AGDOMA v. TOMY

296

WEST INDIAN REPORTS

[(1988), 12 W.I.R.

AGDOMA v. TOMY [HIGH COURT OF ST. LUCIA-WEST INDIES ASSOCIATED STATES (Bishop and

Peterkin, JJ.), July 29, 1968] Charges-Defendant charged with two offen008-Not present at hearing.com Personal service of summonse8 proved-Charges heard ex parte and convictions B recordedAppearance by defendant later samo day with counsel Medical certificato tonderod in wplanation of defondants absence-Decision by magis. trato to set aside convictions and re-hear charges-Announcement by magistrato on date of the hearing that he would refer case to High Court-Opinion of High Oourt sought as to whothor decision to re-hear charges correct-Criminal Code, Cap. 260 (St. Lucia), 8. 1078 (1) (a).

Section 1075 (1) (a) of the Criminal Code, Cap. 250 (St. Lucia), reads :

“1075. (1) If the defendant against whom a summons is issued does not appear before the court at the time mentioned therein, and it is proved upon oath, to the satisfaction of the court, that the summons was duly served within the time appointed for appearing to the same or that the defendant wilfully D avoids service, the court may, in its discretion, either

(a) proceed ex parto to the hearing of the complaint and adjudicate there. on as fully and effectually to all intents and purposes as if the defendant had

personally appeared before it in obedience to the summons. …” The defendant having been summoned to appear before a magistrate on June 17, 1968, to answer two offences with which he was charged failed to appear at the time of hearing mentioned in the summonses. Proof upon oath to the satis. faction of the magistrato of the service of the summonses having been given he prooeeded to hear the complaints ou parte, adjudicated thereon and convicted the defendant on both complaints. Later at about 2.45 p.m. the same day the defendant appeared in court with his counsel who submitted a medical certificate on his behalf and explained that his absence from court that morning was due to illness.

In these circumstances the magistrate decided the convictions and sentences should not stand and he set them aside and arranged to re-bear the cases on June 27, On this date when the cases came up for re-bearing the magistrate announced in open court that he would instead refer the cases to the High Court for an opinion on a case stated, and he submitted for the opinion of the High G Court the question : “Whether on the above statement of facts the District Court came to a correct decision in point of law in setting aside the convictions and sentences and acceding to a re-bearing of the cases ?”

Hold: (i) Service of the summonses on the defendant having been established on oath to the satisfaction of the magistrate, the magistrate was at liberty to proceed ca parte to hear the complaints, and having done so he was functus” officio and therefore had no jurisdiction to re-bear the complaints;

(ii) the conviotions will accordingly stand unless set asido on appeal.

Reference answered in the negative. Cases referred to:

(1) R. v. London Quarter Sessions, ex parte Rossi, [1956] 1 All E.R. 670; b 

(1966) 1 Q.B. 882; [1956] 2 W.L.R. 808; 120 J.P. 239; 100 Sol. Jo. 225,

C… (2) R. v. Manchester JJ., ex parte Lever, (1987) 3 All E.R. 4; [1987] 2 K.B.¬†

96; 101 J.P. 407; 106 L.J.K.B. 519; 167 L.T. 68; 58 T.L.R. 687; 81 Sol. 

Jo. 571; 35 L.G.R. 281; 30 Cox, C.C. 608. Caso stated by a District Court in St. Lucia for the opinion of the High Court.

W.I.A.S.) 

AGDOMA V. TOMY (BISHOP, J.) 

297

A J. D. B. Renwick (Attorney-General) for the complainant.

St. George Murray for the defendant.

PETERKIN, J.: The matter appears before us in the form of a case stated by the learned magistrate. The circumstances are as follows:

The defendant in this matter was summoned to appear before the learned B magistrate on June 17. He was charged with two offences. The first was for

failure to slow down and balt, at a major road. The second was for assaulting woman police constable Agdoma.

The learned magistrate proceeded under s. 1075 of the Criminal Code to try the matters ex parte in the absence of the defendant. There was service on the defendant personally and this was sworn to. He proceeded under 1076 (1) (a) to the hearing of the complaint and be adjudicated thereon as fully and effeotually to all intents and purposes as if the defendant had personally appeared before the court in obedience to the summons.

He convicted the defendant on the charge of failing to stop at a major road and fined him ten dollars. On the complaint for assault he sentenced him to two months imprisonment with hard labour.

At 2.45 p.m., i.e. sometime later in the day, the defendant appeared in court represented by counsel, who, on tbe defendant’s bebali, submitted a medical certibcate and explained that the defendant’s absence from court that morning – was due to illness.

