R v O'connor

• Jurisdiction: Jamaica
• Judge: Kerr, J.A.
• Judgment Date: 18 December 1978
• Neutral Citation: JM 1978 CA 68
• Docket Number: Criminal Appeal No. 111 of 1977
• Court: Court of Appeal (Jamaica)
• Date: 18 December 1978

Court of Appeal

Kerr, J.A., Robotham, J.A.; Carberry, J.A.

Criminal Appeal No. 111 of 1977

R.

and

O'connor

Appearances:

Messrs. Ian Ramsay and Patrick Atkinson for the appellant.

Mr. R. A. Stewart for the crown.

Criminal Law - Appeal against conviction — Rape

Kerr, J.A.

1 This was an application for leave to appeal against a conviction and sentence for Rape in the St. Catherine Circuit Court before Carey, J., and a jury. After five days of arguments we reserved judgment which we delivered on July 14, 19?8. We treated the application, which involved questions of law, as an appeal, allowed the appeal, quashed the conviction and ordered a new trial. We now set out herein as promised our reasons for so doing. We propose to deal only with those grounds of appeal that we consider deserve this treatment and these were contained in the supplementary grounds of appeal for which leave to argue was sought and granted.

2 The following grounds taken together raised a preliminary question since they challenged the validity of the indictment:–

“GROUND 1:

• (a) That the Learned Trial Judge quashed the Count 11 of the Indictment (Carnal Abuse) as there was no evidence to warrant committal for trial or an Indictment on that basis.

• (b) That the Court for Rape added in the Indictment should also have been quashed;-

  • As (i) It was not added under and in compliance with the rules of section 3 of the Criminal Justice (Adm.) Act.

  • (ii) That in any event, leave to amend so as to add the court was not sought; nor if sought could it have been granted as once Count 11 had been quashed there was nothing to which a further court could be added. That in the premises the Indictment was a Nullity.

GROUND 2:

That the Indictment was a mere draft Indictment as settled by counsel for the prosecution who was entitled so to do; but it was never signed and made effective as an Indictment of the particular court having jurisdiction, by the proper officer thereof. (The Clerk to the Circuit).

And that the learned trial judge erred in overruling the Defence herein, and that the said Indictment was again, from this point of view, a Nullity”.

3 Counsel contended that the appellant was charged before the examining magistrate with the offence of carnal abuse of a girl under the age of fourteen years contrary to section 50 of the Offences against the Person Act, and as there was no evidence in the depositions to prove an essential element in the offence, namely the age of the complainant, the committal for trial in the Circuit Court was invalid. Therefore, no valid indictment could be founded on this committal. In support he referred to R. v. Lamb [1968] 1 W.L.R. p. 1946. Further, that although under the provisions of section 43 of the Justices of the Peace Jurisdiction Act a magistrate in his preliminary examination may be at large when he comes to commit for trial he must do so for a specific offence and that although by the provisions of section 2 of the Criminal Justice Amendment Act, the Director of Public Prosecutions was empowered to prefer indictments and to delegate power to do so, this indictment on the face of it was based on the committal. In any event, he argued, the delegated authority to prefer the indictment must be specific and in writing and upon challenge proper evidence of its existence should be produced. He submitted that the case of R. v. Sam Chin (post) was distinguishable on two grounds:–

• (i) that on the form of indictment, the authority preferring it was expressly stated and

• (ii) that under the then existing legislation Crown counsel was specifically authorised to prefer indictments.

4 Finally, he would draw a distinction between the authority to prefer and the “‘Proper Officer” to sign in indictment and that although there are no statutory provisions for signature he submitted that it should be by an officer of the court so that it could then be a document of the court upon which process could be issued.

5 The indictment originally presented before the learned trial judge consisted of two counts:–

6 Count 1 - Rape;

7 Count 2 - Carnal Abuse of a girl of twelve years and four months.

8 After hearing submissions along similar lines as those urged before us, the judge ruled that the committal was valid and that on that committal pursuant to the evidence which he had before him the D.P.P. was entitled to prefer an indictment for Rape but as there was no evidence showing the age of the girl he quashed count 2 of the indictment.

