Anderson Bonaparte v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: A. Yorke-Soo Hon, JA
• Judgment Date: 10 July 2023
• Neutral Citation: TT 2023 CA 79
• Docket Number: Crim. Appeal No. P 002 of 2023 CR 0080/2005

BETWEEN

Anderson Bonaparte

Appellant

and

The State

Respondent

Chamber Court Judge:

A. Yorke-Soo Hon, JA

Crim. Appeal No. P 002 of 2023

CR-HC-POS-IND-630-2021-4

CR 0080/2005

IN THE COURT OF APPEAL

Appearances:

Mr. Peter A. Carter on behalf of the Applicant

Mr. Wayne L. Rajbansie on behalf of the Respondent

Delivered by: A. Yorke-Soo Hon, JA

1 The applicant was arrested and charged on November 15, 2000 with the following offences: (i) kidnapping, (ii) false imprisonment, (iii) rape, (iv) robbery with aggravation, and (v) assault with intent to rob. He was tried during the period July to December 2022. On October 11, 2022, a no case submission was upheld with respect to the offences of rape and assault with intent to rob and verdicts of not guilty were returned by the jury in respect of those two offences.

2 He was convicted on November 9, 2022, on the remaining counts on the indictment, namely kidnapping, false imprisonment and robbery with aggravation and discovered on March 9, 2023 that he had not filed a notice of appeal against conviction. He now seeks leave of the Court to extend time for filing the said notice.

Notice of Appeal against sentence

3 Before the Court is the applicant's application for an extension of time for the filing of his notice of appeal against conviction as well as his notice of appeal against sentence. In respect of the notice of appeal against sentence, it was agreed by counsel on both sides that it was signed by the applicant on December 14, 2022, but filed outside of the 14 day period permitted for the filing of appeals pursuant to section 50 (1), (2) of the Supreme Court of Judicature Act, Chapter 4:01 (SCJA). Consequently, counsel for the respondent did not object to time being extended and the Court extended the time for the filing of the notice of appeal against sentence to January 3, 2023.

Notice of Appeal against conviction

4 In respect of the notice of appeal against conviction, Mr. Peter Carter, counsel for the applicant submitted that his client laboured under the false impression that the notice of appeal against sentence, which he signed, covered both his appeal against conviction and sentence. It was always his intention to appeal both his conviction and sentence and this was demonstrated by his conduct throughout. He instructed his attorney on November 22, 2022, that he wanted to appeal his conviction. His attorney advised that he should await the sentence and appeal both conviction and sentence at the same time. Therefore, when the applicant signed the notice of appeal against sentence, he believed that he was appealing both his sentence and conviction and thereafter sought to obtain the transcripts which contained among other things, the notes of evidence and the judge's ruling in respect of the no case submission.

5 Mr. Wayne Rajbansie, counsel for the respondent submitted that the applicant has failed to establish substantial grounds for the extension of time. He submitted that the applicant is literate and ought to have observed that the notice which he signed clearly indicated that it was a notice of appeal against sentence. He added that ignorance of the law is no excuse and during the period December 14, 2022, to December 28, 2022, he met with his attorney on two occasions. He also attended court and therefore ought to have known that he should have filed his notice on time.

Law, Analysis and Conclusion

The Statutory Provision

6 A convicted person who wishes to appeal his conviction shall give notice to the Court of Appeal within 14 days of the date of his conviction. Section 50 (1) of the SCJA states as follows:

50. (1) Where a person convicted desires to appeal under this Act to the Court of Appeal, or to obtain the leave of that 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 Rules of Court within fourteen days of the date of conviction.

7 Where time for filing the notice of appeal has expired, except in the case of a conviction involving sentence of death, the applicant may apply for time to be extended by the Court of Appeal. Section 50 (2) of the SCJA states as follows:

50 (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 may be extended at any time by the Court of Appeal.

8 Order III of the Court of Appeal Rules contained in the SCJA, provides for the time within which a convicted person shall give notice of appeal pursuant to sections 15 and 16 as follows:

15. The time within which a person convicted shall give notice of appeal or notice of his application for leave to appeal to the Court against his conviction shall commence to run from the day on which the verdict of the jury was returned, whether the Judge of the Court of trial has passed sentence or pronounced final judgment upon him on that day or not.

