Court name
Supreme Court of Turks and Caicos Islands
Case number
B 12 of 2008

Higgs v. Regina (B 12 of 2008) [2008] TCASC 10 (26 March 2008);

Law report citations
Media neutral citation
[2008] TCASC 10
Coram
Ward, CJ

IN THE SUPREME COURT

OF TURKS AND CAICOS ISLANDS

Case number: B 12/08

BETWEEN

PAUL HIGGS

AND

REGINA

N Skipppings for appellant/applicant

C Barnett as amicus curiae

D Ramdhani for respondent

Hearing: 19 March 2008  

Ruling: 26 March 2008

Ruling

This is an application for bail pending appeal to the Court of Appeal. There is no Judge of Appeal present in the jurisdiction and so, by section 20(a) of the Court of Appeal Ordinance, a judge of the Supreme Court may exercise any of the powers of a single judge set out in section 19. By subsection (1) (d), that includes the power to admit an appellant to bail - a power extended to the Chief Justice in any event by section 14(1). I have proceeded under section 14.

This is a second appeal. The applicant was convicted of attempted burglary by the Resident Magistrate on 17 December 2007 and sentenced to 8 months imprisonment. He appealed to the Supreme Court against conviction on grounds relating to the judge’s findings of fact, the sufficiency of the Turnbull direction in relation to the evidence adduced and the right to trial in the Magistrates Court where the facts suggest a lesser offence. The appeal was dismissed on 19 February, 2008. There was no appeal against sentence.

He has now filed an appeal to the Court of Appeal against conviction and sentence. I do not set out the grounds of appeal. They are stated to be the same grounds that were advanced in the previous appeal to the Supreme Court and are all grounds of fact or mixed fact and law with the possible exception of the challenge to the trial being heard in the Magistrate’s Court.

The present hearing is to consider his application for bail pending appeal. The application was adjourned to allow the attorneys, at my request, to address the Court on the right to bring a second appeal and the power of a single judge to decide whether there is a right of appeal in any individual case and, if not, to reject the appeal or refuse to accept it for filing. The appellant having applied for bail pending appeal, any right to bail must first depend on the existence of a right to appeal.

The application for bail is made on the principal ground that he will have served the sentence by the time of the next sitting of the Court of Appeal in August 2008. If there is a right of appeal that is a strong ground for bail pending such appeal but, in considering such an application, the Court must also look at the likelihood of the appeal succeeding and the right to appeal in any event for, if there is no right of appeal, it cannot succeed.

Mr Skippings was unable to appear at the adjourned hearing for medical reasons and Mr Barnett appeared. He has pointed out that, although he conducted the appeal to the Supreme Court, he has not been instructed in this further appeal and appears only as amicus. The Court is grateful to him for his assistance.

Apart from the right, given by section 17, of a Supreme Court judge to state a case for the consideration of the Court of Appeal, section 18(1) of the Court of Appeal Ordinance allows a second appeal following an appeal from the Magistrate’s Court to the Supreme Court:

“18 (1) Any person aggrieved by any judgment, order or sentence given or made by the Supreme Court in the exercise of its appellate or revisional jurisdiction, whether such judgment, order or sentence has been given or made upon appeal or revision from the Magistrate’s Court or any other court, board, committee or authority exercising judicial powers, and whether or not the proceedings are civil or criminal in nature, may appeal, subject to the provisions of this Ordinance, to the Court on any ground of appeal which involves a point of law alone, or against sentence, but not upon any question of fact:

Provided that the prosecutor may only appeal on a ground of appeal which involves a point of law.”

The Court of Appeal (Practice and Procedure) Rules, 1975, provide that the Court of Appeal Rules of the Bahamas Islands shall apply mutatis mutandis to appeals from the Supreme Court. Part IV of those Rules deals with second appeals although it would appear the reference to section 17 in rule 70 (1) should read section 18. However, that does not affect the issue that arises for consideration in this case.

