Michael Irving v R
| Jurisdiction | Jamaica |
| Judge | Brooks P,Harris JA,G Fraser JA |
| Judgment Date | 19 January 2024 |
| Neutral Citation | JM 2024 CA 2 |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO COA2022PCCR00007 |
| Court | Court of Appeal (Jamaica) |
[2024] JMCA Crim 1
THE HON Mr Justice Brooks P
THE HON Mrs Justice Harris JA
THE HON Mrs Justice G Fraser JA (AG)
PARISH COURT CRIMINAL APPEAL NO COA2022PCCR00007
IN THE COURT OF APPEAL
Criminal Law — Whether notice of appeal filed within time — Whether single holding ground of appeal as filed is defective — Failure to set out facts and points of law — Ground of appeal stated in very wide terms — Whether good cause shown to hear and determine appeal — Sections 294, 295 and 296 of the Judicature (Parish Courts) Act
O'Neil Brown instructed by O'Neil Brown & Co for the appellant
Miss Natallie Malcolm and Sean Nelson for the Crown
I have had the privilege of reading, in draft, the judgment of my learned sister, G Fraser JA (Ag). Her reasoning concurs with that which caused me to agree with the orders that were made.
I too have read the draft judgment of G Fraser JA (Ag) and agree that it reflects my views on the case.
G Fraser JA (AG)
On 29 November 2023, after hearing counsel's oral arguments and having digested the written submissions of the Crown and other material provided, we made the following orders:
“1. The appeal is dismissed.
2. The convictions and sentences of the learned Parish Court Judge, His Honour Mr Steve Walters, imposed on 23 September 2020, are affirmed.
3. The sentences are deemed to have commenced on 23 September 2020.”
At the time of making the foregoing orders, we promised to give brief written reasons for our decision. These are our promised reasons.
Mr Michael Irving, the appellant, on 23 September 2020, was convicted in the Westmoreland Parish Court of the offences of false imprisonment and indecent assault after a trial before His Honour Mr Steve Walters (‘the Parish Court Judge’). He was sentenced to six months' imprisonment at hard labour, which was suspended for one year for the offence of false imprisonment and nine months' imprisonment at hard labour, which was suspended for three years for the offence of indecent assault. The sentences were to run concurrently.
The offences were committed against a female complainant, who lived in the same area as the appellant. She had known him all her life. The incident occurred on 9 June 2018 at the home of the appellant. The complainant had attended a wake in the district of Belvedere in the said parish, where the appellant was also in attendance. On leaving the wake at about 3:00 am, the appellant offered the complainant a ride home, which she accepted. Instead of taking the complainant to her home, the appellant diverted the car to his house, where he pulled her inside and proceeded to lock the door. While the appellant forcefully kissed the complainant and got on top of her, she was able to dial her mother's phone number. The complainant resisted all advances by the appellant during his attempts to pull down her underwear. The appellant's actions were foiled by the complainant's mother's voice coming over the phone, and he thereupon ceased his unwanted attentions and allowed her to go home with the parting shot, “make sure you nuh tell”. He repeated this admonition and left her. Although the complainant had promised to keep her silence, on her arrival at her home, she made an immediate report to her mother and subsequently reported the incident at the Bethel Town Police Station on 9 June 2018 at about 7:13 am.
After many unsuccessful attempts by the police to find the appellant, on 29 June 2018, he voluntarily attended at the Bethel Town Police Station and submitted himself to their custody. He was accompanied by his counsel, Mr O'Neil Brown. The appellant was informed by the police of their investigations into the offences of forcible abduction and assault with intent to rape. He was subsequently arrested and charged with those offences. When cautioned, he made no utterances.
The prosecution had presented an indictment for the offences of assault with intent to rape, false imprisonment, and indecent assault, thereby bringing the matter within the trial jurisdiction of the Parish Court Judge. It is noted that the order of indictment signed by the Parish Court Judge relative to these same offences was dated 7 July 2020, the same day the trial commenced.
The appellant at trial gave evidence on oath. He denied the complainant's allegations that he had attempted to assault her with the intent to have sexual intercourse with her. He further denied falsely imprisoning the complainant. His case was that she willingly entered his home and made the first overture of kissing him and had, of her own free will, removed her underwear. Following the trial, which occupied a space of some four days, the appellant was found guilty of false imprisonment (count two) and indecent assault (count three).
On 1 October 2020, the appellant signed and filed a Criminal Form B1 (‘B1 form’) seeking to appeal against his convictions and sentences. On page two of the B1 form, the appellant indicated his grounds of appeal in terms “that the verdict of the Learned Trial Judge is unsupported by the evidence”. Subsequently, the notes of evidence and findings of fact were prepared by the Parish Court Judge and certified by the Clerk of the Courts on 14 July 2022. The record of proceedings was received on 19 July 2022.
The Crown contended that if the B1 form is accepted by this court as having been filed on the date on the form, 1 October 2020, then the written notice of appeal would have been filed within time. The Crown further contended that the single ground of appeal (mentioned in para. [9] above), as filed, is defective. The two defects, according to the Crown, are (i) it failed to set out the facts and points of law on which the appellant sought to rely in support of his appeal and (ii) that single ground of appeal was formulated in very wide terms.
Counsel, Mr O'Neil Brown, who is on record representing the appellant, has briefly submitted that the non-compliance with section 296(1) of the Judicature (Parish Courts) Act (‘the Act’) was not fatal as the appellant could have made an application to file supplemental grounds of appeal. He, however, has frankly admitted that he was unable to secure the necessary instructions from the appellant and was, therefore, not able to advance any useful arguments before the court. He, also sought to challenge the decision of Rex v Archibus Mills (1941) 4 JLR 55 as being authority for the argument advanced by the Crown that the solitary ground of appeal that was filed can be regarded as frivolous because it is bereft of substance and particularity.
We found the material outlined in the Crown's submissions to be very helpful and will adopt such portions of it as are relevant to the discussion. The vital issue for deliberation is whether at the time of hearing there was any existing appeal before us. In making that assessment, regard must be had to the provisions of the JPCA, which guides the procedure when appealing from the judgment of a Parish Court Judge exercising his or her special statutory summary jurisdiction or jurisdiction of trial on indictment in a criminal case.
We commence the discussion by examining the procedure to be utilized by an appellant who is convicted in the Parish Court and make a comparison with the procedure used by the appellant herein. We register that pursuant to section 293(1) of the JPCA, there is no obligation on an appellant to seek leave to appeal the convictions and/ or sentences imposed by a Parish Court Judge. However, according to the dictates of the said JPCA, when a convict is appealing his convictions and/ or sentences, the proper procedure for doing so is that contained in sections 294, 295 and 296.
Since references will be made to section 294 of the JPCA, it is convenient at this time to set out that provision as follows:
“ 294 — (1) Any person desiring to appeal from the judgment of a [Judge of the Parish Court] in a case tried by him on indictment or on information in virtue of a special statutory summary jurisdiction, shall either during the sitting of the Court at which the judgment is delivered give verbal notice of appeal, or shall within fourteen days from the delivery of such judgment give a...
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