Britton v Paul

• Jurisdiction: Guyana
• Judge: R.H. Luckhoo, J.A.,Massiah, J. A.
• Judgment Date: 30 November 1979
• Neutral Citation: GY 1979 CA 12
• Docket Number: Criminal Appeals Nos. 16 & 19 of 1979
• Court: Court of Appeal (Guyana)
• Date: 30 November 1979

Court of Appeal

Haynes, C.

Luckhoo, J.A.

Massiah, J.A.

Criminal Appeals Nos. 16 & 19 of 1979

Britton

and

Paul

Appearances:

W.G. Edwards, Assistant Director of Public Prosecutions for the appellant.

Odel Adams for the respondent.

Criminal law - Guilty plea — Appeal against sentence and conviction for “cultivating the plant cannabis sativa, a dangerous drug Ordinance, Cap. 142 — Full court allowed appeal and quashed conviction — Appellant appealed against decision of the full court — R. v. Blandford Justices, ex parte G (an infant) [1966] 1 All E.R. 1021 applied — Respondent was not represented at trial and pleaded guilty — No ambiguity in defendant's plea — No unfairness at the trial as a result of lack of representation of the accused — Appeal allowed — Conviction and sentence restored.

R.H. Luckhoo, J.A.

1 The respondent appeared before a learned magistrate of the Georgetown Magisterial District on the 8 ^th January, 1979, on two complaints laid against him on the same day, 8 ^th January, stating that he had committed the following offences, namely:

1

The cultivation of Cannibis sativa: contrary to s. 8(b) of the Dangerous Drugs Act, Cap. 142. Particulars of offence read: Defendant on Sunday, 31st December, 1978, at Coverden, East Bank, Demerara, in the Georgetown Magisterial District, cultivated the plant Cannabis sativa, a dangerous drug, in his yard. 2. The possession of Cannabis sativa: contrary to s.8(c) of the Dangerous Drugs Act, Cap. 142. Particulars of offence read: Defendant on Sunday, 31st December, 1978, at Coverden, East Bank, Demerara, in the Georgetown Magisterial District, had in his possession a quantity of seeds, part of the plant Cannabis sativa, a dangerous drug.

2 The defendant was unrepresented and pleaded guilty on the same day to both charges which were taken separately. The prosecution stated the facts on which each charge was brought. This was recorded by the learned magistrate who also recorded what the defendant said after the prosecution had spoken. The learned magistrate then made orders sentencing the defendant to serve six month's imprisonment on the first-mentioned charge, and three month's imprisonment on the other charge, the two sentences to run concurrently. Some days later the defendant, through a lawyer, lodged notices of appeal in both matters against the conviction and sentence. The learned magistrate's memorandum of reasons for decision in each case read:

“In this matter the defendant pleaded guilty and was accordingly sentenced having regard to the gravity of the offence.”

3 The grounds of appeal in both matters were the same, namely:

1

That the decision was erroneous in point of law in that the facts narrated to the magistrate by the prosecution did not establish a criminal offence. 2. That the sentence was unduly severe.

4 On the first-mentioned charge these were the facts which the learned magistrate recorded:

“Prosecutor states that on 31 ^st December, 1978, about 11.00 a.m. as a consequence of information received a party of policemen went to the home of the defendant and at the time they had in their possession a search warrant to search the home and yard of defendant. A search was conducted of defendant's yard in his presence and immediately south of defendant's building the police found one plant of the type cannabis sativa, a dangerous drug. Defendant's attention was drawn to the plant and he was cautioned and defendant said he had planted the seed from a matchbox into a basin and after it strove so well he planted it in the yard. Defendant was arrested and later charged.

Defendant states that he would not do this again. Prosecutor states nothing known against defendant.

Defendant is sentenced to six month's imprisonment.”

5 On the second charge the learned magistrate's minute read:

“Prosecutor states that on Sunday 31 ^st December, 1978, the police having received certain information executed a search warrant on the premises of defendant who was present. Defendant took the police into a room of his house and the police found on top of a cupboard in defendant's bedroom a matchbox. Defendant admitted he occupied the room and the cupboard and the matchbox was his property. The police opened the matchbox and found seeds of the plant cannabis sativa a dangerous drug. This was drawn to defendant's attention and defendant was arrested and charged after having been duly cautioned.

Defendant states the seeds were his but the box had matches inside also.

Defendant is sentenced to three month's imprisonment to run together with sentence defendant is now serving.”

