Levers J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL APPEAL NO: 10 of 2004 BETWEEN: HORACE REID AND: THE QUEEN BEFORE: The Honourable Madam Justice Levers Appearances: Mr. Nicholas Dixey of Quin & Hampson for the Appellant Ms. Marlene Smith for the Crown RULING Levers J. The Appellant appeals against his conviction on the 2 April 2004 in the Summary Court on a charge of possession with intent to supply, contrary to section 4 (1) (m) of the Misuse of Drugs Law (2000 Revision), the particulars being that Horace Reid on Friday 16 May 2003 in the vicinity of Huldah Avenue, George Town, had in his possession whether lawfully or not with intent to supply whether by himself or another person a controlled drug namely cocaine being more than two ounces. Fundamental to this appeal is the procedure that was followed by the Court, which resulted in this conviction. The facts are of little relevance in this particular appeal. Background The Appellant had pleaded not guilty to three charges, involving Dangerous Drugs namely cocaine.
Charge 3425/2003, Possession with intent, in the vicinity of Huldah Avenue, jointly charged with Winston White.
Charge 3531/2003, Possession with intent, at 59 Winfern Close, jointly charged with Winston White and Elon Dixon.
Charge 3426/2003, Conspiracy to supply, jointly charged with Winston White and Elon Dixon. The trial commenced on the 26 November 2003, and the first two witnesses for the prosecution were called and cross-examined. On 27 November 2003, upon an application by Crown Counsel Mr. Scott Wilson after the two prosecution witnesses had been cross-examined, the Learned Magistrate permitted the withdrawal of the charges 3425/2003 and 3426/2003. The remaining charge was 3531/2003, which was the Possession with intent at #59 Winfern Close in which Horace Reid was jointly charged with Winston White and Elon Dixon. At the close of the prosecution's case, Winston White, the co-accused was acquitted upon a submission of no case by his counsel. The Defence case opened on the 29 January 2004, the Appellant gave evidence in his defence. After the evidence had been completed and closing submissions were being made, Crown Counsel intervened, and explained that the wrong charge had been withdrawn at the start of the case in error. Application was made to substitute the withdrawn charge pursuant to section 73 of the Criminal Procedure Code. The Appellant's counsel formerly opposed the application, and the learned Magistrate after hearing submissions from both sides ruled in favour of the application, and granted the amendment on the 27 February 2005. The Appellant pleaded not guilty to the reinstated charge and two police witnesses were recalled to be cross-examined. On 2 April 2004, the Learned Magistrate acquitted the Appellant of charge 3531/2003 that is the drugs in the house. However, the Learned Magistrate convicted the Appellant of charge 3425/2003, (this is the charge that had been withdrawn during the prosecution case, and reinstated after the completion of the case for the defence). Mr. Nicholas Dixey for the Appellant now argues that section 73 of the Criminal Procedure Code does not give the Learned Magistrate jurisdiction to substitute a withdrawn charge, and that such substitution coming as it did after the end of the case caused injustice to the accused. He argues that it is not for the Appellant to establish prejudice rather it is for the prosecution to refute it. He submits that given that the restoration of the charge was made during closing speeches, the Crown could not hope to discharge this burden. His entire argument is put in this way: "That the procedure followed in reinstating a withdrawn charge in the middle of closing speeches, and then convicting the Appellant of that charge, is procedurally irregular, and to uphold such manoeuvring would be to seriously compromise the integrity of the criminal court, and would bring the Jurisdiction into justifiable disrepute." This case requires a careful reading of section 73 and section 82 of the Criminal Procedure Code. Section 73 of the Criminal Procedure Codes reads: (1) Where, at any stage of a trial it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration or addition of a charge, as the court thinks necessary to meet the circumstances of the case: Provided that where a charge is altered, added or substituted as aforesaid, the court shall thereupon call upon the accused person to plead to the altered or new charge: Provided further that in such case the accused person shall be entitled, if he so wishes, to have the witnesses (or any of them) recalled to give evidence afresh or to be further cross-examined by the defence, and, in such last mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination. (2) Variance between a charge and the evidence adduced in support of it with respect to the day upon which the alleged offence was committed is not ordinarily material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time, if any, limited by law for the institution thereof and the actual date is not material on any other ground. (3) Where