West Indian Reports/Volume 2 /Spencer v Bramble – (1960) 2 WIR 222
(1960) 2 WIR 222
Spencer v Bramble
SUPREME COURT OF TRINIDAD AND TOBAGO — APPELLATE JURISDICTION
BLAGDEN AND HYATALI JJ
6 OCTOBER 1959, 19 MARCH 1960
Practice — Summary Courts — Non-appearance of defendant — Hearing ex parte — Procedure to set aside conviction obtained ex parte — Whether by way of appeal, case stated or certiorari — Summary Courts Ordinance, Cap 3, No 4 [T], ss 41, 57 (1), 63 (1), (4), 127, 155 (1) — Judicature Ordinance, Cap 3, No 1 [T], s 34.
Practice — Appeals from Summary Court to Supreme Court — Appellant to serve written notice of reasons for appeal — “A notice of reasons for appeal may set forth all or any of the following reasons, and no others …” — What reasons should be given by appellant appealing against conviction obtained ex parte — Summary Courts Ordinance, Cap 3, No 4 [T], ss 130, 131.
Practice — Appeals from Summary Court to Supreme Court — Affidavits filed in support of appeal without leave of the Supreme Court — Power vested only in Supreme Court to order evidence to be adduced, by affidavit or otherwise “in any case where it may consider it necessary that evidence should be adduced” — Procedure on application to Supreme Court for order for evidence to be adduced — Summary Courts Ordinance, cap 3, No 4 [T], s 146.
Constitutional Law — Liberties of the subject — Right of subject to have any dispute affecting him in any judicial proceeding tried in accordance with the “principles of natural justice ” — Principle that no party ought to be condemned unheard, unless he has been given a reasonable opportunity of being heard, and through his own fault deprives himself of that opportunity.
By s 63 (1) of the Summary Courts Ordinance, Cap 3, No 4 [T], it is provided that:
“At any time before or during the hearing of a complaint, it shall be lawful for the Court, in its discretion, to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties, or his or their respective counsel or solicitor.”
And by sub-s (4) of the same section:
“If, at the time and place to which such hearing or further hearing is so adjourned, either or both of the parties does or do not appear, the Court may proceed to such hearing or further hearing as if such party or parties was or were present;”
The appellant was charged before a magistrate in two complaints alleging the commission of traffic offences. He pleaded not guilty to both and the magistrate in the hearing and presence of the appellant and his solicitor adjourned the cases to a fixed date for trial.
On the day so fixed the appellant failed to appear and as no explanation for his absence was forthcoming, and no application for any further adjournment was submitted on his behalf, the magistrate in pursuance of the powers conferred upon him by s 63 (4) of the Summary Courts Ordinance, Cap 3, No 4 [T], proceeded to hear the two complaints, and finding them proved, convicted and fined the appellant.
The appellant appealed against both convictions stating as his ground of appeal on each: “I was mistaken as to the date of hearing and the charge was heard ex parte.” He also made reference to particulars being set out in an affidavit. No application had been made by or on behalf of the appellant to file any affidavit, but in fact two affidavits, one by the appellant himself and one by his solicitor, were included in the proceedings transmitted by the Clerk of the Peace to the Registrar of the Supreme Court. The substance of these affidavits was to the effect that the appellant had been under a genuine mis-
(1960) 2 WIR 222 at 223
apprehension as to the date to which the hearing of the complaints had been adjourned, and that he had a good defence to the charges.
By s 131 of the Summary Courts Ordinance, Cap 3, No 4 [T], it is provided that:
“A notice of reasons for appeal may contain all or any of the following reasons and no others…”
The reasons which follow are set out in sub-ss (1) to (10). Absence from the trial for any cause is not one of them, but sub-s (7) provides that an appellant may set forth as a ground of appeal that he is “not guilty”; which reason shall entitle him to maintain:
“(a) that legal evidence substantially affecting the merits of the case has been rejected by the Court; or
(b) that illegal evidence has been admitted by the Court and that there is not sufficient legal evidence to sustain the decision after rejecting such illegal evidence; or
(c) that the decision is unreasonable or cannot be supported having regard to the evidence;”
By s 141 of the Summary Courts Ordinance, Cap 3, No 4 [T]:
“On the hearing, it shall not be competent for the appellant to go into, or to give evidence of, any other reason for appeal than those set forth in his notice of reasons for appeal: Provided that where, in the opinion of the Court, other reasons for appeal than those set forth in the notice of reasons for appeals should have been given, or the statement of reasons is defective, the Court, in its discretion, may allow such amendments of the notice of reasons for appeal upon such conditions as to service upon the respondent and as to costs as it my think fit.”
