonment for a period of more than
6months”

200
see Brown and Bowes v. R [2010] JMCA Crim 54, [2010] CCLD 3.25 and Ellis v. R [2010] JMCA Crim
49, [2010] CCLD 3.26
201
Wellington (1988) 10 Cr App R (S) 384
202
A-G’s Reference (No 21 and 22 of 2003) [2004] 2 CrAppR (S) 63
14.6a Provided the above does not apply to a firearm offence.

a. Only suspend if a custodial sentence was contemplated.

b. Cannot make a suspended sentence order and a probation order on the
same offender.
c. If one count is suspended and one is custodial it shall run concurrently.
d. The sentence must be explained to the offender.

14.6b By s. 9 the court may also make a supervision order or, by s. 10, a
community service order.

14.7 Sentence of Death

The death sentence on a murder conviction is mandatory in Barbados and T&T203

but discretionary in Belize, Jamaica, and the Eastern Caribbean204.

14.7a Pregnant women

OFFENCES AGAINST THE PERSON ACT

S.(3)2 Sentence to be passed on a pregnant woman is life imprisonment.

s.3)3 The issue of the offender’s pregnancy must to be determined by a jury. This
will ordinarily be her trial jury which need not be re-sworn. If not a jury must be
sworn in same manner as if for want of fitness to plea. Evidence will be adduced
by the woman and by the Crown. The standard of proof is on a balance of
probabilities.

203
see Boyce [2004] UKPC and Matthew [2004] UKPC
204
see Reyes [2002] UKPC 11, Hughes [2002] UKPC 12, Watson [2004] UKPC
14.7b Discretionary Death Sentence

Murder is in a class by itself regarding the considerations applicable to

sentencing. Notice must be given at the time of indictment205, or at committal
that the prosecution intend to seek the death penalty.

14.7c Earlin White v. R [2010] UKPC 22

The Appellant, in the furtherance of a robbery, ambushed a man, followed that

man into the deceased’s office and shot the deceased three times. After the
Appellant’s conviction, counsel was granted an adjournment to make submissions
in mitigation. It was submitted that the death sentence was discretionary and the
Court was urged to impose a sentence of life imprisonment. The prosecution
sought the death penalty.

The Appellant was 30 years old and had previous convictions for manslaughter,
burglary, drug offences, dangerous harm and unlawful possession of ammunition
among others.

There were no psychiatric or other pre-sentencing reports. The judge found that
there were no mitigating factors that could reduce the death sentence to a life
sentence and that, considering the Appellant’s record and the manner of the
commission of the offence, he felt compelled to order the death sentence.

It was argued before the Board that the trial judge erred in his approach to the
death sentence, failed to follow the sentencing guidelines laid down by Conteh, CJ
in Reyes (decision of the Supreme Court of Belize, 25 October 2002) and erred in
failing to order a psychiatric report before imposing the death sentence.

205
for Jamaica see Dougal [2011] 77 WIR 353 and for Belize see Reyes [2003] 2 LRC 688
Held: (i) (explaining Trimmingham v The Queen [2009] UKPC 25) the death
penalty should be reserved for the “worst of the worst” or “rarest of the
rarest” murders and in this determination the judge should compare the
offender’s conduct with other murderers’ and not with ordinary civilised
behaviour, further, the death penalty ought only to be imposed where
there is no reasonable prospect of rehabilitation;

(ii) the offender’s character, and other such considerations, should only be
applied in so far as they are in the offender’s favour except where the
antecedents reveal previous offending of a grave and similar nature or the
previous offences were so persistent that it is a factor to be taken into
account when considering the prospect of rehabilitation; it is important to
obtain psychiatric, social welfare and other relevant reports prior to
sentencing in capital cases, in this case only a limited report by the police
was tendered, this was plainly wrong.

(iii) the sentencing judge was wrong to have placed the onus on the
Appellant to show why he should not be sentenced to death, life
imprisonment is the starting point (Trimmingham) ; the Reyes sentencing
guidelines were not followed, and in particular the judge failed to give
directions that material be made available to the appellant for the
sentencing hearing and failed to give adequate reasons for his decision to
impose the death sentence;

(iv) the judge did not indicate what features of the murder made it
exceptional and, as there was no element of premeditation, planning,
sadism or torture this case did not fall within the exceptional category and
the death penalty was not justified; the judge wrongfully took into account
the prevalence of murder in the society;
 (v) as the Appellant had not been previously convicted for murder, the
manslaughter case could not have been serious given that he received a 4
year sentence, and the record did not reveal that rehabilitation was
unlikely, the judge was wrong to have taken the appellant’s previous
convictions into account; in any event, 6 years having elapsed since
sentencing it would now be cruel and unusual punishment to carry out the
sentence (Pratt and Morgan v Attorney-General for Jamaica [1994] 2 AC 1);

The Appeal as to sentence was allowed, death sentence set aside and a sentence
of life imprisonment substituted.

