Court name
Supreme Court of Turks and Caicos Islands
Case number
CR-APM 16 of 2011

Kenlock v. Regina (CR-APM 16 of 2011) [2011] TCASC 21 (05 July 2011);

Law report citations
Media neutral citation
[2011] TCASC 21
Coram
Ward, CJ

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

Appellate jurisdiction

Appeal number: CR-APM 16/11

LORRAINE KENLOCK

Appellant

-V-

REGINA

Respondent

N Skippings for appellant

O Selver for Crown

Hearing: 21 and 24 June 2011

Judgment: 5 July 2011

Judgment

On 4 May 2011, after a protracted trial, the appellant was convicted in the Grand Turk Magistrate’s Court of three counts of obtaining property by deception, one of obtaining a pecuniary advantage by deception and one of theft. The appellant was an employee of the Turks and Caicos Islands Government as a senior systems analyst. Her duties included approving payments for services rendered to the TCI government by private computer consulting companies. The prosecution case was that, over a period of nearly two years, she submitted to the government for payment, invoices from a company which she owned in Jamaica but which had not done the work for which the invoices were submitted. During that time, she benefitted to the figure of a little over a quarter of a million dollars.

Remarkably for a case of this nature and size, the Resident Magistrate agreed to the defence request, in the face of strong opposition from the prosecution, to hear the case summarily. The terms of section 17 of the Magistrate’s Court Ordinance (to which I shall be making further reference) require the magistrate to make enquiry as to the adequacy of his powers of sentence in the event of a conviction. As with other procedural matters, there is nothing in the court record to show whether he did consider it or of the reasons, if he did, for his decision to try the case summarily. The record should have included both.

The appellant was convicted and the magistrate, at the request of the prosecution, committed the case to the Supreme Court under section 55 of the Proceeds of Crime Ordinance with a view to obtaining a confiscation order.

The appellant, in the meantime, lodged a notice of appeal against conviction. I sought the assistance of counsel whether an appeal against conviction should wait until the case had been completed in the Supreme Court. Both Mr. Skippings for the appellant and Ms Selver for the Crown agreed that the unrestricted terms of section 161(1) of the Magistrate’s Court Ordinance and the authorities confirm the right to have an appeal against conviction determined before any further proceedings in the Supreme Court. Any other interpretation would mean that, should the sentence ordered by the Supreme Court be appealed, it would be to the Court of Appeal and the right to appeal the conviction to the Supreme Court would be subsumed in the Court of Appeal matter. I, therefore, proceeded to hear the appeal against conviction under Part XIV of the Magistrate’s Court Ordinance.

Mr Skippings has submitted a number of grounds of appeal but, in the light of my decision on the requirements of section 17 of the Magistrate’s Court Ordinance and the resulting order, it is not necessary or appropriate to consider the remainder of the grounds.

The ground with which I deal is ground 4 of the amended grounds, namely, that the magistrate did not comply with any of the conditions of section 17 which are mandatory and conditions precedent to his jurisdiction to hear and determine with the result that the proceeding is a nullity. Section 17 (before the recent amendment) provided:

“17. 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 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 Magistrate’s Court or that a preliminary investigation shall be held with a view to committal to the Supreme Court.”

Mr Skippings submission is that the authorities show that, as the Magistrate’s Court only derives its powers from the statute and has no inherent jurisdiction, it is bound to exercise those powers in accordance with the strict letter of the law. The principle has been long accepted. In R v Kent JJ Ex p Machin [1952] 1 All ER 1123 (on an application for certiorari), the applicant consented to be tried summarily on a charge of obtaining credit by fraud and larceny and was convicted and committed to quarter sessions for sentence. The statutes then current in England required the magistrate to inform the defendant that he had a right to be tried by jury and that he had to consent to summary trial. It was also required that it must be explained to him that, should he be convicted, the magistrate may commit him to Quarter Sessions for sentence if, on obtaining information as to his character and antecedents, he is of the opinion that the offence required a greater punishment than the magistrate could impose.

Lord Goddard CJ explained:

“There is no question of any advantage having been taken of the applicant. The offences charged against him were undoubtedly offences with which the justices could deal with this consent. He was represented by a solicitor who told the justices that he desired to be dealt with by them. Clearly he consented but the jurisdiction of the justices to deal with cases which are prima facie indictable is purely statutory and the provisions of these statutes are peremptory. ... we must, therefore, hold that ... these convictions must be quashed because the justices took on themselves, although with the consent of the applicant, to try the case summarily without a strict compliance with all the statutory provisions which now allow an indictable offence to be dealt with summarily. It was a very venial offence in the justices ... but the applicant is entitled to take advantage of it and, therefore, we hold the committal and the convictions to be bad.”

It is clear that, in the present case, the magistrate has not endorsed the information with the order required under the section that, having decided that the offence is within his jurisdiction and can be adequately punished by him, it was to be tried in the Magistrate’s Court and the day upon which that was to occur.

The same principle as was stated by Lord Goddard in the Kent Justices case, was upheld by the Court of Appeal in Kirk Ley Parker v R [2005] CR-AP 21/04, 1 February 2005, where Zacca P, relying on Jamaican authority on the wording of section 272 of the Jamaica Law, considered section 17 of the Magistrate’s Court Ordinance. The appellant’s submission had been, as in this case, that failure by the magistrate to endorse the order on the information and sign it rendered the trial a nullity. In his written reasons, the learned President stated:

“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....

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 section 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 ... 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.”

I would add that the summary of facts may equally, and perhaps more appropriately, be stated by the prosecutor.

All magistrates must be careful not only to comply with the mandatory requirements of the Ordinance but also to ensure the fact of that compliance is recorded. As I pointed out in Carter and McCartney v R, CR-APM 10 and 11/09, 22 July 2009, at paragraph 8:

“Ms Meloche for the respondent points out the magistrate in the present case is experienced and suggests that he would undoubtedly have advised the defendants [of the right to call witnesses]. ... It is, she states correctly, all too easy for defendants to make such a claim and an appellate court must look for some evidence to support it.

That is correct but this Court cannot simply guess what happened at the trial. As has been stated, there is no record either of any advice or of any request concerning defence witnesses. Had the record stated that the defendants had been advised of their right under section 59(1), this Court would, in the absence of evidence to the contrary, have reason to reject the defendant’s assertion he was not told of his right. Similarly, if the magistrate had noted that Carter had asked for an adjournment to call his witnesses but the application had been refused, this Court would have had evidence to support the prosecution contention.

This Court must, when sitting in its appellate capacity, rely on the magistrate’s record. For that reason, it must include specific reference to any matter that is required by the Act or in the interest of a fair trial. It does not need to be a lengthy discourse. As short note that it has been complied with will be sufficient but it will not be assumed in the absence of any mention.”

The appeal must be allowed on this ground and the trial and conviction declared a nullity. That means that the defendant has not been truly in jeopardy and the case is remitted to the Magistrates

Court to be heard de novo in accordance with the requirements of section 17 including an order made for trial in the appropriate court as explained by the Court of Appeal in Kirk Ley Parker's case.

For the avoidance of doubt, the committal under section 55 of the Proceeds of Crime Ordinance was made subsequently to the conviction and must also be set aside.

Gordon Ward

Chief Justice