Henderson J
Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 21.07.11 Page 1 of 5 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 HOLDEN IN GEORGE TOWN, GRAND CAYMAN 2 IND. NO. 61 OF 2010 3 4 REGINA 5 V. 6 RAZIEL JEFFERS 7 8 Appearances: Mr. Trevor Ward of the Office of the Director of Public 9 Prosecutions for the Crown 10 11 Mr. Peter Polack of Polack & Company instructing 12 Mr. Peter Champagnie for the Defendant 13 Before: Hon. Justice Henderson 14 Heard: July 21st 2011 15 16 RULING 17 18
The accused, Raziel Jeffers, is charged with murder, a Category A offence. He 19 applies for a dismissal of the charge pursuant to the new Fifth Schedule to the 20 Criminal Procedure Code, which reads in part: 21 "Fifth Schedule (Section 85A) Application for Dismissal. 22
Where a person has had a matter transmitted to the Grand Court under 23 section 85A of this Law, that person may, on any charge or charges, at any 24 time - 25 (a) after he is served with copies of the document containing the evidence on 26 which the charge or charges are based; and 27 (b) before he is arraigned and whether or not an indictment has been preferred 28 against him, 29 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 21.07.11 Page 2 of 5 apply orally or in writing to the Grand Court for the charge or any of the 1 charges in the case to be dismissed. 2
The Judge shall dismiss a charge and accordingly quash any count relating 3 to it in any indictment preferred against the applicant, which is the subject 4 of any such application if he is satisfied that the evidence against the 5 applicant would not be sufficient to put the applicant on his trial." 6 I will refer to such a hearing as a "Fifth Schedule hearing." 7 8
The amending law - the Criminal Procedure Code (Amendment) Law, 2011 - 9 was proclaimed in effect as of February 1st, 2011. I will refer to that date as 10 the "amendment date". 11 12
Prior to the amendment date, a person charged with murder had a right to a 13 preliminary inquiry in the Summary Court. There was a long form preliminary 14 inquiry into the sufficiency of the evidence against Mr. Jeffers in our 15 Summary Court and he was committed for trial in July 2010 under the former 16 procedure. 17 18
The intent of the Legislative Assembly becomes apparent when one examines 19 the provision, section 85A of the Criminal Procedure Code, which is referred 20 to in section 1 of the Fifth Schedule. Section 85A reads: 21 (1) Where a charge has been brought in a Summary Court against a person in 22 respect of a Category A offence, the court shall transmit the matter 23 forthwith to the Grand Court for hearing. 24 (The rest of that section is not material.) 25 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 21.07.11 Page 3 of 5 1
In other words, persons charged with Category A offences will no longer have 2 preliminary inquiries in the Summary Court. Instead the case must be 3 transmitted forthwith to this court. Section 85A is an entirely new provision 4 which did not exist in any form before the amendment date. 5 6
The legislative intent is clear. As a substitute for the preliminary inquiry which 7 is no longer available to an accused, he may apply instead for a Fifth Schedule 8 hearing. The procedure on such an application differs somewhat from that 9 followed at a preliminary inquiry but the underlying intent is the same. In each 10 case, the object is to obtain a judicial determination at a relatively early stage 11 in the case of whether there is sufficient admissible evidence against the 12 accused to justify a trial. The procedure in each case is an important safeguard 13 of the rights of an accused person. 14 15
There is nothing in the provisions to which I have so far referred which 16 suggests that the Legislative Assembly intended to make available to an 17 accused both a preliminary inquiry and a Fifth Schedule hearing. The latter is 18 simply meant to be a substitute for the former. The opening words of section 1 19 of the Fifth Schedule show that it is intended to apply only to those whose 20 cases have been transmitted to the Grand Court under section 85A, a section 21 which did not exist until the amendment date. 22 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 21.07.11 Page 4 of 5 Mr. Jeffers' argument is based upon the transitional provisions found in 1 section 25 of the amending law. Section 25(1) is of no assistance to the 2 accused. It applies only to preliminary inquiries commenced before the 3 amendment date but concluded on or after that date or to trials commenced 4 before the amendment date but concluded on or after that date. It has no 5 application in the case at bar. 6 Section 25(2) reads: 7 "Where a person has been charged but no committal hearing or trial has 8 commenced in the relevant court when the new Law comes into force, the 9 committal hearing or trial is to be taken to be a committal hearing or trial 10 commenced under the new Law and the provisions of the new Law are to 11 apply accordingly." 12 13
By a careful parsing of this subsection, Mr. Champagnie urges upon the court 14 a conclusion that Mr. Jeffers is entitled now to a Fifth Schedule hearing in 15 addition to the preliminary inquiry he has had. Mr. Champagnie says: first, 16 Mr. Jeffers had been charged by the amendment date when the new Law came 17 into force; second, his trial had not commenced by that date; third, as a 18 consequence, the last part of section 25(2) applies, that is, the part which 19 reads: "…the committal hearing or trial is to be taken to be a committal 20 hearing or trial commenced under the new Law…" and the provisions of the 21 new Law are to apply accordingly. 22 23
In my view, the Legislative Assembly intended section 25(2) to be read 24 disjunctively as embodying two distinct rules of transition. First, where a 25 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 21.07.11 Page 5 of 5 person had been charged by the amendment date but no preliminary inquiry 1 had been commenced by that date the new Law is to apply and the accused's 2 remedy, if he chooses to exercise it, is a Fifth Schedule hearing instead of a 3 preliminary inquiry. Second, where a person had been charged by the 4 amendment date but no trial had been commenced by that date, procedural 5 changes brought in by the new Law are to apply at the trial. Neither of these 6 two transitional rules applies to Mr. Jeffers. The first has no application as his 7 preliminary inquiry was completed before the amendment date. The second is 8 not applicable as his trial has not yet started. 9 10
For these reasons, Mr. Jeffers' application for a Fifth Schedule hearing is 11 dismissed. 12 Dated this 21st day of July, 2011 13 14 15 16 17 Henderson, J. 18 Judge of the Grand Court 19