Andrea Jeremy W.E.C. #24394 v DG
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Yorke-Soo Hon, JA |
| Judgment Date | 16 May 2023 |
| Neutral Citation | TT 2023 CA 30 |
| Docket Number | Crim. App. P018 of 2020 |
| Court | Court of Appeal (Trinidad and Tobago) |
A. Yorke-Soo Hon, JA
G. Smith, JA
M. Dean-Armorer, JA
Crim. App. P018 of 2020
HC Case No. C-North CR 840-2018-1
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Mr Nigel C Pilgrim for the Appellant
Ms Mukiba Louis for the Respondent
Delivered by: A. Yorke-Soo Hon, JA
The Respondent was charged with the possession of 46.72 grammes 1 of cannabis sativa, commonly called marijuana, for the purpose of trafficking contrary to section 5 (7) of the Dangerous Drugs Act, Chapter 11:25 (The Drugs Act). He was discharged under section 5 D (1) of the Dangerous Drugs (Amendment) Act No 24 of 2019 (The Drugs Amendment Act).
Around 10:55 am on February 2, 2017, the Appellant, an Estate Constable, was on patrol duty near the male washroom of a secondary school. She observed the Respondent who was walking along the corridor with a multi-coloured knapsack, and who appeared to be acting suspiciously. She approached him and enquired of him why he was outside the classroom and he replied that he was on his way to class. She then asked if she could search the bag which he was carrying and whether he had “anything on him”. He replied “no”. She then requested that he open the bag and he complied. The Estate Constable found that the bag contained a glass jar wrapped in a brown paper bag, inside of which there was a plant-like substance resembling that of marijuana. She informed the Respondent of her observations and he remained silent. The police and the Respondent's mother were then contacted and he was conveyed to the police station accompanied by his grandmother and the school's principal. At the station, the substance was weighed in the presence of the Respondent and his relatives and amounted to 57 grammes. Thereafter he was cautioned, told of his rights and privileges and charged.
On June 4, 2018, the Respondent appeared at the Children Court. The Respondent elected summary trial and entered a plea of not guilty. On March 5, 2020, at the close of the prosecution's case, Counsel for the Respondent made a submission of no case to answer. The Children Court Master (Master) deferred her ruling in light of the Drugs Amendment Act.
On April 9, 2020, before the Master gave her ruling on the no case submission, Counsel for the Respondent made an application for the matter to be dismissed pursuant to section 5 D (1) of the Drugs Amendment Act. The application was allowed and the charge against the Respondent was accordingly dismissed. The prosecution now appeals the decision of the learned Master.
Counsel for the Appellant, Mr Pilgrim submitted that the Appellant had a right to appeal based on the conjoint effect of section 58 of the Family and Children Division Act, 2016 and section 65 E of the Supreme Court of Judicature Act, Chapter 4:01. He also submitted that the judgment in The State v Brad Boyce 2 was instructive in interpreting the latter section and posited that the order of the Master can be appealed to this Court in a like manner and extent as that of a trial Judge.
Mr Pilgrim submitted that the Master's decision to discharge the Respondent, pursuant to section 5 D (1) of the Drugs Amendment Act, was done without authority. He advanced that the power to discharge under section 5 D (1) related exclusively to cases involving simple possession and was unrelated to cases of possession for the purpose of trafficking, as in this case.
Counsel also submitted that the Respondent was captured under the pre-amended law, sections 5 (4) and (7) of the Drugs Act. He was present in a school
compound and was not a person to whom the exemptions under the then section 5 (2) applied. Counsel advanced that if section 5 D (1) was interpreted in a manner to allow persons charged with trafficking, to apply for a discharge, this would result in absurdity since it would be excusing behaviour which remains an offence even after the amendment. Mr Pilgrim added that the intent of Parliament was to decriminalise and retrospectively pardon the possession of small amounts of cannabis for private use, not to excuse possession for the purpose of trafficking. In support of this, he cited the Hansard and the Master's Reasons 3Counsel for the Respondent, Ms Louis, submitted that the Master was not wrong for discharging the Respondent. She argued that the intention of Parliament at the time of passing section 5 D (1) was to decriminalise all offences related to the possession of cannabis where persons possessed 60 grammes and under. She argued that since the Respondent was charged with 46.72 grammes, this was sufficient to trigger an absolute discharge under section 5 D (1).
