Bain v Commissioner of Police

• Jurisdiction: Grenada
• Judge: Lewis, C.J.,Lewis, J.A.,St. Bernard, J.A.
• Judgment Date: 18 November 1971
• Neutral Citation: GD 1971 CA 20
• Date: 18 November 1971
• Court: Court of Appeal (Grenada)
• Docket Number: Magistrate's Criminal Appeal No. 12 of 1971

Court of Appeal

Lewis, C.J., Lewis, J.A., St. Bernard, J.A.

Magistrate's Criminal Appeal No. 12 of 1971

Bain

and

Commissioner of Police

A. Taylor and C. Bristol for Appellant

D. Lambert (Ag. Director of Public Prosecutions) for respondent.

Practice and procedure - Charge — Appellant charged with being owner of vehicle and using it without having obtained the relevant licence — Appellant not the owner of the vehicle — Conviction quashed.

Lewis, C.J.

1 On the 10th of August, 1971, the magistrate of the Southern District, Mr. St. Louis, had before him three cases against the appellant concerning the motor truck numbered 4923. Case number 847 of 1971 charged him with driving without a permit and to this he pleaded guilty. Case number 848 of 1971 charged him that being the owner of the truck he used it on the Lagoon public road without having obtained the relevant licence. Case number 849 charged him that being the owner of the truck he used it on the same road without having in force a policy of insurance under the Motor Vehicle Insurance (Third Party Risks) Ordinance Cap.195. To these two charges the appellant pleaded not guilty. He was not represented. The cases were adjourned to the 17th Augusts and on that day the magistrate proceeded to hear the cases 848 and 849 together. Again he was unrepresented. The magistrate took the evidence of Buckmire, a witness, of one Lorainy, attached to the licensing section of the Inland Revenue Department, and of John Collins, from whom the appellant had bought the truck. The appellant elected to make a statement without oath. He called no witnesses, and at the end of the day he was convicted and sentences were imposed upon him with respect to the three charges. In addition, he was ordered to pay the licence fee for the truck. On 17th August he filed one notice of appeal which does not refer particularly to any one of the convictions and he entered into one recognizance to prosecute the appeal.

2 Before this Court his counsel sought and was granted leave of the court that the notice of appeal and recognizance should apply to case number 848, that is, using the truck as owner without its being licensed. The first ground of appeal is that he did not consent to the hearing of the three charges together. In fact only two charges were heard together, since he had pleaded guilty to one of the three.

3 There were three grounds of appeal, but learned counsel sought, and obtained leave to amend them by deleting Ground 2, and substituting for the third ground the following, that the learned magistrate had no power under the Motor Vehicles and Road Traffic Ordinance, Cap. 194, in the circumstances of this case, to order the licence fee to be paid and also to add a new ground, that the decision is unreasonable or cannot be supported having regard to the evidence.

4 On the first ground of appeal, lack of consent to hearing the charges together, counsel was granted leave to read an affidavit sworn by the appellant on the 28 ^th September in which he says in paragraph five, that he has been shown a copy of the magistrate's reasons for decision in this matter, in particular paragraph 2 thereof, in which the magistrate states that the defendant was asked if he would like the cases to be tried separately or jointly, and that the defendant consented to the two charges being heard together. The appellant says in his affidavit that this is not so. He says:

“At no time did the magistrate ask me to consent to both these charges being tried together nor did I at any time give consent.”

5 Learned counsel has pointed to the fact that the magistrate's notes do not record that he asked the appellant whether he consented to the charges being heard together or that the appellant consented. He has referred the court to the Criminal Procedure Code Cap. 77 s.83(3) This reads as follows:

“Where two or more complaints are made by one or more parties against another party or parties and such complaints refer to the same matter, such complaints may, if the court thinks fit, be heard and determined at one and the same time if each defendant is informed of his right to have such complaints taken separately and consents to their being taken together.”

6 He cited an English case which is based on the law of England in which it was held that it is a settled principle of law that justices have no authority to try charges together except with the consent express or implied of the...