Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 21 of 2004

Parker v. The Crown (CR-AP 21 of 2004) [2005] TCACA 5 (01 February 2005);

Law report citations
Media neutral citation
[2005] TCACA 5
Coram
Zacca, P
Mottley, JA
Langrin, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

C.R. APPEAL 21/04

BETWEEN                       KIRK LEY PARKER

APPELLANT

AND                                    THE CROWN

RESPONDENT

BEFORE: THE RT. HON. EDWARD ZACCA P.

THE HON. JUSTICE ELLIOTT MOTTLEY J.A.

THE HON. JUSTICE RANSFORD LANGRIN J.A.

Mr. Noel Skippings for the appellant

Mrs. Elizabeth Hinds for the Crown

HEARD: August 18, 2004; February 3, 2005 ZACCA, P.

On August 18, 2004, we allowed the appeal, on the basis that the trial was a nullity. In the circumstances the conviction was quashed and the sentence set aside. We promised to put our reasons into writing. This we now do.

The appellant was charged with the offence of inflicting grievous bodily harm on Samuel Carter on July 12, 2003. He elected and was tried summarily. He was convicted by the Magistrate and sentenced to eighteen months imprisonment. From this conviction he appealed to the Supreme Court. This appeal was dismissed. The grounds argued before the Chief Justice are no longer relevant and were not advanced before this Court.

Amended grounds of appeal were filed and the Court granted leave for these grounds to be argued on behalf of the appellant. These grounds were as follows:-

(1)           That the conviction was wrong on a point of law, and should be set aside.

(2)           There was a miscarriage of justice, thus rendering the decision unsafe and/or unsatisfactory.

Mr. Noel Skippings for the appellant presented submissions only in relation to the first ground of appeal. He argued that there was a lack of jurisdiction, in that the provisions of s. 17 of the Magistrates Court Ordinance, (revised edition) was not complied with. This section he submitted required the Magistrate to make an Order to be endorsed on the information and signed by the Magistrate prior to trial and non- compliance of this provision rendered the trial a nullity.

The crown represented by Mrs. Elizabeth Hinds conceded that the signature on the information was not that of Magistrate Kwasi Bekoe. What appears on the back of the information is the name Kwasi Bekoe. It is clear that the Magistrate’s signature does not appear at all on the back of the information. Nor is there any evidence either in the record of the Magistrate or on the information that an order for trial was made and endorsed on the information to which he affixed his signature.

Section 17 of the Magistrate’s Court Ordinance provides:-

“On a person being brought or appearing before the Magistrate’s Court, charged with any indictable offence, the Magistrate shall, after such enquiry as may seem to him necessary in order to ascertain whether the offence charged is within the jurisdiction, and can be adequately punished by him under his powers, make an order, which shall be endorsed on the information and signed by the Magistrate, that the accused person shall be tried, on a day to be named in the order, in the Magistrate’s Court or that a preliminary investigation shall be held with a view to a committal to the Supreme Court.”

As observed above there is no record of any enquiry being made, no record of an order for trial being endorsed on the information made and signed by the Magistrate.

In R v Monica Stewart [1971] 17 W.I.R. 381, the Court of Appeal of Jamaica was called upon to interpret the provisions of s. 272 of the Jurisdiction (Resident Magistrate) Law Cap. 179.

S. 272 of the Jamaican Law provides:

“On a person being brought or appearing before a Magistrate in Court or in Chambers, charged on information and complaint with any indictable offence, the Magistrate shall, after such inquiry as may seem to him necessary in order to ascertain whether the offence charged is within his jurisdiction, and can be adequately punished by him under his powers, make an order, which shall be endorsed on the information and signed by the Magistrate, that the accused person shall be tried, on a day to be named in the order, in the Court or that a preliminary investigation shall be held with a view to a committal to the Circuit Court.”

The provisions of s. 17 of the Magistrate’s Court Ordinance is in similar terms to the Jamaican Law s. 272.

In the case of Stewart, the appellant appeared before a Magistrate, and pleaded guilty and was sentenced to imprisonment for six months. No order directing that the appellant be tried was endorsed on the information as required by the provisions of s. 272 of the Judicature (Resident Magistrates) Law.

The Jamaican Court of Appeal held that the provisions must be strictly complied with and non-compliance with any of those provisions renders any trial on indictment relating to the charge laid in the information a nullity.

Edun J.A. at page 385 states:

“In the instant case, we are of the view that the words in s. 272 of the Judicature (Resident Magistrates) Law Cap. 179:

‘The Magistrate shall, after such enquiry as may seem to him necessary in order to ascertain whether the offence charged is within his jurisdiction.. .make an order……’

constituted the condition precedent which the Resident Magistrate had to comply with before assuming any jurisdiction at all. There is no evidence in the instant case which can prove in the manner stated by s. 272 that is, by an endorsement on the information signed by the Magistrate, that she had fulfilled that condition precedent before deciding to hear and determine the case against the appellant. The case of R v Williams correctly states the law on the interpretation of s. 272 of the Judicature (Resident Magistrates) Law Cap. 179. It follows that the submissions on behalf of the appellant in the instant case are well founded. This Court cannot under s. 302 amend any document nor in any way act under ss. 303, 304 or 305© so as to give itself jurisdiction over a matter adjudicated by the Resident Magistrate where she herself had none because of a non-compliance with the law. For the reasons given, the appeal is allowed, the conviction is quashed and the sentence set aside.”

The Court of Appeal decision was made despite the fact that no objection was taken at the trial. See also R v Williams [1958] J.L.R. 129.

We are in agreement with the decision of the Court of Appeal of Jamaica. On the basis of that decision, we held that the provisions of s. 17 of the Magistrate’s Court Ordinance Cap. 12 which required the Magistrate to hold an enquiry to ascertain whether the offence charged in the information is within his jurisdiction, to make an order for trial to be endorsed on the information and to sign the order, must be strictly complied with and non-compliance with any of those provisions renders the trial on indictment relating to the charge laid in the information a nullity.

For guidance, therefore, the Magistrate should:

(1)           Hold an enquiry to ascertain whether the offence charged in the information is within his jurisdiction. This may be done by the clerk stating briefly a summary of the facts.

(2)           Making an order for trial. The order must be endorsed on the information and signed by the Magistrate.

It was for these reasons we declared the trial a nullity and allowed the appeal.

The conviction was quashed and the sentence set aside.

…………………………..

Zacca P.

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Mottley J.A.

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Langrin, J.A.