Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 12 of 2009
CR-AP 18 of 2007

The Crown v. Parker and Others_Parker and Others v. The Crown (CR-AP 12 of 2009, CR-AP 18 of 2007) [2009] TCACA 1 (29 July 2009);

Law report citations
Media neutral citation
[2009] TCACA 1
Coram
Zacca, P
Ground, JA
Langrin, JA

APPEAL No. CR-AP 12/09

IN THE COURT OF APPEAL

TURKS & CAICOS ISLANDS

BETWEEN:                                                          

THE CROWN

Appellant

- and-

DEREK PARKER

JERMAINE REID

KINGSLEY ARTHUR

Respondents

before:

The Rt. Hon. Edward Zacca                                   -          President

Hon. Richard Ground                                              -          Justice of Appeal

Hon. Ranse Langrin                                                 -          Justice of Appeal

Date of Hearing:                  20 July 2009

Date of Judgment:               29 July 2009

Jo Ann Meloche for the Crown;

Noel Skippings for Parker and Arthur;

Reid in person.

JUDGMENT

1. This matter came before us on the application of the Crown seeking leave to proceed on an Information in the Supreme Court. The brief history is that the three respondents were tried with another man and convicted on various charges of conspiracy to rob, aggravated burglary, wounding with intent, causing grievous bodily harm with intent, and indecent assault, for which, on 1st June 2007, they were sentenced to life imprisonment. They appealed, and on 29th August 2008 this Court1 allowed that appeal. In doing so we quashed the convictions and set the sentences aside. In respect of the fourth accused, who is no longer before the court, we directed that a verdict of acquittal be entered. In respect of the three remaining defendants we ordered that the matter be retried, and remitted it to the Supreme Court for that purpose, save that we directed that there was to be no retrial on Counts 1 and 6, for reasons which the President gave orally at the time.

1 The court was then constituted slightly differently, consisting of Zacca P, and Mottley and Ground JJA.

2.             It appears that the reasons given at the time were not noted by counsel, and so have not been relayed to the Supreme Court. In order to remedy that, we now attach, as an appendix to this brief judgment, the note from which the President read in delivering the judgment of the Court on the 29th August 2008.

3.             Despite the fact that the matter had been remitted to the Supreme Court it was not thereafter listed or brought on. It appears that shortly after the delivery of our judgment the Islands were afflicted by two hurricanes, the second of which devastated Grand Turk and seriously damaged the Supreme Court building on that Island. Whether that explains the omission to bring these defendants back before the Supreme Court we cannot say, but the fact was that the prosecution did not proceed on the matter, and the defendants remained in custody. In December 2008 the defendants made application to the Supreme Court for their release, and this was granted, over the Crown’s objection, on 24th December 2008, when the learned Chief Justice was, unsurprisingly, critical of the prosecution’s delay in proceeding. A new Information was then lodged on 31st December 2008, but, before the defendants were arraigned on that, they made an application for constitutional redress. The application was apparently issued on 10th July. 2009. The learned Chief Justice then proceeded promptly to hear the matter, and rendered a judgment on 17th July 2009, in which he accepted the submissions of Mr. Skippings, that he should apply section 8 of the English Court of Appeal Act 1968 (‘the English Act’), which requires the leave of the Court of Appeal to proceed after a delay of two or more months from the date of the order for a retrial. The matter was therefore referred back to this court by the Crown’s “Notice of Application '’ of 17th July 2009.

4.             In order to invoke the provisions of the English Act, the Supreme Court relied upon section 7 of the Criminal Procedure Ordinance. That section is in Part III of the statute, which is headed Procedure in Trials before the Supreme Court”. It provides:

‘’7.          Subject to the provisions of this Ordinance and to any other law for the time being in force in the Islands, the practice of the Court in the exercise of its criminal jurisdiction and the mode of conducting and procedure at the trial of any person upon information shall be assimilated so far as circumstances admit to the practice of the High Court of Justice in England, in the exercise of its criminal jurisdiction.'’

