Thelwell v DPP and Attorney-General

• Jurisdiction: Jamaica
• Judge: FORTE, J.A. , BINGHAM, J.A.: , LANGRIN, J.A. (Ag).
• Judgment Date: 26 March 1999
• Neutral Citation: JM 1999 CA 23
• Judgment citation (vLex): [1999] 3 JJC 2610
• Court: Court of Appeal (Jamaica)
• Date: 26 March 1999

IN THE COURT OF APPEAL

BEFORE

THE HON. MR. JUSTICE FORTE, J.A THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE LANGRIN J.A. (Ag)

BETWEEN

DENNIS THELWELL

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

THE ATTORNEY GENERAL

RESPONDENT

Mr. Ian Ramsay Q.C. and Miss Deborah Martin for the appellant

Mr. Bryan Sykes, for the Director of Public Prosecutions

Mr. Curtis Cochrane for the Attorney General instructed by the Director of State Proceedings

CONSTITUTIONAL LAW - Constitutional motion - Whether dismissal of charges on information amounted to acquittal

FORTE, J.A.

1 The appellant in an Originating Motion, invoking the provisions of Section 20 of the Jamaica Constitution moved the Constitutional Court for the following declarations:-

• (1) that the dismissal of the applicant ordered by the Learned Resident Magistrate, Mrs. Norma Von Cork at the Half Way Tree Resident Magistrate's Court for the Corporate Area on the 6th day of May, 1996, upon no evidence being offered against him by the prosecution on Informations 3235 of 1995 through 3239 of 1995 constituted a bar to subsequent criminal proceedings for those said offences against the Applicant;

• (2) that the hearing before the aforesaid Learned Resident Magistrate upon the said 6th May, 1995 and upon which the prosecution offered no evidence amounted to and was in fact and in law a trial;

• (3) that the aforesaid order of the aforesaid Learned Resident Magistrate dismissing the aforesaid Informations amounted to and was in fact and in law an acquittal of the offences charged in the said Informations.

• (4) that the offences charged in Informations 2383 of 1997 through 2386 of 1997 are the said offences that were charged in Informations 3235 through 3239 of 1995 and which were dismissed as aforesaid by the Learned Resident Magistrate for the Corporate area on the 6th May, 1996.

• (5) that the present trials on Informations 2383 through 2386 of 1997 commenced on the 5th day of April, 1997 and set for continuation on the 10th day of November, 1997 is in breach of Section 20 Sub-Section 8 of the Constitution and is in contravention of the Applicant's rights thereunder.

2 In the alternative he prayed for a declaration that the renewal of the same charges which had been previously dismissed after an unexplained lapse of time constituted an abuse of the process of the court.

3 He then asked for the following orders:-

• (1) That the said Informations 2383 through 2386 of 1997 be set aside as null and void and/or quashed and/or dismissed by reason of the contravention of Section 20 Sub-Section 8 of the Constitution; and that the appellant be unconditionally discharged;

• (2) That the appellant be awarded compensation to be assessed as the Court may direct;

4 and also prayed inter alia for costs.

5 This Motion had its genesis when the appellant was arrested on the 17th April, 1995 on warrants arising out of the five informations as set out below:

• (1) Information 3235/95 - Conspiracy to export ganja;

• (2) Information 3236/95 - Possession of ganja contrary to Section 7 (a) of the Dangerous Drugs Act;

• (3) Information 3237/95 - Taking steps preparatory to exporting ganja;

• (4) Information 3238/95 -Trafficking ganja; and

• (5) Information 3239/95- Dealing in ganja

6 He was brought before the Resident Magistrates Court at Half Way Tree on the 13th May, 1995, where after several mention dates thereafter the case was set for trial on the 6th April, 1996. It is on this day that unusual and strange occurrences took place. The affidavits disclose that at that time there were two Courts at the Half Way Tree Resident s Court to which trial of summary cases were assigned. On this day the appellant attended in Court 6, as a result of an enquiry by his attorney, Mr. Dennis Maragh who was informed that the case was listed in that Court before Her Honour Mrs. Von Cork. The case was however also listed in Court 4 before another Resident Magistrate Miss Christine McDonald. In Miss McDonald's Court, were the informations upon which the appellant was to be tried, and the "complete file" containing the statements of the witnesses, and the analyst's certificate concerning the drugs which formed the bases of the offences for which the appellant was before the Court The investigating officer was also present at Court 4, and it appears that the Crown was ready to present its case. The appellant of course, was not present there. His instructing Attorney, Ms. Susan Richardson was however present. The Crown alleges that Ms. Richardson, informed the Court that she had seen him in the precincts of the Court earlier, but did not at that time know where he had gone. A bench warrant was then issued for the arrest of the appellant and on the application of Ms. Richardson a stay of execution was granted to the 24th June, 1996.

