04 December

McBean v R

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230

West Indian Reports

(1976) 33 WIR

McBean v R

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL LORD DIPLOCK, LORD MORRIS OF BORTH-Y-GEST, VISCOUNT DILHORNE,

нь LORD SIMON OF GLAISDALE and LORD CROSS OF CHELSEA 22nd JUNE 1976

Magistrate – Person ceasing to be – Proceedings not concluded – Assignment as magistrate to conclude hearing – Meaning of proceedings” – Civil or criminal matter – Judicature (Resident Magistrates) Act, Cap 179 [J], section 192 – Judicature (Resident Magistrates) (Amendment) Act 1966, No 33 (J), section 4 Fundamental rights and freedoms – Fair trial within a reasonable time – Proceed ings held in public – Court adjourning to chambers – Ruling issued in chambers – Breach of right to public hearing – No prejudice to defendant – Constitution of Jamaica, section 20(3)

The Judicature (Resident Magistrates) Act, section 192, as amended by the Judicature (Resident Magistrates) (Amendment) Act 1966, section 4, reads as follows: “Where a person before whom the hearing of any proceedings has commenced in a court ceases, either temporarily or permanently, to be the magistrate of that court prior to the conclusion of the hearing-... (b) he may, whether or not he has reserved judg ment… be assigned at any time to be a magistrate for the purpose of concluding such hearing”.

Section 20(3) of the Constitution of Jamaica provides: “All proceed ings of every court… including the announcement of the decision of the court… shall be held in public”.

The appellant had been charged with firearms offences. At the hearing before a magistrate in the parish of St James his counsel applied for an adjournment. This was refused. Counsel then asked the magistrate to disqualify himself on the ground that he would be sitting as judge in his own cause. The magistrate invited counsel to state in chambers the basis of his submission. The record of the proceedings disclosed that the court then adjourned to chambers; it noted that in chambers “Court rules that case will proceed”; and then, “Court resumes”. The case was not concluded on that day and was adjourned. The resumption of proceed ings was delayed, however, by efforts made on behalf of the appellant to obtain an order staying the proceedings until the Full Court had deter mined the question of the alleged disqualification of the magistrate. This order was eventually refused; but before that decision was reached the magistrate had been appointed acting registrar to the Supreme Court. Following the order refusing a stay of the resumption of the appellant’s

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trial, the magistrate was temporarily assigned to the parish of St James to continue the hearing. At the resumed hearing the magistrate ruled that he was not disqualified from sitting as a magistrate by virtue of his appoint ment as acting registrar. Further evidence was called for the prosecution, but the appellant neither gave evidence nor made any statement in his defence. He was convicted and his conviction was upheld by the Court of Appeal. On further appeal, Held – advising that the appeal should be dismissed, that the magistrate who had been assigned to the parish of St James to conclude the hearing had jurisdiction under section 192 of the Judicature (Resident Magis trates) Act, as amended, to do so since that provision was not restricted in its application to civil proceedings.

Frederick v Police Chief (1968) 11 WIR 330 explained

Jones v Ricketts (1964) 7 WIR 62 distinguished. Per curiam. The expression “proceedings of [the] court” in section 20(3) of the Constitution of Jamaica probably covers what had occurred in this case in chambers since a ruling had been made there and the expression is not restricted to proceedings at a trial; if so, there had been a breach of section 20(3), but this would not have invalidated the subsequent pro ceedings because it had not affected the hearing of the case.

Cases referred to in the opinion of the Board Frederick v Police Chief (1968) II WIR 330, West Indies Associated States

Jones v Ricketts (1964) 7 WIR 62, 8 Jamaica LR 531, Jamaica CA. f Morales v Morales (1962) S WIR 235, Trinidad and Tobago CA.

Appeal Aubyn McBean appealed to the Judicial Committee of the Privy Council (appeal 3 of 1975) by special leave against the dismissal by the Court of Appeal of Jamaica of his appeal ((1974) 12 Jamaica LR 1378) against his convictions for offences under the Firearms Act 1967 before the resident magistrate (Mr Boyd Carey) in the parish of St James.

K. Hudson Phillips QC, E. Cotran and P. Atkinson for the appellant. b. J. S. Kerr QC and G. Davies for the Crown.

Their Lordships took time for consideration.

