Ambrose v Commissioner of Police

• Jurisdiction: Grenada
• Judge: Liverpool, J.A.
• Judgment Date: 25 October 1984
• Neutral Citation: GD 1984 CA 7
• Docket Number: Criminal Appeal No. 3 of 1983
• Court: Court of Appeal (Grenada)
• Date: 25 October 1984

Court of Appeal

Haynes, C.J. Liverpool, J.A. Peterkin, J.A.

Criminal Appeal No. 3 of 1983

Ambrose

and

Commissioner of Police

Appearances:

Lloyd Noel for the appellant.

Anselm Clouden for the respondent

Criminal practice and procedure - Hearing before magistrate — Charge of assault — Appellant contended that the learned magistrate was in breach of section 74(1) of the Criminal Procedure Code, Cap. 77 of the Revised Laws of Grenada — Appellant appealed to the High Court — Learned Chief Justice dismissed the appeal — Appellant appealed against decision of High Court — Whether the summons was not properly before the magistrate because he had not brought his judicial mind to bear upon it before it was issued — Whether the appellant had not consented to the case being heard before the expiration of the time limit specified by s.74(1) of the Criminal Procedure Code, Cap. 77 — Appeal was dismissed.

Liverpool, J.A.

1 This appeal is raised against the decision of the learned Chief Justice by virtue of the provisions of section 6 of People's Law No. 83 of 1979 which confers a right of appeal from a judgement of the High Court in its appellate jurisdiction in a matter in which a point of law is involved and on which either the High Court in its appellate jurisdiction, or the Court of Appeal, gives leave to appeal.

2 The appellant was convicted and fined by the acting magistrate for the Western Magisterial District on 3rd February 1984 for the assault of Anna Ferguson on 6th April 1983. The endorsements reveal that the matter came before the magistrate on six occasions. On the first occasion on 25.7.83 no note was made; on three subsequent occasions in August, September and October 1983 there were notations made to the effect that the summons had not yet been served; no note was made against the date 28.10.83 and finally on 3.2.84 the appellant appeared and pleaded not guilty to the charge.

3 Notice of appeal to the High Court was given on 8th February, 1984 on the ground that:

“The learned magistrate was in breach of section 74 (1) of the Criminal Procedure Code, Cap. 77 of the Revised Laws of Grenada in that:

• (a) The Summons served on the defendant was not the magistrate's summons.

• (b) The Summons was served on Thursday 2nd February, 1984, and the matter was heard on Friday 3rd February 1984 less than forty-eight hours after service of the Summons, without the consent of the defendant.”

4 The matter was heard on appeal in the High Court on 10th April, 1984 by the learned Chief Justice, who dismissed the appeal in a written judgement delivered on 3rd May, 1984. Notice of appeal from the decision of the High Court was filed on 8th May, 1984 and the reasons for the present appeal are as follows

• “(1) The Learned Chief Justice misdirected himself when he held:–

  • (a) That the requirements of section 74(1) of the Criminal Procedure Code Cap. 77 of the Revised Laws of Grenada mandated the magistrate to bring his own personal discretion to bear as to whether or not he issued a Summons, but that because the defendant/appellant had not complained before the magistrate in effect he cannot complain afterwards;

  • (b) That because the defendant/appellant had failed to swear and file an Affidavit setting out when he had received the summons in the matter he cannot claim or rely on the proviso to Sec. 74(1) of the Criminal Procedure Code Cap. 77 on Appeal;

  • (c) That having appeared before the magistrate and pleaded to the charge, crossed examined the witness as to the merits of the case and generally participated in the trial without raising any abjection regarding the requirements laid down by law he had made his bed and must now lie on it and he cannot invoke the provisions of the law.

• (2) The learned Chief Justice wrongly applied and or distinguished the decisions of the Court of Appeal in the cases of Francis Bain v. Commissioner of Police — 17 W.I.R. page 386 and Vysick v. Commissioner of Police — 17 W.I.R. page 391 which decisions were binding precedents on the Magisterial Court of Appeal.”

5 Learned counsel for the appellant also filed an affidavit on 6th June, 1984 in which he deposed to certain matters. For the purpose of this appeal the most important paragraphs of this affidavit are paragraphs 5 to 8.

• “5. That briefly the facts are that the Summons in the Magistrate Court was only served on the appellant on Thursday 2nd February, 1984, and the case was tried on Friday 3rd February, 1984, and the appellant convicted.

• 6. That the learned magistrate had not given the appellant the opportunity to consent to the case being heard, although it was short-served, as is provided for in the proviso to section 74 (1) of the said Criminal Procedure Code.

• 7. That the Summons was not that of the magistrate it having been signed by his clerk — as is required by the said section 74(1).

• 8. That the Notes of Evidence and the Record from the Magistrate Court are silent on the procedure adopted at the trial and on the issue of service of the Summons — matters which the appellant is contending, are mandatory on the magistrate by virtue of section 74(1) and the decision of the two cases quoted above.”

6 The reasons for the appeal may therefore be condensed into two grounds: first that the summons was not properly before the magistrate since, it is argued, he had not brought his judicial mind to bear upon it before it was issued; and secondly, that the appellant had not consented to the case being heard before the expiration of the time limit specified by s.74(1) of the Criminal Procedure Code, Cap. 77. section 74(1) which deals with the issue of summonses to defendants provides as follows:

“74.(1) Where a complaint is made before a magistrate that any person has committed or is suspected to have committed, within the jurisdiction of the magistrate, a summary offence, it shall be lawful for the magistrate, in his discretion, to issue his summons directed to the person,...