R v Martin et Al

• Jurisdiction: Jamaica
• Judge: Luckhoo, P.,Swaby, J.A.,Zacca, J.A.
• Judgment Date: 22 October 1974
• Neutral Citation: JM 1974 CA 66
• Docket Number: Criminal Appeals Nos. 41 to 44 of 1974
• Court: Court of Appeal (Jamaica)
• Date: 22 October 1974

Court of Appeal

Luckhoo, P. (Ag); Swaby, J.A.; Zacca, J.A. (Ag)

Criminal Appeals Nos. 41 to 44 of 1974

R.

and

Martin et al

Appearances:

H.L. DaCosta, Q.C., R. Mahfood, Q.C., R.N.A. Henriques, Dr. L. Barnett, W.K.Chin See, Hugh Small for all appellants.

J.S. Kerr, Q.C., Director of Public Prosecutions and H. Downer for the Crown.

L. Robinson, Q.C., Attorney General amicus curiae.

Constitutional Law - Gun Court — Whether its establishment was constitutional.

1 Luckhoo, P.(Ag.): In these four appeals heard together by consent certain common legal questions arise for consideration. Each appellant was convicted upon a summary trial in the Resident Magistrate's Division of the Gun Court upon a separate information charging him with unlawfully having in his possession a firearm or ammunition as the case may be not under and in accordance with the terms and conditions of a firearm user's licence as required by “s. 20 (1) (b)” of the Firearms Act, 1967 (No. 1), contrary to “s. 20 (4) (c) (i)” of the Firearms Act, 1967. As required by “s. 8 (2)” of the Gun Court Act, 1974 (No. 8) on conviction upon a summary trial for an offence under “s. 20” of the Firearms Act, 1967, each appellant to be detained at hard labour during the Governor-General's pleasure. The questions, which arise for consideration in these appeals, appear in the respective supplementary grounds of appeal filed. In the case of the appellant Samuel Thomas a further question raised in the supplementary grounds of appeal filed on his behalf was not pursued at the hearing before us. That question related to the legality of the provisions of the Suppression of Crime (Special Provisions) Act, 1974 (No. 3). Also raised in supplementary grounds of appeal of the appellants but not pursued before us was the allegation that adequate time and facilities for tile preparation of their respective defences, including securing the attendance of witnesses, were not afforded the appellants. No arguments was addressed to us on the original ground of appeal filed by each appellant that the verdict is unreasonable and cannot be supported having regard to the evidence.

2 The appellants' convictions and sentences are challenged on three main grounds –

• (i) that the establishment of the Gun Court under the provisions of the Gun Court Act, 1974, is contrary to the Constitution of Jamaica and as a result that court was without legal authority to try or to impose sentence on the appellant;

• (ii) that the trial of each of the appellants having been held in camera was in breach of the provisions of “s. 20” of the Constitution of Jamaica and consequently the trial is in each case a nullity;

• (iii) that the sentence imposed on each of the appellants is –

• (a) contrary to the provisions of “s. 1'7” of the Constitution of Jamaica as it subjects the appellant to “torture or to degrading or inhuman punishment”;

• (b) unconstitutional and void in that it is part of a scheme which transfers judicial power from the constitutional judicial officers and is inconsistent with the constitutional scheme for the exercise of the Royal Prerogative of review and pardon.

• (i) Is the establishment of the Gun Court contrary to the Constitution of Jamaica?

3 On April 1, 1974, Parliament enacted the Gun Court Act, 1974 (No. 8.) being an Act as the long title thereof indicates to provide for the establishment of a court to deal particularly with firearms offences and for purposes incidental thereto or connected therewith. By “s. 2”, the expression “firearm offence” means (a) any offence contrary to “s. 20” of the Firearms Act, 1967; (b) any other offences whatsoever involving a firearm and in which the offender's possession of the firearm is contrary to “s. 20” of the Firearms Act, 1967. “Section 20” of the Firearms Act, 1967 makes it an offence triable on summary conviction before a Resident Magistrate or before a Circuit Court to be in possession of a firearm or ammunition except under and in accordance with the terms and conditions of a firearm user's licence. By “s. 3” of the Gun Court Act, 1974 there is established a court to be called the Gun Court. By “s. 4” that court nay sit in such number of divisions as convenient and any such division may comprise –

• (a) one Resident Magistrate (a Resident Magistrate's Division); or

• (b) three Resident Magistrates (a Full Court Division); or

• (c) a Supreme Court Judge exercising the jurisdiction of a Circuit Court (a Circuit Court Division).

