Boos v Charles
| Jurisdiction | Trinidad & Tobago |
| Judge | de la Bastide, C.J.,Gopeesingh, J.A.,Hosein, J.A. |
| Judgment Date | 23 May 1997 |
| Neutral Citation | TT 1997 CA 16 |
| Docket Number | Mag. App. No. 152 of 1993 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 23 May 1997 |
Court of Appeal
de la Bastide, C.J.; Gopeesingh, J.A.; Hosein, J.A.
Mag. App. No. 152 of 1993
v. de Lima and G. Peterson for the appellant
R. Dolsingh for the respondent
Criminal law - Appeal against an order made by a magistrate for the destruction of a collection of pornographic material that was seized by the police at the home of the appellant — Section 17 of the summary Courts Act considered — Court held that the material held by the appellant was not for publication — Appeal allowed.
This is an appeal against an order made by a magistrate for the destruction of a collection of pornographic material that was seized by the police at the home and/or office of the appellant who was at the time the Curator of the Emperor Valley Zoo. The material seized consisted of a large number of video movies, letters, photographs, magazines and diaries. The procedure which the police invoked, was that provided by section 103 of the Summary Offences Act, Chapter 11:02. It begins with the swearing of a complaint on the basis of which a warrant to search and seize is issued by the magistrate. The articles seized are then brought to Court and a summons is issue to the occupier of the premises on which they were found, to show cause why they should not be destroyed. In this appeal the appellant makes a double-pronged attack on the order of the magistrate. In the first place it is said the complaint was defective and did not contain what the section requires for the issue of a warrant, and it is argued that that vitiated the order subsequently made for destruction of the material. Secondly, it is argued that in any event the conditions laid down by the section for the making of an order for destruction, were not satisfied.
The objection to the complaint was raised in the following ground of appeal which was added to the original grounds with our leave at the healing of the appeal:
“That an illegality substantially affecting the merits of the case was committed in the course of the proceedings in that the learned requirements of section 103 sub-section (1) of Chapter 11 No. 2 having been complied with.”
Section 103 (1) specifies the matters to which the complainant must swear in his complaint. They are that–
“(a) the complainant has reason to believe and does believe that any obscene books, papers, writings, prints, pictures, drawings or other representations are kept in any house … for the purpose of sale or distribution, exhibition for purpose of gain, lending upon hire, or being otherwise published for purposes of gain; and
(b) one or more articles of the like character have been sold distributed, exhibited, lent or otherwise published as mentioned above, at or in connection with such place, so as to satisfy such magistrate that the belief of the complainant is well founded … “
In complaint the complainant swore “that there is reasonable grounds for believing that Hans Boos of Emperor Valley Zoo, St. Clair, has in his office obscene books, papers, writings, prints, pictures, drawings or other representations for the purpose of sale or distribution. Contrary to section 103 of the Summary Offences Act, Chap. 11:02”. The complainant did not as the section required that he should, that he “does believe” that the appellant had in his office obscene articles for the purpose of sale or distribution. Furthermore, the complainant did not swear as the section also required him to, that one or more articles ‘of the like character’ had been sold or distributed at, or in connection with, the appellant's home or office. argued that there was therefore no proper basis for the issue of the warrant and the warrant having been wrongly issued, all that followed including the making of the order for destruction was null and void.
The complaint was undoubtedly defective because of the two omissions identified above. We are aware that a provision in a statute that a person charged with unlawful carnal knowledge of a girl under the age of sixteen, shall have a defence if he has reasonable cause to believe that the girl was sixteen or over, has been construed as containing the requirement that the person charged must in fact believe that she is of age - see R. v. Banks [1916] 2 K.B. 621 But that does not mean that a person who is required to swear to his actual belief in a particular fact satisfies that requirement by swearing that there is reasonable cause to believe it. Again, the fact that section 103(1)(b) explains that the evidence of an actual transaction involving obscene articles at or in connection with the place to be searched is necessary “so as to satisfy [the magistrate] that the belief of the complainant is well-founded” serves to underline the importance of both components which were omitted from the complaint in this case i.e. the belief of the complainant as well as the occurrence of at least one transaction of the requisite kind.
