Alexander (Eric) v R

• Jurisdiction: Jamaica
• Judge: HARRISON J.A , PHILLLIPS, J.A , BROOKS, J.A. (Ag) , HARRISON, J.A.
• Judgment Date: 30 July 2010
• Neutral Citation: JM 2010 CA 105
• Judgment citation (vLex): [2010] 7 JJC 3002
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2010

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE HARRISON J.A THE HON. MISS JUSTICE PHILLIPS J.A THE HON. MR JUSTICE BROOKS J.A (Ag.)

ERIC ALEXANDER

v

R

Christopher Townsend and Vernon Daley for the appellant

Miss Sanchia Burrell Crown Counsel for the Crown

CRIMINAL LAW - Forgery - Possession of forged Justice of the Peace Stamp - Uttering a forged Justice of the Peace stamp - Leave to appeal - Jurisdiction of Resident Magistrate - Judicature (Resident Magistrates) Act, s. 267 - Criminal Justice (Administration) Act

HARRISON J.A

1 [1] This is an appeal from a decision of Her Honour Miss Judith Pusey, Resident Magistrate for the Corporate Area Resident Magistrate's Court (Criminal Division). The appellant had pleaded guilty to charges of forgery, possession of a forged Justice of the Peace stamp and uttering a forged Justice of the Peace stamp. He was sentenced to three (3) months imprisonment on each count to run concurrently.

2 [2] The appeal raises an important point of law with regard to the Resident Magistrate's criminal jurisdiction in relation to section 267 of the Judicature (Resident Magistrates) Act and section 9(1) of the Criminal Justice (Administration) Act. The crucial question for consideration in this appeal is: how should the words " may be in custody for such offence " in section 9(1) of the latter Act, be construed? The answer to this question will no doubt depend upon the legislative intent of the particular provision in section 9(1) and the mischief at which it was aimed.

3 The facts and background to the appeal

4 [3] The facts in a nutshell are that on 15 September 2009 Detective Corporal Livingstone attached to the Fraud Squad went to the appellant's office at Portmore, St. Catherine with regards to reports that he was acting in the capacity of a Justice of the Peace without being duly commissioned. The appellant was escorted by the police to the Fraud Squad headquarters in Kingston where he was further interviewed. Upon completion of the interview he was arrested and charged for the offences of forgery, being in possession of a forged Justice of the Peace stamp and uttering a forged Justice of the Peace stamp. He was taken into custody at Denham Town Police Station, Kingston and was bailed to attend court at the Corporate Area Resident Magistrate's Court (Criminal Division), Half Way Tree on 17 September 2009. He duly attended court and was arraigned before Her Honour Miss Judith Pusey, Resident Magistrate. He pleaded guilty to the charges preferred against him.

5 [4] The guilty plea was accepted by the learned Resident Magistrate and a social enquiry report was ordered to be done in respect of the appellant. The appellant's bail was extended to 1 October 2009, the date set for sentence. The appellant failed to appear on 1 October 2009 and the Probation Officer informed the court that the appellant could not be located in order to assist in the preparation of the social enquiry report. The learned Resident Magistrate thereafter sentenced the appellant in his absence. The appellant was subsequently granted bail pending the hearing of his appeal.

6 [5] In her reasons for judgment, the learned Resident Magistrate stated that she had discovered that the court had no jurisdiction to have dealt with the matters in the Corporate Area Criminal Court since the offences were committed in the parish of St. Catherine. She therefore concluded that the conviction was a nullity for want of jurisdiction. She stated, "I would not be bold as to indicate what ought to be done but whatever you direct to be done to rectify this travesty of justice I will endeavour to have it done." It is abundantly clear from the statement made by the learned Resident Magistrate that she was aware that she was functus officio, so she left the matters entirely in the hands of this court.

7 Notice and Grounds of Appeal

8 [6] Notice and grounds of appeal doted 6 October 2009, were filed. The single ground of appeal reads as follows: "That the sentence was excessive under the circumstances". However, at the hearing of the appeal, Mr Christopher Townsend, for the appellant, sought and obtained leave to argue a supplementary ground of appeal which states: "That the conviction was a nullity for want of jurisdiction by the learned Resident Magistrate".