4 By “s. 2”, the expression “Resident Magistrate” means a person appointed to be a Resident Magistrate or to act as such under the Judicature (Resident Magistrates) Law, Cap. 179 and the expression “Supreme Court Judge” means a Judge of the Supreme Court. When a Supreme Court Judge is presiding at a sitting of the court, the court shall be a superior court of record otherwise it is a court of record (“s. 3 (2)”). The court has its own seal (“s. 3 (3)”).

5 A Resident Magistrate's Division of the Court is given jurisdiction inter alia to hear and determine any offence that may be tried summarily under “s. 20” of the Firearms Act, 1967 and any offence otherwise summarily triable under the Gun Court Act whether committed in Kingston or St. Andrew or in any other parish (“s. 5 (1) (a)”). It is by virtue of the first part of this provision that the information's laid against the appellants were heard and determined in the Gun Court. Although not necessary to a determination of these appeals the jurisdictions of a Full Court Division and of a Supreme Court Division of the Gun Court may be noticed. A Full Court Division is given jurisdiction to hear and determine summarily or on indictment (as the case may require) –

• (a) any firearm offence;

• (b) any offence alleged to have been committed by a person who at the time of the hearing is being detained under “s. 8 (2)” of the Gun Court Act,

6 other than a capital offence whether committed in Kingston or St. Andrew or any other parish (“s. 5 (2)”). A Circuit Court Division of the Court is given like jurisdiction as a Circuit Court established under the Judicature (Supreme Court) Law, Cap. 180, so however, that the geographical extent of that jurisdiction shall be deemed to extend to all parishes of Jamaica and any jury required by the court may be selected from the jury list in force for such parish or parishes as the Chief Justice may direct (“s. 5 (3)”).

7 Any court before which any case involving a firearm offence is brought is required forthwith to transfer such case for trial by the Gun Court and the record is required to be endorsed accordingly but no objection to any proceedings may be taken or allowed on the ground that any case has not been so transferred (“s. 6 (i)”). Where any case within the jurisdiction of the Gun Court is brought before that court, the court may, if it is satisfied that the requirements of justice render it expedient so to do, transfer the case to such other court having jurisdiction in the matter, may be appropriate, and the record shall be endorsed accordingly (“s. 6 (2)”). A court on making an order under “s. 6 (1)” for transfer of a case to the Gun Court in respect of any person shall remand him in custody to appear before the Gun Court (“s. 6 (3)”). The Gun Court may hold its sittings in Kingston or St. Andrew and at such other places (if any) as the Chief Justice may, by order, from time to time appoint (“s. 7(1)”). Subject to the provisions of the Act, and any rules of court (if any), the court and the Resident Magistrates and Supreme Court Judges assigned thereto may sit and act at any time for determining proceedings under the Act (“s. 7 (3)”).

8 “Section 8” of the Gun Court Act confers special powers on the Gun Court in relation to cases charging the illegal possession of firearms. Normally the hearing of a case charging an offence contrary to “s. 20” of the Firearms ct, 1967 shall be commenced within 7 days of the date of the first appearance before the Gun Court on such a charge (“s. 8 (1)”). Any person who is guilty of an offence under “s. 20” of the Firearms Act, 1967 or an offence specified in the Schedule to the Gun Court Act, 1974 (an offence contrary to “s. 10” of the Firearms Act, 1967 is the only offence so far specified) shall upon summary conviction thereof be sentenced, pursuant to the Gun Court Act, to be detained at herd labour during the Governor-General's pleasure (“s. 8 (2)”). Special provisions in respect of the places of detention of persons under the age of 14 years are made by “s. 8 (3)” and the Gun Court may, on passing sentence of detention in any case in which in its opinion so warrants, make appropriate recommendations for the consideration of the Review Board established under the Act.

9 “Section 9” provides that “without prejudice to the generality of “s. 5” –

• (a) there shall be vested in a Resident Magistrate's Division and in a Full Court Division of the Court for the purposes of dealing summarily or on indictment (as the case may require) with any offence cognizable by the court, like powers and authorities as are vested in a Resident Magistrate's Court for the purpose of dealing with any offence the trial of which may be had before such a court summarily or on indictment, as the case may be, save and except that a Full Court Division of the Court shall have like power in relation to sentence as is possessed by a Circuit Court;

• (a) where any offence of which the court has cognizance is a capital offence the Circuit Court Division of the Court shall have the like powers and authority for the purpose of dealing with that offence as are vested in a Circuit Court for the purpose of dealing with such an offence.”

10 “Section 10” provides that “the Chief Justice shall from time to time assign to the court such Supreme Court Judges and Resident Magistrates and in such numbers as he thinks fit for the exercise of the...