Counsel for the Respondent did not reply to the Appellant's submission that the Director of Public Prosecutions (DPP) had a right of appeal against the order of the Master.
Section 65 C (1) of the Supreme Court of Judicature Act, Chapter 4:01 (SCJA) provides that an appeal shall lie to the Court of Appeal from any order or decision of the Master:
“ An appeal shall be to the Court of Appeal from any order or decision of the Master made in the exercise of any jurisdiction conferred on him under this Act”
It has recently been settled that the Court of Appeal has jurisdiction to hear an appeal from the Master. In the joint judgment of the Court of Appeal in Joel King v The State 4, it was held that section 65 C (1) of the SCJA allows an appeal from any order or decision of the Master. The Court stated as follows:
“ …there is a specific statutory provision in 65 C (1) of the Supreme Court of Judicature Act (quoted above) which allows an appeal from “any order or decision of the Master”.
This expressed, statutory right of appeal cannot give way to an argument to the contrary founded upon implication or analogy.
Further, there is a presumption against derogating from or whittling down a right of appeal as is suggested here [Bennion, Bailey and Norbury on Statutory Interpretation 8th edition at page 877]…”
Further, section 65 E of the SCJA, provides a specific statutory right to the DPP to appeal a judgment or verdict of acquittal in proceedings by indictment where a trial Judge withdraws the case from the jury on any ground of appeal that the decision of the trial Judge is erroneous in point of law. Section 65 E (1) (a) provides:
“ 65E. (1) Section 63 notwithstanding, the Director of Public Prosecutions may appeal to the Court of Appeal—
(a) against a judgment or verdict of acquittal of a trial Court in proceedings by indictment when the judgment or verdict is the result of a decision by the trial Judge to uphold a no case submission or withdraw the case from the jury on any ground of appeal that the decision of the trial Judge is erroneous in point of law;…”
In the case of The State v Brad Boyce, the Judicial Committee of the Privy Council considered the DPP's right of appeal in this jurisdiction under section 65 E and held that the provision applied to any ruling that may be properly made by the trial Judge. In delivering the advice of the Board, Lord Hoffmann stated as follows:
“ [24] … In the Trinidad and Tobago statute, the words are ‘erroneous in point of law’. Their lordships consider that this expression, used in connection with proceedings before a jury, refers to the distinction between questions of law which are for the judge and questions of fact which are matters for the jury. It follows that any ruling which may properly be made by the judge (such as whether evidence is admissible or whether there is a case to go to the jury) is a ruling on a point of law and can be challenged as erroneous by appeal under s 65E. Their lordships agree with the view of the Court of Appeal (65 WIR at p 305) that:
‘ the expression “erroneous in point of law’ connotes a situation where a trial judge falls into error in any aspect of the case before him, which falls for his determination.’”
Therefore pursuant to section 65 E (1) (a) the DPP has a specific right to appeal the Master's decision to discharge the Respondent as erroneous in point of law and the decision to discharge always falls to the Court's determination.
Further, section 58 of the Family and Children Division Act, 2016 (FCDA) provides a general right of appeal from any judgment or order of a Childen Court Master to the Court of Appeal in like manner and extent as an appeal from any judgment or order of a Judge. Section 58 states:
“ An appeal shall lie from any judgment or order of a Children Court Master or a Children Court Judge to the Court of Appeal in like manner and to like extent as an appeal from any judgment or order of a Judge”
Accordingly, in the circumstances of this case, the prosecution has both a specific right of appeal against the Master's decision under both section 65 C (1) of the SCJA and section 65 E (1) (a) of the SCJA, as well as a general right of appeal against the Master's decision under section 58 of the FCDA.
The Drugs Act commenced on November 7, 1991, with its long title describing the purpose of the Act as, “ An Act to provide for the control of narcotic drugs and psychotropic substances and to make provision for the confiscation of the proceeds of drug trafficking and other provisions in connection with drug trafficking and matters connected therewith”. The country's evolving drug problem led to several amendments being made to the Drugs Act. Of importance to this appeal is the amendment made by the Drugs...
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