Apata v Roberts

• Jurisdiction: Guyana
• Judge: Crane, C.,MASSIAH, J.A.
• Judgment Date: 26 February 1980
• Neutral Citation: GY 1980 CA 2
• Docket Number: Criminal Appeals Nos. 2 & 3 of 1980
• Court: Court of Appeal (Guyana)
• Date: 26 February 1980

Court of Appeal

Crane, C., Luckhoo, J.A. and Massiah, J.A.

Criminal Appeals Nos. 2 & 3 of 1980

Apata

and

Roberts

Appearances:

Moses Bhagwan, associated with M. J. Stephenson, for the appellant.

E. A. Romao, S.C., Director of Public Prosecutions, with G. H. R. Jackman, Deputy Director of Public Prosecutions, for the respondent.

Jurisdiction - Court of Appeal — Appellant was charged with unlawful possession of a firearm contrary to s.23(1) of the National Security (Miscellaneous Provisions) Act, Chap. 16:02 — Plea of not guilty entered — Accused convicted and sentenced to one year imprisonment — On appeal the DPP argued that there was no properly constituted appeal pending in the matter as no appeal lay to the Court of Appeal from a decision of a magistrate to the offence of the nature of which the appellant was charged — Court of Appeal does have jurisdiction to hear the matter and can dispose of the case as it wishes.

Crane, C.

1 The matter before us was originally in the nature of a petition. The applicant, Kwame Apata, had applied for admission to bail under s.7 of the Administration of Justice Act, 1978 (hereafter referred to as ‘the Act of 1978’) in circumstances which arose an this way: His house at Friendship Middle Walk, East Coast, Demerara, was searched by the police and he was found to be in possession of a firearm, to wit, a revolver, and ammunition, namely, six bullets. He was charged indictably under s.23(1) of the National Security (Miscellaneous Provisions Act, Cap. 16:02, on two separate information, one in respect of the firearm and the other in respect of the six bullets. The form of both information was the same, viz.:

“INFORMATION UPON OATH

STATEMENT OF OFFFNCE

Possession of firearm without lawful authority: Contrary to Section 23(1) of the National Security (Miscellaneous Provisions) Act, Chapter 16:02.

PARTICULARS OF OFFENCE

Accused on Wednesday the 11th July, 1979, at Friendship in the East Demerara Magisterial District, County of Demerara, in Guyana without lawful authority had in his possession a firearm, namely, a revolver.”

2 S.23 of the National Security (Miscellaneous Provisions Act, Cap. 16:02, provides as follows:

“23. (1) Subject to section 29, any person who, without lawful authority, the burden of proof of which shall lie upon him, purchases, acquires or has in his possession any firearm, ammunition or explosive shall be liable an summary conviction to a fine of one thousand dollars and to imprisonment for throe years and, on conviction on indictment, to imprisonment for life.”

3 The search took place on July 11, 1979, on which day he was arrested and the abovementioned charges laid against him. He was first arraigned before a magistrate of the Georgetown Magisterial District where an indictable charge under the above section was read to him after which he was informed he was not required to plead and put on $5,000 (five thousand dollars) bail, on each charge, to secure his appearance at Vigilance in the East Demerara Magisterial District.

4 On October 19th, 1979, the Director of Public Prosecutions appeared at Vigilance in person. He addressed the magistrate and elected to proceed with the charge as a summary instead of the indictable one as it stood and made representations, as he was entitled to do, that the court should proceed in that manner. But counsel for the accused immediately objected, emphasising that as from the 2nd November, 1978, the procedure set out in s.4 of the Act of 1978, which repeals and repeals and re-enacts s.6(1) of the Summary Jurisdiction (Procedure) Act., Cap. 10:02, must be followed before any indictable charge could be dealt with summarily. The magistrate however ruled that the Act of 1978 did not apply to criminal offences of the nature of s.23(1) of the National Security (Miscellaneous Provisions) Act, i.e., such offences that may be tried by either summary indictable procedure; and he further ruled, in agreement with submissions of the Director of Public Prosecutions, that s.23(1) aforesaid was not caught by the provisions of the Act of 1978 because, the matter is one for the election of the State prosecutor and not for him, the magistrate, as to how he ought to proceed with the case.

