R v Chuck
| Jurisdiction | Jamaica |
| Judge | Carey, P. |
| Judgment Date | 31 July 1991 |
| Neutral Citation | JM 1991 CA 108 |
| Docket Number | No. 23 of 1991 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 1991 |
Court of Appeal
Carey, P. (Ag.); Morgan, J.A.; Gordon, J.A.
No. 23 of 1991
Richard Small & Walter Scott for the appellant.
Miss Diana Harrison Deputy Director of Public Prosecutions (Ag.) for Crown
Criminal Practice and Procedure - Appeal against conviction and sentence — Receiving stolen goods — Appellant tried with two other accused — Whether the Resident Magistrate erred in permitting the trial to continue in the absence of one of the co-accused — Whether appellant was prejudiced by the absence of the co-accused — Conspiracy to defraud the public — Whether the inclusion of this court resulted in an unfair trial.
Carey, P. (AG.): In the Resident Magistrate's Court for St. Andrew on 28 th February, 1991 before Her Honour Miss Joyce Bennett, one of the Resident Magistrates for that parish; sitting at Half-Way-Tree, this appellant was convicted ore two counts of an indictment each charging the receiving of a motor car knowing the same to be stolen. He was sentenced on each count to a term of 6 months imprisonment at hard labour to run consecutively. The appeal is both as to conviction and sentence.
The trial occupied a number of working days over a 9 month period beginning in May last year and ending with the appellant's conviction, as already stated, in February. No one could possibly suggest that this trial proceeded at other than a leisurely amble. The papers however, reached the registry of this court in record time on 19 th April. We are not advised of the reasons for the delay of some 6 weeks or so which elapsed before the, appeal came on for hearing, When the trial opened before the Resident Magistrate, she ordered a trial on indictment containing 7 counts in respect of the appellant and two other persons, Fred Robinson and Phillip Cooke as follows:
| Count 1 - | Larceny of a Toyota Corolla RR 4524 on or after the 29 th September 19Q8 etc, the property of Econocar Rentals Ltd: | Lloyd Chuck Fred Robinson Philip Cooke |
| Count 2 - | Receiving the above: | Lloyd Chuck Fred Robinson Philip Cooke |
| Count 3 - | Larceny of a Toyota Starlet RR 4883 on or after 2 nd March 1989 etc, the property of Island Car Rentals Ltd: | Lloyd Chuck Fred Robinson |
| Count 4 - | Receiving the above: | Lloyd Chuck Fred Robinson |
| Count 5 - | Conspiracy to defraud the public:
| Lloyd Chuck Fred Robinson Philip Cooke |
| Count 6 - | Accessory after the fact | Philip Cooke |
| Count 7 - | Accessory after the fact | Philip Cooke |
For completeness# we note that Fred Robinson was acquitted, while Phillip Cooke, who had absconded bail in the course of the trial, was convicted on the two counts (6 & 7) charging him with being an accessory after the fact but acquitted of conspiracy (count 5).
No verdicts wore entered on the larceny counts (counts 1 and 3).
Counsel for the appellant sought and obtained leave to argue us a plethora of grounds covering with painstaking care and meticulous attention to detail every aspect, of the trial. We propose to deal with them all, not however individually in the order argued, but grouped for convenience under specific headings which will appear hereafter. At the completion of submissions on the 13 th June instant, we dismissed the appeal, affirmed the conviction and sentence and promised to put, our reasons in writing. That promise, we now fulfil.
In broad outline the case; against this appellant was as follows: Two cars a Toyota Corolla and a Toyota Starlet each owned by a car-hire firm were rented to customers from whom they were stolen. They were sold by the appellant to two innocent purchasers from whom they were eventually recovered and returned to their owners. Shortly after their loss, fraudulent applications were made to the Collector of Taxes for registration plates in, respect of each, in the names of fictitious persons. The accused, Cooke was used for the purpose of preparing these applications. They were made a matter of days after once car was missed and 5 weeks in respect of the other. The appellant, when interviewed, told the police that he had been given the cars by these fictitious persons for sale. He had no records and produced none in respect of these transactions; although he was a broker. The crown relied on the fact of the appellant's possession of recently stolen goods, fraudulent transfers and his lack of any reasonable explanation.