9 The Submissions

10 [7] Mr Townsend submitted that the learned Resident Magistrate was correct when she concluded that she had no jurisdiction to have accepted the guilty pleas in respect of the charges. He submitted that the location where the offences were committed was in excess of the one mile radius prescribed by section 267 of the Judicature (Resident Magistrates) Act (the Act). He also submitted that section 9(1) of the Criminal Justice (Administration) Act which gives the magistrate an extended jurisdiction could not be invoked for the following reasons:

a. The appellant was not apprehended in the Corporate Area.

b. He was not summoned but was bailed to appear at court.

c. He was not in custody since he was granted station bail at Denham Town Police Station to attend court.

11 [8] Mr Townsend referred to and relied on the case of R v Douglas Beckford RMCA No.12/2008 decided by this court on 9 October 2009. He submitted that the convictions were a nullity and that in the interest of justice, the court should not order a re-trial since it would amount to an abuse of the process of law. In the circumstances, he submitted, the convictions should be quashed, the sentences set aside and judgment and verdicts of acquittal entered.

12 [9] Mr Townsend submitted in the alternative, that if the court were to disagree with his submissions on the jurisdiction issue, the sentences imposed by the learned magistrate were "excessive" for the following reasons:

i. The appellant is a minister of religion and is well-known in the community where he ministers and hitherto he had not been in trouble with the law.

ii. He did not have the benefit of a probation report to speak to his background.

iii. He was not given the opportunity to speak on his own behalf in addressing the Magistrate before she pronounced sentence.

13 [10] Miss Burrell, Crown Counsel, submitted that at the time the appellant professed his guilt before the magistrate, she had the jurisdiction to deal with the matters by virtue of section 9(1) of the Criminal Justice (Administration) Act. She submitted that the appellant was held in custody in the Corporate Area at the time of his arrest and when the charges were preferred. She further submitted that when section 9(1) uses the term "may be in custody for such offence" , it did not matter how brief the person had remained in custody before appearing in court or that the custody was interrupted by bail. In the circumstances. Miss Burrell submitted, the learned Resident Magistrate had fallen in error when she indicated in her reasons for judgment that "the conviction was a nullity for want of jurisdiction".

14 Lack of Jurisdiction Issue

15 [11] The Judicature (Resident Magistrates) Act governs the powers and jurisdiction of magistrates in Jamaica. It was originally enacted on 22 February 1928 and has been amended several times over the past seventy-two (72) years. The source of their jurisdiction is set out in section 267 of the Act as follows:

"267. For the purposes of the criminal law, the jurisdiction of every Court shall extend to the parish for which the Court is appointed, and one mile beyond the boundary line of the said parish:"

16 [12] R V York and Wynter (1978) 25 W.I.R. 490 at 494; R v Lloyd Chuck (1991) 28 JLR 422; and R v James Smith (1990) 27 JLR 469 are all local cases and they have established that the court's jurisdiction is a limited one pursuant to section 267 (supra) and is extended by section 9(1) of the Criminal Justice (Administration) Act which provides inter alia, as follows:

"9. (1) Every person who commits any indictable offence may be proceeded against, indicted, tried, and punished in any parish or place in which such person may be apprehended, or may be in custody for such offence, or may appear in answer to a summons lawfully issued charging the offence, OS if the offence had been committed in that parish or place, and the offence shall for all purposes incidental to or consequential upon the prosecution, trial or punishment thereof, be deemed to have been committed in that parish or place."

17 [13] In R V James Smith Rows P, pointed out that although the court's jurisdiction had been extended by virtue of section 9(1), that jurisdiction only applied in certain defined situations. He stated inter alia:

".....But even within that geographical boundary, the Resident Magistrate's Court does not have jurisdiction to try all criminal offences committed therein. Section 268 of the jurisdictional statute enumerates the several offences triable by Resident Magistrates. From the Offences Against the Person Act are excluded murder, manslaughter and all felonious injuries. Felonies under the Forgery Act are similarly excepted. Under the Larceny Act offences of stealing a will; title to land; original Court Records; a mail bag or the contents therefrom; certain frauds by trustees and company directors; etc.; ore not triable by Resident Magistrates in that they are omitted from the enumeration in section 268 (1) (b).

In sum, a Resident Magistrate's Court operates in a defined area and has jurisdiction over such criminal offences in that area as ore prescribed by statute."

The appellant in the instant case was charged with offences which fell within the jurisdiction of section 268 of the Act."

18 [14] There is clear evidence that the offences in this case were committed by the appellant in the parish of St. Catherine. He was apprehended in that parish and was token to the Fraud Squad in Kingston where he was...