Jones v David

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mohammed, J.A.
• Judgment Date: 27 January 2015
• Neutral Citation: TT 2015 CA 2
• Docket Number: Mag. App. 64 of 2014
• Date: 27 January 2015

Court of Appeal

Yorke-Soo, J.A.; Mohammed, J.A.

Mag. App. 64 of 2014

Jones

and

David

Appearances

Mr. J. Singh instructed by Ms. K. Singh for the appellant

Mrs. J. Honoré Paul, Deputy Director of Public Prosecutions, for the respondent

Civil practice and procedure - Whether a material irregularity occurred when the magistratefailed to provide reasons for her decision — Whether the lack of reasons prejudiced theappellant's right of appeal — Whether a retrial should have been ordered — Magistrate importing residual knowledge into her decision.

Criminal Law - Evidence – Good character – Appellant was a serving prisons officer and thus of good character – Whether there was a material irregularity where counsel for the defendant failed to raise the issue of good character resulting in a miscarriage of justice.

Mohammed, J.A.

INTRODUCTION

1 This appeal raises, among other issues, the approach to be adopted by the Court of Appeal when a magistrate has failed to give a written statement of the reasons for a decision and has only provided brief oral reasons in relation to a matter that has been tried summarily and which has been appealed. In this judgment, we review the development of the law on this issue, culminating in the approach adopted by the Privy Council in the cases of Forbes v. Maharaj [ (1998) 52 WIR 487] and Cedeno v. Logan [[2000] UKPC 48]. We also make reference to R v. Sheppard, [[2002] 1 S.C.R. 869] a decision of the Supreme Court of Canada. That case explains the important general and specific functions served by the provision of reasons and it also explains the rationale for an appellate court approaching, in a contextual manner, a decision which has no or limited accompanying reasons.

BACKGROUND

2 On March 4th, 2006 the appellant, a serving prisons officer, was arrested and charged with the offence of possession of marijuana contrary to section 5(1) of the Dangerous Drugs Act. [Chap. 11:25] On April 6th, 2009, at the conclusion of the trial before the Magistrate, the appellant was convicted and sentenced to a term of imprisonment for three years with hard labour.

3 This appeal was heard on December 10th, 2014. On that day the appeal was allowed and the appellant's conviction was quashed and his sentence set aside. We indicated then that we would provide written reasons at a later date and we reserved on the issue of whether or not a retrial should be ordered. The reasons for our decision on December 10th, 2014 are now provided. At the end of these reasons we explain why we consider it appropriate to order a retrial.

THE CASE FOR THE PROSECUTION

4 The respondent and Sgt. La Rode gave evidence for the prosecution. On Saturday March 4th, 2006, the respondent, along with Sgt. La Rode and other police officers, went on enquiries at the Golden Grove Prison (the Prison). The officers were in an unmarked police vehicle which was parked opposite the entrance of the Prison. Around 1:30 pm the officers saw the appellant walking towards the entrance of the Prison with a large green knapsack on his back.

5 The appellant was approached by the respondent who identified himself and the other police officers. The respondent informed the appellant that the police had information that he was taking the dangerous drug, marijuana, into the Prison strapped to his body. He was informed that the officers wished to take him to a more secure location to perform a search.

6 The police officers took control of the appellant's green knapsack and took him to a nearby road where the respondent conducted a search of the appellant and the knapsack. Nothing was found on the person of the appellant. Inside the knapsack the respondent found a quantity of dry compressed plant material in silver foil wrapped in a black plastic bag with clear transparent tape over it; a transparent bowl with a green cover containing a white plastic bag which contained forty four small transparent packets each containinga dried compressed plant material; a black plastic bag containing forty five smaller transparent packets each containing a dried compressed plant material; a black plastic bag containing dried compressed plant material; and one transparent plastic packet contained dried compressed plant material.

7 The respondent informed the appellant that he was of the opinion that the dried compressed plant material was marijuana. The appellant was cautioned and he remained silent. The appellant was then arrested and taken to the Organized Crime Narcotic and Firearm Bureau in Port of Spain where the various bags were weighed in his presence. Therespondent subsequently took the dried compressed plant material to the Forensic Science Centre for analysis. The analysis revealed that the plant material was Cannabis sativa L weighing 406.01 grams.

