The State v Ravindra Kevin Jamuna

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Nalini Singh
• Judgment Date: 05 June 2024
• Neutral Citation: TT 2024 HC 172
• Docket Number: CR-HC-SDO-IND-56-2021-1

The State

and

Ravindra Kevin Jamuna

BEFORE THE HONOURABLE MADAME JUSTICE Nalini Singh

CR-HC-SDO-IND-56-2021-1

IN THE HIGH COURT OF JUSTICE

CRIMINAL DIVISION SAN FERNANDO

REPRESENTATION:

Ms. Pamela Elder SC, Mr. Russel O. Warner and Ms. Jehan Mohammed-Ali appeared for the accused

Ms. Ms. Kezia Gray-Birkette and Ms. Rebecca Trim-Wright appeared for the State.

RULING ON THE MOTION TO QUASH THE INDICTMENT

Background

1 On the 27 ^th of October 2011, an information was laid at the Siparia Magistrates' Court charging Ravindra Kevin Jamuna (the accused) pursuant to section 7(1) of the Sexual Offences Act Chapter 11:28, with engaging in sexual intercourse with a consenting female between the ages of 14 and 16, who was not his wife. The accused appeared before a Magistrate on this day and the records reflect that the charge was read and the accused was cautioned. There is no endorsement anywhere to indicate whether the charge was read and the accused cautioned as a result of an indication from the police prosecutor or whether the procedure was automatically adopted because the charge came before the court by way of an information.

2 At any rate, on the 15 ^th of November 2012, a preliminary enquiry into the matter commenced before a different Magistrate. There is no endorsement anywhere to indicate whether at the commencement of the preliminary enquiry or any time before this, any step was taken by the second Magistrate to make a determination of the mode of trial. The preliminary enquiry simply commenced.

3 On the 6 ^th of December 2012, the accused was committed to stand trial as charged, at the next sitting of the San Fernando Assizes.

4 On the 16 ^th of August 2016, the Director of Public Prosecutions signed the indictment wherein the accused was indicted for having sexual intercourse with a female between the ages of fourteen and sixteen, contrary to section 7(1) of the Sexual Offences Act, 1986 as amended. This document was filed at the Sub Registry of the Supreme Court, San Fernando on the 23 ^rd of August 2016.

The Application

5 The Defence now applies to have said indictment quashed.

6 Two grounds have been advanced. One is that by virtue of the Second Schedule of the Summary Courts Act Chap 4:20, the charged offence is one which is triable either way. It is submitted by the Defence that at the Magistrates' Court, no enquiry was made by the Magistrate of the Prosecutor's recommendation nor was any indication received in relation to the mode of trial. The second point which is raised is this. The offence with which the accused is indicted, was repealed by the Children Act No. 12 of 2012 (the repealing Act) after the accused was committed to stand trial but before the filing of the indictment. The submission of the Defence is that the repealing Act contained no express savings clause and the general savings clause contained in Section 27 of the Interpretation Act Chapter 3:01 is inapplicable.

7 Each of these grounds will now be addressed.

Ground 1: The Mode Of Trial Question

The Defence's Position

8 The argument of the Defence is that the Magistrate's failure to request or receive the Prosecutor's recommendation or indication in relation to the mode of trial -and therefore determine the mode of trial in accordance with section 100 of the Summary Courts Act Chap. 4:20, renders the committal for trial invalid. Consequently, the indictment which is predicated on what is submitted is an invalid committal, ought to be quashed. The Defence develops the argument in this way.

9 The charged offence is a “triable either way” offence. This is so as it is listed at section 33 of the Second Schedule of the Summary Courts Act Chap 4:20, which sets out indictable offences which may be tried summarily. As the charged offence is “triable either way”, it is submitted that the Magistrate was required, by virtue of section 100 of the Summary Courts Act Chap. 4:20, to determine the appropriate mode of trial.

10 Section 100 of the Summary Courts Act Chap. 4:20 provides that:

“(1) The following provisions of this section shall have effect where an adult appears or is brought before a Court on a complaint charging him with any of the indictable offences specified in the Second Schedule.

