Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 10 of 2016

Regina v. Guillaume (CR-AP 10 of 2016) [2018] TCACA 10 (31 August 2018);

Law report citations
Media neutral citation
[2018] TCACA 10
Coram
Zacca, P
Mottley, JA
Forte, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL                                                                                                                                      CR-AP 10/2016

BETWEEN

REGINA APPELLANT

AND

ROSENEL GUILLAUME                                                                                                                RESPONDENT

BEFORE:

The Honourable Mr. Justice Zacca,                                                President

The Honourable Mr. Justice Mottley                                               Justice of Appeal

The Honourable Mr. Justice Forte                                                  Justice of Appeal

APPEARANCES:

Leonard Franklyn for the Director of Public Prosecutions

Clemar Hippolyte for the Attorney General as amicus curiae

HEARD ON: 5th May 2016; 31st August 2018

REASONS

Mottley, JA

1.             At the conclusion of the hearing of the appeal, the Court allowed the appeal. At that time we indicated that we would put into writing the reasons for her decision. The reasons are now handed down.

2.             The appeal concerns a discrete point as to whether the High Court, sitting in its appellate jurisdiction, hearing an appeal from the Magistrates Court, has power to amend the information on which an accused has been convicted.

3.             The respondent took no part in the appeal which was brought by the Director of Public Prosecution for the opinion of the Court. Submissions were filed by the Attorney General who was invited by the Court to appear as amicus curiae.

4.             Before the Magistrate, the respondent pleaded guilty to an information which alleged that he unlawfully entered the Turks & Caicos Islands contrary to section 6(1) of the Immigration Ordinance Cap. 501 (“the Act”). He was sentenced on 3 September 2015 5o 15 months imprisonment.

5.             On his appeal to the Supreme Court, it was submitted that section 79(1) of the Act as amended created the offence. Counsel for the Director sought leave of the judge to amend the information by adding the words “contrary to section 79(1) of the Act as amended”.

6.             The judge rejecting the application, held:

“a)          the offence of unlawful entry is a statutory offence and not an offence at common law and has to be brought under the appropriate section:

b)            Section 6(1) of the Immigration Ordinance does not create an offence. Even before the amendment it was section 76(1) of the Immigration Ordinance that created the offence of unlawful entry. To be clear, at the time [the] appellant was sentenced, it was section 79(1) of the Immigration Ordinance which created the offence of unlawful entry.

c)             The court presently constituted was concerned with the appeal against sentence and not conviction. The court was not concerned with the merits of the case as appellant had pled guilty. See second Provision to section 176(1) of the Magistrate's Court Ordinance which provides:

“Provided further that no appeal shall be allowed in a case in which an accused person had pleaded guilty and has been convicted on such plea, except as to the extent of legality of the sentence:

d)            and incorrect section in the information is a material defect and should not be amended at the appeal stage to read section 79(1) of the Immigration Ordinance. This would be unjust and cause prejudice to appellant. The court is bolstered in this conclusion by the case of R v Swansea Crown Court [1990] Crim LR. 260. See also Archbold Criminal Pleading, Evidence and Practice, 2009 ed.

e)             The sentence has no legality as it was predicated on section 6(1) of Immigration Ordinance which never created the offence of unlawful entry.”

7.             For the reasons set out below, the Court concluded that the judge was wrong and that the Supreme Court, in its appellate jurisdiction hearing appeals from the Magistrate Court, has power to amend the information.

8.             Section 6(1) of the Act provides:

“6 (1) Except as otherwise provided by this Part, a person who is not—

(a)           a Belonger; (Amended by Ord. 19 of 2012)

(b)           a British overseas territories citizen; or (Inserted by Ord. 19 of 2012)

(c)           a permanent resident, shall not enter the Islands from any place outside the Islands unless given leave to do so by an immigration officer in accordance with this Part. (Substituted by Ord. 4 of 1997)”

9.             Section 79(1)(a) of the Act provides:

“79 (1) If any person—

(a)           in contravention of section 6(1) knowingly enters the Islands without leave; he commits an offence and is liable on summary conviction to a fine of $2,000 or to a term of imprisonment of two years or to both; and if the offence is a continuing one to a further fine not exceeding $100 for every day or part of a day on which the offence has continued.”