6 In the Full Court Bishop J., in his judgment, summarised the arguments and submissions of learned counsel on both sides in this way:

“In the instant cases, Mr. Odel Adams submitted that the statements of facts, with respect to both charges do not support the conviction of the accused. Counsel referred to section 28 of the Summary Jurisdiction (Procedure) Act, ibid, and to the case of Davey, ‘The Times’ September 25, 1962. The report was unavailable but a synopsis of it is to be found in (1962) Crim. L.R. 809, where the learned authors examine the question of an ‘ Appeal following Guilty Plea.’

In the Davey case, the defendant pleaded guilty to possessing ‘Indian hemp’ which was subsequently found to be harmless grass. On appeal from the magistrates, Quarter Sessions refused to entertain jurisdiction over the conviction but substituted an absolute discharge. Mr. Adams therefore asked us to apply the Davey case to the instant matters for the reasons that:

• (1) the appellant was unrepresented at the hearing;

• (2) the explanation of the appellant following the statement of facts by the prosecution, did not amount to an admission of guilt on either charge;

• (3) in any event, the magistrate should have satisfied himself that the allegations were supported by the certificate of the government analyst.

In reply to the aforementioned submissions, State Counsel submitted that the appellant must be taken to have known that his acts were in contravention of the law and therefore the magistrate was justified in convincing him; that a plea guilty is a confession. State Counsel, in response to an inquiry from the court said that he saw no analyst certificate in his file, nor was there an entry indicating that the subject-matter of either charge was ever scientifically analysed.”

7 It should be noted at this stage that we were told during the hearing of these appeals that subsequent to the hearing and determination by the Full Court of the appeals the articles were scientifically analysed and certificates issued.

8 I will not advert to the decided cases referred to by Bishop J. in the course of his judgment, save where it is necessary to do so. It suffices to say, however, that the rationes decidendi of the learned judge appeared in the following extracts:

“The magistrate's minute does not say whether the charge was read to the appellant and explained to him in simple terms, or any terms at all; but of significance is the appellant's own statement in court, when he said that the seeds were his but that the box contained matches also.

To my mind the words ‘ but’ and ‘ also’ appear to have been qualifications, affecting his purported admission but were not sufficiently articulated by the appellant. Why did the appellant refer to the matches in the box? The question is whether the plea of guilty should have been allowed to stand. Further, should not the magistrate have tried to obtain a coherent statement from the then unrepresented appellant, in the interest of justice?

The prosecution's facts with reference to the other charge: cultivating the plant cannabis sativa, spoke of the police party finding ‘ one plant of the type cannabis sativa, a dangerous drug’ in the appellant's yard, in his presence. Appellant was cautioned and said he had planted the seed from a matchbox into a basin and because it flourished he transplanted it to the ground in the yard.

In court, the appellant said he ‘ would not do this again.’

Here, the question is: what was the appellant really admitting? Further, when the prosecutor used the word ‘ type’, in his Statement of Facts, was he, in the absence of scientific proof, asserting that the plant was nonetheless the type of cannabis sativa to which the Ordinance refers? It had not been established that an expert had examined the plant, nor was there evidence of the appellant's knowledge or competence in matters of, or concerning, dangerous drugs. Should the plea, on this second charge, have been allowed to stand?”

“He was unrepresented and, from the state of the record, the hearing appeared to be brief, with the magistrate apparently offering the appellant no assistance.

In Shaw (ibid), page 267, it is stated:

‘It is the duty of the court to see that, so far as possible, no party is hampered for want of legal assistance, and it therefore helps either party when unrepresented.’

In Roscoe's ‘Criminal Evidence’, 16 ^th edition, page 250, the learned authors say:

‘The court must be satisfied that the plea is to the legal offence.’”

“In my view what the appellant told the magistrate touching both charges were not pleas of guilty to the legal offences. Indeed what he said ought to have caused the magistrate considerable reflection, ending with the entering of pleas of not guilty in each case.”

“… the record indicates that the magistrate dealt with the charges and statements of both parties in a perfunctory manner, and lent the appellant no assistance whatever, in cases that cannot be classified as outline. In fact they carried penal consequences.

I would therefore hold:

• (1) that section 28 of the Summary Jurisdiction (Procedure) Act, Chapter 10:02 was not complied with by the magistrate;

• (2) that, in any event, on the statement of facts of the appellant alone, a plea of not guilty, ex abundanti...