Anthony Castelle v R

• Jurisdiction: Jamaica
• Judge: Laing JA
• Judgment Date: 09 December 2022
• Neutral Citation: [2022] JMCA Crim 62
• Docket Number: PARISH COURT CRIMINAL APPEAL NO COA2021PCCR00015
• Court: Court of Appeal (Jamaica)
• Year: 2022

Anthony Castelle

and

R

JM 2022 CA 124

[2022] JMCA Crim 62

Before:

THE HON Mrs Justice McDonald-Bishop JA

THE HON Mrs Justice Dunbar-Green JA

THE HON Mr Justice Laing JA (AG)

PARISH COURT CRIMINAL APPEAL NO COA2021PCCR00015

APPLICATION NO COA2022APP00106

IN THE COURT OF APPEAL

Hugh Wildman instructed by Hugh Wildman & Company for the appellant

Janek Forbes, Ms Ashtelle Steele and Ms Sharelle Smith for the Crown

Laing JA (AG)

Introduction

1 On 16 January 2017, a trial commenced before a Judge of the Parish Court for the parish of Saint James (‘the Parish Court Judge’), at Montego Bay in that parish, in which Anthony Castelle, a Senior Superintendent of Police (‘the appellant’), was tried along with District Constable Rohan McIntosh (‘DC McIntosh’), on an indictment that contained two counts. On the first count, they were charged with the offence of unlawful wounding, contrary to section 22 of the Offences Against the Person Act, and the second count charged them with the offence of misconduct in a public office contrary to common law. On 22 November 2018, DC McIntosh was found not guilty on both counts and the appellant was convicted on both counts. On 14 December 2018, the appellant was sentenced to pay a fine of $1,000,000.00 or serve 30 days' imprisonment at hard labour on the count of unlawful wounding. He was admonished and discharged on the count of misconduct in a public office.

The trial

The Crown's case

2 The case for the prosecution was that on 22 January 2016, Mr Lenford Grant was the driver of a Toyota Corolla motor car (‘the motor car’). He was driving in Montego Bay in the parish of Saint James with six passengers in the motor car including Janice Hines, who was seated on the back seat of the motor car. Mr Grant was instructed to stop by police officers who were conducting a joint operation with officers from the Transport Authority. He disobeyed those instructions, and the motor car was pursued by the appellant and DC McIntosh, in an unmarked service vehicle with a siren blaring and bright blue flashing lights. The appellant was the driver of the service vehicle.

3 The appellant discharged approximately five rounds from his service firearm, one of which struck Janice Hines while she was seated in the motor car. The motor car crashed into a wall and Mr Grant escaped on foot. Janice Hines was taken to the Cornwall Regional Hospital by the appellant, where she was treated for the injuries she had sustained.

The appellant's case

4 The appellant gave an unsworn statement from the dock. He admitted that he pursued the motor car and that he fired warning shots in the air. He asserted that he did not injure anyone because he did not fire at the motor car.

The application for extension of time to file grounds of appeal

5 The appellant made an application for an extension of time to file grounds of appeal. The application was supported by affidavits sworn to by the appellant and Ms Althea Grace-Marie Grant, who represented the appellant in the Parish Court. By these affidavits, the appellant and his former attorney explained that verbal notice of appeal was given, following the handing down of the sentences. However, through ignorance of the legal requirement, Ms Grant failed to provide any grounds of appeal in keeping with section 296 of the Judicature (Parish Courts) Act (‘the Act’). Grounds of appeal were not filed until 27 April 2022. Accordingly, Mr Wildman argued that the appellant would suffer a grave injustice if he were not granted an extension of time within which to file his grounds of appeal, in light of these circumstances.

6 The Crown objected to the granting of the application on the ground that no good cause had been shown for the failure to file grounds of appeal. It was noted that the sentence was given in November 2018. It was also argued by Mr Forbes that a constitutional claim had been filed in the Supreme Court in August 2020 in which Mr Wildman appeared, so he ought to have known that no grounds of appeal were filed in the instant appeal. Mr Forbes highlighted para. 12 of Mr Castelle's affidavit in which he averred that he retained Mr Wildman to prosecute his appeal, although counsel acknowledged that there was no indication of the date that Mr Wildman was so retained.

