Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 14 of 2003

Ellie v. The Crown (CR-AP 14 of 2003) [2002] TCACA 1 (10 November 2002);

Law report citations
Media neutral citation
[2002] TCACA 1
Coram
Chief Judge

IN THE COURT OF APPEAL                                                                                      CR/AP 14/2003

TURKS AND CAICOS ISLANDS

CRIMINAL DIVISION

BETWEEN

NOEL ELLIE

APPELLANT

 -vs-

THE CROWN

RESPONDENT

                                        

ANSWER TO GROUNDS OF APPEAL

ELIZABETH V. HINDS SR. CROWN COUNSEL (CRIMINAL) FOR THE RESPONDENT

The Respondent proposes to group the Grounds and deal with them as follows:

1.              GROUNDS #2 and #5 together.

2.               GROUNDS #1 and #4 together.

3.             GROUND #3.

IN THE COURT OF APPEAL                                                                                       CR/AP- 14/2003

TURKS AND CAICOS ISLANDS

CRIMINAL DIVISION

BETWEEN

NOEL ELLIE

APPELLANT

-VS-

THE CROWN

RESPONDENT

ANSWER TO GROUNDS OF APPEAL

ELIZABETH V. HINDS SR. CROWN COUNSEL (CRIMINAL) FOR THE RESPONDENT

The Respondent proposes to group the Grounds and deal with them as follows:

1.           GROUNDS #2 and #5 together.

2.            GROUNDS #1 and #4 together.

3.             GROUND #3.

The Facts.

Acting on information received a group of Police Officers went to the Beaches area in Providenciales on 10th November 2002 and kept out of sight.

While they were hiding, shortly after 2 p.m., Mr. Bradley Theodore’s pickup truck stopped in the area. The Passenger door of the vehicle opened and Mr. Emanjo Forbes and Mr. Noel Ellie got out of the vehicle. Mr. Emanjo Forbes got back into the vehicle and the vehicle left the area.

Mr. Noel Ellie walked up the beach and he met Mr. Patrick Delancy. They then went by a blue tent and stayed there for a while then Mr. Noel Ellie started walking back to the road.

On 11th November 2002 acting on information the police returned to the said beach and hid.

Shortly after 8:00 a.m. they heard the vehicle stop and then it drove away. Mr. Noel Ellie was then seen walking up the dirt road. He walked to the Beach and he met with Mr. Patrick Delancy.

These two gentlemen walked and sat under a tree. Shortly after sitting they got up and walked to a blue tent and went under.

A short while after that Mr. Emanjo Forbes and Mr. Bradley Theodore were seen walking through the bushes and then they both sat under the same tree that Mr. Ellie and Mr. Delancy had sat under earlier.

Sgt. Baptiste went to wards the tree and Sgt. Gilkes and two other officers went to the blue tent.

Only Mr. Ellie was caught immediately. When he was searched a package of cocaine was found under his shirt.

Sgt. Baptiste did not catch Mr. Theodore and Mr. Forbes. Both had made good their escape. As Mr. Delancy was running down the beach he was held by Sgt. Baptiste.

The Police went to Mr. Theodore’s residence and he was met in his yard. He took the police to his vehicle, which was parked in some bushes by IP.

When the Police got to Mr. Forbe's home he claimed he had just awaken.

Mr. Ellie later gave a cautioned interview, which supported the possession with intent to supply.

GROUND #2:

I am contending that the Honorable Supreme Court were not entitled to Jurisdiction in relation to the charges against me because of the following reasons:

(a)           I made it implicitly clear to the Hon. Magistrate that I wanted to be tried by summary procedure and dispose of the matter, stressing that I wanted to plead guilty. I asked that I be permitted to plead guilty to Possession with Intent to Supply and Not Guilty to Conspiracy. This was expressed from in Jan. 2003.

(b)           The Hon. Magistrate erroneously concluded the P.I. contrary to Section 40 of the Magistrate’s Court Ordinance 1998.

(c)           The Hon. Magistrate Proceeded by Indictment without asking me how I wished to proceed, contrary to Section 34 of the Ordinance [Magistrate’s 1998]

(d)           Yet at the conclusion of the P.I. the Hon. Magistrate asked me if I wanted to be tried before him. I said yes. He next asked me if I wished to plea. I answered yes. I then pleaded Guilty to Possession with Intent to supply and Not Guilty to Conspiracy.

