Attorney General of Jamaica v Keith Lewis

• Jurisdiction: Jamaica
• Judge: PANTON, P: , HARRISON, J.A.: , MARSH, J.A. (Ag.): , PANTON, P.
• Judgment Date: 05 October 2007
• Neutral Citation: JM 2007 CA 49
• Judgment citation (vLex): [2007] 10 JJC 0501
• Court: Court of Appeal (Jamaica)
• Date: 05 October 2007

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE K. HARRISON, J.A THE HON. MR. JUSTICE MARSH, J.A. (Ag.)

BETWEEN

THE ATTORNEY GENERAL OF JAMAICA

APPELLANT

AND

KEITH LEWIS

RESPONDENT

Curtis Cochrane Kevin Powell, Director of State

Proceedings

Leroy Equiano

EMPLOYMENT LAW - Wrongful dismissal

PANTON, P:

1 Our decision in respect of the appeal in this suit for wrongful dismissal was delivered on July 31, 2007. At that time, we allowed the appeal, set aside the order of the Court below and entered judgment for the appellant. We also awarded the costs of the appeal to the appellant, such costs to be agreed or taxed.

2 I agree substantially with the reasons for judgment that have been written by my learned brother, Karl Harrison, J.A. who has given a full statement of the relevant facts. However, I wish to add a few comments.

3 The respondent, a district constable, had been charged with the offence of conspiracy to defraud. On August 12, 1997, a Senior Resident Magistrate for the parish of St. Andrew made "no order' in the matter. This was due to the fact that the complainant had died. Subsequently, another Resident Magistrate dismissed the case for want of prosecution and a Clerk of Courts issued a certificate of acquittal to the respondent.

4 This Court has on a few occasions, given guidance as to the effect of a "No Order" when such a notation is recorded in criminal proceedings in the Resident Magistrate's Court. One such occasion was in the case of DPP v Feurtado and Attorney General [1979] 16 J.L.R 519. At page 528 C–D, Kerr J.A. said:

"It was unanimously agreed by the Judges in the Court below that regardless of the reasons for making a "No Order" such a decision is not a termination upon which a plea of autrefois acquit may be founded and although it was so argued there the respondent's attorneys quite properly did not pursue the arguments before this Court.

Accordingly, it is well settled that despite the making of the "No Order" the proceedings can be re-instituted."

5 In the instant case, the certificate of acquittal was obtained nearly four years after the entry of the "No Order" and nearly three years after the respondent had been dismissed from the Force.

6 The respondent sought to use the certificate of acquittal to prove that the criminal charge against him had been dismissed. The consequence of that, it was argued, was that he had been wrongfully dismissed from the Force. However, it is clear that the dismissal of the case by the Resident Magistrate was not a dismissal on the merits.

7 In order to make use of the certificate of acquittal in this manner, it would have been necessary for the respondent to have shown that he had been pleaded, and that there had been an adjudication. The case of Dennis Thelwell v Director of Public Prosecutions and the Attorney General (SCCA No: 56/98 delivered on March 26, 2007) demonstrates the point. There, a Resident Magistrate who had not been properly seized of the matter purported to dismiss the charges against the appellant Thelwell on the basis that no evidence had been offered as no Crown witnesses were in attendance and the file was incomplete. When the charges were later presented before another Resident Magistrate, the appellant objected and proceeded to seek relief from the Constitutional Court.

8 It was submitted that it was unconstitutional for him to be placed on trial as he had already been dismissed. The Constitutional Court, by a majority did not agree with the submission. The Court of Appeal upheld the decision of the Constitutional Court. Forte, J.A. (as he then was) said that the appellant had "failed to prove that he has ever pleaded to these charges and consequently not having joined issues with the Crown, the plea of autrefois acquit could not avail him." Langrin J.A. (Ag), (as he then was) said this at page 37:

"At common law and more particularly stated in Russell on Crimes (7 ^th Edition [1909] Vol. 2 pp 1982 1983) a man who has once been tried and acquitted for a crime may not be tried again for the same offence if he was in jeopardy:

• (1) The Court was competent to try him for the offence;

• (2) The trial was upon a good indictment on which a valid judgment of either acquittal or conviction could be entered and;

• (3) The acquittal was on the merits i.e. by verdict on the trial or in summary cases by dismissal on the merits followed by a judgment or order by acquittal.

All these three conditions must be fulfilled before the plea of autrefois acquit can be successfully raised."

9 In the circumstances, it is clear that the respondent in the instant case has no basis for asserting that he had been acquitted and so was wrongfully dismissed from the Force.

HARRISON, J.A.:

1 This is an appeal from the judgment of Beswick J, who on the 18 ^th April 2005 awarded the Respondent the sum of $662,200.00 with costs to be agreed or taxed in a claim for wrongful dismissal.

The background facts

2 The Respondent, a District Constable, was charged with breaches of the Corruption Prevention...