Mr Barnett advances the suggestion that the terms of section 18 should be read in the same way as the appeal provisions in the Magistrate’s Court Ordinance. He directs the Courts attention to section 161 of the latter Ordinance in which subsection (1) gives a wide right of appeal to the Supreme Court in a criminal matter subject only the restriction on appeals following a plea of guilty in the lower court. The wording is similar in that it allows an appeal to “any person who is dissatisfied with any judgment, sentence or order of the [Magistrate’s Court] in any criminal cause or matter to which he is a party”.

Subsection (2) specifically provides:

“(2) Subject to subsection (1) of this section, an appeal to the Supreme Court in a criminal cause or matter may be on a matter of fact as well as a matter of law.”

As I understand his argument, he submits that the Magistrate’s Court Ordinance makes only two divisions of the subject matter of appeals, namely into matters of law and matters of fact. There is, he points out, no reference to mixed grounds of fact and law. Taking that approach to section 18 of the Court of Appeal Ordinance, he asks the Court to consider that a ground of appeal which involves a question of mixed law and fact clearly involves a matter of law and, therefore, carries a right of appeal.

Ingenious though the argument is, I cannot agree because, in contradistinction to section 161, section 18 includes a specific reference to a “point of law alone”. I cannot accept that allows of any interpretation but that the right of appeal is limited solely to a point of law and does not therefore include appeal on a point of law and fact. There is no ambiguity and I see no reason to take those words in anything but their plain meaning. I also note that, unlike the Magistrate’s Court Ordinance, the Court of Appeal Ordinance does acknowledge a third category, namely, questions of mixed law and fact; (see, for example, section 6 (b).)

I note the difference between the wording in the body of section 18(1) and in its proviso. If Mr Barnett’s argument is correct as to the scope of a ground which “involves a point of law” without the qualification of the word “alone”, it would suggest that the proviso, although worded in a way that appears to be intended to restrict the prosecution, would, in fact, give a wider right of appeal to the prosecutor than is afforded the convicted man.

Mr Ramdhani submits that is, indeed, the case and suggests it would have been the intention of the Legislature because of the Crown’s role as the representative of the public. As such the prosecutor should have a wider right of appeal in the public interest. It is not necessary to determine that issue in this case and I would not accept such an imbalance in favour of the prosecutor without having heard full submissions.

In the present case, the appeal is stated also to be against sentence. In that respect, section 18 is clear. The right that it gives to bring a second appeal is limited to a ground involving a point of law alone but the addition, after that restriction, of the words “or against sentence” suggests there is no such restriction on a second appeal against sentence. To give such an unrestricted right of appeal against sentence in a second appeal is unusual.

However, I do not need to rule on that because, although the notice of appeal refers to sentence as well as conviction, there was no appeal against sentence to the Supreme Court. A second appeal is an appeal from the judgment of the Supreme Court and can, therefore, only seek to challenge the findings of that Court as stated in its judgment. If an issue was not raised in the appeal to the Supreme Court, it will not form part of the judgment and cannot be the subject of a further appeal to the Court of Appeal.

That determines the application for bail. Apart from the possibility that the challenge to the right to summary trial involves a question of law alone, I do not find there is a right of appeal on any of the remaining grounds. For that reason, those grounds have no chance of success. In the case of the remaining ground, I consider the law is clear and there is no real chance of success even if the Court should find it carries a right of appeal.

The final issue is whether there is any power of the Registrar of the Court of Appeal or of a single Judge of the Court to refuse to accept an appeal filed in a case where there is clearly no right to appeal. I can find no such provision in the Ordinance and neither counsel has been able to indicate any. I consider it would be wrong and would defy common sense to accept a notice of appeal and allow the appellant to prepare the appeal and live with the hope it will succeed when it is clear that, once it reaches the Court, it must inevitably fail because there was no right to appeal in the first place.

However, I have not heard submissions on the point and do not rule on it. The provisions before me appear to leave no alternative but to allow the appeal to be prepared in the normal way and submitted to the Court. No doubt, once there, the first issue for determination, will be the actual right of appeal.

The application for bail pending appeal is refused.

26 March 2008

Gordon Ward

Acting Chief Justice