9 Section 43 of the Justices of the Peace Jurisdiction Act, provides: –

“When all the evidence offered upon the part of the prosecution against the accused party shall have been heard, if the Justice or Justices then present shall be of opinion that it is not sufficient to put such accused party upon his trial for any indictable offence, such Justice or Justices shall forthwith order such accused party, if in custody, to be discharged as to the information then under inquiry; but if, in the opinion of such Justice or justices, such evidence is sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given raise a strong or probable presumption of the guilt of such accused party, then such Justice or Justices shall by his or their warrant (according to Form (26) (a) in the Schedule) commit him to prison to be there safely kept until he shall be thence delivered by due course of law, or admit him to bail as hereinbefore mentioned”.

10 The practice obtaining here over the years and as was done in this case was for the Resident Magistrate to commit for an offence beyond his jurisdiction without specifying the offence. In view of the indefinite phrases “any indictable offence” and “an indictable offence” in the section, although it may be desirable in cases where an accused is committed for trial for an offence other than that upon which the preliminary examination was ordered, that he should be so advised, yet in the light of the wide authority to prefer indictments as provided by section 2 of the Criminal Justice Amendment Act, there seems no good reason to place upon the provisions of the section the narrow construction sought by counsel for the appellant. Accordingly we agree with the trial judge that the committal was valid.

11 With respect to the preferring of an indictment by the D.P.P. for an offence other than the charge upon which the Preliminary Examination was held or independently of the committal we critically considered the case of R. v. Sam Chin [1961] 3 W.I.R. p. 156 - In that case -

“The appellant, who was J.C.'s cook, was convicted of setting fire to J.C.'s shop. The information on which the preliminary inquiry was conducted was laid under s. 3 of the Malicious Injuries Law, Cap. 234 (J.) which deals with the offence of setting fire to a dwelling-house, and the magistrate committed the appellant for trial on that charge. The indictment was preferred by the Attorney-General under s. 4 of the same Law which deals with time offence of setting fire to a shop. Section 2 (2) of the Criminal Justice (Administration) Law, Cap. 83 (J.), provides that no indictment for any offence shall be preferred unless (inter alia) the person accused has been committed to or detained in custody or has been bound over by recognizance to appear to answer an indictment to be preferred against him for such an offence or unless such indictment for such an offence be preferred by the direction of Her Majesty's Attorney-General (in Jamaica), or by the Solicitor-General or by any person holding the office of Crown counsel ………………………………………………………… …………………………………………………………………………………………………………………………………………… HELD: (i) the indictment having been preferred by the attorney-General was good although the appellant had been committed for trial upon a charge which was bad in law”.

In the Judgment, Hallinan C.J., contrasted the Jamaican Law with that of England, thus (p. 157):–

“There is, however, an essential difference between the English procedure and the procedure under the Criminal Justice (Administration) Law, Cap. 83 (J.). Section 2 (2) provides that no indictment for any offence shall be preferred unless (inter alia) the person accused has been committed to or detained in custody, or has been bound over by recognizance to appear to answer an indictment to be preferred against him for such an offence or unless such indictment for such an offence be preferred by the direction of Her Majesty's Attorney-General in this Island, or by the Solicitor-General or by any person holding the office of crown counsel. Here in a clear provision that, as was done in this case, a law officer or crown counsel can prefer an indictment independently of whether or not the accused has been committed for trial after a preliminary inquiry. The argument of the appellant on this ground therefore fails”.

Research revealed that Grand Juries were abolished in Jamaica as far back as 1871 by Law 21 of 1871:–

“Section 1:

On and after the first day of September, one thousand eight hundred and seventy-one, Grand Juries shall be and the same are hereby abolished, and it shall not be lawful to empanel any Grand Jury in this Island.

Section 2:

On and after the first day of September, one thousand eight hundred and seventy-one, all indictments preferred at the Circuit Courts shall commence as follows:

“Her Majesty's Attorney General presents that &c” and in every subsequent or other count in any indictment it shall be sufficient to say “and her Majesty's Attorney General further presents that, &c.”

Section 3:

On and after the first day of September, one thousand eight hundred and seventy-one, no bill of indictment for any offence shall be preferred unless the prosecutor or other person preferring such indictment has been bound by recognizance to prosecute or give evidence against the person accused of such offence, or unless the person...