5.             In our judgment that section has no application to the present case. It is, first of all concerned solely with the practice of the Supreme Court2, and imports the practice of the English High Court, which does not include their Court of Appeal3. Nor is there any room for its application, as the local Court of Appeal Ordinance adequately deals with the procedure when a retrial is ordered. Section 7(2) of the local Ordinance provides-

“(2)         Subject to the provisions of this Ordinance, the Court shall, if it allows the appeal against conviction, quash the conviction and direct that a judgment and verdict of acquittal be entered, or, if the interests of justice so require, may order a new trial in accordance with such directions as the Court may give.”

It follows from that that any the retrial will be in accordance with such directions, if any, as the Court of Appeal may give when remitting the matter. There is no need to import any extraneous procedure to supplement that. In the normal run of cases it will rarely be necessary to give directions, as the matter will be retried on the existing Information. In this case, however, the Court of Appeal did give directions, namely that there was to be no retrial on Counts 1 and 6.

6.             In our view, therefore, following this Court’s order of 29th August 2008 the matter was remitted to the Supreme Court, and this Court was functus officio, and had no further role to play.

7.             As to the question of delay, that should be dealt with in the first              by the Supreme Court. If it considers the delay inordinate and prejudicial it has power to deal with the matter either under its inherent jurisdiction to guard against abuse of its process, or alternatively in exercise of the jurisdiction conferred by section 81(2) of the Constitution to enforce the right to a fair trial within a reasonable time guaranteed by section 72(1) of that document. In stating that we express no view on the merits of any such application.

2 “Court” is defined in section 2 of the Criminal Procedure Ordinance as “the Supreme Court for which provision is made by the Supreme Court Ordinance”. The Court of Appeal is separately defined.

3See the English Supreme Court of Judicature Act 1981, under which the English Supreme Court is divided into the Court of Appeal, the High Court and the Crown Court. It may be, therefore, that Section 7 of the Criminal Procedure Ordinance has no meaningful application at all, because the English High Court has no first instance trial jurisdiction, that being conferred upon the Crown Court. However, that aspect of the matter was not argued before us, and we do not decide the matter on that basis.

8.             The Crown also raised an issue over bail. We had remanded the defendants back to the Supreme Court in custody. On the 24th December 2008 the Chief Justice granted the men bail, citing the prosecution’s delay in proceeding. It was only following his decision that the Chief Justice was informed that this court had remanded them in custody, at which point he was uncertain whether that rendered his decision on bail invalid, although he considered it arguable that once the case is returned to the jurisdiction of the Supreme Court for retrial it resumes its usual powers in respect of bail.

9.             In our judgment the learned Chief Justice’s analysis of the jurisdiction to grant bail was correct. The fact that the Court of Appeal remanded the defendants back to the Supreme Court in custody did not mean that they were to be held in custody thereafter until the final determination of the matter. Once they appeared in the Supreme Court and were again amenable to its jurisdiction the question of custody or bail was a matter for that Court to determine, and it was not fettered in doing so by our order.

10.          By its “Notice of Application” of 17th July 2009, the Crown had invited this Court to further remand the defendants:

‘’The Crown is further seeking that the accused be remanded in custody pending trial, giving effect to the Court of Appeal’s ruling as set out in paragraph [4] of Ward J’s (sic) decision.’’

As noted above, at this stage this Court is functus and no jurisdiction to make order, the matter having been remitted to the Supreme Court. To the extent that the Crown sought to challenge the decision of the Supreme Court to release the defendants on bail, we declined to hear that because there was no notice of appeal against the order giving them bail; and in any event we doubted that there was any jurisdiction to hear an appeal by the prosecution against the grant of bail, the Court of Appeal’s jurisdiction being constrained by section 6 of the Criminal Appeal Ordinance to appeals by convicted persons against conviction and sentence4.