an alteration, addition or substitution of a charge is made under subsection (1) or there is a variance between the evidence and the charge as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived or may be prejudiced in the conduct of his defence, adjourn the trial for such period as may be reasonably necessary in the interest of justice. The first and most important aspect of the administration of justice which includes the administration of the criminal law is that it should appear that the prisoner is having a fair trial and he should not be left with any sense of injustice on the grounds that his case has not been fairly tried. This principal need not be limited to submissions to the jury, but it should be extended to every aspect of the trial. Bearing that fundamental proposition in mind, one should examine section 73 (1) of the Criminal Procedure Code (2003 Revision) carefully: (1) Where, at any stage of a trial it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration or addition of a charge, as the court thinks necessary to meet the circumstances of the case: Provided that where a charge is altered, added or substituted as aforesaid, the court shall thereupon call upon the accused person to plead to the altered or new charge: Provided further that in such case the accused person shall be entitled, if he so wishes, to have the witnesses (or any of them) recalled to give evidence afresh or to be further cross-examined by the defence, and, in such last mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination. It is an accepted principal that any alteration in matters of description and probably in many other formal respects may be made in order to meet the evidence in the case, so long as the amendment causes no injustice to the accused person. Where the indictment is defective in mere description of the thing obtained, the substance of the charge remains the same an amendment could cure the defect. It is usual not to have a complaint about that sort of amendment being permitted. However, in this case it is not a question of a charge being defective but the charge being withdrawn. Regrettably, the Magistrate notes are either incomplete or defective in this regard. When the charge was withdrawn, under section 82 of the Criminal Procedure Code, the Magistrate should have done one of two things: She should have made an order acquitting the accused or an order discharging the accused. Had this happened a reinstatement of the charge could not have been considered in the Summary Court. The ruling should have been entered in the court register or the file. Had the Magistrate acted properly in either acquitting the accused or discharging the accused when the charges were withdrawn, the Crown could not have asked for this charge to be resurrected at the end of the case. Crown Counsel relies on the case of R v Jokel and Ram, 56 Cr. App. R. 348 and submits that the ratio of that case is clear that an amendment of any kind, including the addition or substitution of a count may be made at any stage of the trial provided, that having regard to the circumstances of the case and the power of the court to direct a separate trial of any accused or to postpone the trial, the amendment can be made without injustice. It would appear that she has not read the judgment of Ashford J at page 452 and I quote: "This Court shares the view expressed in some of the earlier cases that an amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby." Although in this case Counsel was given the opportunity to cross examine the two witness, it is my view and I am persuaded by the case of Lewis v Regina, [2003] CILR at page 175 that the amendment coming as late as it did, after the close of the entire case, it must be inevitable that the accused suffered prejudice. Indeed, section 74 of the Criminal Procedure Code provides that when all the evidence has been heard, the only course opened to the Court is to convict and pass sentence or to acquit. Crown Counsel submits that a failure to comply with section 82 is not such a failure as to void the amendment and is a procedural step only. With all due respect to Crown Counsel that to my mind is not the question. The question is whether an amendment coming at so late a stage runs the risk of an injustice being done (see R v Gregory [1972] 2 All ER at page 861). As was said in R v Piggott [1999] 2 Cr. App. R. at page 320: "In the circumstances we are of the view that to allow amendments at the stage where they were allowed in this case, after the trial lasting some 10 days and which could only be proceeded with by ordering a retrial which would traverse the same ground as the first trial but on counts which the appellants were entitled to think had been withdrawn did cause an injustice to the defendants. In those circumstances we are of the view that the amendments to the indictment should not have been allowed." For these reasons, I am of the opinion that the amendments should not have been allowed after it had been withdrawn and the appeal is allowed. Dated this 15 day of June, 2005 Judge of the Grand Court.