10.          The judge was correct in holding that section 6(1) of the Act does not create the offence, but the offence is created by 79(1)(a) of the Act. Section79(1)(a) provides that any person who acts in contravention to section 6(1) is guilty of an offence. Further the judge was also correct in concluding that it was necessary for the information to allege that the appellant knowingly entered the Islands without leave contrary to section 79(1) of the Act.

11.          In deciding whether the Supreme Court had jurisdiction to amend the information, it is necessary to have regard to the power of the Magistrate to amend the information.

12.          The power of the Magistrate to amend an information is set out in section 161 of the Magistrate's Court Act Cap. 2.03. The section provides:

“161. The Magistrate may at all times amend all defects and errors in any proceeding, civil or criminal, in his Court whether there is anything in writing to amend or not, and whether the defect or error be that of the person applying to amend or not, and all such amendments may be made, with or without costs, and upon such terms as the Magistrate may deem fit; and all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties shall be so made.”

13.          In our opinion, the power to amend an information by adding the words “contrary to section 79(1) is clearly within the province of the Magistrate.

14.          On appeal to the Supreme Court, the power of the judge is contained in section 186 of the Magistrate's Court Act. The section provides:

“186. The Judge may adjourn the hearing of the appeal and may upon the hearing thereof confirm, reverse or modify the decision of the Magistrate or may make such order in the matter as he may think just and may by such order exercise any power which the Magistrate might have exercised and such order shall have the same effect and may be enforced in the same manner as if it had been made by the Magistrate.”

15.          The power of the judge includes the making of “such order in the matter as he may think just” (emphasis added). The power to make an order is very wide and is only circumscribed by the requirement that the order must be just. In making the order, the judge empowered to exercise “any power which the Magistrate might have exercised”.

16.          By section 161, the Magistrate is empowered to amend all defects and errors in any criminal proceedings.

17.          Joyner J, in giving her judgment, relied on Regina v Swansea Crown Court, ex pate Stacey Times Law Report (1989). In that matter, an application for judicial review was made in respect of proceedings in the Crown Court which challenged a decision of the judge who had allowed an application to amend an information as to the date of the offence. The information alleged that four offences had been committed on 28 February 1988. This date was wrong as the offences were in fact committed on 27 February. In giving judgment, Watkins L.J. stated that:

“Justices had power to amend a defective information but once a conviction was made and sentence passed justices became functus officio and could not under any circumstances allow an amendment to be made. The position of the crown court had to be considered in the light of that: what justices could not do the crown court could not do either.

The absence of jurisdiction in the crown court to amend an information on appeal was well settled: see Fairgrieve v Newman ((1985) 82 Cr App R 60).

The factual situation in the present case was that the wrong date was at all times considered to be of no materiality whatever. It presented no injustice to the defendant and he had not been misled by it.”

18.          The Court has found the case of Blackman and Another v Commissioner of Police (1973) 21 WIR 16 to be apposite. The appellants were convicted by a magistrate of taking out the habour area at the Bridgetown Port, a quantity of articles without producing a pass out check authorizing them to be in possession of the articles. They were both convicted. The validity of the information was one of the issues on appeal. At the end of the information, reference was made to Regulation 2014(1) of the Barbados Habours (Amendment) Regulations 1962. The relevant regulation was contained in the Barbados Harbour Regulations in 1961. The offence was created by regulation 22(1) of the 1961 Regulations on appeal it was contended on behalf of the appellant that the conviction were vitiated by the incorrect references in the information. Counsel for the respondent however relied on the provisions of section 148 of the Magistrates Jurisdiction and Procedure Act 1956 and contended that the appellants had not been prejudiced in any way.

19.          William J, as he then was, in delivering the judgment of the Divisional Court stated:

“The first limb of the appeal raises the question of the validity of the information on which the convictions rested. At the end of the information reference was made to reg 204 (1) of the Barbados Harbours Page 7 of 12 (Amendment) Regulations 1962 [B]. The contention is that the offence was actually created by the Barbados Harbours Regulations 1961 [B] and that these Regulations should have been referred to.