And s 140 of the Summary Courts Ordinance, Cap 3, No 4 [T], includes a provision giving the Supreme Court a discretion to.
“extend the time for service of notice of reasons for appeal upon such conditions as it may think fit.”
Held: (i) where a defendant is convicted by a Summary Court in his absence under the provisions of s 63 (4) of the Summary Courts Ordinance, cap 3, No 4 [T], and wished to have that conviction set aside, the proper procedure is for him to lodge an appeal to the Supreme Court under s 127 of the Summary Courts Ordinance, cap 3, No 4 [T], giving as his reasons for appeal such of the reasons set out in s 131 as are appropriate to his case, and in the event of none of those reasons proving directly appropriate, that he is “not guilty”;
(ii) although the appellant, by virtue of the provisions of s 131 of the Summary Courts Ordinance, Cap 3, No 4 [T], was confined to the reasons set out in his notice of reasons for appeal and had not included in those reasons any of the statutory grounds prescribed in s 31, the court would exercise the discretion conferred on it by ss 140 and 141, and extent the time for service of notice of reasons for appeal and at the same time grant leave to the appellant to give as a reason for appeal that he was “not guilty” so as to enable him to be heard before the court on that ground;
(iii) the filing of affidavits in support of the appeal without the leave of the court was irregular. Section 146 of the Summary Courts Ordinance, Cap 3, No 4 [T], however, confers power on the Supreme Court to order the adducement of evidence, when it considers it necessary, by affidavit or otherwise; and when an appellant is desirous that such an order should be made, the proper procedure is for him to make application to the Supreme Court by way of motion seeking leave to file affidavits or otherwise adduce evidence, and exhibiting to his application a statement of the nature of the evidence sought to be adduced;
(1960) 2 WIR 222 at 224
(iv) notwithstanding that the filing of the affidavits was irregular, the court, in view of the particular procedural problems involved, and having regard to the absence of any previous practice direction on the subject, would allow the appellant to make application for leave to adduce additional evidence, and as an exceptional measure would treat the affidavits incorporated in the proceedings as filed with the leave of the court in support of such application;
(v) on the merits of the appeal the first question for consideration was not whether the appellant had been heard in his defence, which he clearly had not, but whether he had been given a reasonable opportunity of being so heard, and it was obvious from the record that he had been given such an opportunity;
(vi) the second question for consideration was whether, having been given the opportunity of being heard in his defence, the appellant through his own fault had failed to take advantage of that opportunity, or whether, through no fault of his own, he had been deprived of it. The appellant’s case clearly fell within the first category and in these circumstances there was no justification for re-opening the cases.
No cases referred to.
Appeals by Archibald Spencer against two convections by a magistrate for traffic offences. The facts and arguments are set out in the judgment of the court.
Cur adv vult
Ashram Sinanan (instructed by T Malcolm Milne & Co) for the appellant.
AC Rienzi (Ag Director of Public Prosecutions) (instructed by Crown Solicitor) for the respondent.
BLAGDEN J delivered the judgment of the court These two appeals, which were heard together, pose the question of what remedy, if any, is available to a defendant charged with a non-indictable offence in a magistrate’s court, whose case is lawfully decided against him in his absence and who wishes the case to be re-opened, so that he may be heard in his defence.
A magistrate’s jurisdiction to hear and determine a complaint in the absence of a defendant, is derived from ss 41, 57 (1) and 63 (4) of the Summary Courts Ordinance, Cap 3, No 4 [T] (which for convenience we shall hereafter call “the Ordinance”).
By s 41
‘If the defendant does not appear before the Court at the time and place mentioned in the summons, then, after proof upon oath, to the satisfaction of the Court, that the summons was duly served or that the defendant wilfully avoids service, the Court may, in its discretion…
(a) …proceed ex parte to the hearing of the complaint and adjudicate thereon as fully and effectually to all intents and purposes as if the defendant had personally appeared before it in obedience to the summons….’
