Mings v Kingston

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Narine, J.A.
• Judgment Date: 12 May 1986
• Neutral Citation: TT 1986 CA 12
• Docket Number: Magisterial Appeal No. 134 of 1984
• Date: 12 May 1986

Court of Appeal

Narine, J.A.; Persaud, J.A.

Magisterial Appeal No. 134 of 1984

Mings

and

Kingston

Appearances:

A. Alexander S.C. with him Ms. J. Jones for the appellant.

C. Walters for the respondent.

Criminal procedure - Application by defendant for particulars turned down at hearing of information — Defendant was advised not to plead — He did not and was convicted — On appeal appellant argued that the information did not give him reasonable or sufficient particulars as to the nature of the charge against him and was bad — Requirements of an information contained in Summary Courts Act, Ch. 4:20, s. 38(1)(3) — Pointon v. Cox 91 J.P. [1927] K.B.D. 33 — Information laid against the appellant did not comply with these sections — Too late to amend — Appeal allowed — Order for conviction quashed.

Narine, J.A.

1 The appellant was on the 9th May, 1983, convicted by a magistrate sitting in Port-of-Spain, on a complaint (more accurately, an information) laid by the respondent. That information in so far as is material reads as follows:

“The information of Malcolm Kingston, Assistant Superintendent of Police, of Criminal Investigation Department, Port-of-Spain, who said in his oath that Emerson Minga of Aquamarine Drive, Diamond Vale, Diego Martin, during the period Friday, 22nd October, 1982, and Sunday 24th October, 1982, at Port-of-Spain, in the County of St. George did call for Industrial action to be taken in an Essential Service namely the Electricity Service provided by the Trinidad and Tobago Electricity Commission. Contrary to section 67(5) of the Industrial Relations Act Ch. 88:01”.

2 On 30th November, 1982, as soon as this case was called on and before any evidence given, counsel for the appellant applied to the court for particulars of the charge, and more specifically of what industrial action the prosecution was alleging the appellant called for.

3 The application was opposed by the respondent and the case adjourned. On the 9th March, 1983, the matter was again called on and the application for particulars repeated. The application was turned down. This can be seen from the following extract from the learned magistrate's memorandum of reasons:

“Before commencement of the hearing of this information a lady counsel, who appeared for the appellant asked that she be given particulars of the alleged offence. The court informed her that all relevant particulars should emerge from the case to be made out from the evidence of the witnesses, for the prosecution. She was, told of her right of cross-examination of each witness and that, if the evidence tendered demanded any adjournment for research, or otherwise, the court would accommodate her request for an adjournment”.

4 The appellant was advised not to plead and he did not. The trial proceeded. The witnesses for the prosecution were not cross-examined. Repeated applications were made for particulars but without success. At the close of the case, for the prosecution counsel submitted that having regard to the fact that the particulars sought were not furnished, the information should be dismissed. The submission was rejected and the appellant convicted. He has appealed to this Court on the grounds enumerated hereunder:–

5 By original notice of appeal –

• (1) that he was prejudiced in his defence in that the prosecution refused to deliver particulars of the charge as requested;

• (2) that he is not guilty;

• (3) that the decision is unreasonable and cannot be supported by the evidence.

6 And by amended notice of appeal, to which no objection was taken:–

• (a) that the information herein is bad for duplicity;

• (b) that the order of conviction is bad on the face of it;

• (c) that the findings of the learned magistrate are incapable of supporting the conviction and/or do not constitute any offence;

• (d) that the learned magistrate failed to adjudicate the matter properly.

7 The first point that was taken by counsel for the appellant before the magistrate and before this Court, was that the information as laid did not give the appellant reasonable or sufficient particulars as to the nature of the charge against him. As such the information he submitted, is bad. The procedure for laying and making and for hearing all informations and complaints is dealt with jointly in the Summary Courts Act Ch.4:20. It is similarly dealt with in the Summary Jurisdiction Acts in England prior to 1952.