Viscount Dilhorne delivered the opinion of the Board. On 21st November 1972, two informations were laid against the appellant, the first charging him with being in possession on 20th November 1972 of six rounds of ammunition contrary to section 20(1)(b) of the Firearms Act 1967, and the second charging him with being in possession on that date of a firearm contrary to that section. Each information also referred to section 20(4)(c)(i) of that Act. Section 20(4) of the Act so far as material reads as follows:

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“Every person who contravenes this section shall be guilty of an offence, and shall be liable-... (c) in any other case — (i) on summary a conviction before a resident magistrate to a fine not exceeding £250 or to imprisonment with or without hard labour for a term not exceed

ing 12 months...” The informations were listed for hearing on 11th December 1972. Mrh Ramsay and Mr Atkinson of counsel then appeared for the appellant and, at the request of the defence, the cases were adjourned to 15th January 1973. On that day Mr Ramsay did not appear and Mr Atkinson applied for a further adjournment. That was refused. Mr Atkinson then said that the court as constituted would be asked to disqualify itself on the ground that the judge sitting ought not to be a judge in his own cause. At this point Mr Atkinson made no disclosure of the reasons on which he based his contention. As the Court of Appeal later pointed out:

“The resident magistrate was entitled to consider, and no doubt did consider, whether the suggestion that he disqualify himself would have been advanced if the application for an adjournment had suc ceeded. At that stage, also, and in the light of what had transpired so far, it would have been surprising if questions concerning the bona fides of the suggestion did not begin to form in his mind. It was a most unusual and serious suggestion, and the judge could scarcely have avoided wondering why it had not been put at the forefront of the submissions by Mr Atkinson. Occurring as it did in the circumstances and in the sequence described in the note, the suggestion to disqualify bears all the marks of a move made pursuant to a determination to secure the postponement of the trial despite the fact that the appli cation for this purpose was judged to be without merit and had been refused. This determination was manifest...”

This statement having been made by Mr Atkinson the resident magis trate suggested that counsel should state in chambers the basis on which the application that he should disqualify himself was made.

The record states that the court adjourned into chambers. Counsel for the appellant does not appear to have made any objection to this nor is there any record that he asked that the appellant should be present or that the appellant was excluded. In chambers Mr Atkinson disclosed the ground on which he suggested that the resident magistrate should dis qualify himself. It was that on his instructions he would be obliged to put to a Mr Levy, an assistant commissioner of police, that when Mr Levy had found the appellant in possession of a pistol loaded with six rounds of ammunition he had said to him (inter alia): “You ah buy out police and Judge Carey down here. I want to see you buy out this a case yah.” Mr Boyd Carey, as the Court of Appeal said, was satisfied that from what he had been told it had not been shown that in the course of the trial he would be forced to be a judge in his own cause, for after referring to Morales v Morales (1962) S WIR 235 he ruled that the case should proceed.

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In the Court of Appeal‘s view his conclusion was right. The court then resumed. The appellant pleaded “Not Guilty” and evidence was called. As the case was not concluded that day, the hearing was adjourned to 29th January 1973. On 25th January 1973, an application was suc cessfully made on behalf of the appellant to the Supreme Court for leave to apply for a writ of prohibition and for an order staying the trial until a determination by the Full Court of the question whether Mr Boyd Carey was disqualified from sitting. The application was heard by the Full Court on 25th April 1973, and the hearing lasted many days.

The issue of the Jamaica Gazette of ist March 1973, announced the following “Acting appointments”- The appointment of the registrar of the Supreme Court to act as master-in-chambers and the appointment of “Mr Boyd Carey, resident magistrate, to act as registrar, Supreme Court...”

On 17th May 1973, the application for a writ of prohibition was d unanimously refused and the order staying the trial removed. On 14th

June the following announcement appeared in the Jamaica Gazette:

“Temporary assignment ... Mr Boyd H. Carey, resident magistrate, who is at present acting as registrar of the Supreme Court, has been temporarily assigned to the parish of St James on 26th June 1973, to continue the hearing of a part-heard case.”