14.7d In capital cases the court must consider “worst of the worst” for the death
sentence and antecedents to be considered only when favourable. For all other
offences the maximum is reserved for the worst offending but Court does not
have to conjure worst possible kinds. Ordinarily antecedents are considered
whether favourable or unfavourable.

14.7e To determine the appropriate sentence the trial judge must conduct a
hearing. The prosecution bears the burden of proof at such a hearing and ought
to receive social enquiry and psychiatric reports206.

206
see Pipersburgh and another v. R [2008] UKPC 16, Mitcham v. DPP St Kitts and Nevis Criminal Appeal
Nos. 10,11 and 12 of 2002, delivered November 3, 2003 Morris and Reid v. R JMCA Crim 78, [2010]
CCLD 3.43
 CHAPTER 15: CRIMINAL APPEALS

15.1 Appeals from Petty Sessions (Jamaica)

These appeals are governed by the Justice of the Peace (Appeals) Act.

15.1a Right of appeal

The accused or prosecutor may appeal from the decision of the Justices exercising
summary jurisdiction to the Circuit Court for the parish or Judge of the Supreme
Court207. No appeal is allowed from a plea of guilty or assent to judgment 208.

15.1b Notice of appeal

The appellant may give verbal notice of appeal at the sitting of the Court or file
written notice within 14 days after judgment.

Service of the notice of appeal on the Clerk of Court is sufficient notice to the
adjudicating Justices209.

15.1c Grounds of appeal

Within such period of 14 days the appellant shall deliver to the Clerk of Court and
to the respondent, the grounds of appeal in writing.
207
See s. 3 and confer R v Aubrey Graham v Plunkett 3 JLR 252
208
Section 47

209
S. 10
Failure to give and serve notice will result in right to appeal ceasing. See ss. 24
and 25.

Appellant must enter into recognizance with sureties within 14 days after the
judgment. See s. 13. Respondent may object to the sufficiency of such sureties.
This objection may be determined by the Justices-s. 16

When the appeal is perfected execution of the judgment shall be stayed until the
appeal is decided. Clerk of Court is to supply all the parties who apply with a
certified copy of the notes of evidence. See sections 18 and 19.

Either party may apply in writing to the justices for a case stated to go to court of
appeal for an opinion on a point of law. Ss. 50-54

In the case of an affirmative judgment time does not begin to run until a copy of
the conviction order is drawn up for delivery to the appellant. See s. 6.

No appeal shall be heard unless notice is given and served and the grounds filed
as directed.

15.1d Procedure in the appeal court (s. 29)

Only attorneys or the appellant and the respondent in person may address the
court. The appellant shall begin by proving that he has served his notice and
grounds of appeal and entered into recognizance. If matters of fact are in issue
the party asserting the affirmative of fact shall begin and the other shall reply.If
only questions of law are raised the appellant shall state his objections and the
respondent shall reply.

15.1e Powers of the appellate court

Upon the hearing of the appeal the appellate judge is empowered to:

 To refer the case back to the justices for further investigation or

evidence on any part in respect of which he considers that the evidence
is defective
 Amend defects in form in any part of proceedings or the record
 Amend any variance between any matter in writing or in print produced
in evidence and the recital or setting forth thereof.
 Administer oath or affirmation
 Reduce sentence, quashing or substituting sentence
 Dismiss the appeal
 Award costs of appeal
 Affirm judgment or decision
 Reverse judgment below
 Punish for contempt

15.2Appeals from the Magistrate’s court

In Jamaica these appeals are governed by ss. 293-305 -Judicature (RM) Act,
Judicature (Appellate Jurisdiction) Act and the Court of Appeal Rules 2002,
section 3.
15.2a Judicature (RM) Act [Jamaica]

s.294
1) Any person desiring to appeal from the judgment of a Magistrate in a case tried
by him on indictment or on information in virtue of a special statutory summary
jurisdiction, shall either during the sitting of the Court at which the judgment is
delivered give verbal notice of appeal, or shall within fourteen days from the
delivery of such judgment give a written notice of his intention to appeal, to the
Clerk of the Courts of the parish

