1) Shane Graham 2) Ray JNO Baptiste v The Police

• Jurisdiction: Dominica
• Judge: GEORGE-CREQUE, J.A.,Justice of Appeal,Ola Mae Edwards,Justice of Appeal [Ag.]
• Judgment Date: 13 September 2010
• Judgment citation (vLex): [2010] ECSC J0913-1
• Court: Court of Appeal (Dominica)
• Date: 13 September 2010
• Docket Number: MCRAP 2010/009

[2010] ECSC J0913-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Michael Gordon Justice of appeal [Ag.]

Before

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Michael Gordon Justice of appeal [Ag.]

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Michael Gordon Justice of appeal [Ag.]

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Michael Gordon Justice of appeal [Ag.]

MCRAP 2010/009

MCRAP 2010/011

MCRAP 2010/013

MCRAP 2010/014

Between:

[1] Shane Graham

[2] Ray JNO. Baptiste

Appellants

and

The Police

Respondents

Between:

Emmanuel Azille

Appellant

and

The Police

Respondent

Between:

Jullien Hamilton

Appellant

and

The Police

Respondent

Between:

Robin Daniel

Appellant

and

The Police

Respondent

Appearances:

Mr. Lennox Lawrence for the Appellants

Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent

Appearances:

Mr. Levi Peter for the Appellant

Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent

Appearances:

Mr. Julien Prevost for the Appellant

Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent

Appearances:

Mr. Levi Peter for the Appellant

Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent

Criminal Law—Procedure to be followed when taking and recording pleas —Treatment of a guilty plea when evidence points to the contrary —Severity, consistency and lawfulness of sentencing —Failure of Magistrate to provide reasons for decision —Due process-Magistrate's power to award compensation —Principles governing sentencing —Magistrates Code of Procedure Act, Cap 4:20, 1990 Revised Laws of Commonwealth of Dominica.

In four separate matters heard in the Magistrates Court, the appellants were convicted of various offences including possession of and intent to supply cannabis, wounding, battery, malicious damage and carrying an offensive weapon. The appellants were sentenced in some cases to fines to be paid within limited time frames and in default, imprisonment terms which were, save for one matter, all in excess of the maximum default term stipulated by the Magistrates Code of Procedure Act and in another case ordered to run consecutively, also contrary to the Act. Reasons for the decisions were not provided by the Magistrates. In one of the matters, although the appellant entered a guilty plea, upon giving evidence it was apparent that the guilty plea was equivocal. The Magistrate however convicted the appellant on the plea entered. The appellants have appealed the decisions for the above reasons and in addition question the overall fairness of the trial process.

Held: allowing the appeals, ordering the convictions and sentences in respect of Shane Graham, Emanuel Azille, Julien Hamilton and Robin Daniel be set aside and new trials conducted before a different Magistrate; setting aside the sentences of Ray Jno Baptiste and ordering that he be taken back before the Magistrate having conduct of the trial of Shane Graham for sentencing.

• 1. In the case against Shane Graham and Ray Jno. Baptiste, taking into consideration the fact that (1) the appellants were made to answer the charge on the same day of their arrest. (2) the appellants were unrepresented, (3) the substances found in the possession of the appellants had not at the time of the hearing been certified as controlled drugs and (4) the Magistrate, upon hearing the facts as given by the prosecution ought to have entered a plea of not guilty in respect of Shane Graham and tried the matter. That the convictions and sentences of Shane Graham be set aside and a new trial be conducted, and the sentence of Ray Jno. Baptiste be set aside and the matter be remitted to a different Magistrate for proper sentencing.

  Lewis v COP (1969) 13 WIR 186 followed; Regina v Blanford Justices, Ex parte G [1967] 1 Q.B. 82 applied.

• 2. The Magistrates Code of Procedure Act mandates that written reasons be given by Magistrates for their decisions. The failure of the Magistrates to provide reasons for the decision in the appeals for Azille, Hamilton and Daniel was critical particularly because there were considerable conflicts on the evidence and accordingly the credibility of witnesses was in issue. This therefore led to the inevitable result that the conviction and sentences be quashed and new trials ordered.

  Forbes v Chandrabhan Maharaj (1998) 52 WIR 487 followed; Alexander v Williams (1984) 34 WIR 340 applied.