And, thus, the Hon. Magistrate violated the Magistrate court Ordinance 1998 Sec. 54, which states that: If the defendant says that he is guilty and shows no cause, or no sufficient cause why he should not be convicted the Magistrate shall convict him. When he refused to end my trial, but instead sent me to the Supreme Court.

GROUND # 5

Therefore I am also citing Magistrate’s Court Ordinance 1998 Sec. 161 (1) paragraph 3 as the basis for this appeal also - questioning the legality of the sentence [i.e. Jurisdiction of The Hon. Supreme Court to pass sentence on me]. My contention is that the Hon. Magistrate was

The Facts.

Acting on information received a group of Police Officers went to the Beaches area in Providenciales on 10th November 2002 and kept out of sight.

While they were hiding, shortly after 2 p.m., Mr. Bradley Theodore's pickup truck stopped in the area. The Passenger door of the vehicle opened and Mr. Emanjo Forbes and Mr. Noel Ellie got out of the vehicle. Mr. Emanjo Forbes got back into the vehicle and the vehicle left the area.

Mr. Noel Ellie walked up the beach and he met Mr. Patrick Delancy. They then went by a blue tent and stayed there for a while then Mr. Noel Ellie started walking back to the road.  

On 11th November 2002 acting on information the police returned to the said beach and hid.

Shortly after 8:00 a.m. they heard the vehicle stop and then it drove away. Mr. Noel Ellie was then seen walking up the dirt road. He walked to the Beach and he met with Mr. Patrick Delancy.

These two gentlemen walked and sat under a tree. Shortly after sitting they got up and walked to a blue tent and went under.

A short while after that Mr. Emanjo Forbes and Mr. Bradley Theodore were seen walking through the bushes and then they both sat under the same tree that Mr. Ellie and Mr. Delancy had sat under earlier.

Sgt. Baptiste went to wards the tree and Sgt. Gilkes and two other officers went to the blue tent.

Only Mr. Ellie was caught immediately. When he was searched a package of cocaine was found under his shirt.

Sgt. Baptiste did not catch Mr. Theodore and Mr. Forbes. Both had made good their escape. As Mr. Delancy was running down the beach he was held by Sgt. Baptiste.

The Police went to Mr. Theodore’s residence and he was met in his yard. He took the police to his vehicle, which was parked in some bushes by IP.

When the Police got to Mr. Forbe’s home he claimed he had just awaken.

Mr. Ellie later gave a cautioned interview, which supported the possession with intent to supply.

GROUND #2:

I am contending that the Honorable Supreme Court were not entitled to Jurisdiction in relation to the charges against me because of the following reasons:

(a)           I made it implicitly dear to the Hon. Magistrate that I wanted to be tried by summary procedure and dispose of the matter, stressing that I wanted to plead guilty. I asked that I be permitted to plead guilty to Possession with Intent to Supply and Not Guilty to Conspiracy. This was expressed from in Jan. 2003.

(b)           The Hon. Magistrate erroneously concluded the P.I. contrary to Section 40 of the Magistrate’s Court Ordinance 1998.

(c)           The Hon. Magistrate Proceeded by Indictment without asking me how I wished to proceed, contrary to Section 34 of the Ordinance [Magistrate’s 1998]

(d)           Yet at the conclusion of the P.I. the Hon. Magistrate asked me if I wanted to be tried before him. I said yes. He next asked me if I wished to plea. I answered yes. I then pleaded Guilty to Possession with Intent to supply and Not Guilty to Conspiracy.

And, thus, the Hon. Magistrate violated the Magistrate court Ordinance 1998 Sec. 54, which states that: If the defendant says that he is guilty and shows no cause, or no sufficient cause why he should not be convicted the Magistrate shall convict him. When he refused to end my trial, but instead sent me to the Supreme Court.

GROUND # 5

Therefore I am also citing Magistrate’s Court Ordinance 1998 Sec, 161 (1) paragraph 3 as the basis for this appeal also - questioning the legality of the sentence [i.e. Jurisdiction of The Hon. Supreme Court to pass sentence on me]. My contention is that the Hon. Magistrate was Negligent when he did not sentence me in Magistrate’s Court where for all intents and purposes, I was lawfully Convicted.