(2) Every written notice of appeal shall be sufficiently signed. if signed by or on

behalf of the appellant either with his name or mark, or with the name of his
solicitor, but if signed with his mark such signature shall be attested by a
subscribing witness.

s. 296.
1) Notwithstanding anything contained in any law regulating appeals from the
judgment of a Magistrate in any case tried by him on indictment or on information
by virtue of a special statutory summary jurisdiction the appellant shall within
twenty-one days after the date of the judgment draw up and file with the Clerk of
the Courts for transmission to the Court of Appeal the grounds of appeal, and on
his failure to do so he shall be deemed to have abandoned the appeal: Provided
always that the Court of Appeal may, in any case for good cause shown, hear and
determine the appeal notwithstanding that the grounds of appeal were not filed
within the time hereinbefore prescribed.

(2) The grounds of appeal shall set out concisely the facts and points of law (if any)
on which the appellant intends to rely in support of his appeal and shall conclude
with a statement of the relief prayed for

15.2b Antigua Magistrate’s Code

s. 167 ( 2 )
Where a Magistrate makes a conviction the party against whom the conviction is
made may appeal to the Court of Appeal against such decision.
s. 170. (1)
Where an appeal is by way of motion the appellant within fourteen days after
the day on which the Magistrate has given his decision shall serve a notice on the
other party and on the Magistrate of his intention to appeal, and the said notice
shall also contain the reasons for appeal.
171. Every notice of appeal shall be in writing signed by the appellant or his
counsel or solicitor and may be transmitted as a registered letter through the
post in the ordinary way and shall be deemed to have been served at
the time when it would be delivered in the ordinary course of the post.
172. (1) The appellant shall within three days after the day on which he served
notice of his intention to appeal enter into a recognizance before a Magistrate
with or without sureties as the Magistrate may direct conditioned to appear
before the Court of Appeal and to try the appeal and to abide the judgment
thereon of the Court of Appeal and to pay such costs as may be awarded by
the said Court , or if the Magistrate thinks it expedient he may instead of
entering into recognizances give such other security by payment of money into
Court or otherwise as the Magistrate deems sufficient.
(2) The Magistrate shall also transmit to the Deputy Registrar of the Court of
Appeal with the papers relating to such appeal a memorandum of the reasons for
the decision.

15.2c Right to Appeal

An appellant may appeal any judgment of a Magistrate (exercising indictable and

special summary Jurisdiction) to the Court of Appeal. No appeal lies from the
dismissal by a Resident Magistrate of any proceedings on indictment or in
exercising special statutory jurisdiction (see R v Gunter v Tucker (1967) 10 JLR 12).

15.2d Notice of appeal

A person wishing to appeal must give verbal notice during the sitting of the Court
at which judgment was given or in writing within 14 days of the judgment. S. 294

Failure to give notice within the time prescribed is fatal to the appeal.
14 days after receipt of notice the Clerk of Court must transmit the record of the
court to the Registrar of the CA.

21 days after judgment the grounds of appeal must be filed with the Clerk of
Court.

The Court of Appeal may extend time for filing grounds of appeal (s. 296).

Four copies of the written notice and grounds of appeal must be provided (Court
of Appeals Rules 2002, rule 3.4).

The appellant must set out concisely in the grounds the facts and points of law on
which he intends to rely and must state at the end the relief prayed for (s. 296
(2)).

15.2e Powers of the Court of Appeal in an appeal from the Magistrate’s court

The Court of Appeal may:

 Dismiss the appeal; or

 Allow the appeal and quash the conviction; or
 Allow the appeal and order a new trial210
 Quash a sentence and substitute a less severe sentence.
 If there is no substantial miscarriage of justice dismiss the appeal even if a
point of law was decided in the appellants favour.

210
see s. 305 (2)
15.3Appeals from Assizes or Circuit Court

In Jamaica these are governed by the Judicature Appellate Jurisdiction Act part
1V and Court of Appeal Rules 2002, s. 3.

15.3a Right to Appeal or Leave (Permission to Appeal)

Belize

23.-(1) A person convicted in the Supreme Court on indictment or on information

filed by the Director of Public Prosecutions may appeal under this Part to the Court
(a) against his conviction on any ground of appeal which involves a question of
law alone;

(b) with the leave of the Court or upon the certificate of the judge who tried him
that it is a fit case for appeal against his conviction on any ground of appeal which
involves a question of fact alone, or a question of mixed law and fact, or any other
ground which appears to the Court or judge to be a sufficient ground of appeal;

(c) with the leave of the Court against the sentence passed on his conviction unless
the sentence is one fixed by law.
(Jamaica’s Judicature (Appellate) Jurisdiction Act s. 13 and Antigua & Barbuda’s
Eastern Caribbean Supreme Court Act s. 39 are largely the same)

15.3b Kindly confer R v Jeffries (1969) 1 QB 120; R v Jones (1970) 2 QB 456. See
also s. 13 of the Judicature (Appellate Jurisdiction) Act.

