Baksh v The Magistrate, First Court

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Brathwaite, J.A.
• Judgment Date: 20 December 1982
• Neutral Citation: TT 1982 CA 33
• Docket Number: Mag. App. No. 107 of 1982
• Date: 20 December 1982

Court of Appeal

Kelsick, J.A.; Braithwaite, J.A.

Mag. App. No. 107 of 1982

Baksh

and

The Magistrate, First Court

Appearances:

Mr. N. Mohammed for the appellant

Mr. C. Walters, State Counsel, for the respondent.

Practice and procedure - Magistrate's Court — Recognizance for Appearance of Accused — Forfeiture

Brathwaite, J.A.

1 The appellant had on the 12th day of May, 1979, entered into a recognisance in the sum of $5,000.00 for the due appearance of one Nancy Lewis, the defendant in the matter of Inspector O(Connor v. Nancy Lewis (hereinafter referred to as “the defendant”) at 9 o(clock in the forenoon at the Port-of-Spain First Magistrate's Court on the 17th day of May, 1979, and every time to which the hearing of the said matter might have been adjourned. The defendant appeared in court on the 17th of May, 1979, but neither the defendant nor the appellant was present at the adjourned hearing which had been fixed for the 3rd of July, 1979. On this latter date, the presiding magistrate issued a warrant for the arrest of the defendant and ordered that a summons be served on the appellant to show cause why the sum of $5,000.00 should not be forfeited.

2 The appellant appeared before the magistrate on the 31st day of July, 1979, but the summons was adjourned to the 1st day of August, 1979. The record of the appellant's evidence on oath is somewhat disjointed but, as we understand it, it shows that the appellant, in accordance with the conditions of his recognisance entered into on the 12th day of May, 1979, had secured the attendance of the defendant at the hearing fixed for the 17th of May, 1979.

3 After her release from custody on the 12th of May, the defendant refused to go home with her husband and told the appellant that she did not want to see her husband again. The appellant did not know the defendant personally but he had known her husband and had, been friendly with him for a long time. It was because of his relationship with the husband and because of her husband's request that he agreed to enter into the recognisance. To ensure her appearance on the 17th of May, the appellant took her into his own home and made efforts to reconcile her with her husband. The defendant stayed at the appellant's home for two weeks, during which time he took her to the Magistrate's Court for the adjourned hearing on the 17th of May. Owing to the unusual behaviour of the defendant (she was having hallucinations of grandeur) and in order to maintain domestic peace (she was giving the appellant's wife “pressure”) the appellant was forced to remove the defendant to a group of people of the Muslim faith who he knew to be responsible persons and who undertook to bring the defendant to court from time to time. He had arranged with this group to supply a mattress and to give them money for the upkeep of the defendant.

4 On the 3rd of July the appellant went to the office of the Justice of the Peace at the Port-of-Spain Magistracy, apparently to surrender the bail because he had discovered that the defendant was suffering from hallucinations. The appellant was told by the justice of the peace that the hearing was further adjourned to the 30th of July and that there was nothing that he, the appellant, could do to revoke the recognisance.

5 That same evening the appellant made enquiries and found out that the defendant had not attended the hearing fixed for earlier that day. He eventually saw the defendant about a week later and was told that she thought the date of the adjourned hearing was the 8th and not the 3rd of July. On the 30th July the appellant went to the court and waited on the defendant for the entire morning. Presumably she did not turn up. It was on this date that the appellant got to know that a warrant had been issued for the arrest of the defendant and a summons to show cause had been directed to him. At this stage the appellant sought legal advice. On the 31st July the appellant surrendered the defendant to police custody.

6 The appellant admitted that the consequences of non-compliance with the conditions endorsed on the recognisance were explained to him by the justice of the peace. He also admitted that it was made clear to him that it was his personal responsibility to secure the attendance of the defendant at every hearing of the matter. When he discovered that the defendant was suffering from hallucinations he took her to the Mental hospital for treatment and informed the justice of the peace that in the circumstances he wanted to be relieved of his obligation.