By s 57 (1)
‘If, when the case is called, the defendant does not appear, the Court may, if the case comes within the provisions of section 41, proceed as therein directed, or may, if it thinks fit, allow the defendant to appear by counsel or solicitor.’
Section 63 deals with adjournments of the hearing and sub-s 91) of this section prescribes that:
‘At any time before or during the hearing of a complaint, it shall be lawful for the Court, in its discretion, to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties, or his or their respective counsel or solicitor.’
(1960) 2 WIR 222 at 225
Sub-section (2) deals with the further remand of the defendant where the court is satisfied that, by reason of illness or accident, he is unable to appear at the expiration of the period for which he is remanded, and sub-s (4) states that:
‘If, at the same time and place to which such hearing or further hearing is so adjourned, either or both of the parties does or do not appear, the Court may proceed to such hearing or further hearing as if such party or parties was or were present…’
In the present cases under appeal the precise situation envisaged by s 63 (1) and (4) of the Ordinance arose. The magistrate, therefore, had full jurisdiction to try the complaints in the absence of the appellant as he did, and having convicted and fined the appellant in each case, he was clearly functus officio.
Once a magistrate has given his decision and is functus officio there are three normal ways of impeaching his judgment, namely, appeal pursuant to s 127 of the Ordinance; certiorari under the provisions of s 34 of the Judicature Ordinance, Cap 3, No 1 [T]; and case stated under s 155 of the Ordinance.
These cases have not come before us either by way of certiorari under s 34 of the Judicature Ordinance or by way of case stated under s 155 of the Ordinance, but even so, it is difficult to see how either of these processes could be appropriate to the present circumstances. In the case of certiorari, s 34 (1) of the Judicature Ordinance only gives the court power to set aside or vary a judgment of an inferior court, “if it appears to the court that there has been any material error in the proceedings of such inferior court”. There has clearly been no such error here. As regards case stated, s 155 (1) of the Ordinance provides that the magistrate
‘may, in his discretion, on the application of either party … or on his own motion without such application state a case on any point of law arising in the case for the opinion of the Supreme Court.’
In the light of the fact that the magistrate was fully justified in hearing the complaints in these cases in the appellant’s absence, it follows that neither the appellant’s absence nor the circumstances giving rise thereto, nor even the consequences resulting therefrom, can be regarded as constituting “a point of law arising in the case”.
There is left to the appellant, accordingly, only his right of appeal under s 127 of the Ordinance. But here there are further difficulties. Section 141 limits an appellant to the reasons for appeal he has given in his notice served under s 130; and s 131 restricts the reasons for appeal he may set forth in his notice to those appearing in the ten sub-sections thereof. Inadvertent absence from the trial from any cause whatever, is not one of these, nor is it easy to see how such a reason could be brought within the ambit of any of these sub-sections.
It is obvious, however, that circumstances might arise where a palpable injustice would be done to a defendant if he were deprived of his opportunity to be heard, through no fault of his own, as for instance, where he was involved in a serious accident on his way to court, and could neither attend the trial nor make application for an adjournment nor even apprise the court of his predicament; or a case might arise where the hearing of a complaint was proceeded with, ex parte, on the footing that there was prima facie evidence of proper service of a summons upon a defendant, whereas in actual fact the summons was never served upon him and he consequently was unaware of, and given no opportunity at all of putting forward his case in answer to, the complaint made against him. In such circumstances, the court would nevertheless be entitled to hear and determine the case in his absence. Yet it would be a manifest injustice to deny him all right to be heard thereafter.
In each of the cases before us, the appellant purported to pursue his right of
(1960) 2 WIR 222 at 226
appeal under s 127 of the Ordinance and stated his ground in his notice of reasons for appeal as follows: “I was mistaken as to the date of the hearing and the charge was heard ex parte.” Reference was then made therein to affidavits-filed together with the notices of the appeals-for the particulars of that mistake.