Where leave is required the appellant must show a “good arguable case”. Leave is
normally decided by a single judge of appeal and, if refused, may be renewed
before the full court.
15.3c NOTICE OF APPEAL

Belize

27.-(1) Where a person convicted in the Supreme Court on indictment or

information desires to appeal to the Court or to obtain the leave of the Court to
appeal he shall give notice of appeal or notice of his application for leave to
appeal in such manner as may be directed by appeal rules of court within twenty-
one days of the date of conviction if the appeal is against conviction,
or of the date of sentence if the appeal is against sentence alone.

(3) In all other cases where a person entitled to appeal or to apply for leave to
appeal to the Court desires to exercise that right, he shall give notice of his appeal
or notice of his application for leave to appeal in such manner as may be directed
by rules of court within twenty-one days of the date on which the order against
which he desires to appeal was signed, entered or otherwise perfected.

28.-(1) On every appeal or application for leave to appeal to the Court notice of
the grounds of appeal shall be filed within twenty-one days after receipt by the
intending appellant from the Registrar-
(a) in the case of an appeal against conviction by the Supreme Court on indictment
or information, of a copy of the record which shall include a copy of the judge’s
summing up
(2) Except in the case of a conviction involving sentence of death, the time within
which notice of appeal or notice of an application for leave to appeal may be given
or filed may be extended at any time by leave of the Supreme Court, or if such
extension is refused, by leave of the Court
(In other countries it is 14 days see Jamaica s. 16, Antigua s 48)

15.3d Order III

3-(1) Every notice of appeal or notice of application for leave to appeal or notice of
application for extension of time within which such notice shall be given shall be
signed by the appellant himself, except under paragraphs (4) and (5).
 Any other notice required or authorised to be given shall be in writing and signed
by the person giving it or by his legal representative. All notices required or
authorised to be given shall be addressed to the Registrar of the Court below to be
forwarded by him to the Registrar of the Court.

15.3e Time for notice may be extended by the court. R v Rhooms 10 WIR 1.The
notice must be signed by the appellant himself211 and see R v Derrick Foster
(1976) 13 JLR 129, R v Percival Moore (1972), 12 JLR 809, R v Michael Mitchell 25
JLR 383).

15.3f The appeal is commenced by submitting to the Registrar of the Court of

Appeal

-a notice of appeal; or

-a notice of application for leave to appeal; or

-a notice of application for extension of time within which such notice shall
be given, as the case may be, in the form prescribed-

See Rule 3.3

15.4Grounds of appeal

The statutory grounds are:

1. Verdict is unreasonable or cannot be supported having regard to the

evidence212.
2. Wrong decision of any question of law.
3. Miscarriage of Justice

211
(see Rule 3.5 (rule 45.1 of Jamaica’s Court of Appeals Rules 1962) (s. 16 Judicature (Appellant
Jurisdiction) Act)
212
See R v Carlton Linton SCCA 169/1981 Jud. Del. 16/1/84 and R v Nugent and Hughes (1974) 12 JLR
1355
 4. By virtue of the proviso if no substantial miscarriage of justice has
actually occurred court may dismiss appeal notwithstanding that the
point raised is decided in favour of the appellant. See s. 14 (1) s. 14(2).

15.5 APPEALS AGAINST SENTENCE

On an appeal against sentence from the Supreme Court the Court of Appeal may
quash the sentence passed at the trial and substitute a sentence more or less
severe. An appeal against sentence will normally argue that:

1. The sentencing judge exceeded his jurisdiction (e.g. a sentence greater than
the maximum).

2. The sentence was manifestly excessive or unduly lenient where the

prosecution may appeal213, or

3. The procedure adopted in sentencing was unfair (e.g. the defendant was
given no chance to mitigate).

15.6 PRESENCE AT APPEAL

Where no leave is required the convict is entitled to be present even if in custody.

Otherwise he has no right to be present without leave of the court214.