7 This court noted that section 296 of the Act, permits the Court of Appeal to “hear and determine” an appeal notwithstanding the grounds of appeal were not filed within the time specified in the Act, that is, 21 days. By virtue of section 296, this court must be satisfied that “good cause” has been shown for this failing, before granting an extension. Whereas “good cause” is not defined in the Act, the court was guided by the case law, including civil cases in construing the meaning of that term. In that regard, the court considered the interests of justice as being paramount (see The Commissioner of Lands v Homeways Foods Limited and Stephanie Muir [2016] JMCA Civ 21 at paras. [44] and [45]).

8 We accepted that the delay was inordinate and that the explanation offered for the delay was not a good one. However, we also accepted that the cause of the delay was the conduct of counsel and not of the appellant. In such circumstances, the appellant should not be prejudiced where his counsel was at fault. On the other hand, we found that there would have been no prejudice to the Crown, if time was extended. Importantly, we also concluded that there were arguable grounds of appeal involving issues of law which were potentially novel and which deserved the consideration of the court. Accordingly, we made the following orders:

• 1. The amended notice of application to file grounds of appeal as filed 10 June 2022 is granted.

• 2. Time is extended to 3 May 2022 for the applicant to file grounds of appeal.

• 3. The grounds of appeal filed on the same date, 3 March 2022 are permitted to stand except for the submissions at grounds 1 and 2.

• 4. Counsel for the applicant is to file amended grounds of appeal on or before 4 pm on 11 July 2022.

The grounds of appeal

9 The appellant filed the following grounds of appeal:

• “1. The Learned Parish Court Judge erred in law in failing to appreciate that the arrest and charge of the Appellant by the Senior Investigative Officer of INDECOM, Mrs. Glasene Perc-Lee [sic], was an illegality, which could not be cured by the Clerk of Courts conducting the prosecution.

• 2. The Learned Parish Court Judge erred in law in failing to uphold the no case submission that was made on behalf of the Appellant, that at the end of the prosecution's case, there was no evidence connecting the Appellant, Anthony Castelle, to any injury to the victim, as the fragments recovered from the motor car did not establish that such fragments came from the firearm that was in the possession of the Appellant.

• 3. In any event, the Learned Parish Court Judge erred in law in failing to appreciate that there was no medical evidence tendered by the Crown to show that the Complainant was in fact injured by any missile coming from the weapon of Mr Castelle.

• 4. The Learned Parish Court Judge erred in law in failing to appreciate that by acquitting the co-accused, Mr Rohan McIntosh, who was charged jointly with the Appellant, on the basis that there was no fragment connected to his gun found in the motor car, should have guided the Parish Court Judge to acquit Mr Castelle, as there was no bullet found in the car connecting [sic] to Mr. Castelle's gun.

• 5. The Learned Parish Court Judge erred in law in failing to appreciate that, where persons are charged jointly in the commission of an offence and there is no evidence connecting either of the accused persons to the offence, and there was no evidence that they were acting in concert, both must be acquitted.

• 6. The Learned Parish Court Judge erred in law in failing to appreciate that in assessing whether the circumstantial evidence relied on by the Crown was sufficient to ground a conviction, it had to satisfy the standard that it leads to one conclusion and one conclusion only, and inconsistent with any other rational explanation.”

Ground 1

The appellant's submissions

10 Mr Wildman highlighted the fact, (and it is not in dispute), that the Independent Commission of Investigations (‘INDECOM’) carried out the investigations as well as the arrest and charge of the appellant. He submitted that it has been established by the Privy Council in the case of Commissioner of the Independent Commission of Investigations v Police Federation and others; Dave Lewin (Director of Complaints of the Independent Commission of Investigations) v Albert Diah [2020] UKPC 11 (‘the INDECOM case’), that under the provisions of the Independent Commission of Investigations Act 2010, (‘the INDECOM Act’), INDECOM does not have the power to arrest and charge anyone during the course of its investigations, because it is a purely investigative body and its sole function is to investigate and to turn over the fruits of its investigations to the Director of Public Prosecutions (‘DPP’), who should determine whether criminal charges should be preferred.

11 Mr Wildman submitted that the prosecution that was launched against the appellant by INDECOM was a nullity, and when the Parish Court Judge had the indictment preferred against the appellant and embarked on the trial, she had no jurisdiction to do so. As a result, the trial was a nullity. Counsel relied on the case of R v Monica Stewart (1971) 17 WIR 381 (‘ Monica Stewart’) in which this court held that the trial before the magistrate was a nullity, in the absence of a signed order for indictment. He further argued that the involvement of the Clerk of the Courts in the prosecution could not have saved the charges, which were a nullity and remained a nullity up to the point of conviction.

12 Mr Wildman further asserted that the witness statements that were collected...