ANSWER TO GROUNDS #2 AND #5:

It is my respectful submission that the Learned Magistrate at all times handled the offence of Possession of a controlled drug with intent to supply contrary to s 6(3) of the Controlled Drug Ordinance as an indictable matter and at the completion of the PI committed the Appellant for trial in the Supreme Court.

The Ordinance give to the Learned Magistrate a discretion if he considers the nature of the circumstances of the crime of which the Defendant is accused and that the case cannot adequately be dealt with by him under his powers …..to treat the case as one for the Supreme Court.

1. On the question of the relevant Law and mode of trial.

I respectfully refer Your Lordships to The Magistrate’s Court Ordinance CAP. 12 section 53, 54, 40:          [TAB K]

' 53. If both parties appear the Magistrate shall cause the substance of the charge to be stated to 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 right and ascertaining that he desires to be tried summarily. ’

' 54. If the defendant says that he is guilty and shows no cause, or no sufficient cause, why he should not be convicted the Magistrate shall convict him. ’

‘40. When the Magistrate has begun to deal with a case as for the Supreme Court, and to take the depositions of the witnesses with a view to a committal for trial, if the crime with which the accused is charged is within his jurisdiction, and it appears to him that such crime may be adequately punished by him, it shall be lawful for him to vacate the order for a preliminary investigation, and to make an order, to be endorsed on the charge and signed by the Magistrate, that the accused person be tried in the Magistrate’s Court, if the accused person consents, either forthwith or on a day to be named, within seven days after the date of such order. In such a case the evidence of any witnesses which has been taken before the Magistrate ordered the charge to be tried in the Magistrate’s Court need not be taken again; but every such witness shall, if the accused person so require it, be recalled for the purpose of cross- examination. ’

I also refer Your Lordships to Magistrate’s Court Ordinance CAP 12 sections 34 and 70 (1) & (2): [TAB K]

‘34. Whenever a charge has been brought against any person in respect of an offence not triable summarily or which may be tried summarily or as an indictable offence and as to which the Magistrate is of the opinion that it ought to be committed for trial before the supreme Court or the accused, if he has a right to elect, desires to be tried before the supreme Court, a preliminary inquiry shall be held in accordance with the provisions of this Part of this Ordinance. ’

‘70.(1) Whenever a charge has been preferred before the Magistrate’s Court, charging any person with the commission of any indictable offence within the jurisdiction of such Court, the Magistrate shall cause the same to be read to the person charged, and then shall then ask him whether he is guilty or not of the charge.

(2) If such person says he is guilty, the Magistrate shall thereupon cause a plea of guilty to be entered; and if such person says that he is not guilty, the Magistrate shall cause such plea of not guilty to be entered, and unless good cause be shown to the contrary, the trial shall proceed:

Provided always, that it shall be lawful for the Magistrate, at any stage of the trial prior to calling on the accused person for his defence, if it shall appear to him that the accused person ought to have been charged with a more serious crime than that of which he is accused, and that more serious crime is beyond his jurisdiction, or that, having regard to the antecedents of the accused, or the nature and circumstances of the crime of which he is accused, the case cannot adequately be dealt with by him under his powers, to vacate the order for the trial of such accused person before him, and to proceed to. treat and deal with the case as one for the Supreme Court; and in any such case, if the accused person has pleaded, and whether any evidence has been taken or not, the Magistrate shall declare the order aforesaid vacated and the trial at an end; and an endorsement shall thereupon be made on the charge and signed by the Magistrate, that the said order has been vacated and that the trial is at an end, and thereupon the Magistrate shall deal with the case as one for the Supreme Court. ’

2. On the question of the circumstances the Magistrate can take into consideration in determining the mode of trial.

It is my respectful submission that the quantity of drugs involved in this case before Your Lordships was 560 grams of Cocaine.

Cocaine is a ‘Class A’ Drug Archbold 2000 26-5. [TAB Q]

At the time of appearance before the Learned Magistrate the maximum sentence which the Learned Magistrate could have imposed was $50,000.00 or 18 months imprisonment or both.

In the Supreme Court the maximum sentence at that time was a fine of any amount or 14 years imprisonment or both.

