Sylvester Stewart v R

• Jurisdiction: Jamaica
• Judge: F Williams JA
• Judgment Date: 27 January 2017
• Neutral Citation: JM 2017 CA 6
• Docket Number: RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 4/2016
• Court: Court of Appeal (Jamaica)
• Date: 27 January 2017

[2017] JMCA Crim 4

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P

The Hon Mr Justice F Williams JA

The Hon Miss Justice Edwards JA (AG)

RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO 4/2016

Sylvester Stewart

and

R

Peter Champagnie for the appellant

Mrs Sharon Millwood-Moore and Miss Keisha Prince for the Crown

F Williams JA

Background

1 This matter came before us as an application for extension of time to file an appeal. On 6 December 2016 we refused the application. These are our promised reasons for doing so.

2 The applicant was convicted in the corporate-area criminal court on information charging him with two counts of assault at common law. The facts gleaned in this matter in the absence of the notes of evidence are to the effect that, on the Crown's case, the applicant pointed his licensed firearm at and threatened two complainants. This is said to have occurred after the applicant used the motor vehicle he was driving to chase that in which the two complainants were travelling, confronting them when they had stopped and accusing them of causing their vehicle to “splash” him, by driving through a pool of water on the road. He is said to have uttered to the complainants words to the effect that it was only the mercy of God that prevented him from shooting them when he had caught up with and confronted them.

3 On being found guilty, he was fined the sum of $15,000.00 with the option of serving 30 days in prison. The sentence was imposed on 4 November 2002.

4 A document headed “Notice of Intention to Appeal Sentence” was filed in the name of the attorney-at-law then representing the applicant (not Mr Champagnie) on 21 November 2002. And on 29 November 2002 a document headed “Notice and Grounds of Appeal” was filed in the name of the said then attorney-at-law, now deceased.

5 The documents put together to form the record of appeal reveal that, since assuming conduct of the matter, Mr Champagnie has made numerous efforts to secure the relevant notes of evidence. However, this has been to no avail. When the matter first came before us on 23 September 2016, we adjourned it and directed the Registrar of this court to assist the process by trying to obtain the said notes through the relevant court administrator; as well as copies of the entries made by the learned Resident Magistrate in the court sheet relating to the trial. Thankfully, the court and counsel on both sides were provided with copies of the relevant entries in the court sheet. However, regrettably, the notes of evidence still were not produced. The court would, therefore, have been hard pressed had it been required to give any decision based on the merits of the case.

The law relating to the filing of criminal appeals

6 In the Resident Magistrates' Courts (now referred to as the Parish Courts) the requirements for appealing a criminal conviction and sentence are set out in sections 294 and 295 of the Judicature (Parish Courts) Act (as it is now known – “the Act”). The requirements for the filing of grounds of appeal are set out in section 296 of the said Act. It is necessary to set out these provisions in their entirety in order to assist with a full appreciation of the difficulty faced by the applicant in the instant case. The provisions (as amended in February 2016) read as follows:

“ 294.—(1) Any person desiring to appeal from the judgment of a Judge of the Parish Court in a case tried by him on indictment or on information in virtue of a special statutory summary jurisdiction, shall either during the sitting of the Court at which the judgment is delivered give verbal notice of appeal, or shall within fourteen days from the delivery of such judgment give a written notice of his intention to appeal, to the Clerk of the Courts of the parish.

(2) Every written notice of appeal shall be sufficiently signed, if signed by or on behalf of the appellant either with his name or mark, or with the name of his solicitor, but if signed with his mark, such signature shall be attested by a subscribing witness.

295. If the appellant shall fail to give the notice of appeal as herein provided, his right to appeal shall cease and determine.

296.-(1) Notwithstanding anything contained in any law regulating appeals from the judgment of a Judge of the Parish Court 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:

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.

(2) The grounds of appeal shall set out concisely the facts and points of law (if any) on which the appellant intends to rely in support of his appeal and shall conclude with a statement of the relief prayed for by the appellant.

(3) The Court of Appeal may dismiss without a hearing any appeal in which the grounds of appeal do not comply with the provisions of subsection (2).” (Emphases added)

Discussion

7 A perusal of sections 294 and 295 of the Act makes it apparent that, in order to have a valid appeal, a prospective appellant has either: (i) to give oral notice of appeal at the time judgment is given; or (ii) to file a written notice of appeal within 14 days of the said judgment. The clear meaning of...