5 S. 61 of the Summary Jurisdiction (Procedure) Act, Cap. 10:02, as substituted by s.4 of the Act of 1978, insofar as it is relevant provides as follows:

• “61.(1) Where a person who is an adult is charged before the court with any offence specified in the First Schedule, the court, if it thinks it expedient to do so, having regard to any representations made by or on behalf of the prosecutor or the accused in the presence of each other, the nature of the offence, and all the other circumstances of the case (including the adequacy of the punishment which the court has power to inflict) may, subject to this section, deal summarily with the offence, and, if the accused pleads guilty to, or is found guilty of, the offence charged, the court may sentence him to any punishment or punishments to which the High Court could have sentenced him if he were convicted to such offence in the High Court:

  Provided that the court shall not sentence the accused to a term of imprisonment exceeding three years or to pay a fine exceeding four thousand dollars.

• (2) If the court at any time during the hearing of a charge for such an indictable offence as aforesaid against a person who is an adult becomes satisfied after hearing any representations from the prosecutor and the accused that it is expedient to deal with the case summarily, the court shall thereupon, for the purpose of proceedings under this section, cause the charge to be reduced into writing (if this has not been already done) and read to the accused, and shall forthwith ask him the following question, Do you plead guilty or not guilty?

• (3) Subsection ( 1) or (2) as the case may be, shall have effect in respect of any proceedings for an indictable offence as aforesaid whether or not those proceedings have been instituted and that offence committed before or on or after the date of the coming into operation of this section:

  Provided that where an indictable offence which was triable summarily before the date of the coming into operation of this section was committed before that date the punishment which the court may impose the accused shall not exceed a fine of two thousand dollars and imprisonment for more than two years.

• (6) Where the court commences to deal summarily with any indictable offence as aforesaid and the accused pleads not guilty, the court shall order the prosecution to file with the clerk of the court at least seven days before the time when the hearing is to commence copies of every statement by every witness whom the prosecution intend to call at the hearing of the charge; but the court may adjourn the hearing of such copies to be filed or, if filed before such adjournment, in order that the hearing should not commence earlier than seven days after the filing of such copies.

• (11) Subsections (6) to (10) (inclusive) shall not apply to any proceedings —

  • (a) where the offence was one which was triable summarily before the date of the coming into operation of this section and was committed before that date; (Underscoring mine.)

6 The learned magistrate took the view that the Act of 1978 was not applicable, so he considered it was not obligatory on him to comply with s.61(6) of Cap. 10:02 i.e., with the giving of the “order to the prosecution to file with the clerk of court at least seven days before the time when the hearing was to commence copies of every statement by every witness which the prosecution intend to call at the hearing of the charge…” It seems to me the magistrate's way of thinking was that the power of election to proceed summarily, as it formerly used to be, was still resident in the Director of Public Prosecutions; that as he was traditionally entitled to elect summary trial in “hybrid offences” before the passing of the Act of 1978, he should continue to do so. The offence before him, the magistrate thought, was like any other, that is to say, any ordinary summary conviction offence, and for that reason he ruled that it was not necessary to give the defence the statutory statements of every prosecution witness because the Act of 1978 did not apply. It is however clear to me ha must have overlooked the fact that the offence was committed after s.61 came into operation because, on the clear wording of s.61(11) above, a magistrate could only refuse to order the filing of the statutory statements of the prosecution witnesses under s.61(6) if the offence was committed before the 2nd November, 1978, on which date the Act of 1978 was assented to. The magistrate then heard evidence and received a supported confession statement by the defendant admitting possession of the revolver and six bullets, and he convicted him and inflicted concurrent sentences of 12 months' imprisonment on each charge. Later on I shall have something more to say about the illegality of the admission of this confession statement in the circumstances.

7 The defendant duly gave notice of appeal to this court pursuant to s.7 of the Administration of Justice Act, 1978, which, insofar as is relevant, provides:

• “7.(1) Anything in the Summary Jurisdiction (Appeals) Act to the contrary notwithstanding, any appeal from any decision given by a magistrate after the coming into operation of this Part in respect of an indictable offence dealt with summarily shall lie to the Court of Appeal.

• (2) Subject to subsection (1), the appeal shall be made and determined in all be made and determined in all respects in accordance with the Summary Jurisdiction (Appeals) Act, which, together with rules 24 to 28 (inclusive) of Order 46 of the Rules of the High Courts shall apply with such adaptations and modifications as are necessary to enable the...