Ray Morgan v R

• Jurisdiction: Jamaica
• Judge: Brooks P
• Judgment Date: 21 June 2021
• Neutral Citation: [2021] JMCA App 15
• Docket Number: APPLICATION NO COA2021APP00082
• Year: 2021
• Court: Court of Appeal (Jamaica)

Ray Morgan

and

R

BEFORE:

THE HON Mr Justice Brooks P

THE HON Miss Justice Straw JA

THE HON Miss Justice Edwards JA

APPLICATION NO COA2021APP00082

IN THE COURT OF APPEAL

Terrence Williams instructed by John Clarke for the applicant

Mrs Tracy-Ann Robinson and Dwayne Green for the Crown

Brooks P

1 Mr Ray Morgan's case was recently before a single judge of appeal, who considered and refused his application for bail, pending the hearing of his appeal ( Raymond Morgan v R [2021] JMCA App 8). The reason for the refusal was that Mr Morgan did not have a pending appeal before the court. The ruling at that time was that any appeal that Mr Morgan had, would have been deemed abandoned. Mr Morgan has since been released from prison. He, however, wishes to have his appeal reinstated, with a view to having it heard and determined. He wishes for his conviction quashed as redress for what, he says, is a breach of his constitutional rights, which included the right to have his appeal heard within a reasonable time.

2 We heard the application on 7 June 2021, but refused it. The order made was:

“The application for this court to hear and determine an appeal from the conviction and sentences imposed on 7 February 2011 in the Resident Magistrate's Court holden at Half Way Tree in the parish of Saint Andrew, is refused.”

We promised at that time to put our reasons in writing. This fulfils that promise.

Background

3 The background to Mr Morgan's case may be set out by quoting from the judgment in his previous application:

“[2] On 7 February 2011, Mr Morgan was convicted of four counts of the offence of obtaining money by false pretences. He was, on the same day, sentenced to three years' imprisonment in respect of each count. The learned Resident Magistrate ordered that the sentences should run consecutively. The result would be that Mr Morgan would serve 12 years' imprisonment, subject to any administrative procedure under the Corrections Act that would benefit him.

[3] Mr Morgan states that he gave verbal notice of appeal at the time of his sentence. He also states that he completed a formal notice of appeal and grounds of appeal against the convictions and sentences (Form B1) and submitted it to the prison authorities. The Form B1, upon which he relies, is dated 12 February 2011.

[4] …[Thereafter the] following missteps took place:

• a. the Form B1, which should have been filed at the Resident Magistrate's Court by 28 February 2011, was, instead, presented to the registry of this court on 7 March 2011, that is, outside the 21-day period allowed for grounds of appeal from convictions in the Resident Magistrate's Court.;

• b. the registry of this court did nothing about the filing until 9 February 2012, when it sent the Form B1 to the Senior Resident Magistrate for the Resident Magistrate's Court for the Corporate Area; and

• c. presumably because the Form B1 was late, nothing was done by the Resident Magistrate's Court, which neither replied to this court nor informed Mr Morgan of its stance in relation to his proposed appeal.”

4 In considering Mr Morgan's present application the court has to consider:

• a. if Mr Morgan ever had an appeal;

• b. if so, the present status of that appeal; and

• c. if the appeal has been deemed abandoned, whether it should be reinstated.

Did Mr Morgan ever have an appeal?

5 This question needs no extensive analysis. As there is no record from the court below, Mr Morgan will be taken at his word, for these purposes, that he did give verbal notice of appeal at the time that he was convicted. He would, therefore, have complied with section 294 of the Judicature (Resident Magistrates) Act, which was later renamed the Judicature (Parish Courts) Act. The legislation will be referred to herein as ‘the Act’. Section 294 of the Act stipulates that for an appeal to be initiated, the convicted person should either give a verbal notice of appeal at the time of conviction, or file a written notice of appeal within 14 days of the date of conviction. Based on the premise that Mr Morgan did give verbal notice of appeal, therefore, he, initially, would have had an appeal in place.