• 3. In respect of the appellant Daniel, there was a failure of due process by the Magistrate's failure to (1) inquire as to whether or not the defendant wished to obtain legal representation, (2) inquire whether the appellant, who was unrepresented, wished to call witnesses, (3) inform the appellant of the various stages of the trial and the choices open to him at each stage and (4) provide written reasons for the decision.

• 4. The Magistrates ordered appellants Azille and Daniel to pay compensation, however this was not done in accordance with the Magistrates Code of Procedure Act in that there is no record that these orders were made with the injured parties' consent, or that the injured parties were given sufficient information which would allow them to make an informed decision as to whether or not to consent. Further, in the Daniel matter the Magistrate, in the absence of medical or any evidence, proceeded to award a sum in respect of various medical procedures. For these reasons the compensation order was set aside.

• 4. The sentence imposed on the appellant Ray Jno. Baptiste was not done in accordance with the law or the established principles governing sentencing. Consequently the sentence must be set aside and the matter remitted to a different Magistrate for proper sentencing.

GEORGE-CREQUE, J.A.

1 At the hearing of these appeals it was decided to consolidate them for the purpose of rendering a written judgment which would provide future guidance to Magistrates in respect of procedures to be followed in respect of the taking and recording of pleas, sentencing and the provision of reasons for decisions and at all stages of the proceedings to ensure the fairness of the trial process. This is in the hope that Magistrates, notwithstanding their workload, would keep in the forefront of their minds the overarching requirement of ensuring due process as a necessary function of the administration of justice in any proceeding. A case summary of each matter is set out:

Appeal No. 9 of 2010 — Shane Graham and Ray Jno. Baptiste

2 On 4^th June, 2009, Shane Graham (SG) and Ray Jno. Baptiste (RJ) were arrested and charged with offences under the Drugs (Prevention of Misuse) Act1 of Dominica following a search carried out on the premises of RJ on the same day. SG was charged on complaints Nos. 1329 and 1330, for being in possession of cannabis (200 grams) with intent to supply, and possession of cannabis respectively, and, on complaint Nos. 1331 and 1332 jointly with RJ, for possession of cannabis (100 grams) with intent to supply and for cultivation of cannabis. RJ was also charged on complaint No. 1336 for possession of cannabis seeds (200 grams) with intent to supply.

3 They were brought before the Magistrate to answer the charges on the same day. The endorsement at the back of each complaint carries a notation to the effect that each appellant, elected summary trial and each pleaded guilty on each complaint. At that point, the hearing was adjourned to 8^th June 2009 at which time the matters came up before a different Magistrate. The prosecuting officer set out the facts giving rise to each charge. With regard to the 200 grams of cannabis seeds found in a bucket on a step leading up to the house, SG said he didn't know about it, as he was only sleeping at the house. In relation to the Cannabis seedlings and plants and cannabis found in a small house in the yard, SG said: "all is not mine is Ray that living there." On meeting up with RJ the police, showed and questioned him about the drugs and RJ replied: "yes it is mine".

4 On complaint No. 1332, SG and RJ were each sentenced to a fine of $40,000.00 to be paid by 12^th June 2010 (some four days after the trial) and in default to three years imprisonment. On complaint No. 1331, SG and RJ were each sentenced to a fine of $5,000.00 to be paid by 30^th July 2009 and in default to six months imprisonment. On complaint No. 1330, SG was sentenced to a fine of $10,000.00 to be paid by 30^th December 2009 and in default two years imprisonment. On complaint No. 1329, SG was fined $15,000.00 to be paid by 30^th January 2010

and in default two years imprisonment. All default sentence terms were stated to run consecutively so that in effect for SG the total default prison term was seven years six months and for RJ, five years six months. There were no reasons given showing what considerations informed the Magistrate in imposing the sentences he did. Further, there is no indication that any examination of means of the appellants was carried out to show their ability to satisfy the fines imposed or the deadlines for payment.

Appeal No. 11/2010 – Emmanuel Azille

5 The appellant was tried on four complaints in 2009, namely numbers: 1289 (carrying an offensive weapon – a knife), 1292 (wounding), 1307 (battery) and 1308 (carrying an offensive weapon —stones) in relation to an incident with one Stephen Andre on 31^st May 2009. He pleaded not guilty, on 2^nd June 2009 and was convicted on all four charges – all within a space of three days. On charge No. 1289 he was sentenced to one year imprisonment and also ordered to pay compensation to the virtual complainant in the sum of $3,000 by 18^th December...