213
see for example DPP v. Shaunlee Fahie [2010] CCLD 1.16 and C.O.P. v. Jamal Grant [2010] CCLD 2.20)
214
See ss. 27 (1), 32 (1) and R v Spence (1973) 12 JLR 1122
15.7 Extension of Time and Waiver of Non- compliance with Rules

15.7a Jamaica Court of Appeal Rules Rule11

“ Non-compliance shall not prevent the further prosecution of his appeal if the
Court considers that such non-compliance was not willful and that it is in the
interest of justice that noncompliance is waived.”

15.7b Extension may be given by the Court for time to lodge notice of appeal. The
power is discretionary and must be judicially exercised. It is not fettered within
precise confines by principle, and must be in accordance with procedure in C.A.
rules. The discretion is subject to the guidance of those considerations of
common sense and justice which are detectable in every situation215.

15.7c R v Roy Wilson (1994) 47 WIR 325

No grounds had been filed and the appeal was deemed abandoned.

Held,the appellant needed show good cause for the CA to hear and determine the
case.

15.7d Rhooms 10 WIR 1

It was held that, except in cases involving death penalty, the court may enlarge
time.

15.7e Romeo Cannonier v DPP ECCA (SKN) delivered 21st March 2012

The appeal was remitted to the Court of Appeal by the Privy Council on the issue
of the constitutionality of the provision not permitting extension of time to file
appeals in capital cases.

The Court held that the time limit was an arbitrary limitation on the right to
appeal. The Rules ought to be read with the exception for capital cases removed.

215
see Pollard v R (1995) 47 WIR 185, R v Percival Moore and R v Jones 1972 56 Cr. App R 413
15.8 Proceedings before a single judge (3.13)

Except in case of an appeal from a conviction involving sentence of death, a single

judge of the CA is empowered to give leave to appeal, extend time, assign legal
aid, allow appellant’s presence and admit an appellant to bail.
An application for leave to appeal from a conviction involving sentence of death
shall be heard and determined by the CA216.

15.9 Powers of the Court of Appeal

The Court may:

1. Dismiss the appeal

2. Allow the appeal and quash the conviction (option to order a new trial)
3. Quash the sentence and substitute a less severe sentence (except where
Crown has power to appeal sentence)
4. Apply the proviso (ie although point of law decided in appellant’s favour to
yet dismiss the appeal if no substantial miscarriage of justice

15.9a Determining the Appeal

Belize
30.-(1) The Court on any such appeal against conviction shall allow the appeal if it
thinks that the verdict of the jury should be set aside on the ground that it is
unreasonable or cannot be supported having regard to the evidence, or that the

216
s. 32 (2)
judgment of the court before which the appellant was convicted should be set
aside on the ground of a wrong decision of any
question of law or that on any ground there was a miscarriage of justice, and
in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of the opinion that the
point raised in the appeal might be decided in favour of the appellant, dismiss the
appeal if it considers that no substantial miscarriage of justice has actually
occurred.

(2) Subject to the special provisions of this Part, the Court shall, if it allows an
appeal against conviction, quash the conviction and direct a judgment and verdict
of acquittal to be entered, or if the interests of justice so require, order a new trial.

(3) On an appeal against sentence the Court shall, if it thinks that a different
sentence should have been passed, quash the sentence passed at the trial and
pass such other sentence warranted in law by the verdict (whether more or less
severe) in substitution therefor as it thinks ought to have been passed, and in any
other case shall dismiss the appeal.

(Jamaica’s Judicature (Appellate) Jurisdiction Act s. 14 is of like effect)

15.9b Antigua

40. (1) The Court of Appeal on any such appeal against conviction shall subject as
hereinafter provided allow the appeal if it thinks that the verdict of the jury should
be set aside on the ground that it is unsafe or unsatisfactory or that the judgment
of the court before whom the appellant was convicted should be set aside on the
ground of a wrong decision of any question of law or that there was a material
irregularity in the course of the trial and in any other case
shall dismiss the appeal:
Provided that the court may, notwithstanding that it is of the opinion that the
point raised in the appeal might be decided in favour of the appellant, dismiss the
appeal if it considers that no miscarriage of justice has actually occurred.

(2) Subject to the provisions of this Act the Court of Appeal shall, if it allows an
appeal against conviction, quash the conviction, and direct a judgment and verdict
of acquittal to be entered, or, if the interests of justice so require, order a new
trial.

