Ali v Ali

JurisdictionTrinidad & Tobago
JudgeBernard, C.J.
Judgment Date28 April 1986
Neutral CitationTT 1986 CA 10
Docket NumberMagisterial Appeal No. 167 of 1985
CourtCourt of Appeal (Trinidad and Tobago)
Date28 April 1986

Court of Appeal

Bernard, C.J.

Magisterial Appeal No. 167 of 1985

Ali
and
Ali
Appearances:

Mr. A. Wills appeared on behalf of the appellant.

Mr. A. Benjamin appeared on behalf of the respondent.

Criminal law - Appeal against sentence for possession on a narcotic, to wit, cocaine — Evidence that magistrate took into account all the principles that go with the imposition of a custodial sentence — Appeal dismissed.

Practice and procedure - Illegality — Magistrate's Court — One of appellant's grounds for appeal against conviction for possession of a narcotic, to wit, cocaine was that the appellant had been denied a fair trial because of bias on the part of the magistrate — Factors constituting bias discussed — Test that of the reasonable person — After hearing all evidence and announcing his decision that the appellant was guilty the magistrate was told by counsel that the appellant had previous convictions whereupon the magistrate observed that the “same person or persons wilfully refused to have all the defendant's previous convictions available to the court and called for an investigation — No reason to conclude that the magistrate had preconceived notions of the appellant's guilt because of his statement which came after he had convicted the appellant — Appeal dismissed.

Bernard, C.J.
1

The appellant was charged indictably with being in possession of a narcotic, to wit, cocaine, on Friday 9th March, 1984, at Evelyn Street San Juan, contrary to s. 4 (1) of the Narcotic Control Ordinance No. 27 of 1961: At the hearing, the prosecution recommended summary trial and the appellant consented to be so tried. He pleaded not guilty. He was convicted and was sentenced to a term of imprisonment of 18 months with hard labour. He appealed against the conviction and sentence. We will come to this momentarily.

2

The case for the prosecution was that on the day in question Acting Inspector Gilbert Reyes and the virtual complainant P.C. Anchoor Ali, together with other police officers, went to the premises of the appellant at Evelyn Trace, San Juan. At the time the police were armed with a warrant to search the appellant's home for stolen jewellery. Having got there, they met the appellant standing at the door. They identified themselves to him, told him that they had a warrant to search his home for stolen jewellery, after which they read out the warrant to him. He was asked whether he had any of the jewellery mentioned in the warrant in his possession and, according to the prosecution, he replied that he did not know.

3

The Police proceeded to conduct a search of his premises and during the course of the search Inspector Reyes, whilst in the course of searching a dressing table in one of the bedrooms, found in the top right-hand drawer a brown piece of paper with some “whitish” substance. He formed an opinion about that substance and in the presence of the appellant he told Corporal Ali that he was of the opinion that the substance which he had found in the drawer of the dressing table was cocaine. He then handed over the article to Corporal Ali, who also examined the article and told the appellant that he too was of the opinion that it was cocaine. He then cautioned the appellant, whereupon, according to Ali, the appellant replied; “That is for my toothache”.

4

At that stage and in the presence of the appellant and Inspector Reyes, Ali wrote his initials and the date on the brown piece of paper containing this substance. The date was 9th March, 1984. Ali then asked the appellant whether he alone was staying there and according to Ali, the appellant told him “yes” and that his wife and children were at the time staying at Westmoorings. The appellant was arrested and taken to the C.I.D. in Port of Spain where he was charged with the offence, cautioned again and on this occasion, according to Ali, the appellant remained silent.

5

Ali further testified that he prepared an Advice Letter and took it, together with the article which he had received from Reyes at the appellants premises, to the Forensic Science Department (the Government Chemist's Department) for analysis. According to Ali, he had put the substance in the brown paper into a small white plastic bag to avoid spillage and wrote his initials and the date, 9th March, 1984, on the bag. Some time afterwards he received a report from the Government Chemist which was tendered in evidence and which was to the effect that the substance was on analysis identified as cocaine.

