Court name
Supreme Court of Turks and Caicos Islands
Case number
CR-APM 23 of 2010

Higgs v. Regina (CR-APM 23 of 2010) [2011] TCASC 25 (22 July 2011);

Law report citations
Media neutral citation
[2011] TCASC 25
Coram
Ward, CJ

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

Appellate jurisdiction

Appeal number: CR-APM 23/10

BETWEEN

PAUL HIGGS

Appellant

AND

REGINA

Respondent

N Skippings for appellant

A Brooks for respondent

Hearing: 14 July 2011

Judgment: 22 July 2011

Judgment

[1]           The appellant was charged with burglary and was tried before the Providenciales Magistrate's Court on 9 August 2010. The case was concluded on 2 September 2010; the defendant was found guilty and sentenced to 2 years imprisonment. He appeals against that conviction and sentence.

[2]           It is not necessary to go into the details of the offence. In his reasons for the decision, the learned Magistrate summarised the proceedings:

"The defendant was charged with burglary. After the prosecution's case was closed the defendant made a no case submission. He argued that there was no evidence of burglary but of handling. I overruled his submissions whereupon he elected not to give evidence.

I found him guilty as charged and sentenced him to 2 years imprisonment. In this case the defendant was caught less than half an hour of the report in possession of the complainant's goods -- the stolen items.

The irresistible inference to be drawn is that he has a number of previous convictions for similar offences and it's time for him to be put away for the maximum of two years. He has utterly wasted the court's time."

The appellant has more than 30 previous convictions.

[3]           He appealed on the general grounds that the conviction was not supported by the evidence, the conviction is unsafe and unsatisfactory and the sentence is manifestly excessive. However, he filed lengthy handwritten grounds later which considerably widened the scope of his appeal. Throughout this time he had been unrepresented. The matters raised in the later grounds and submissions were such that I, exceptionally, granted legal aid to Mr Skippings to represent him on the appeal. Mr Skippings has taken the appellant's grounds, abandoned some and added others.

[4]           The principal grounds and the only matters I deal with this judgment relate to suggested failures by the learned Resident Magistrate to follow the procedural requirements of the Magistrate's Court Ordinance.

[5]           Mr Skipping’s first complaint relates to the proviso to section 53:

"53. If both parties appear the Magistrate shall cause the substance of the charge to be stated that the defendant and ask him whether he is guilty or not guilty:

Provided that the Magistrate shall not proceed to deal summarily with any charge in respect of which the accused person has a right to elect to be committed for trial before the Supreme Court without first informing the accused of such a right and ascertaining that he desires to be tried summarily."

[6]           The record of the trial as kept by the Magistrate in his minute book and the papers in the court file make no reference to the fact that the accused was informed of that right nor of his agreement to be tried summarily. The only reference that can be found is a formal notice of conviction which is a printed form in which the name of the defendant is added and the standard form continues, “... (hereinafter called the defendant), having consented to be tried summarily, is this day convicted..."

[7]           That document is of course drawn up after the trial and I cannot accept that it is an adequate compliance with the proviso to section 53.

[8]           Mr Skippings also complains that there is nothing in the record to show that the magistrate complied with the requirements of section 17 which requires a Magistrate when the charge is an indictable offence, to make enquiry as to whether the offence charged is within his jurisdiction and could be adequately punished by him under his powers. If so he shall make an order to be endorsed on the information and signed by the Magistrate that he should be tried on a date to be named in the order or that a preliminary investigation shall be held.

[9]           The endorsement on the information does not to state that such an enquiry has been made although it is clear that the Chief Magistrate at that time made the decision to try the case summarily and noted that the case was adjourned to the other Magistrate’s Court for a trial date to be set.

[10]         Counsel also points out that the record does not show that the Magistrate advised the defendant of his rights during the conduct of the trial as required by sections 58 and 59 of the Ordinance. I do not rehearse them here but it is clear that complaint is also well founded. They are requirements to ensure a fair trial and must be followed. They are particularly important when, as in the present case, the defendant is unrepresented.

[11]         Ms Brooks, for the respondent, points out to the Court that magistrates generally do follow all the requirements of the Magistrate's Court Ordinance but she has to accept that they are not recorded in this case. She points out that the trial magistrate is very experienced and is scrupulous in the manner in which he follows the procedures. I accept that is the case but it is necessary whenever a duty is imposed on the magistrate that a record is made to show compliance.

[12]         Frequently defendants in the Magistrate's Court are unrepresented and it is incumbent on the magistrate to make sure that he is told of all his rights. Frequently defendants in the Magistrate's Court had been through many previous trials as was undoubtedly the case here. That does not absolve the magistrate from his duty neither does it absolve him from the duty to record what has happened in the proceedings so that any appellate court can see that the requirements were observed; Carter and McCartney v R, CR-APM 10 and l1/09,22 July 2009.

[13]         The appellate court is bound by the record. If the magistrate notes something was done at the appropriate time and place in the record, an appellate court will, unless evidence is called to prove the contrary, accept that the record states the true position. If there is no mention, the appellate court can only, if the issue is challenged, assume it was not done.

[14]         I accept Ms Brooks’ support of the magistrates is well founded. All magistrates work under considerable pressure which arises from an unremittingly heavy caseload. They are all experienced in the procedures and apply them fairly and properly. I have no doubt they are fully aware of the need to follow these procedures because their powers are statutory and must be exercised in strict conformity with the law. In the recent case of Kenlock v R, CR-APM 16/11, 5 July 2011, a similar failure to comply with the requirements of section 17 resulted in the trial been declared a nullity.

[15]         I equally accept that, in many of these cases, the fault lies in a failure to record the steps they have taken rather than a failure to take those steps and I must remind them, once again, that it is essential to note in the record every decision made in accordance with the statutory requirements. As I stated in the Carter and McCartney case all that is needed is a brief but clear note of what has been done. If there is a record, the presumption, in the absence of evidence otherwise, is that the magistrate complied properly with the requirement.

[16]         It is also the duty of counsel for the Crown, where the defendant is unrepresented, to ensure these steps are taken by advising the magistrate if they notice any failure or omission. I am sure any magistrate will understand counsel’s duty to do so and will ensure it is considered properly and corrected when necessary.

[17]         In the present case, the absence of any reference in the record to the requirements of the sections set out above must be treated as non-compliance and in accordance with the decision of the Court of Appeal in Kirk Lev Parker v R- CR-APM 21/04, 1 February 2005, renders this trial a nullity.

[18]         The appeal against conviction is allowed and the case remitted to the Magistrate's Court for trial before another magistrate.

Gordon Ward

Chief Justice