15.9c Although differently expressed the tests are largely the same. The appellant
must persuade the CA that:

a. Chances of a more favourable verdict significantly impaired by the

irregularity
b. Reasonable prospect that (if irregularity had not occurred) the jury would
have acquitted217

15.9d Henry and Emmanuel v R (1993) 46 WIR 135 describes “unsafe” as “lurking
doubt”, a general feeling of unease as to the accuracy of the verdict based on a
consideration of the admissible evidence.

15.9e The Proviso

Stafford and Carter v The State (1998) 53 WIR 417

The test was expressed as being whether the jury would without doubt have
convicted the appellant if they had received the appropriate directions on a
consideration of the whole of the admissible evidence omitting from
consideration evidence which clearly the jury did not believe

15.9f Baughman [2000] UKPC 20 (PC from Antigua)

30. Matthew J.A. also reviewed the evidence. Having done so, he too concluded
that "had the jury been properly directed they would have inevitably returned the
same verdict of murder".

217
See Winston Solomon (1999) 57 WIR 432
31. The test which the Court of Appeal applied was a proper one. Byron C.J. and
Matthew J.A. took into account the limited deficiencies in the summing up which
they considered had been shown to exist and then asked whether, if there had not
been these deficiencies, it was certain that the jury would still have arrived at the
same conclusion. It cannot be said that the Court of Appeal applied too low a test.
On the evidence given at the trial their conclusion was fully justified. The
deficiencies in the summing up did not relate to those matters which were the
most central to the prosecution case, the evidence of Mr. Jackson and the story of
the card. Therefore their Lordships are of the opinion that the Court of Appeal
were right to dismiss the appeal and conclude that the deficiencies in the
summing-up did not affect the inevitability of the jury’s verdict.

15.9g Fresh Evidence

Antigua

45. Without prejudice to the generality of the preceding section of this Act
(Supplementary powers), where evidence is tendered to the Court of Appeal under
that section, the Court shall, unless it is satisfied that the evidence if received
would not afford any ground for allowing the if-
(a) it appears to it that the evidence is likely to be creditable and would have been
admissible at the trial on an issue which is the subject of the appeal; and
(b) it is satisfied that it was not adduced at the trial, but that there is a reasonable
explanation for the failure to adduce it.

JAMAICA

28. For the purposes of Part IV and Part V, the Court may, if they think it necessary
or expedient in the interest of justice order the production of any document,
exhibit or other thing connected with the proceedings, the production of which
appears to them necessary for the determination of the case; and if they think fit,
order any witnesses who would have been compellable witnesses at the trial to
attend and be examined before the Court, whether they were or were not called
at the trial, or order the examination of any such witnesses to be conducted in
 manner provided by rules of court before any Judge of the Court or before any
officer of the Court or justice

15.9h The Court of Appeal may allow fresh evidence to be called218. Traditionally
only in exceptional circumstances and subject to exceptional conditions was the
court willing to receive fresh evidence but the courts have been taking a broader
view in the interest of justice219.

Where fresh evidence is plainly not capable of belief it will not be received.
Where it is plainly capable of belief it will be received without hearing from
witnesses. Where it is possibly capable of belief witnesses may be called de bene
esse to determine whether the evidence is capable of belief.

15.9i Winston Solomon (1999) 57 WIR 432`

The Trinidad and Tobago Court of Appeal held that the common law rule against
admitting fresh evidence that had been available at trial was not absolute. They
took into account the cogency of the evidence and the fact that Crown failed in
their duty to disclose it.

15.9j Bernal and Moore [1997] UKPC 18

The appeal hearing concluded 17 Nov 1995 with judgment reserved for 26 Jan
1996. On the latter day Bernal sought leave to admit evidence of Moore’s brother
that the appellant Moore had told him that Bernal did not know of ganja in tins

Crown objected on basis that with reasonable steps evidence would have been
available earlier.

CA by a majority decision refused to hear the evidence.

218
s. 28 J(AJ) Act
219
see Shaw et al v R PC. appeal 67/2001 decided 15/10/02 and Kenneth Clarke v R PC appeal 93/2002
decided 22/1/04, Bernal and Moore v Dpp.; R v Preston Williams 12 JLR 1314; Stafford v DPP (1973) 3
WLR 719. R v Roosevelt Edwards SCCA 12/75 decided December 3, 1982.
The Privy Council applied the section 28 test (consideration of whether necessary
and expedient) and held that it was wrong to have dismissed the application
without considering the evidence.