On 26th June 1973, the hearing before Mr Boyd Carey continued. At the outset of this resumed hearing Mr Ramsay contended (1) that as Mr Boyd Carey was acting registrar of the Supreme Court, he was not competent to act as resident magistrate, and (2) that he should disqualify himself from sitting as the allegations that he was disqualified were, as a result of the hearing in the Full Court, matters of common knowledge rendering it impossible for justice to appear to be done at this trial. Both these contentions were rejected and Mr Ramsay then declined to take any further part in the proceedings. Two police officers had given evidence at the hearing on isth January; one was recalled on 26th June. He was not cross-examined. Their evidence completed the case for the prosecution. The appellant did not give evidence or make any statement. He was convicted. He then appealed to the Court of Appeal and his appeal was dismissed. Of the many grounds put forward in support of his appeal it is only necessary to refer to two; the first being that Mr Boyd Carey had no jurisdiction to complete the hearing of the case as he was acting registrar of the Supreme Court, and the second that the action of Mr Boyd Carey in seeing counsel in his chambers in the absence of the appellant was wrong in law, for those were the two contentions in respect of which leave to appeal to the Privy Council was granted.

With regard to the first contention, under the Judicature (Resident Magistrates) Law, section 4, the Governor-General has power to appoint resident magistrates and by subsection (2) –

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“Every resident magistrate so appointed shall be judge of such one or more of the resident magistrates‘ courts as shall at the time of his a

appointment or thereafter be assigned to him, …”

The validity of Mr Boyd Carey’s appointment as resident magistrate and of his being assigned to the parish of St James is not questioned and there is in their Lordships’ view no ground for concluding that, when appointed acting registrar, he ceased to be a resident magistrate. That, b while acting as registrar of the Supreme Court, he did not also act as resident magistrate for the parish of St James their Lorships are prepared to accept.

Section 192 of the Judicature (Resident Magistrates) Law, as originally enacted, provided that when a magistrate had reserved judgment and с ceased either temporarily or permanently to be the magistrate in the court in which judgment was reserved, at any time within two months of judgment being reserved, his judgment could be delivered and take effect as if he had continued to be the magistrate of the court.

In Jones v Ricketts (1964) 7 WIR 62 a resident magistrate heard a civild case on 31st May 1963, and ceased on that day to act as additional resident magistrate for the parish of St James. He did not deliver his reserved judgment within two months but was re-appointed magistrate for that parish and on 27th September delivered his reserved judgment. The Court of Appeal in Jamaica held that on a resident magistrate’s ceasing to be a resident magistrate for a particular parish, his jurisdiction to hear a particular case and to determine that case terminated and could not be revived by his subsequent re-appointment. That case was followed in Frederick v Police Chief (1968) 11 WIR 330, a criminal case, where it was held that, on the termination of the magistrate’s appointment, he became functus officio, had no jurisdiction to continue the hearing of a part-heard case and did not get jurisdiction to do so in consequence of his re-appointment.

The decision in Jones v Ricketts (it is not necessary for their Lordships to express an opinion on whether it was right) led to the amendment of section 192 by section 4 of the Judicature (Resident Magistrates) (Amendment) Act 1966. Section 192 as amended reads, so far as material:

“Where a person before whom the hearing of any proceedings has commenced in a court ceases, either temporarily or permanently, to be the magistrate of that court prior to the conclusion of the hearing – h (a) if he has reserved judgment and ceases as aforesaid before he has delivered his judgment he may at any time lodge with the clerk of the court such judgment in writing; and such judgment shall as soon as possible thereafter be read in a court by the magistrate of the court and shall take effect in all respects as if the person who reserved judgment had continued to be the magistrate of the court and had delivered judgment himself on the day that it was so read; or (b) he may, whether or not he has reserved judgment as aforesaid, be assigned at any time to be a magistrate of that court for the purpose of concluding such hearing.”

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This amended section 192 was not referred to in Frederick v Police Chief, a decision of the High Court of Grenada, and the Magistrates Ordinance of Grenada did not at the time of that decision contain any similar provision. The inclusion of sub-paragraph (b) was obviously intended to fill the gap that the decision in Jones v Ricketts had disclosed, but it was contended that it only did so partially and that the section only applied to civil and not to criminal proceedings. Sections 181 to 201 of the Judica ture (Resident Magistrates) Law are in a part of the Law headed “Trial of Causes.”Ifit were the case that all the sections in this part only applied to civil cases, then there would be force in the contention that the operation of section 192 was limited to civil cases; but that is not the case. Section 183 expressly applies to civil or criminal proceedings; so does section 190. Section 195 deals with the power of a magistrate to enforce payment of fines. Section 192, as amended, begins with the words: “Where a person before whom the hearing of any proceedings has commenced in a court...”. If it had been intended to limit the operation of the section to civil proceedings, one would have expected the generality of those words to have been limited. Nor does there appear to be any valid reason for supposing it to have been the intention of the legislature to fill the gap revealed by Jones v Ricketts only in relation to civil proceedings and to leave it in relation to criminal matters. At first sight it might seem that the references to judgment being reserved pointed to the section apply ing only to civil proceedings, for in this country the use of the expression “reserved judgment” is not apt in relation to criminal trials. It is, however, to be observed that sections 293, 294 and 296 of the Judicature (Resident Magistrates) Law all refer to the “judgment of a magistrate” in a criminal case. In the circumstances it would not be right to draw the inference which might otherwise be drawn from the use in section 192 of the expression “reserved judgment”.

