Marc Wilson v R

• Jurisdiction: Jamaica
• Judge: Mcdonald-Bishop JA (Ag)
• Judgment Date: 15 October 2014
• Neutral Citation: JM 2014 CA 97
• Docket Number: RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 2/2014
• Court: Court of Appeal (Jamaica)
• Date: 15 October 2014

[2014] JMCA Crim 41

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillps JA

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Mcdonald-Bishop JA (Ag)

RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 2/2014

Marc Wilson

and

R

Vernon Daley for the appellant

Broderick Smith for the Crown

CRIMINAL LAW - Conspiracy to defraud - Possession of forged document - Whether the magistrate had jurisdiction to indict the appellant for possession of a forged document

Mcdonald-Bishop JA (Ag)

1 This is an appeal by the appellant, Marc Wilson, against his conviction and sentence in the Resident Magistrate's Court for the Corporate Area on 23 October 2013 following a guilty plea to the offences of conspiracy to defraud and possession of a forged document before Her Honour Miss Judith Pusey. These offences constituted count one and count two, respectively, on an indictment preferred against him on 31 July 2013. The appellant was sentenced to nine months imprisonment at hard labour on each count with sentences to run concurrently.

The background

2 The background to this appeal as gleaned from the record of appeal is summarised as follows. On or around 19 July 2013, the appellant, a 25 year old final year university student, made an application for enlistment in the Jamaica Constabulary Force (‘the JCF’). In support of his application, he submitted a forged Caribbean Examination Council (‘CXC’) certificate in his name purporting that he had passes in three subjects with grade one at the general proficiency level. The forgery was eventually discovered and the police was called in. The appellant was then arrested and charged.

3 The appellant was charged by the police on or around 31 July 2013 on four separate informations for the following offences:

• (1) conspiracy to defraud contrary to common law (Information No 13819/13);

• (2) forgery contrary to section 7 of the Forgery Act (Information No 13820/13);

• (3) possession of a forged document contrary to section 17 (1) (a) of the Forgery Act (Information No 13821/13); and

• (4) possession of a forged document contrary to section 17 (1) (a) of the Forgery Act (Information No 13822/13).

4 The appellant appeared before the learned Resident Magistrate on 31 July 2013 and was duly represented by counsel, Mr Daley (same counsel in these proceedings). An order for the preferment of an indictment against the appellant was made in respect of two offences, namely, conspiracy to defraud, on count one, and the offence of possession of a forged document contrary to common law on count two. The order for indictment was endorsed on the information that charged him with conspiracy to defraud. The order was duly signed. There was no corresponding information for the offence added as count two.

5 The indictment was preferred by the Clerk of the Courts in accordance with the order made by the learned Resident Magistrate and the appellant, upon his arraignment, pleaded guilty to the two offences. Sentencing was deferred pending the receipt by the court of a social enquiry report.

6 On 23 October 2013, after considering the social enquiry report and a plea in mitigation made by counsel on the appellant's behalf, the learned Resident Magistrate sentenced the appellant to nine months imprisonment at hard labour on both counts of the indictment with sentences to run concurrently.

Grounds of appeal

7 The appellant initially appealed to this court on the single ground that the sentence imposed by the learned Resident Magistrate was manifestly excessive. He was, however, granted leave to argue supplemental grounds of appeal. These additional grounds, in effect, amount to an appeal not only against sentence but also against conviction notwithstanding the appellant's plea of guilty on both charges.

8 The supplemental grounds of appeal read:

‘Ground One

The learned Resident Magistrate erred in accepting the Appellant's plea of guilty to the offence of possession of a forged document on information 13821/13 as she had no jurisdiction to do so.

Ground Two

The learned Resident Magistrate erred in accepting the Appellant's plea of guilty to the offence of conspiracy to defraud as the facts do not support the offence.’