THE CASE FOR THE APPELLANT

8 The appellant gave evidence on his own behalf. He testified that on Saturday March 4th, 2006 around 1:15pm he was about to enter the Prison to report for duty when the officer posted at the gate told him that there was a female officer in a white car parked opposite the Prison to see him. He responded that he was not expecting anyone.

9 The female officer exited the vehicle and indicated that she wanted to speak to the appellant. As the appellant approached the vehicle, four men exited armed with guns around their shoulders, bearing police identification cards and all dressed in black plain clothes. They identified themselves as police officers and instructed him to sit in the car.

10 He was taken about a quarter mile away from the Prison, to the entrance of the Youth Training Centre (YTC) where a marked police van with an open tray was parked. His knapsack was searched by the female officer who emptied the contents consisting of, a bowl of food, some bread and two bottles of juice, and then placed the empty bag in the tray of the police van.

11 The female officer told the other officers that nothing was found in the knapsack. The Commissioner of Prisons was present and told the police officers to search the appellant well. The respondent then instructed the appellant to bring his bag to him. The respondent placed his hand into the empty knapsack and pulled out a small black plastic bag. The appellant was not made aware of the contents of the small plastic bag.

12 A search warrant authorizing a search of the appellant's home was shown to him. The police officers subsequently searched the appellant's home but did not find anything. The appellant was then taken to the police headquarters in Port of Spain. Whilst there, the appellant asked the female officer for his bowl of food. About five minutes later she returned with the bowl and showed the appellant that it contained marijuana.

THE MAGISTRATE'S RULING

13 Written reasons were not provided by the Magistrate forher ruling. An examination of the notes of evidence revealed that, after the close of the appellant's case and after hearing brief submissions from both sides, the Magistrate gave an oral ruling. [see pages 48 and 49 of the record] In that oral ruling:

• a. After having advised herself on the law of possession, the Magistrate agreed with counsel for the appellant, that given the evidence in the case, the decision came down to a question of fact;

• b. Having considered whether the incident might have occurred in the way described by the appellant, the Magistrate found that she could not accept the appellant's version as it made absolutely no sense;

• c. The Magistrate's rejection of the appellant's version was partly based on her knowledge as to how the police would operate;

• d. The Magistrate rejected the appellant's version of events because (i) she questioned the appellant's evidence that four heavily armed male officers would allow the only female officer present to conduct a search of the appellant; (ii) she found it hard to believe that it would take ten (10) minutes to search a bag which according to the appellant only contained about three items; and (iii) it was hard to believe that the police would allow the appellant, the subject of the search, to retrieve the supposedly empty bag and take it to the respondent who “miraculously” (sic) pulled out a packet with marijuana in it;

• e. The Magistrate then went on to consider the case for the prosecution and said that the respondent was a perfect witness and that his testimony was flawless. According to the Magistrate, the respondent was not shaken in cross examination and his evidence was corroborated by that of officer La Rode, with whose evidence the Magistrate also said that she was impressed.

• f. The Magistrate then concluded that the prosecution had proven its case beyond a reasonable doubt.

GROUNDS OF APPEAL

GROUND 1 – A MATERIAL IRREGULARITY OCCURRED WHEN THE LEARNED MAGISTRATE IN BREACH OF HER DUTY UNDER SECTION 130 B AND AT COMMON LAW NEGLECTED TO PROVIDE A MEMORANDUM OF REASONS FOR HER DECISION.

14 It was submitted on behalf of the appellant that a material irregularity occurred when the learned Magistrate, in breach of her duty under section 130 B of the Summary Courts Act [Chap. 4:20] and also at common law, failed to provide a memorandum of reasons for her decision. It was further submitted that the lack of reasons to justify the learned Magistrate's decision meant that the appellant's conviction was unsafe in law and ought to be quashed.

15 In response, counsel for the respondent submitted that the reasons for the decision could clearly be determined from the record and as such, this was not a case which warranted that the conviction be quashed because of the Magistrate's failure. It was suggested that, from the record, it was evident that the Magistrate took all the relevant matters into account.

16 We take the opportunity provided by the issues raised in this ground of appeal to restate the salutary functions served by the provision of reasons and to set out...