In their Lordships’ opinion the Court of Appeal was right in the conclusion to which it came as to the effect of section 192 as amended. Mr Boyd Carey was assigned to the parish of St James to conclude the hearing of the case and section 192 (b) gave him jurisdiction to do so. Their Lordships accordingly reject this contention.

The second submission advanced involves consideration of section 20(3) and (4) of the Constitution of Jamaica. The subsections read as follows:

“(3) All proceedings of every court… including the announcement of the decision of the court... shall be held in public.

(4) Nothing in subsection (3) of this section shall prevent any court… from excluding from the proceedings persons other than the parties thereto and their legal representatives -… (c) to such extent as the court ... (i) may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice; ...”

It was contented that there had been a breach of section 20(3) in that what occurred in the resident magistrate’s chambers was not in public.

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That that was so, cannot be disputed. The question on which much debate was centred was whether what took place in chambers was properly to be regarded as part of the proceedings of the court. It must be recognised that where it is suggested that counsel should see the judge in his private room or counsel ask to see the judge in his private room and he sees them, it by no means follows that what occurs there is to be regarded as proceedings of the court. There may be many occasions on which counsel wish to see a judge privately and on which a judge wishes to see counsel privately, and on many occasions it may be desirable that that should be done. In this case it was entirely reasonable for the judge to put forward the suggestion, to which no objection was taken, when he had been given no indication of the grounds on which it was alleged he should not sit. Such meetings cannot ordinarily be regarded as proceed ings of the court.

Here the notes of the proceedings contained in the record state that in chambers: “Court rules that case will proceed”. This was followed shortly after by the words: “Court resumes”. Their Lordships are con- sequently inclined to the view that what happened in chambers on Isth January is to be regarded as proceedings of the court to which section 20(3) of the Constitution applied as the magistrate gave a ruling in his chambers. They cannot, however, agree with the Court of Appeal that the words “proceedings of every court” in that section of the Constitu- tion are to be interpreted as meaning only proceedings at the trial. Proceedings of a court may take place before the trial commences as, for instance, when a plea in bar of autrefois acquit is raised. Indeed the fact that proceedings of a court may take place in chambers is recognised in section 20 of the Constitution itself for that provides that interlocutory proceedings (which often take place in chambers) need not be held in public.

Before the Court of Appeal it was contended that the appellant should not have been excluded from the proceedings in chambers. There was no evidence, however, that the appellant had sought and been refused admission. So this contention must be rejected. Section 20(4) gives a court power to exclude persons other than the parties and their legal representatives if the court thinks that it is expedient on the ground that publicity would prejudice the interests of justice. While it may be that the resident magistrate considered that it would be prejudicial to the interests of justice that allegations as to his unfitness to sit should be publicly ventilated without his first knowing what they were, there is no indica tion in the record that he did so. Their Lordships have not the advantage of the views of the Court of Appeal on this and they do not think it necessary to express any opinion on it. If the proceedings in chambers were in breach of section 20(3) of the Constitution, that breach did not of itself render the subsequent proceedings a nullity. It was only after the court resumed the public hearing after the proceedings in chambers that the appellant pleaded “Not Guilty” to the charges. The case for the prosecution was strong and the appellant did not give evidence or make a

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statement in his defence. The breach, if there was one, did not affect the hearing of the case and that being the position, their Lordships do not consider that the convictions can be assailed as invalid.

In their Lordships’ opinion no grounds have been advanced which would justify the quashing of the convictions in this case and their Lordships will accordingly humbly advise Her Majesty that this appeal should be dismissed.

Advice that appeal be dismissed.

McBean v R

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