Anthony v Thomas

• Jurisdiction: Guyana
• Judge: Kennard, C.J.
• Judgment Date: 16 May 1995
• Neutral Citation: GY 1995 HC 1
• Court: High Court (Guyana)
• Date: 16 May 1995

High Court

Kennard, C.J.; Kissoon, J.

Anthony

and

Thomas

Appearances:

Doodnauth Singh SC for the appellant.

A. Bulkan for the respondent.

Practice and procedure - Magistrate's Court — Adjournment — Party absent from adjourned hearing — Discretion of magistrate to hear matter in absence of defendant — No error in exercise of discretion — No undue haste — Summary Jurisdiction (procedure) Act, Cap. 10:02, section 31(3).

Kennard, C.J.

1 The appellant was charged with and convicted by a magistrate for the offence of being in possession of a narcotic, namely cannabis; contrary to section 4(1)(a)(i) of the Narcotic Drugs and Pyschotropic Substances (Control) Act 1988. The evidence led before the magistrate, in our view, clearly establishes the charge and the magistrate cannot be faulted for convicting the appellant. There was an apparent inconsistency in the evidence of the complainant which the magistrate took into account. Due to the non-appearance of the appellant in court on 15th March 1993, the evidence of the complainant given prior to that date (i.e. on 23rd November 1992) when the appellant was present in court, remains uncontradicted. We cannot say that there is anything improbable in that evidence (see Gonsalves v. Poor Law Commissioners (1939) L.R.B.G. 61 and Alladat Khan v. Kanhai Bhairoo (1970) 17 W.I.R. 192).

2 The point for consideration in this case is whether the magistrate had erred in proceeding with the trial in the absence of the appellant on 15th March 1993.

3 The matter was previously called in court on 26th February 1993 when the appellant was present in court. On that occasion, no evidence was led but the matter was adjourned for trial on 15th March 1993 at the request of counsel for the appellant who, the magistrate was told, was engaged in the Court of Appeal.

4 Section 31(1) of the Summary Jurisdiction (Procedure) Act provides as follows:

“At any time before or during the hearing of a complaint, the court may, in its discretion, adjourn the hearing, 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 …”

5 See also Wilson v. Gellizean (1971) 17 W.I.R. 175.

6 Section 31(3) reads as follows:

“If, at the time and place to which the hearing or further hearing is so adjourned, either or both of the parties does not or do not appear, the court may proceed to the hearing or further hearing as if the party or parties were present; or if the complainant does not appear, the court may dismiss the complaint.”

7 See also Bowen v. Johnson (1977) 25 W.I.R. 60.

8 It must always be borne in mind that it is only in exceptional circumstances that a Court of Appeal will interfere in a matter where a discretion had been exercised by a lower court (see Abdool Salim Yasseen and Thomas v. The State (unreported), Sangit Chaitlal v. The State (1985) 39 W.I.R. 295 at page 302, and Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997).

9 In an affidavit sworn by the appellant on 21st December 1994, which was filed in support of his petition for bail which was heard three days later, the appellant had stated that he had thought that his trial had been fixed for 16th March 1993. Although I doubt very much that we can take notice of the...