16. The time within which a person convicted and sentenced, shall give notice of appeal or notice of application for leave to appeal against such sentence under the Act to the Court, shall commence to run from the day on which such sentence has been passed upon him by the Judge of the Court of trial.

9 In the case of John Tasker Lewis and Ors v The Attorney General 1, from the Jersey Court of Appeal, a single judge had to consider whether to grant an extension of time for the filing of a notice of appeal against conviction. In that jurisdiction, the time for filing a notice of appeal against conviction is 28 days from the date of the conviction and the time for filing a notice of appeal against sentence is 28 days from the date on which sentence is passed. 2

10 In determining when time begins to run the court had to consider sections 6 and 7 of the Court of Appeal (Criminal) Rules 1964 3 which directly mirrors sections 15 and 16 of Order III of the Court of Appeal Rules of the SCJA in this jurisdiction. Beloff JA held that the position was very clear:

“ [7]. It is therefore clear that the default or presumptive position established by these instruments is that notice of appeal against conviction must be given within 28 days of the conviction itself irrespective of whether or not sentence has been passed, and that it is envisaged that notices of appeal against conviction and sentence may be separately given. The Court of Appeal itself may extend time and for that purpose may act by a single judge.”

11 It therefore follows that in this jurisdiction time begins to run for a convicted person to give his notice of appeal against conviction from the date on which the verdict of the jury was delivered, whether the judge has passed sentence on that day or not. Similarly, with respect to a person convicted and sentenced time begins to run from the date on which the sentence has been passed by the trial judge. A notice of appeal against conviction and a notice of appeal against sentence must be filed separately on separate forms as contained in Appendix C of Order III of the Court of Appeal Rules of the SCJA.

12 In the circumstances, I do not find favour with Mr. Carter's submission that time for filing the notice of appeal against conviction began to run from the date on which sentence was passed. This was a misconception. The rule is quite clear and does not lend itself to such a generous interpretation.

13 Before moving on, as a matter of comparison, in the case of Rohan Rambarran v The Queen 4, the Caribbean Court of Justice had to determine the question of whether the time for filing a notice of appeal or an application for leave to appeal against a conviction pursuant to section 19 (1) of the Barbados Criminal Appeal Act, Cap. 113A expired when such notice or application had not been given within 21 days of the determination of guilt by the jury or within 21 days of the date of sentence 5. It was held that the time for filing a notice of appeal against conviction did not expire within 21 days from the jury's verdict of guilt, but within 21 days from the date of sentence, if sentence was not passed at the time of conviction. The term “conviction” included both the verdict of guilt and sentence. Therefore, in Barbados, time for the filing a notice of appeal against conviction and sentence commences from the date of sentence.

14 Similarly in the Bahamas, section 17 (3) of the Court of Appeal Act, Chapter 52 6 provides that where the court has adjourned the trial after conviction, the conviction shall be deemed to be at the date of sentence and therefore time for filing a notice of

appeal against conviction therefore runs from the date of sentence, see Rodriguez Jean Pierre v The King 7

15 In this jurisdiction however, a person who wishes to appeal his conviction must give notice of appeal 14 days from the date on which the jury delivered its verdict, whether or not the judge has passed sentence. The position is clearly distinguishable from that of Barbados and the Bahamas.

16 In this case, the applicant was convicted on November 9, 2022 and thereafter was sentenced on December 14, 2022. Therefore, time for filing his notice of appeal against his conviction began to run on November 9, 2022 and expired on November 22, 2022. He was sentenced on December 14, 2022 and time for filing his notice of appeal against sentence began to run from this date and expired on December 27, 2022.

Principles governing an extension of time

17 Order III of the Court of Appeal Rules of the SCJA falls short of any guidelines in determining an application for the extension of time to appeal against conviction. Therefore, it is left to the Court of Appeal to develop what is termed a “principled approach” 8 by Lord Lloyd Jones and Lord Hamblin in Rodriguez Jean Pierre.

18 In the case of Sahadath Ali v R 9, McShine CJ stated that when an application is made for the...