7 In the meantime, the appellant was in Court 6 with his other attorney Mr. Dennis Maragh. In that Court, there were no informations, and according to the Clerk of the Courts Miss Yolanda Lloyd-Alexander, who was dealing with the case for the first time, there were some statements and the warrants upon which the appellant had been arrested. The existence of two separate files in respect of the same matter is in itself a strange phenomenon. The investigating officer was called but did not answer. This is understandable as he was present in the other Court, waiting for the attendance of the appellant. Then Mr. Maragh pointed out to the Court that the appellant had attended court on nine mention dates leading up to that day, the 6th May, 1996 which was the first trial date. In the absence of the investigating officer and the witnesses, he moved that the case be dismissed for want of prosecution. The Clerk of Courts, no doubt a young inexperienced one, then offered no objection. In spite of the absence of the informations, which should have aroused her sense of carefulness, and doubt as to whether she was in fact in possession of the "complete file", she acquiesced in the application of Mr. Maragh. The learned Resident Magistrate also without any enquiry as to the absence of the informations or standing the case down for a while, the time being 11:15 am. proceeded to grant the application of Mr. Maragh. The learned Resident Magistrate in her affidavit, however speaks to the Clerk of Courts offering no evidence. The Clerk in her affidavit, concedes that she did not oppose Mr. Maragh's affidavit, but does not speak to having "offered no evidence". Nevertheless, there being no information before the Court, the Clerk of the Courts endorsed one of the warrants which the learned Resident Magistrate signed, [ironically the one upon which the appellant was arrested for conspiracy] as follows:

"On 6th May, 1996 no evidence offered-

Dismissed (nine mention dates and one trial date No Crown witnesses attending and up to present file incomplete) No certificate".

8 The indorsement speaks clearly to the fact that no evidence was offered. The other warrants remained unindorsed, and as the indorsement could only speak to the offence stated on the warrant one has to look to the affidavits to determine that the 'dismissal' of the appellant related to all the offences.

9 After this day, the appellant in obedience to the order of the Court re the Bench Warrant, attended at the Court on the 24th June, 1996. Subsequent events show that the matter was referred to the Director of Public Prosecutions who laid new informations which charged the appellant, with the exact charges which were dealt with by her Honour Mrs. Von Cork, and on which he was dismissed. The trial of those subsequent informations began in the Half Way Tree Resident Magistrate Court after a long delay due to the illness of the appellant's counsel, Mr. Maragh, and indeed the illness of the appellant. When it commenced Mr. Maragh was absent No formal plea of autrefois acquit was ever entered. However, the appellant, during the course of that trial, filed the Notice of Motion heretofore referred, and which has resulted in this appeal, he having failed to obtain the redress he sought in the Constitutional Court, where by a majority, the Motion was dismissed. In the meantime, the case against him in the Half Way Tree Resident Magistrate Court, has been stayed awaiting the results of his Constitutional Motion.

10 Against this background, the issues before us are clearly defined. They are simply (1) whether, having regard to the factual situation, the appellant's rights under Section 20 (8) of the Constitution are being infringed or; (2) whether there is an abuse of the process of the Court.

11 ARE THE APPELLANT'S RIGHTS UNDER SECTION 20(8) OF THE CONSTITUTION BEING BREACHED

12 (1) A good starting point is the provisions of Section 20(8) so far as are relevant. They read as follows:

"20 (8) - No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal and no person shall be held for a criminal offence if he shows that he has been pardoned for that offence".

13 These provisions merely entrench the common law right which the citizen had i.e that no person can be tried twice for the same offence except of course by the order of a court where e.g. because of errors made in a trial ending in conviction, the court may order a new trial. In respect of an acquittal it has been long settled that a person acquitted of an offence can never be brought back for another trial in respect of the same offence.

14 The conditions which must be satisfied before a plea of...