Each of the notices is open to two objections in the first place, neither contains any of the reasons for appeal enumerated in s 131 of the Ordinance, which expressly confines an appellant to all or any of the reasons stated in that section and prohibits him from giving any other reasons. This is evident from the opening words of this section which enacts that “A notice of reasons for appeal may contain all or any of the following reasons, and no other…” In order, however, to settle the practice and procedure in matters of this nature, the court in the exercise of its discretion under s 140 of the ordinance, allowed that defect to be cured by extending the time for service of notice of reasons for appeal, and granting leave to the appellant to give as his reason for appeal the statutory ground of “not guilty” (see s 131 (7)). In the second place, reference is made to an affidavit. In point of fact two affidavits were filed-one by the appellant and one by his solicitor-and in neither instance was the leave of the court sought to do so.
Affidavits partake of the nature of evidence. The court has power to receive additional evidence on the hearing of an appeal (see s 146 of the Ordinance); but will only do so where it considers it necessary. It may order such evidence to be given by affidavit, but until such an order is made, there is no right whatever in any appellant to file affidavits as a matter of course, as was done in the present cases. It is a practice which we condemn and will not tolerate in the future. Moreover, we wish it to be clearly understood that it is most irregular for the Clerk or the Assistant Clerk of the Peace to receive such affidavits and incorporate them in the proceedings which he is required to transmit to the Registrar of the Supreme Court under s 134 (1) of the Ordinance. No sanction for this practice is to be found anywhere in the Ordinance.
Now an appellant, it seems to us, can succeed in re-opening a case of this nature if the Supreme Court in its appellate jurisdiction considers it necessary that evidence should be adduced and makes an appropriate order to that effect under s 146 of the ordinance. We consider that an application for such an order should be made by way of motion seeking leave to file affidavits in support of the application to which should be exhibited a statement of the nature of the evidence sought to be adduced; and if the circumstances of the case warrant it, leave should also be sought to extend the time for service of notice of reasons for appeal. The court on being moved will then consider whether it will or will not grant the leave sought and make such order as the justice of the case may require. On the other hand, there may be cases where the necessity for adducing evidence may arise only in the course of the hearing of an appeal. In such cases, it will be for the court, if it considers it necessary that evidence should be adduced, to make such order as it may, in the circumstances of the case, think just or expedient.
In view, however, of the particular problems of procedure presented by these cases and the absence of any previous pronouncement by this court thereon so far as we are aware, we allowed the appellant to apply for leave to adduce evidence and as an exceptional measure we have treated the affidavits incorporated in the proceedings as filed with the leave of the court in support of the applications.
Assisted by the indulgences which we have exceptionally granted to the appellant, the applications and the present appeals may now be said to be properly before us.
Before dealing with the applications it would be convenient at this juncture to consider the most expedient method of bringing cases of this kind to the
(1960) 2 WIR 222 at 227
Full Court. The ground of “note guilty” as a reason for appeal entitles an appellant, by virtue of the provisions of sub-s (7) of s 131 of the Ordinance, to argue
‘(a) that legal evidence substantially affecting the merits of the case has been rejected by the court; or
(b) that illegal evidence has been admitted by the court and that there is not sufficient legal evidence to sustain the decision after rejecting such illegal evidence; or
(c) that the decision is unreasonable or cannot be supported having regard to the evidence;’
Expressed in general terms this sub-section entitles an appellant to impugn a decision against him on matters relating to the evidence-for example, its reception or rejection, its admissibility, and its probative value.
Although the presence or absence of a defendant is not of itself a matter of evidence, it is a matter which has a considerable effect on the evidence, for in the absence of the defendant, not only is the evidence of the complainant and his witnesses untested by cross-examination, but the defendant’s own evidence, which may be extremely material, is not available at all. In our view therefore, when a defendant wishes to set aside a decision made in his absence which cannot be impugned on any other of the grounds set out in s 131, the appropriate course is to invoke sub-s (7) and to bring the matter before the Full Court by way of appeal on the statutory ground of “not guilty”. In substance, this is what we have allowed to be done here. We accordingly proceed to deal with the applications for leave to adduce evidence.