(2) If at any time during the preliminary enquiry into the offence it appears to the Court, having regard to any representations made in the presence of the accused by or on behalf of the prosecutor or made by the accused, and to the nature of the case, that the punishment that the Court has power to inflict under this section would be adequate and that the circumstances do not make the offence one of serious character and do not for other reasons require trial on indictment, the Court may proceed with a view to summary trial.

(3) For the purpose of proceeding as aforesaid, the Court shall cause the charge to be written down, if this has not already been done, and read to the accused, and shall inform him that he may, if he consents, be tried summarily instead of being tried by a jury and explain what is meant by being tried summarily.

(4) After informing the accused as provided by subsection (3), the Court shall ask him whether he wishes to be tried by a jury or consents to be tried summarily, and, if he consents, shall proceed to the summary trial of the complaint.

(5) A person summarily convicted of an indictable offence under this section is liable to a fine of twenty thousand dollars or imprisonment for five years; but such person shall not be liable to any greater penalty than the maximum penalty to which he would be liable if he had been convicted on indictment.

(5A) Subsection (5) shall not apply in relation to the penalty for the offence of kidnapping.

(6) Nothing in this section shall be construed as affecting the powers of the Director of Public Prosecutions under section 95 or the obligation of the Court to adjourn under section 96.

(7) Where any person is convicted under this section of an offence of inciting to commit a summary conviction offence, he shall not be liable to any greater penalty than he would be liable to on being summarily convicted of the last-mentioned offence.

(8) Where a person is convicted under this section of attempting or inciting to commit an offence that is both an indictable offence and a summary offence, he shall not be liable to any greater penalty than he would be liable to if he had been originally charged summarily with the completed offence.

(9) In this section the expression “adult” means a person who is, in the opinion of the Court before which he is tried, of the age of eighteen years or upwards.”

According to the Defence, in all cases where an individual is brought before a court charged with an either-way offence, the presiding Magistrate must begin with a mode of trial determination by requesting and or receiving the Prosecutor's recommendation or indication. Once this is requested or received by the Magistrate, section 100 of the Summary Courts Act Chap. 4:20 is engaged and a decision in relation to the mode of trial must be made by the presiding Magistrate. In making that decision, the presiding Magistrate must consider the following:

Once a decision is taken by the presiding Magistrate as to the mode of trial after consideration of the factors set out in section 100(2) of the Summary Courts Act Chap. 4:20, the court then proceeds with a view to a summary trial or a preliminary enquiry. If the Prosecutor's recommendation or indication is not received, the presiding Magistrate will be unable to make a mode of trial determination and consequently, properly exercise his section 100 mode of trial discretion which is mandatory.

• i. any representations made by or on behalf of the Prosecutor;

• ii. any representations made by the Accused;

• iii. the nature of the case;

• iv. the adequacy of the punishment that may be inflicted if the matter is dealt with summarily, and

• v. any other relevant factor.

11 The Defence contends that the presiding Magistrate's failure to take these steps is undeniable as the endorsements contained in the record of proceedings do not reflect that they were ever taken by either Magistrate. Reliance was placed on the cases of The State v. David Shockness No. 388 of 1997 and in particular the case of The State v. Roger Hinds No. S-365 of 1997 where Archie J (as his Lordship then was) held that the taking of important procedural steps by a Magistrate ought to be memorialised on the Court's record and in the absence of a record evidencing that certain steps were taken, it cannot be presumed that they were.

12 In these circumstances, it is the submission of the Defence that the accused was unlawfully deprived of the opportunity for his matter to be dealt with summarily. It is said that the contravention of section 100 of the Summary Courts Act Chap. 4:20 renders the accused's eventual committal invalid. As such the indictment, which is based on this invalid committal ought to be quashed.

The Prosecution's Position

13 The Prosecution rejects the submission of the Defence. Reliance is placed on section 97(1) of the Summary Courts Act Chapter 4:20 which contains general provisions as to dealing summarily with indictable offences. This is what the section says:

“97. Where an indictable offence is, under the circumstances mentioned in this Act, authorised to be dealt with summarily—

(a) the procedure shall, until the Court assumes the power to deal with the offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence, but when and so soon as the Court assumes the power to deal with such offence summarily, the procedure shall be the same, from and after that period, as if the offence were a summary offence and not an indictable offence, and the provisions of this Act shall apply accordingly; but nothing herein contained shall be construed to...