Shadrach Momah v R
| Jurisdiction | Jamaica |
| Judge | MCINTOSH JA |
| Judgment Date | 28 October 2011 |
| Neutral Citation | JM 2011 CA 103 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | RESIDENT MAGISTRATES CRIMINAL APPEAL NO. 29/2010 |
| Date | 28 October 2011 |
[2011] JMCA Crim 54
JAMAICA
IN THE COURT OF APPEAL
THE HON. MRS JUSTICE HARRIS JA
THE HON. MISS JUSTICE PHILLIPS JA
THE HON. MRS JUSTICE MCINTOSH JA
RESIDENT MAGISTRATES CRIMINAL APPEAL NO. 29/2010
Miss Melrose G. Reid for the appellant
Miss Meridian Kohler for the Crown
CRIMINAL LAW - Larceny by trick - Possession of forged documents - Withdrawal of plea - Excessive sentence
On 7 July 2011, we heard arguments in this appeal against the appellant's conviction and sentence in the Resident Magistrate's Court for the Corporate Area in June 2010 and we delivered the following decision on 29 July 2011:
‘1. The appeal is allowed in part. In relation to the charge of possession of forged documents and conspiracy to deceive the appeal is allowed and the convictions and sentences are quashed. Verdicts and judgment of acquittal are entered.
2. In relation to the charges of larceny by trick the appeal is dismissed and the convictions and sentences are affirmed.
3. The Deportation Certificate is quashed.’
We now give our reasons for the decision.
The appellant first appeared before the criminal division of the Resident Magistrate's Court for the Corporate Area on 14 April 2010 facing one charge of possession of forged document, one charge of uttering forged document, two charges of conspiracy to deceive and two charges of larceny by trick. From the summary of the case provided by the learned Resident Magistrate, it was revealed that the matter came up before the court repeatedly over the period April to June 2010 with the appellant being represented by different attorneys. However, on 4 June 2010, a date set for trial, the appellant appeared without legal representation, advising the court that his attorney was not available that day. The learned Resident Magistrate then caused enquiries to be made from the attorney named by the appellant, after which she clearly formed the view that the attorney named did not in fact appear for him. The learned Resident Magistrate decided that, in that event, the trial should proceed and on being pleaded to the six charges which the indictment before her contained, the appellant pleaded guilty to each charge.
Sentence was postponed to 21 June 2010 when the appellant appeared with his legal representative who then advised the court that the appellant wished to change his plea from guilty to not guilty of all charges. The learned Resident Magistrate then twice enquired into the reason for his altered position but no reason was forthcoming either from the appellant or his counsel. The request for a change of plea was denied and the learned Resident Magistrate again postponed sentence to 28 June 2010 on which date the appellant was sentenced as follows:
For possession of forged document - fined $30,000.00 or six months For one count of conspiracy to deceive - fined $25,000.00 or six months For one count of larceny by trick - fined $40,000.00 or six months.
He was admonished and discharged on the second counts of conspiracy to deceive and larceny by trick as well as on the charge of uttering forged document and, if the fines imposed on the other counts were not paid, the alternative sentences were to be served concurrently. The learned Resident Magistrate thereafter acceded to a request from an immigration officer who was present in court, that she certify the appellant as being a convicted person. This was pursuant to the provisions of the Deportation (Commonwealth Citizens) Act (‘the Act’).
Eleven days later, on 9 July 2010, the appellant filed a notice of appeal containing four grounds which after some amendment with the leave of the court read as follows:
‘1 The learned Resident Magistrate erred in law when she accepted the pleas of the appellant without legal representation.
2. The learned Resident Magistrate erred in law in refusing to allow the appellant to withdraw his pleas upon Counsel [sic] application to the Magistrate for a withdrawal.
3. That the sentence is manifestly excessive.
4. The learned Resident Magistrate erred in law in signing the Certificate recommending deportation.’
Counsel was also granted leave to argue an additional ground, namely that:
‘5. The Learned Resident Magistrate erred in law in not recognizing that the Appellant was pleaded on the wrong section of the relevant Law/Act on Information no 3623/10.’