Ground one: whether learned Resident Magistrate had jurisdiction to indict the appellant for possession of a forged document

9 The appellant's contention with respect to ground one is as follows. The learned Resident Magistrate had no jurisdiction to deal with the offence of possession of a forged document which is covered by section 11 of the Forgery Act. Therefore, a charge under section 17(l)(a) of the Act is unsustainable since it only sets out what constitutes criminal possession and does not create an offence. Additionally, the Forgery Act specifies the documents to which it relates and these do not include a forged CXC certificate. This court had made it clear in Shadrach Momah v R [2011] JMCA Crim 54 that the Resident Magistrates' Courts do not have jurisdiction to deal with the offences relating to possession of forged documents under the Forgery Act. Counsel relied on the dictum of Mcintosh JA at paragraph [15]. For these reasons, he said, the conviction for possession of a forged document should be quashed.

10 It is noted that contrary to the submissions of Mr Daley, the indictment order was not made for possession of a forged document contrary to section 17(l)(a) as charged on the information but rather for possession of a forged document contrary to common law. The procedure applicable to the matter before the learned Resident Magistrate was that which is applicable to trials on indictment and not trials on information. It was for that reason that the indictment order was made for an offence other than that charged on any of the informations. Nothing is wrong in principle and in law with the exercise of such power provided the offence indicted is one that has arisen on the facts disclosed and is an offence known to law (see section 275 of the Judicature (Resident Magistrates) Act).

11 The particulars of the offence of possession of a forged document for which the appellant was indicted on count two read:

‘Marc Wilson on the 19 ^th day of July 2013 in the Corporate Area did unlawfully had [sic] in his possession a Caribbean Examination Certificate in the name of Marc Wilson.’

The particulars are clearly defective or deficient because nowhere in the particulars did it say the certificate was forged. In any event, the appellant pleaded to it without any issue taken as to the defect for an amendment to be done. Be that as it may, the point taken before this court is that the offence, itself, is one for which the learned Resident Magistrate could not properly have convicted because such an offence is unknown to law.

12 Mr Smith conceded that whilst the Crown is satisfied that the offence of forgery is an offence contrary to common law, the Crown is unable to find support for the position that the offence of possession of a forged document is an offence known to common law as charged. We must commend Mr Smith for executing his role in the true spirit of a “minister of justice” who, following his own research into the range of sentences for such offences, had seen it fair to bring it to the attention of counsel for the appellant that there might have been an error in the proceedings in relation to the offences charged. The supplemental grounds filed by the appellant emanated from Mr Smith's enlightening response to the appeal.

13 It is, indeed, clear that offences relating to the forgery and possession of certain forged documents are created by the Forgery Act. Section 11 of the Act treats with possession of forged documents making it a felony for someone to have in his or her custody or possession certain forged documents that are specified in that section. A CXC certificate, however, does not fall within the documents or types of documents specified in the section. It follows that the possession of such a forged document is not covered under the provisions of the Forgery Act. Research has not unearthed any offence of possession of a forged document at common law. Whilst the common law created the offence of forgery, it did not create the offence of possession of a forged document.

14 We accept the submissions of both counsel and do find that the offence of possession of a forged document contrary to common law for which the appellant was indicted and convicted is not known to law. The learned Resident Magistrate, therefore, had no jurisdiction to deal with such an offence, it being a nullity. Accordingly, the plea of guilty to that offence and the sentence imposed in relation to it cannot stand. The appellant, therefore, succeeds on ground one of his supplemental ground of appeal.

Ground two: whether plea of guilty for the offence of conspiracy to defraud should be set aside

15 On count one of the indictment that charged the appellant for conspiracy to defraud, the particulars of offence read:

‘Marc Wilson on the 19 ^th day of July 2013 in the Corporate Area did conspire with persons known or unknown to defraud the Jamaica Constabulary Force Training Academy by submitting a forged Caribbean Examination Certificate in the name of Marc Wilson in aid of entering in the Jamaica Police Academy.’

It is the contention of the appellant that on the facts as outlined by the learned Resident Magistrate in her reason for sentence, the only person who participated in this plan to submit a forged CXC certificate to the JCF was the appellant and, therefore, the offence to which he pleaded guilty was not made out. For that reason, the conviction should be quashed and the sentence set aside.

16 Mr Daley, drew support for his argument from the decision of this court in Momah v R in which it was concluded that the only person alleged to have been...