In his defence, the appellant repeated what he had told the police and denied the charges against him.
We had earlier intimated that we would group the grounds of appeal under specific headings and consider each in its group.
We have identified the headings as follows:
-
(i) Procedure at trial (Grounds 1-6, 9)
-
(ii) Deficiencies of Proof (Grounds 7, 10 & 11) and attack on findings of Resident Magistrate
-
(iii) inadmissible evidence (Ground 8)
-
(iv) Sentence (Ground 13)
In ground 1, the complaint was made that the Resident Magistrate was quite wrong in law in permitting the trial to continue against the accused Cooke in his absence, in that she had no power to do so. Further, that by reason of his absence, the appellant was somehow prejudiced. Counsel for the appellant conceived the prejudice to lie in the fact that the appellant was not in a position to deal with matters in which Cooker was involved.
Some background material must be given in order to appreciate Mr. Small's submissions. After the trial had been in progress for sometime, the accused Cooke failed to attend court on 25 th September 1990 (indeed neither did his counsel) and the trial was continued without objection by the defence. On the following day a warrant was ordered for his arrest. The Clerk of the court applied that the case against him be continued in his absence. There were objections by Mr. Small who, for his part, applied for a separate trial for the appellant. The Resident Magistrate acceded to the crown's request to continue the trial and refused Mr. Small's application.
It is plain that the Resident Magistrate could not have ordered a separate trial in respect of the appellant at that stage of the proceedings. Having regard to the nature of the charges particularly because of the existence of the bout for conspiracy, the trial could properly proceed in the absence of the accused Cooke, even if no application had been made by the prosecution. The prosecution was or would be entitled to continue to adduce all the evidence which remained, in proof of the counts against all parties charged. The position would be the same, even if, for example, Cooke had not yet been arrested, albeit charged. The evidence adduced was admissible against the appellant in respect of the charges against him. The grant of the application to continue Cooke's trial in his absence enabled the Resident Magistrate to return a verdict and, in the event, to impose sentence. That consideration could hardly affect the position of the appellant.
We do not think the submission that the appellant would not be in a position to deal with matters in which Cooke was involved, is well-founded. Counsel, if he thought that necessary, was entitled to seek instructions from counsel representing that accused. We have difficulty in appreciating how the absence of the accused from court precluded that course. We note that the attorney-at-law who had represented Cooke did not attend after his client absconded. But it has not been suggested that any application for adjournment was made by Mr. Small to obtain any information or assistance from Cooke's attorney-at-law. After Cooke absconded, two pieces of evidence were adduced at the trial. There was tendered in evidence a cautioned statement given by Cooke to the police. It is sufficient to say that, it contained no evidence which could affect the appellant in any way whatsoever.
The other piece of evidence related to certain documents, viz, applications for new registration plates in respect of the Corolla and Starlet motor cars (exhibits 12 and 13). These documents, according to the evidence were in the handwriting of the absent accused — Cooke. One of the purposes of this evidence was to show firstly that Cooke had prepared fraudulent applications in order to facilitate the transfer of the stolen cars to future innocent purchasers. The other purpose was to show that the appellant must have been in possession of both cars at the date of these applications. This evidence was admissible against the appellant irrespective of the presence of the co-accused before the court. If Mr. Small wished to challenge witnesses who spoke to Cooke's handwriting on the documenter he was at liberty to take instructions in that respect. He plainly did not.
It seems to us that he cannot therefore complain if the evidence given about Cooke's handwriting on the exhibits remained unchallenged. Since the Resident Magistrate had power to continue the trial in the absence of Cooke, as we will show hereafter it was to be expected that evidence implicating Cooke might not be challenged. No fault can be imputed to the Resident Magistrate because the evidence remained unchallenged.
In our view, that is enough to dispose of that ground but as it was argued quite strongly that the Resident Magistrate, at all events, has no jurisdiction to try an accused in his absence, we think we should say something on the matter.
The authorities show that the presence of an accused on trial for a misdemeanour is not indispensably necessary. R. v....
To continue reading
Request your trial