That was with respect to the Information which charged possession of a forged document, to which the charge of uttering the forged document was added in the order for the indictment endorsed on it and signed by the learned Resident Magistrate.
The Arguments
Ground one – Did the magistrate err in accepting the plea of the appellant who was unrepresented?
Miss Reid submitted that the appellant gave the court clear indications of his need for legal representation and, notwithstanding the number of attorneys who had previously represented him, he demonstrated an intention not to face the court unrepresented. Although he was less than frank, on 4 June 2010, when he advised the court of the status of his legal representation, there was nothing to suggest that he had on any previous occasion deceived the court in this regard, Miss Reid said. In light of the fact that he had previously been represented the learned Resident Magistrate'should have assisted him with an offer of legal aid, she said, if it was determined that he was unable to retain counsel. Miss Reid submitted that the learned magistrate was in the position of an arbitrator with a duty to see that justice was done. However, her focus was on the readiness of the case for trial instead of balancing the scales of justice.
She cited two cases in support of her submissions that the trial was unfair namely, Joseph Carter (1960) CAR 225 as authority for the proposition that when a defendant is unrepresented the judge should protect him and R v Middlesex Crown Court, exparte Riddle [1975] Crim. L.R. 731 regarding the responsibility of the judge towards an unrepresented defendant. She submitted that in the instant case the learned Resident Magistrate offered no protection to the appellant and erred in allowing him to be pleaded without legal representation. The stance taken by the learned magistrate to proceed with the trial, although the appellant was unrepresented, may well have unduly impacted on or pressured the appellant to plead guilty, counsel contended, so that, in all the circumstances, the interests of justice were not served.
Miss Meridian Kohler based her arguments in response on a chronology of the events leading up to the learned magistrate's decision to proceed with the trial, pointing out that the appellant had had five different attorneys appearing for him up to 4 June 2010. The learned magistrate took into account the prosecution's readiness for trial not only on 4 June 2010 but on previous occasions as the witnesses were constantly in attendance. Further, on 4 June, the appellant was seeking a two week adjournment, she submitted, to allow for the attendance of an attorney whom the court learnt did not in fact appear for him.
Counsel referred us to the case of Beacher v R [2007] CILR 6 where it was said that ‘The reasonableness of an adjournment request must be considered in the light of all the circumstances, including the adequacy of the defendant's efforts to obtain counsel in a timely manner’. She submitted that there is no proposition in law which prevents a court from accepting an unequivocal plea from an accused who is unrepresented especially where that status was due to his own failure to ensure counsel's attendance. It was Miss Kohler's further submission that the learned Resident Magistrate exercised her discretion judicially in not granting the adjournment and properly took the decision to proceed with the trial. In all the circumstances, Miss Kohler argued, there was no injustice to the appellant.
We did not find the authorities relied on by Miss Reid to be helpful to the appellant. Joseph Carter is easily distinguishable from the instant case in that, the appellant had been told of the hearing only that morning and had expected that it concerned bail. His application for an adjournment to have legal representation was refused and at the trial he was denied the opportunity to call witnesses. In addition, the judge had commented unfavourably about the lack of supporting documentary evidence (which no doubt would have been the responsibility of his counsel had he been permitted to have one) so that the court concluded that the appellant had not received a fair trial. Equally distinguishable is the Middlesex Crown Court case where the applicant complained that he was denied the opportunity of making a final speech. The court held that there was no clearer example of the requirements of natural justice than that a man should have a fair chance to state his own case in his defence.
The appellant in the instant case knew well that the matter had reached to the trial stage even before 4 June...
To continue reading
Request your trial
-
Marc Wilson v R
...documents to which it relates and these do not include a forged CXC certificate. This court had made it clear in Shadrach Momah v R [2011] JMCA Crim 54 that the Resident Magistrates' Courts do not have jurisdiction to deal with the offences relating to possession of forged documents under t......