7 The magistrate, having heard this evidence and the submissions of solicitor for the appellant, forfeited the whole amount of the recognisance and ordered the appellant to pay the sum of $5,000.00, and in default of such payment, that distress be levied on the goods of the appellant. The magistrate allowed the appellant three months time within which to pay the amount forfeited, on payment of $1,000.00 forthwith. The appellant has paid the sum of $1,000.00.

8 Against this order the appellant has appealed on the following grounds: that the magistrate exercised her discretion wrongly; that the order was against the weight of the evidence and was unreasonable having regard to the evidence.

9 At the hearing of the appeal, counsel for the appellant read over the evidence and then referred to the magistrate's reasons for decision. Counsel for the appellant contended that the evidence of the appellant showed clearly that he was “guilty of no want of diligence and used every effort to secure the appearance of the defendant,” and that it was proper in the circumstances for the magistrate to remit the whole of the recognisance. He maintained that in the exercise of her discretion the magistrate did not take into consideration the serious efforts made by the appellant to secure the appearance of the defendant to answer the charge on the appointed day and that she did take into consideration matters which were, in the context of the case, irrelevant.

10 In the course of his submissions, counsel for the appellant referred to several passages taken from the following English cases:

• (a) R. v. Wells Street Magistrates Court, ex parte Albanese [1981] All E.R. 769;

• (a) R. v. Southampton Justices, ex parte Green [1975] 2 All E.R. 107; and

• (b) R. v. Horseferry Road Magistrates (Court, ex parte Pearson [1976] 2 All E.R. 264.

11 We must point out at this stage that all three of these cases deal with the application of s.96 (1) of the Magistrates' Courts Act, 1952, of the United Kingdom to the facts of each particular case, and that this particular subsection, as we will show below, allows a very much wider exercise of discretion by English magistrates on the hearing of summonses to show cause than is allowed to their counterparts in Trinidad and Tobago by the provisions of s.123(1) of the Summary CourtsAct, Ch.4:20. Under s.96 (1) of the English Act, upon the hearing of a summons to show cause, a magistrate may reduce the amount of the forfeiture. In Trinidad and Tobago a magistrate has no similar power or discretion. Nonetheless, there is much pertinent and useful learning contained in the above-cited cases which we consider applicable to the instant appeal. We shall be referring to these passages in due course.

12 Counsel for the appellant relied largely on the well-known passage in R. v. Southampton Justices. ex parte Green (cit supra) where Lord Denning, M.R. (at 1077j - 1078a) said:

“By what principles are the justices to be guided. They ought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure the appearance, is might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely.”

13 Counsel also referred to the following passage from the judgment of Ralph Gibson, J., in R. v. Wells Street Magistrates' Court (cit supra) at page 775 f-g:

“This court can only interfere with the exercise by the magistrate of the discretion given by section 96(1) of the Magistrates Courts Act, 1952, in declaring the recognizances to be forfeited if it is shown that he has failed to take into account some matter which in law he should have considered, or has taken into account some matter which in law is irrelevant; or has gone wrong in law, or, lastly, if the conclusion reached is one which no reasonable magistrate could have reached: Bracegirdle v. Oxley [1947] 1 All E.R. 126, [1947] K.B. 349; R. v. Tottenham Magistrates' Court, ex parte Riccardi (1978) 66 Cr. App. R.155.”

14 Counsel urged that the court adapt the guidelines set out in the two passages quoted above in applying the law to the facts of the instant case.

15 The magistrate expressed her views of the appellant's conduct in the following terms:

“His explanation before the court on the 1st August, 1979, vas unsatisfactory as it appeared that after the first occasion he showed little or no interest and in fact displayed no sense of responsibility in fulfilling his obligation. In any event, he admitted to the court that he did not know his principal personally.”

16 Counsel for the appellant made the following comments on the magistrate's reasons:

17 In the first place, there is no requirement under the law that the surety should know his principal “personally”. It may be imprudent for a surety to undertake to secure the attendance at the hearings of a principal who is a total stranger but the evidence in the instant case was that the appellant had a longstanding and established friendship with the defendant's husband and that it was...