What is the present status of that appeal?

6 Section 296(1) of the Act requires that an appellant should file his grounds of appeal within 21 days of his conviction. The subsection states; in part:

“Notwithstanding anything contained in any law regulating appeals from the judgment of a Magistrate in any case tried by him on indictment or on information by virtue of a special statutory summary jurisdiction the appellant shall within twenty-one days after the date of the judgment draw up and file with the Clerk of the Courts for transmission to the Court of Appeal the grounds of appeal, and on his failure to do so he shall be deemed to have abandoned the appeal…” (Emphasis supplied)

7 Mr Morgan's grounds of appeal were filed after the stipulated 21 days. His appeal is therefore deemed to have been abandoned. The fact that he delivered it to the prison authorities within the stipulated time, does not avail him (see Hugh Richards v R [2014] JMCA Crim 48 at paragraph [38]). That was the finding on Mr Morgan's application for bail.

8 That finding led the single judge of this court to refuse Mr Morgan's application for bail. It also led to Mr Morgan's release from prison, since he had already served 10 of the 12 years' imprisonment that had been, effectively, imposed by the learned Resident Magistrate (as the judicial officer was then called).

Should the appeal be reinstated?

9 Mr Williams, appearing for Mr Morgan, submitted that the standard is that this court should reinstate the appeal once there is good cause shown and there is good cause in this matter. Mr Williams also submitted that Mr Morgan had satisfactorily explained the delay in making the application and the reasons for the delay. Learned counsel pointed to the fact that Mr Morgan was in prison, but despite his incarceration, had made several, though unsuccessful, efforts to identify the status of his appeal. He argued that if the statutory time limit is inflexible, it may be unconstitutional.

10 Despite an appeal having been deemed abandoned, this court may apply the proviso to section 296(1) of the Act. The proviso mitigates the effect of the subsection. The proviso states:

“Provided always that the Court of Appeal may, in any case for good cause shown, hear and determine the appeal notwithstanding that the grounds of appeal were not filed within the time hereinbefore prescribed.” (Emphasis supplied)

11 One basis for the court hearing an appeal pursuant to the proviso is that the applicant has a meritorious appeal. Another basis would be that justice demands the hearing of the appeal. Either of those would constitute “good cause” to merit the hearing of Mr Morgan's appeal.

Does Mr Morgan have a meritorious appeal?

12 Mr Morgan's ill-fated notice and grounds of appeal should be the starting point of the analysis of this issue. Although the notice of appeal challenged both Mr Morgan's conviction and sentence, the grounds of appeal were restricted to the issue of sentence. The grounds filed are:

• “(1) Unfair Trial — That based on the evidence as presented the sentences are harsh and excessive and cannot be justified under law.

• (B) [sic] That the actions of the Court is [sic] unlawful under law, with the sentences of Four (4), Three.(3) years consecutive sentences.

• (2) That the Learned Trial Judge did not temper justice with mercy as she failed to recognised [sic] and taken [sic] into consideration the two (2) years spent awaiting Trial.

• (3) That the Manifestation of the Sentences are [sic] reflected in [the] manner in which the learned Trial Judge read her own view into the Law and based on her utterances reflected in the severity of the sentences when she said ‘you should not see the Light of day’. This utterances [sic] prejudice the sentencing policy of the Court and the circumstances therefor.” (Underlining as in original).

13 Mr Williams submitted that, among other possible defects, the sentences seem to breach the totality principle in sentencing. Learned counsel cited, among others, Kirk Mitchell v R [2011] JMCA Crim 1 in support of those submissions. Learned counsel also pointed to Mr Morgan's affidavit evidence, filed on 4 June 2021, in which Mr Morgan deposed that on the day of the commencement of the trial, the learned Resident Magistrate permitted Queen's Counsel, who had been...