Regulation 204 (1) of the Barbados Harbours Regulations 1961 [B] provides as follows:

'204. (1) No person shall take out of a harbour area any parcel, package, or article of any kind except on production and delivery at the harbour gate to an authorised employee or member of the Police Force of a pass-out check authorising such person to be in possession of such a parcel, package or article.'

Regulation 221 (1) provides the penalty for contravention of this regulation and states:

'221. (1) Every person doing anything prohibited by any of the regulations contained in Part XI of these regulations or in the Fifth Schedule to these regulations or omitting to do anything required by any of them to be done or otherwise contravening any of the said regulations shall be guilty of an offence and liable on conviction by a court of summary jurisdiction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and imprisonment'.

Rule 9 of the Magistrates' Courts (Criminal Procedure) Rules 1958 [B] is as follows:

'9 (1) Every information, summons, warrant or other document laid, issued or made for the purposes of or in connection with any proceedings before a magistrates' court for an offence shall be sufficient if it describes the specific offence with which the accused is charged, or of which he is convicted, in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the elements of the offence, and gives such particulars as may be necessary for giving reasonable information of the nature of the charge.

(2) If the offence charged is one created by the Act or under any other Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order or regulation creating the offence.'

A recital of the above provisions makes it clear that in the matter before us the reference in the information was inaccurate since reg 204 (1) was actually contained in the Barbados Harbours Regulations 1961 [B] and incomplete since the offence was actually created by reg 221 (1). However, that is not an end of the matter because it does not appear from the record that this objection was ever raised before the magistrate and it is abundantly clear that there was no prejudice to the appellants. Counsel for the appellants well knew the charge against them and the defect in the information did not mislead him or put him in any difficulty. Counsel for the respondent submitted that in the circumstances this is not a matter which vitiates the conviction and the provisions of the Magistrates' Jurisdiction and Procedure Act 1956, No 57 [B], are applicable. We agree with this view and hold that s 148 of that Act is in point. This section provides as follows:

'148. On any appeal from any decision of a magistrate no objection shall be taken or allowed to any proceeding before such magistrate for any defect or error which might have been amended by such magistrate, or to any information, complaint, plaint, summons, warrant or other process to or of such magistrate for any alleged defect therein in substance or form, or for any variance between any information, complaint, plaint or summons and the evidence adduced in support thereof before such magistrate.

Provided that if any error, defect or variance mentioned in this section appears to the Supreme Court at the hearing of any appeal to be such that the appellant has been thereby deceived or misled, it shall be lawful for the Supreme Court either to refer the case back to the magistrate with directions to re-hear and re-determine the same or to reverse the decision appealed from or to make such other order for disposing of the case as justice may require.'

20.          Section 148 dealt with appeals from any decision of the Magistrate and provided that no objection shall be taken or allowed to any procedure before a Magistrate for defect or error which could have been amended before the Magistrate. The proviso gives the Supreme Court, in its appellate jurisdiction, the power to deal with any error, defect or variance which would have caused the appellant to be deceived or misled. In addition to ordering that the matter be reheard by the Magistrate, the Supreme Court is empowered to make such order for disposing of the appeal as justice may require. The Court in that matter concluded that it would have made an order for an amendment of the information to show the proper references.

21.          Does the Supreme Court have power to amend the information after conviction? Reference was made earlier to the provisions of section 186 of the Magistrate's Court Act Cap 2.03. The judge, hearing an appeal from a Magistrate's decision, has a discretion to “make such order in the matter as he thinks just.” The judge has jurisdiction to amend any defect in the information. No objection was taken before the Magistrate that the information was defective. Had an objection been taken, an application been made before the defect or error could have been amended by the Magistrate by inserting in the information the words contrary to section 76(1) (a) of the Immigration Act. As stated earlier, that is the section which creates the offence, the Magistrate would have allowed it.

22.          To permit an amendment in the circumstances of this case would not cause an injustice to either party. It is accepted that a magistrate should only exercise his power to permit an amendment to be made to an information in any case in which no injustice or prejudice would be caused to either party. The Court is of the view that no prejudice would have been caused to the appellant who had pleaded guilty to unlawfully entering the Turks and Caicos Islands.

Zacca, P.

Mottley, JA.

Forte, JA.