15.9k New Trial

15.9l Reid v R (1978) 27 WIR 254 PC

When the CA have allowed an appeal and quashed the conviction they must
consider whether a new trial ought to be ordered. Factors for a new trial include:

a. Seriousness and prevalence of the offence

b. Expense and length of time involved in a fresh hearing
c. Ordeal suffered by accused person on the trial (should it be repeated
through no fault of his own?)
d. Length of time between offence and the new trial
e. Whether evidence that tended to support defence available for new trial
f. Strength of prosecution’s case

15.9m Persad v. The State (Trinidad and Tobago) [2001] UKPC 2 (24th January,
2001)

24. The final question is whether the Court should have ordered a new trial.

….

First there is the fact that some fifteen years have now passed from the date of
the incident. In a case where the critical issue is that of identification such a period
of time will necessarily make it difficult to exercise a genuinely direct assessment.
Witnesses may well be relying on their recollection of the evidence which they
have already given rather than on any immediate memory of the events about
which they are speaking.

…..

But however all that may be, investigation of such matters will be more delicate
after such a passage of time.
25. Secondly, in addition to the passage of time, it is right to take account of the
fact that what is now proposed is a third trial. While not in itself a conclusive
consideration, the strain and uncertainty which attends such a process is a
significant factor. Thirdly, there is the fact that both accused have been in prison
for the whole period since their arrest, already some fourteen years ago. More
significantly, they have each served long periods on death row with the constant
possibility of imminent execution.

26. It is argued that this was a serious case. It was a case of murder and no doubt
the use of firearms may be seen as too prevalent an activity and one that requires
to be strenuously discouraged. The fact that the law has already brought two
prosecutions in this case may go some way to show the determination of the State
to oppose such violent behaviour. On the other hand there are some areas of
possible uncertainty about the case.

15.9n DPP v White (1977) 15 JLR 110

Majority verdicts were taken on some counts but it was unclear which counts. The
verdicts were accepted after 27 minutes of retirement. The CA quashed
conviction as a mistrial but refused to make order as to a new trial or to enter an
acquittal

The PC held:

a. Appropriate to order new trial even where there was a mistrial

b. CA on allowing appeal must enter acquittal or order new trial

c. Statutory power to order new trial includes writ of Venire de Novo

Remitted to CA
15.10 Abandonment

An appellant at any time after he has duly served notice of appeal or notice of
application for leave to appeal, of application for extension of time within which
such notice shall be given, may abandon his appeal by giving notice of
abandonment to the Registrar.
Notice of abandonment must be signed by appellant himself. Upon such notice
being given, the appeal shall be deemed to have been dismissed by the court.
Rule 3.22

15.10a Withdrawal of abandonment

 R v Moore (1957) 2 All ER 703

 R v Medway (1976) 1 All ER 527; 62 Cr. App. R. 85
 R v Peter (1973) 59 Cr. App. R. 328
 R v Keating (1983) Crim. LR 228
 R v Munisany (1975) 1 All ER 910
 R v Sutton (Phillip) (1969) 1 All ER 929
 R v Maslanka 12 JLR 843
 R v Knightsbridge Crown Court ex p Commissioners of Customs and
Excise (1986) Crim LR 324 which upheld the decision in R v Essex
Quarter Sessions ex p. Larkin (1961) 3 All ER 930 and followed
Medway
 R v Pittman (1916) 12 CAR 14

The Court of Appeal will not entertain an application for withdrawal unless
something akin to mistake or fraud is alleged which enables the court to deem
the notice of abandonment as a nullity. The abandonment must not be the result
of a deliberate informed decision.
15.10b POWER TO RELIST

R v Thompson 6 WIR 381 where it was said that the Court may order an appeal to
be relisted where irregularity or something amounting to fraud or mistake was
alleged and was of such a nature that the court in the exercise of its inherent
jurisdiction may declare the order a nullity. In that case the Court held that
appearance of the appellant personally or by his counsel was a condition breach
of which without reasonable excuse leads to the determination of the appeal and
the court having dismissed the appeal was functus officio.

15.10c R v Daniel (1977) 2 WLR 394 where the Court clearly contemplated
relisting in cases where the hearing was not a nullity but there was a likelihood of
an injustice being done220.

15.11 Reference of case by Governor General

Where a person has been convicted on indictment or by a Resident magistrate in

virtue of his special statutory summary jurisdiction, the GG may in respect of the
conviction or sentence (other than a sentence of death) refer the case to the CA
(see for example Section 29 Judicature (Appellate Jurisdiction) Act.

220
See also R v Cross 57 Cr. R. 660.
15.12 Prosecution appeals

Antigua Magistrate’s Code

167. ( 1 ) Where a Magistrate refuses to make a conviction the

complainant may appeal to the Court of Appeal against such
decision.