[The Control of Drugs (Amendment) Ordinance 1998 Ordinance 4/1998] [TAB M]

It is my respectful submission that the Learned Magistrate was justified in committing the Appellant to the Supreme Court. This view is supported by the following authorities:

1.             Practice Note (1991) 92 Cr.App.R. 142 QBD [TAB N]

NATIONAL MODE OF TRIAL GUIDELINES.

The purpose of these guidelines is to help magistrates decide whether or not to commit "either way” offences for trial in Crown Court. Their object is to provide guidance no direction. They are no intended to impinge upon a magistrate’s duty to consider each case individually and on its own particular facts.

These guidelines apply to all defendants aged 17 and above.

GENERAL MODE OF TRIAL CONSIDERATIONS

Section 19 of the Magistrates' Courts Act 1980 requires the magistrates to have regard to the following matters in deciding whether an offence is more suitable for summary trial or trial on indictment:

1.             the nature of the case

2.             whether the circumstances make the offence one of a serious character

3.             whether the punishment which a magistrates’ court would have power to inflict for it would be adequate

4.             any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other,

5.             any representations made by the prosecution or the defence.

Certain general observations can be made:

(a)           the court should never make its decision on the grounds of convenience or expedition

(b)           the court should assume for the purpose of deciding mode of trial that the prosecution version of the facts is correct

(c)           the defendant’s antecedents and personal mitigating circumstances are irrelevant for the purpose of deciding mode of trial

(d)           the fact that the offences are alleged to be specimens is a relevant consideration; the fact that the defendant will be asking for other offences to be taken into consideration, if convicted, is not

(e)           where cases involve complex questions of fact or difficult questions of law, the court should consider committal for trial

(f)            where two or more defendants are jointly charged with an offence and the court decides that the offence is more suitable for summary trial, if one defendant elects trial on indictment, the court must proceed to deal with all the defendants as examining justices in respect of that offence. A juvenile jointly charged with someone aged 17 or over should only be committed for trial if it is necessary in the interests of justice

(g)           in general, except where otherwise stated, either way offences should be tried summarily unless the court considers that the particular case has one or more of the features set out in the following pages and that its sentencing powers are insufficient.

3.             Archbold 2000 para 1-48.                [TAB Q]

Election as to mode of trial where defendants jointly charged

‘ The right of election in section 20(3) is given to each accused individually and is not intended to be affected by the nature of any different election made (by his co¬accused. It is not the case that if one of a number of jointly charged defendants elects trial on indictment, all must be committed for trial: R v. Brentwood JJ., ex p. Nicholls [1992] 1 AC HL...'       [TAB P]

[NOTE: Wording in section 20 of the 1980 Act in Brentwood is different to wording in TCI and is as follows at page 4H -SC:

"Section 20 to the Act of 1980 provides:

(1) If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for summary trial, the following provisions of this section shall apply (unless excluded by section 23 below). (2) the court shall explain to the accused in ordinary language - (a) that it appears to the court more suitable for him to be tried summarily for the offence, and that he can either consent to be so tried, or if he wishes, be tried by a jury; and (b) that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 38 below if the convicting court, on obtaining information about his character and antecedents, is of opinion that they are such that greater punishment should be inflicted than the convicting court has power to inflict for the offence. (3) After explaining to the accused as provided by subsection (2) above the court shall ask him whether he consents to be tried summarily or wishes to be tried by a jury, and - (a) if he consents to be tried summarily, shall proceed to the summary trial of the information; (b) if he does not so consent, shall proceed to inquire into the information as examining justices."]

4.             R v. Anthony William Coe 53 Cr.App.R 66 [TAB O]

The Lord Chief Justice at pages 68-69 stated:

p.68-69

'..No doubt it is convenient in interests of expedition, and possibly in order to obtain a plea of Guilty, for the prosecution to invite magistrates to deal with indictable offences summarily, but there is something more involved than convenience and expedition. Above all there is the proper administration of criminal justice to be considered, questions such as the protection of society and the stamping out of this sort of criminal enterprise, if it is possible. This Court would like to say with all the emphasis at its command that the prosecution in a serious case such as this is not acting in the best interests of society by inviting summary trial. This is by no means the first case in which the Court has had to make these comments. They were made by Lord Goddard on a number of occasions in the past; they have been made by this Court comparatively recently, where really serious charges, maybe cases of violence, maybe, as here, raids on property, are put before the magistrates as suitable for them to deal with summarily. It is all the more important, now that the jurisdiction of the magistrates has been enlarged, for the prosecution to take care that they invite summary trial only in cases where the power in the magistrates to administer punishment is sufficient...

