Ellis v Cowie

• Jurisdiction: Trinidad & Tobago
• Judge: Kangaloo, J.A.
• Judgment Date: 12 December 2005
• Neutral Citation: TT 2005 CA 48
• Docket Number: S.F. Mag. App. 35 of 2005
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 December 2005

Court of Appeal

Hamel-Smith, J.A.; Kangaloo, J.A.

S.F. Mag. App. 35 of 2005

Ellis

and

Cowie

Appearances:

Mr. S. Ramlal for Appellant

Mr. W. Rajbansee for Respondent

Criminal law - Breaking, entering and stealing - Appellant having 11 previous convictions found carrying 2 chairs not belonging to him - Appellant convicted of breaking, entering and stealing and appealing - Whether magistrate exercising jurisdiction fairly in amending complaint - Whether essential to have evidence from prosecution that owner did not give permission - Larceny Act, s.3(d) - Person in charge or control of goods may sustain charge and not necessarily the owner - Appeal dismissed.

Kangaloo, J.A.

1 On the 30th June, 2005 we reserved our decision in this appeal after having heard counsel for the appellant. We did not at the time hear counsel for the respondent as the appellant's skeleton arguments were only filed on the 29th June, 2005 and Mr. Rajbansee needed an opportunity to do skeleton arguments in reply, which he has subsequently done. We wish to commend the attorneys for the comprehensive quality of their skeleton arguments. This, being a magisterial appeal, there is no requirement for the filing of skeleton arguments, but a salutary practice has developed of attorneys filing such arguments which are helpful to the Court in its preparation of the appeal. We commend this practice and recommend it to all attorneys appearing in magisterial appeals.

2 The appeal raises three points for our consideration. They are:

• (a) Whether the learned Magistrate erred in allowing an amendment to the complaint;

• (b) Whether the learned Magistrate erred in law in convicting the appellant for breaking, entering and stealing, notwithstanding there was no evidence from the Prosecution that the ‘owner’ did not give permission to take away the stolen items;

• (c) Whether the charge was duplicitous.

Facts

3 The prosecution's case is simple and straightforward. On the Friday 20th June, 2003, at about 5:30 a.m. the complainant and P.C. Ramdass were on mobile patrol, travelling north along Chancery Lane in San Fernando, when they observed the appellant in the vicinity of the Institute of Tertiary Tutors (ITT) carrying two wooden chairs on his head. He was apprehended by the officers and asked from where he got the chairs. The appellant replied ‘In the back’ and he took the officers to the back of the building where they observed that the gate which secured a room in that part of the building was open, the lock having been broken and the chair left hanging. The appellant is alleged to have said ‘Boss give me a chance.’ The appellant was arrested and taken into custody. On Monday 23rd June, the complainant contacted Russel Sealey, the operations manager of ITT who came to the police station and identified the chairs as belonging to ITT. After investigation Sealey was of the view that 12 chairs were missing. The value of each chair was put by Sealey at $140.00, the total value of the twelve being $1,680.00.

Case for the Defence

4 The appellant's case was equally simple and straightforward. It was, that, at about 5:30 a.m. on the Friday 20th June, 2003, he was found in possession of the 2 chairs by the police officers, but this was not on Chancery Lane near ITT. It was on Broadway, near the bus terminus (approximately half-mile away). He found the chairs on Independence Avenue, next door to a boat place which was next to a printery. The chairs were soaking wet, he thought they were garbage. He cleaned them up and intended to take them to a place at King's Wharf where he was staying. He did not break into ITT.

Magistrate's Decision

5 The learned magistrate applied the doctrine of recent possession and rejected the explanation offered by the appellant. He disbelieved the appellant when he said the chairs were soaking wet and he cleaned them up before he was found with them by the police. The magistrate had the jurisdiction to disbelieve the appellant, as he was the trier of facts. Having disbelieved the appellant, the magistrate went back to the prosecution's case and found the witness to be truthful and accurate in their details of the evidence. He therefore found that the appellant was found in possession of the chairs in the driveway of ITT and that he took the officers to the back where they discovered the lock on the gate had been broken. No complaint has been made (except for the issue of ‘ownership’) that the decision is not in keeping with the evidence.

The Amendment Issue

6 The charge as laid was that Peter Ellis during the period Wednesday 18th June, 2003 and Monday 23rd June, 2003 at Chancery Lane, San Fernando in the county of Victoria did break and enter the warehouse of Selwyn Jagdeo and stole therein twelve chairs together valued $1,680.00, the property of the said Selwyn Jagdeo contrary to “section 12 of the Summary Offences Act Chap.11: 02”.

7 The magistrate during the course of the hearing, after the prosecution witnesses gave evidence, realised that the Act and the section named in the complaint were inaccurate and brought this to the attention of the Prosecutor and Mr. Chatoor for the defence. The prosecutor applied to amend and Mr. Chatoor objected. The magistrate amended the complaint to read “contrary to section 28(a) of the Larceny Act Chapter 11:02 as amended by Act 28 of 1996” instead of section 12 of the Summary Offences Act Chap. 11:02.

The Magistrate then read the amended charge to the appellant, who again pleaded not guilty. Mr. Chatoor asked that the three...