In the light of these circumstances, the learned magistrate was of the opinion that the convictions and sentences should not stand and he decided to set the E same aside and to re-bear the cases on June 27.

When the cases came up for re-bearing on June 27, 1988, he had second thoughts, and be announoed is open court before re-bearing that be would refer the cases to the High Court for an opinion on a case stated. The question sub. mitted for the opinion of the High Court is “whether on the above statement of

facts the District Court came to a correct decision in point of law in setting I aside the convictions and sentences and acceding to a re-bearing of the cases ?”¬†

He then referred to the case of R. v. London Quarter Sessions, ex parte Rossi (1). We have also been referred by the learned Attorney-General, among other decisions, to the decision in the case of R. v. Manchester JJ., et parte Lover (2).

Having regard to the arguments and findings in that case, and the circum. stances of the present cases, we are of the opinion that there is a sharp distinction G between what may be desoribed as a nullity of procedure or a mis-trial on the one band, and the facts and circumstances of the present CA696 on the other.

The learned Attorney-General has conceded that in the event of the defendant not having been served at all, that there would be a mis-trial. In short, the pro. cedure would amount to a bullity and the defendant would be entitled cat debito justitiae to a re-bearing. We agree. The facts and circumstances of the present cases bowever do not amount, in our opinion, to a mis-trial and a nullity. We feel that the learned magistrate having adjudicated under 6. 1075, sub-8. (1) (8) was functus officio and would have, under the circumstances, no jurisdiction to re-bear the cases.

The opinion of the court for which the learned magistrate has asked will be recorded accordingly, and be will be so informed.

In the circumstances the exc parte decisions of June 17, 1968, stand, and can only be set aside on appeal.

BISHOP, J.: There is nothing I can usefully add except to reiterate that it is clear on the facts stated by the magistrate that be had effectually and fully dis posed of the matter when be heard it cx parte on the morning of June 17. The circumstances under which counsel produced a medical certificate in the after. noon accounting for the absence of the defendant that morning do not amount to

298

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a aullifying of the proceedings and I agree with the opinion that we should direct A the magistrate that he had no authority to set aside the convictions and to decide to re-bear the cases under the partioular circumstances set out in the facts of this case.

Roforenco answered in the negative.

CHARLES v. BYRON (Superintendent of Police) (Hros COUBT or ANTIGUA-West INDIES ASSOCIATED STATES (A. M. Lewis, C.J., 

and Glasgow, J.), May 28, 1968] Appeal-Appellant charged with dangerous driving-Conclusion by magistrate that caso was one of careloss driving-Prescribed procedure not followed Conviction and sontonos quashedNew trial ordered-Vehicles and Road Traffic Ordinanoo, Cap. 288 (Antigua), s. 68.

Section 58 of the Vehicles and Road Traffio Ordinance, Cap. 288 (Antigua] reads :

“68. Where a person is charged summarily before a magistrate with an offence under s. 58 (which relates to reckless or dangerous driving) and the E magistrate is of the opinion that the offence is not proved, then at any time during the hearing or immediately thereafter, the magistrate may, without prejudice to any other powers possessed by him, direct or allow a charge for an offence under 8. 54 (which relates to careless driving) to be preferred forthwith against the defendant and may thereupon proceed with that charge, Bo bowover that the defendant or his solicitor or counsel shall be informed I of the now charge and be given an opportunity, whether by way of cross. . examining any witness whose evidence has already been given against the defondant or otherwise, of answering the new charge, and the magistrate sball, if bo considers that the defendant is prejudiced in his defence by reason

of the new charge being preferred, adjourn the hearing.” . On the hearing of a charge of dangerous driving the magistrate came to the G conclusion that there was a case for the defence to answer on careless driving. He, however, neglected to follow the procedure prescribed by s. 58 of the Vehicles and Road Traffio Ordinance, Cap. 288 (Antigua) and proceeded to hear the lesser charge and convicted the appellant thereon.

Hold: the failure of the magistrate to follow the procedure prescribed by s. 58 was fatal to the conviotion, which will accordingly be quashed and a new trial H ordered before another magistrate.

Appeal allowed. Conviction and sentence quashed. New trial ordered. No cases referred to.

Apposi from a conviction by the magistrate of District “B” in Antigua. C. E. Howlott for the appellant.

I Charlesworth Ross (Acting Legal Assistant) for the respondent.

  1. M. LEHIS, C.J., delivered the judgment of the court: Section 58 of the Vehioles and Road Traffio Ordinance, Cap. 288 (Antigua) prescribes the pro cedure which must be adopted if the magistrate on the bearing of a case of dangerous driving comes to the conclusion that there is a case for the defence to answer on careless driving, but not on dangerous driving. He must then
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