(2) The Court would like to observe that, while in their view the prosecution was at fault, and while no doubt the invitation to the magistrates was a temptation to them to deal with it summarily, that is no excuse for the magistrates. Their duty in the case of indictable offences is to begin to inquire into the matter as examining justice, and only to deal with the case summarily if the matter can be brought fairly and squarely within section 19 (2).... As I have said, this Court finds it quite impossiole to say that this was other than a case of a most serious character, and one for which the powers of punishment that rested with the magistrates were wholly inadequate... '

On the question of the adequacy of the sentence imposed.

I respectfully refer Your Lordships to the sentencing remarks of the Learned Chief Justice at page 34 Appeal Bundle and rely on them as to the adequacy of the sentence imposed.

'You have plead Guilty to possession of 17.83 ounces of cocaine - that is more than one pound and is a very substantial amount.

I take into account your age, your previous good character, and, most importantly, that you have plead Guilty to this charge from the outset. The prosecution has chosen to discontinue on the other count and I do not take that into account.

However, as I said to the others, after a full trial I would have imposed anything up to 10 years for this amount of Cocaine. It is a very harmful drug, and in this case it was exacerbated because it was being offered to what you thought were tourists on the beach. It does not lessen that your were acting as a go-between, or as a "mule", for others. Without people like you they would not be able to operate.

However for the reasons indicated, I mitigate that in your case to 5 years immediate imprisonment. ‘

GROUND #1:

It is my contention that My Protection of Law as guaranteed by the T.C.I. Constitution according to Section 72(1) was violated when I was not afforded a fair trial by an independent and impartial court established by law. That is to say that the Laws were not observed in dealing with me.

GROUND #4:

Seeing that my trial should have been lawfully ended at the Magistrate’s Court and instead I was committed to the Supreme Court for trial again, My rights under Section 72 (5) of the T.C.I. Constitution 1998 Sec. 161 (1) paragraph 3 as the basis for this appeal also - questioning the legality of the sentence [i.e. jurisdiction of the Hon. Supreme Court to pass sentence on me]. My contention is that the Hon. Magistrate was Negligent when he did not sentence me in Magistrate’s Court where for all intents and purposes, I was lawfully Convicted.

ANSWER TO GROUNDS #1 and #4:

It is my respectful submission that the Appellant was given his rights under section 72(1) and there is nothing on the face of the record to suggest that his rights were violated under this section or section 72 (5) since at all times the Learned Magistrate conducted a PI in relation to the offence of Possession of a controlled drug with intent to supply contrary to s 6(3) of the Controlled Drug Ordinance and at the conclusion committed the Appellant for trial in the Supreme Court.

I refer Your Lordships to T.C.I. Constitution CAP. 1 Section 72 (1) and 72(5):    [TAB J]

‘72. (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.'

’72. (5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal. ’

GROUND #3:

In violation against the Criminal Law Ordinance 1998 Ch. 22 Sec.4 the Hon. Magistrate wrongfully kept the charge of Conspiracy against me when it should have been dismissed.

ANSWER TO GROUND #3:

I respectfully refer Your Lordships to The Criminal Law Ordinance 1998 Ch. 22 Sec.4: [TAB L]

' 4. (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) of this section shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified for that purpose. ‘

It is my respectful submission that the above section referred by the Appellant has no relevance to what it is relied on for.

The offence of conspiracy was another charge, which the Appellant faced jointly with 3 other Defendants. All were committed for that offence by the Learned Magistrate at the time of the Appellant’s committal for the offence, which is the subject of this appeal.

REMEADY SOUGHT

I seek that Your Lords Justices review the proceedings and if you should agree with me, it is my humble and respectful request that you send me back to the Magistrates Court to be sentenced there and thus declaring void the whole proceedings as they relate to me appearing before The Honorable Supreme Court.

It is my respectful submission that the Learned Magistrate was correct in committing the Appellant for trial in the Supreme Court when the quantity of Cocaine was considered together with the inadequate maximum sentence he could have imposed.

I therefore submit that this appeal ought to be dismissed and the sentence confirmed.