6

In cross-examination it was suggested to Ali, and indeed to Reyes as well that the case against the appellant had been trumped up because the police had gone to search for jewellery at his home, presumably suspected to be stolen or unlawfully obtained, but although they found jewellery, they were later satisfied that the jewellery had not come into the possession of the appellant unlawfully. Being in that position, the Police, it was alleged, framed the appellant.

7

The thrust of the cross-examination was not only to that effect but Inspector Reyes was asked whether he had made a record in his pocket diary of finding the cocaine, as alleged, at the appellant is premises on that date, and indeed counsel for the appellant called on him to produce it. Consequent upon the request of counsel, an order was made by the court for Inspector Reyes to produce his pocket diary, which he in fact did, and under cross-examination by counsel he referred to an entry on page 99 which supported the allegations made by the Police. That was the case for the prosecution.

8

The appellant's defence amounted to a complaint that he had been framed by the Police. His evidence was that they had searched his premises for jewellery and that the jewellery which they had found was later returned to him. He was the owner of the premises. He was in control of those premises. No-one could go into his bedroom. When the Police came and searched the bedroom no-one was there apart front him. However, in contrast to the prosecution's further contention he claimed that the police never found any cocaine in his house; nor did he ever tell them that he had any substance for his toothache. He denied also that he had told the police that his family were at the time residing at Westmoorings. He went on to admit, nevertheless, that while there was a number of employees on his premises; none of them could have come and gone into his bedroom as they wished. Before passing on we should mention that counsel for the appellant had indicated that there was no nexus between the Government Chemist(s report and the evidence given by Corporal Ali. We are satisfied from the evidence that the nexus was completely and substantially established.

9

As we indicated earlier the appellant appealed against the conviction and sentence. The grounds as amended were:

  • (a) that the appellant is not guilty.

  • (b) that a specific illegality substantially affecting the merits of the case was committed in the course of the case in that the learned magistrate, in convicting and/or in sentencing the appellant, took into consideration matters not adduced in evidence at the trial and/or not disclosed by the record before the court, and

  • (c) that the sentence imposed is unduly severe.

10

The question whether or not the prosecution's Case was to be accepted to the extent that the tribunal felt sure of it was a question of fact for the magistrate. The learned magistrate saw and heard all the witnesses and throughout in his Memorandum of Reasons he made it abundantly clear that he gave careful consideration to the evidence, taking into consideration the demeanour of the witnesses, and at the end of the day he was sure that the case for the prosecution was true. Accordingly he accepted the prosecution's story and convicted the appellant.

11

The learned magistrate was the person who saw and heard the witnesses and we cannot say that in coming to the conclusion which he did on the question of fact, he in any way misperceived the evidence or drew any wrong inference from the evidence. Accordingly the ground of appeal at (a) fails.

12

The second and more serious complaint had to do with the ground relating to illegality. The complaint is that the learned magistrate was guilty of bias. On this aspect counsel invited our attention to the remarks which the learned magistrate made at page 13 of the Record and the observation which he made at paragraph 8 of his Memorandum of Reasons. Counsel has contended that on examination of these parts of the Record any reasonable person would have come to the conclusion that the magistrate had had preconceived notions or opinions about the matter and that, in those circumstances, it could not be said that the appellant had had a fair trial. In effect the magistrate was biased.

13

Bias in the law is of two kinds. It may be classifieds as falling into either one of two kinds, namely (a) pecuniary or proprietary interest or (b) bias for favour or challenge to the favour as the expression is used interchangeably. In either case the principle is based on the rigid and hallowed judicial tradition and principled philosophy that in the determination of the rights of parties and in the administration of the law, justice must not only be done but it must be seen to be done. The kind of bias with which we are concerned here is the second type of bias; to wit, bias for favour. Manifestly, the question, therefore, which this Court has to resolve is whether, having regard to the complaints which counsel for the appellant has made, there was any real likelihood or probability of bias. Having examined the Record, we are of the view that the charge can be resolved by an examination of a number of cases which we consider have some bearing on the matter in issue.

14

In Nathaniel Joseph v. R. (1959) 1 W.I.R. 365 the matter had to do with an allegation of bias on the part of an...

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