It is clear, therefore, that the magistrate ought not to have issued the search warrant in this case. But he did. The warrant was executed and a large number of articles were seized in reliance on it and brought to the magistrate. The magistrate then issued his summons to the appellant to show cause why these articles should not be destroyed, and the appellant feared before the magistrate in obedience to that summons. It does not appear from the record of what transpired before the magistrate that the appellant's attorney ever took the point that because of the defects in the complaint the magistrate was not empowered to issue the summons or to determine the question whether an order for destruction should be made or to make such an order. But even if that point had been taken, we do not think that it ought to have succeeded. The authorities seem to indicate that provided there is a stage at which proceedings are validly initiated, the fact that there has been some previous irregularity in the process by which the person against whom those proceedings are directed, was brought before the Court, does not have the effect of vitiating the proceedings and rendering them a nullity. We refer in this connection to The Queen v. Hughes (1879) 4 Q.B.D. 614. In that case a magistrate issued a warrant irregularly without any written information or oath. It was held that the illegality of the warrant did not affect the jurisdiction of the justices to hear charge which was laid when the person having been arrested, was brought before them. There is a local decision of this Court to similar effect in the unreported case of Steele v. Charles Mag. App. No. 130 of 1981. In that case the irregularity was the swearing of an information before a Justice of the Peace and not before a magistrate as the law required. This was held not to have rendered bad in law the subsequent prosecution and conviction of the accused for an indictable offence, which was tried summarily.
By analogy with these cases, if the magistrate in this case had properly found on the hearing of the summons that the conditions for the making of an order for destruction of the articles seized were satisfied, then no valid objection could have been taken to his making such an order on the ground that the complaint was defective and did not justify the issue of a search warrant.
We should mention that Mr. Dolsingh, attorney for the respondent, relied in connection with this ground on section 118 (2) of the Summary Courts Act, Chap. 4:20 which provides: “No abjection shall be taken or allowed, in any proceeding in the Court, to any complaint, summons, arrest, or other process for any alleged defect therein in substance or in form …” We do not base our decision, however, on this provision, as it is at best questionable whether it is applicable in this case - but at least it points in the same direction.
In any event, the appellant having failed to challenge the power of the magistrate to make the order for destruction on this ground in the Court below, it is in our view not open to him to take the point for the first time in this Court. In this connection we were referred by Mr. Dolsingh to two statutory provisions. The first is section 117 of the Summary Courts Act, which provides:
“It shall not be competent for any person to impeach, in any proceeding or in any other manner whatever, any order made by the Court on the hearing of a complaint, on the ground that the Court had no jurisdiction to make the order, unless such objection was taken on the hearing of the complaint or at the time of the making of the order.”.
It might well have been objected that this provision is not applicable, because what it is sought to impeach here is not an order made an the hearing of a complaint, but an order made on the hearing of a summons. The situation here is in any case covered in our view by section 132 of the Summary Courts Act, the other provision referred to by Mr. Dolsingh. This provides:
A notice of reasons for appeal may set forth all or any of the following reasons, and no others:
(a) That the Court had no jurisdiction in the case: Provided that the Court of Appeal shall not entertain such reason for appeal, unless objection to the jurisdiction of the Court has been formally taken at some time during the progress of the case and before the pronouncing of the decision;…”
For these reasons we reject the added ground of appeal based on the deficiencies of the complaint.
We turn now to the second prong of the appellant's attack, namely, that there was no evidence to support the order for destruction made by the magistrate. In fact, there was no evidence led by the complainant at all. The proceedings before the magistrate followed a strange course. The complainant did not give evidence. The proceedings consisted of submissions made by counsel for the appellant on the one hand and the...
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