Legislation in some jurisdictions permits the prosecution to appeal acquittals or

sentences. However courts have strictly construed such provisions.

15.12a Justis Smith v. R [2000] UKPC 6 the Privy Council held that a Bermudian
statute permitting the prosecution to appeal acquittals on points of law did not
confer a power to appeal a judge’s decision on a no case submission as that
decision was a mixed determination of law and fact.

15.13 Case Stated

174. (1) After the hearing and determination of any special Case.

complaint, the Magistrate may, in his discretion, on the

application of either party to such complaint or their solicitor,

or of his own motion without such application, state a case

on any point of law arising in the case for the opinion of

the Court of Appeal. The statement of facts in such case

so stated shall, for the purpose of the determination thereof,

be conclusive.
(2) Where such party (hereinafter called "the appellant') makes
application to a Magistrate to state a case the appellant shall within
fourteen days after the day on which

the Magistrate has given his decision, in the manner and form
prescribed by sections 170 and 171, serve a notice of appeal on the
other party and on the Magistrate.

(3) T h e provisions of sections 172 and 173 shall apply

in respect of any such appeal.

(4) Nothing herein contained shall be construed to

prevent either party in such a case appealing within the time

specified in section 170 as to any determination of fact or

any question of law not raised in the case stated by the

Magistrate; but such appeal shall be in such even independent

of the case stated.

(5) T h e Attorney-General may, by notice in writing

under his hand, require a Magistrate to state a case on any

point of law, and, on receipt of such notice, the Magistrate

shall state such case accordingly.

(6) T h e Court of Appeal may remit any case stated

under the provisions of this section to the Magistrate stating

the same for further information from such Magistrate.

(7) If o n application being duly made to a Magistrate

to state a case such Magistrate declines so to do, the appellant

 may apply to the High Court or to any Judge thereof for

an order requiring the case to be stated.

1 7 5 . T h e Magistrate upon receiving an application,

notice or order under the provisions of section 174 or when

of his own motion he decides to state a case for the opinion

of the Court of Appeal shall draw up the special case,

concisely setting forth such facts and documents (if any) as

may be necessary to enable the Court of Appeal to decide

the questions raised in the case, and shall forthwith transmit

the same together with a certified copy of the conviction order

or judgment appealed from and all documents alluded to

in the special case to the Deputy Registrar of the Court of

Appeal.

181. O n an appeal by special case the Cour t of

Appeal shall only entertain such appeal on the ground that

confined to facts the decision of the Magistrate was erroneous in point

of law and evidence stated therein, or in excess of jurisdiction and
only upon the facts stated and the evidence mentioned in the special
case.

(Compare ss 49 to 56 of Justices of the Peace (Appeals) Act (Jamaica))

Stating a case permits the magistrate or trial judge to refer a legal issue for
determination of the Court of Appeal. The application may be on the judge or
magistrate’s own initiative or at the behest of the parties.
15.14 Appeals to the Privy Council

Some appeals to the Court of Appeal are final (see s. 21A J(AJ) Act, Gun Court Act
s. 14 (3),Dave Antonio Grant v DPP and DCS [2004] UKPC 27, 14th June 2004 and s.
110 (2) (b) Jamaican Constitution and s 35 J(AJ) Act).

15.14b Leave (Permission to Appeal)

The prosecutor or defendant may with leave of the court appeal to the PC except
in contempt proceedings.

Leave will only be granted where it involves a point of law of exceptional public
importance and it is desirable in the public interest that a further appeal should
be brought.

Permission is granted where there has been a “grave and substantial miscarriage
of justice”

The Board is not a second Court of Appeal and does not grant permission to
appeal criminal matters grounded on differences in opinion of judges on disputed
evidence or on the inferences to be drawn from the evidence221 and normally
defers to the views of the local courts on the effects of misdirection222.

Application to the Court of Appeal for leave must be made within 21 days of the
judgment223.

221
(Gayle v. R [1996],and Sooklal and Mansingh [1999] UKPC 37)
222
Prasad v R [1981] 1 WLR 469
223
See paragraph 3 of the Jamaica (Procedure of Appeals to the P.C.) Order in Council 1962 and Lancelot
Simpson (1977) 15 JLR 190.
Where leave is denied the applicant may apply to the PC for special leave to
appeal.

Where the constitution or legislation does not empower the local CA to grant
permission to appeal the appeal must be initiated at the PC224.

224
Holder (1978) 31 WIR 98, Oteri [1976] 1 WLR 1272