11.          We therefore vacated the order of the Chief Justice remitting the matter to this court, and declared that section 8 of the English Act has no application in the Turks & Caicos Islands. We remitted the matter to the Supreme Court to deal with all matters arising, and ordered that the accused were to appear the following day, 21st July 2009, before the Supreme Court in Providenciales. A separate application by the defendant Reid to quash the proceedings against him on the grounds of delay was dismissed, without prejudice to his ability to make such an application to the Supreme Court if so advised.

Dated this 29th day of July 2009

_____________________

Edward Zacca P

_________________________

Richard Ground JA

________________________

Ranse Langrin JA

4 Section 6 of the Court of Appeal Ordinance provides:

“6. A person convicted on information in the Supreme Court may appeal to the Court under the provisions of this Ordinance—

(a)           against the conviction on any ground of appeal which involves a question of law alone;

(b)           with the leave of the Court, or upon the certificate of the Judge of the Supreme Court before whom he was tried that it is a case fit for appeal, against his conviction on any oter ground of appeal which involves a question of fact alone or a mixed law and fact or upon any oter ground which appears to the Court or the Judge aforesaid to be a sufficient ground of appeal;

and;

(c)           with the leave of the Court a gainst the Court against the sentence passed on his conviction unless the sentence is one fixed by law.’’

APPENDIX

TURKS & CAICOS ISLANDS                                                                            APPEAL No. CR-AP 18/07

IN THE COURT OF APPEAL

BETWEEN:

DEREK PARKER

ROY PESTANO JR.

JERMAINE REID

KINGSLEY ARTHUR

Appellants

- and -

THE CROWN

Respondent

29 August 2008

Zacca P:

REASONS FOR DECISION

1.             In our judgment the trial of the second, third and fourth appellants was tainted by the admission of the appellant Parker’s alleged confession unedited. That statement identified the other accused and described their supposed involvement in great detail. It is trite law that such a statement is only admissible against the maker, and is not evidence against any co-accused. In some cases that can be dealt with by a careful direction, but in this case the judge gave a general direction at the outset of his summing up, and neither repeated it nor tailored it to the individual circumstances when dealing with the case of each defendant. In any event, in the circumstances of this case, we doubt that would have removed the vice, and consider that the statement should have been edited by substituting the letters for the names or (in the case of Reid) the description ‘the Jamaican’. We consider the failure to do so was a material irregularity.

PESTANO

2.             In the case of Pestano the only real evidence against him was telephone records said to show that he repeatedly called the appellant Reid in the run up to the robbery, when he denied knowing him. However, the prosecution failed to call admissible evidence to prove Reid’s telephone number. The fact that the number concerned was written by some unknown person on Reid’s statement is not admissible against Pestano, and the learned Chief Justice erred in treating it as such. In the absence of such evidence there was no case again Pestano, the other matters alleged against him being, at tire highest, grounds for suspicion.

PARKER

3.             In the case of the appellant Parker, his statement, if accepted as true, was cogent evidence against him. He denied it, saying it was a fabrication that the police forced him to sign by torture and promises of leniency. The issue of the statement’s truth was therefore a crucial matter for the jury to decide. An important factor in that decision was whether or not Parker’s attorney was present when it was made - the police witnesses said he was, Parker and his attorney denied that. The learned Chief Justice entirely failed to deal with this issue in his summing up. Moreover, the issue of whether the attorney, who was also the attorney at trial, should have been called as a witness was addressed by the court in the absence of the accused, who was removed while the discussion took place. There is now a dispute as to whether Parker was properly advised on this — he files an affidavit that he was not, his former attorney swears an affidavit to say that he was. We cannot resolve that. It would not have arisen had the appellant been present during the discussion of this in Court. In our judgment, therefore, his exclusion was a material irregularity. In addition Mr. Grant in his sworn affidavit states that he was not present at the taking of the statement. This conflict would be a matter for the jury, and not for this court, to resolve.