The appellant’s case in each appeal is, that he was genuinely mistaken as to the date to which the hearing of his case was adjourned. He thought it was 10 April whereas in fact it was 3 April. We see no reason to doubt the truth of this assertion. Indeed, the magistrate himself states in his reasons “having read the grounds of appeal and affidavits in these appeals, I am of the opinion there was a bona fide mistake with respect to the date of the adjournment”. But whether the case should be re-opened before the magistrate and leave granted to adduce evidence is another matter. Procedurally, there would be no difficulty about this as the court may quite conveniently make an order in terms of s 146 (c) of the Ordinance which provides:
‘The Supreme Court may, in any case where it may consider it necessary that evidence should be adduced,…
(e) refer the case back to the Magistrate or Justice to take such evidence, and may in such case either direct the Magistrate or Justice to adjudicate afresh after taking such evidence and subject to such directions in law, if any, as the Court may think fit to give, or direct him, after taking such evidence, to report specific finding s of fact for the information of the Court; and on any such reference the case shall, so far as may be practicable and necessary, be dealt with as if it were being heard in the first instance.’
Now one of the most important liberties of the subject is stated in Hallsbury’s Laws (3rd Edn), p 198, paragraph 418 (6), be
‘the right of the subject to have any dispute affecting him which is brought before a judicial tribunal or officer tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause and that no party ought to be condemned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case.’
In Broom’s Legal Maxims (10th Edn) at p 65 right is stated in these terms:
(1960) 2 WIR 222 at 228
‘It has long been a received rule that no one is to be condemned, punished or deprived of his property in any judicial proceeding, unless he has had an opportunity of being heard.’
Now this court would clearly have power to order a new trial in any appropriate case properly brought before it on appeal, since the powers conferred on it by s 148 (2) of the Ordinance are extremely wide and include in paragraph (d) a power to “make such other order for disposing of the case as justice may require”. If on appeal, therefore, the court is satisfied that a breach of natural justice has occurred, it will be fully justified, in our view, to intervene and make such order under this section to ensure that justice is done.
The critical question to consider here is whether the defendant was given a reasonable opportunity of putting forward his case or, to put it another way, whether he was given an opportunity of being heard. It is clear that he was given due notice of the complaints against him and in pursuance thereof he appeared in court and pleaded not guilty to them. On the application of his solicitor and in his presence the cases were adjourned to 3 April 1959. Through an error on his part he did not appear on that date, and thus, by his own culpable neglect, he deprived himself of the opportunity of putting forward his case in answer to the complaints against him. This is a far cry from saying that he was not given a reasonable opportunity of putting forward his case or of being heard.
In reference to the principle under discussion the learned author of Broom’s Legal Maxims (10th Edn) at p 67 says this
‘In conformity also with the elementary principle under consideration, when a complaint has been made or an information exhibited before a justice of the peace, the accused person has due notice given him by summons or otherwise of the accusation against him in order that he may have an opportunity of answering it.’
We think that this is an accurate statement on the question we are here considering. In other words, a summons served upon a defendant giving him due notice of the accusation against him, conforms with the requirement of natural justice that a defendant must be given a reasonable opportunity of putting forward his case.
A distinction must be draw, however, between a case where a defendant through his own fault fails to take advantage of that opportunity and a case where a defendant who through no fault of his own is deprived of that opportunity, as in the examples we have noted in the earlier part of our judgment, or in circumstances similar thereto. We consider that in the first instance there would be no justification for allowing a case to be re-opened, whereas in the latter, a clear case of injustice would result if it were not.
The cases of the appellant obviously come within the first category. Persons summoned before magistrates’ courts are expected properly and diligently to acquaint themselves with such simple procedural details as the time when and the place where their cases will be heard. It is obvious that if this court were to permit cases to be re-opened, for what might be broadly described as purely administrative reasons or in deference to the convenience of defendants, except on the strongest grounds where it is manifest that otherwise gross injustice would result, opportunities would arise whereby the process of the magistrates’ courts might be subject to grave abuse. This is a matter of paramount principle involving the interests of the community as a whole and must of necessity prevail over any lesser principles involving the hardships or inconvenience of any individual with which it comes in conflict.
For these reasons we refuse the applications, as we do not consider it neces-
(1960) 2 WIR 222 at 229
sary in the circumstances of these cases that evidence should be adduced. The decisions of the magistrate were not challenged in any way, and it follows as a matter of course that the appeals must be dismissed, with costs to the respondent agreed at $50.40.