8 The form and requirements of every information, complaint and other documents in criminal proceedings are prescribed in the Act. Section 38(1) thereof provides:

“Every information, complaint, summons, warrant or other document laid, issued or made for the purpose of or in connection with any proceedings before a court of summary jurisdiction for an offence, shall be sufficient if it contains a of a specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

• 2. The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by Act or other written law, the statement shall contain a reference to the section of the written law creating the offence.

• 3. After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language in which the use of technical terms shall not be required.

• 4. Any information, complaint, summons or warrant or other document to which the section applies which is in such form as would have been sufficient in law if this section had not come into force shall notwithstanding anything in this section continue to be sufficient in law.”

9 The provisions of this section are quite plain. Subsection (1) prescribes two requirements:–

• (a) there must be statement of the specific offence with which the accused is being charged; and

• (b) there must be such particulars as may be necessary for giving reasonable information as to the nature of the charge.

10 Subsection (2) prescribes the form that the statement of offence should take and subsection (3), the form that the “necessary particulars” should take. The section itself therefore makes the clear distinction between the statement of offence on the one hand and necessary particulars on the other, and its purpose is clearly to inform an accused person of the nature of the offence with which he is being charged. The question of the sufficiency in law of an information engaged the attention of the Court of Appeal in the case of Gould v. Williams (1962) 5 W.I.R. 122. The facts as stated by Wooding C.J., and in so far as they are relevant to the issues with which we are concerned are as these: on December 16, 1954, the respondent Paul Williams was the driver and person in charge of a motor truck TD 7452. It was parked at 8.25 p.m. on the Naparima-Mayero road without showing to the rear thereof a red light such as is required to be exhibited by any stationary vehicle on a road at night. Accordingly, on January 15, 1960, the appellant P.C. Gould laid a complaint against the respondent. In terms, it set forth full particulars necessary for giving reasonable information of the nature of the offence charged.

11 Dealing with the purpose of an information under the Summary Court Ordinance the learned Chief Justice stated (at p.124 I):–

“It is with an information, then, that the court is concerned on this appeal. In my judgment, the use of the word as significant. It is apt, if not indeed designed, to indicate that its purpose as to inform an accused person of the nature of the offence which he is being charged with having committed. Manifestly, this is intended to afford him adequate opportunity to meet and answer the particular allegations inherent in the charge. To that end, he must be informed, clearly and sufficiently, of the specific offence, together with such particulars thereof as may be necessary for giving reasonable information as to the nature of the charge. He must not be misled, whether by mis-statement or omission, nor must he be left in ignorance or confusion. He must be given no room for doubt as to what he is being called upon to answer. Statutes have from time to time prescribed how such a result is to be achieved, but always, I think, it has been sufficient to achieve that result without the necessity slavishly to adhere to particular forms or technical requirements. Indeed, as was said an Bell v. Clubbs (1892) 8 T.L.R. 296. a servile adherence to form may do ‘infinite mischief and make the forms traps instead of aids’.”

12 In view of counsel's submission that the information as laid did not give the appellant reasonable and sufficient particulars as to the nature of the charge against him and also that the appellant should have been informed of the type of industrial action it is alleged he called for, at becomes necessary to examine the section under which the charge was laid - section 67(5). Counsel further submitted that if the industrial action referred to in the information was a strike the appellant must be told of the trade dispute that underpinned the strike. Section 67(5) reads:–

“A trade union or other organisations the holder of an office in a trade union or other organisation, or any other person who calls for or causes industrial action to be taken in an essential service or induces or persuades any worker in that service to take such action is liable on summary conviction –

• [(a) and (b) are not relevant to the present case:-]

• (c) in the case of an individual who is not the holder of an office in a trade union or other organisation to a fine of two thousand dollars and to imprisonment for two years”.

“Industrial action”, by section 2(1) of the Act...