Sookraj v Ceres

• Jurisdiction: Guyana
• Judge: Haynes, J.A.,Persaud, J.A.
• Judgment Date: 13 March 1975
• Neutral Citation: GY 1975 CA 7
• Docket Number: Criminal Appeal No. 68 of 1974
• Court: Court of Appeal (Guyana)
• Date: 13 March 1975

Court of Appeal

Persaud, J.A.; Crane, J.A.; and Haynes, J.A.

Criminal Appeal No. 68 of 1974

Sookraj

and

Ceres

Appearances:

Sir Lionel Luckhoo, S.C., with B.O. Adams, S.C. for appellant.

G.H.R. Jackman, Senior State Counsel, for respondent.

Practice and procedure - Appeals

Haynes, J.A.

1 The applicant was convicted summarily for burglary of the drug store of Harold Dhanraj in the Stabroek Market between 7.45 a.m. on Sunday, 21st May, 1972, and 6.00 a.m. on Monday, 22nd May, 1972, and stealing therefrom a quantity of Timex wrist-watches valued at $1,300, a quantity of National Insurance Stamps valued at $50, $450 in cash, all the property of Harold Dhanraj, together with thirty-five wrist-watches of the value of $700, the property of Mohamed Haniff, all to the total value of $2,500. There was no direct evidence that Sookraj actually did break and enter the premises, so the prosecution founded their case on the so-called doctrine of recent possession.

2 Evidence was led that thirty-two of the wrist-watches belonging to Mohamed Haniff were in the possession of Sookraj on the 25th May, 1972. Only eighteen of those were tendered in evidence as Exhibits “C1–C18.” Two witnesses, Mohamed Haniff and City Constable Heywood, testified that Sookraj had shown them the remaining fourteen watches in the store before the police seized Exhibits “C1–C18.” Later on the said 25th May, 1972, but at the same of the seizure they were not found. Sookraj gave two explanations of his possession of the watches: one was oral, and was given on May 25, 1972, to Haniff and Heywood between 8.30 a.m. and 9.30 a.m. He told them then he had purchased the watches on the very night of Sunday, 21st May, 1972, from a man brought to him by a woman named Francis who lived nearby; that he (Sookraj) was told by this man that the watches had “come off a trawler,” and he had purchased them, presumably in good faith, believing that the vendor had brought them from Trinidad on this trawler. And later the said day he made a written statement to the police. In it he claimed that the watches removed from his store on that day were his property which he had imported about two or three weeks previously.

3 At the hearing, Haniff gave some evidence of identification of Exhibits “C1–C18.” He did not on oath formally claim the missing fourteen watches as his property or give any particulars of their identification. About them he testified only that “he (Sookraj) took me at the back and showed me some Timex watches and others. I told the defendant that these watches here are my watches. He told me that he bought these watches that came from a trawler.” He was not cross-examined on their identification. As regards the oral explanation the prosecution had the woman, Francis, in court. She was identified by Heywood. Hut she was not called to testify. At the close of the case for the prosecution, counsel for Sookraj submitted that there was no case to answer because: (a) there was no evidence that Sookraj did break and enter the premises; and (b) there was insufficient evidence of identification of the watches found in his possession. The magistrate overruled this submission. He called for a defence to the charge as laid. The applicant did not testify. He made an unsworn statement adopting the explanation in the written statement to the police. This explanation the magistrate disbelieved and consequently he found the defendant guilty. His appeal to the Full Court was dismissed.

4 We have not before us the Reasons of the Full Court, but we have seen the record and grounds of appeal before them. And it is clear that the crucial issues that arose out of the proceedings in the Magistrate's Court were: (a) Was there sufficient evidence identifying the watches found in the possession of Sookraj with those stolen from Dhanraj's store at the time alleged? (b) If so, was the offence established (if any) larceny or receiving? The Full Court upheld the findings that the watches were sufficiently identified and larceny proved. So the applicant wishes to challenge on this count the decision of the Full Court.

5 The Court of Appeal Act, Cap. 3: 01, s. 31, reads thus:

• “(1) Where the Full Court makes an order on appeal from an inferior court in a criminal cause or matter, any party to such appeal may appeal to the Court of Appeal from the order of the Full Court —

  • (a) upon any ground which involves a question of law alone;

• …

• (2) No appeal shall lie under subsection (1) except with the leave of the Full Court of the Court of Appeal.”

6 What is involved in this matter is an application to this court under s. 31(2) for leave to appeal under s. 31(1)(a) on a question of law alone. It was resisted by counsel for the State on the ground that the applicant was seeking leave to appeal on grounds of appeal involving questions of fact alone or questions of mixed law and fact. And this, he contended, was not legally permissible under s. 31(1) aforesaid. The right of appeal from the Full Court is conferred and circumscribed by the provisions of s. 31, and it would be wrong for us to give an interpretation to s. 31(1)(a) thereof which would result in the broadening of the scope of appellate jurisdiction under the Act beyond the limitations which are stipulated in the Act itself.

7 What then is “any ground which involves a question of law alone?” It may or may not be significant that the subsection does not read “any ground which involves a question of law” but “any ground which involves a question of law alone.” Be that so or not, as was pointed out by Freedman, J.A. in the Manitoba Court of Appeal in Regina v. Huot, (1968) 70 D.L.R. (2d) 703: “It is easy to say that the Crown has a right of appeal only on a question of law. What is not always so easy to decide is whether, in a given case, the particular question under appeal is one of law.” But in this judgment, although it may not be necessary to endeavour to lay down any exhaustive definition of what is “a question of law alone,” or to frame any precise and conclusive test to be applied to determine this question whenever it arises, it is judicially instructive to refer to certain authorities on what was “a question of law” or “of law alone.”

8 In His Majesty the King v. E.W. Boak [1920] S.C.R. 525, Anglin, C.J., reading the judgment of the Supreme Court of Canada dealing with the scope of this phrase, said (at p. 528):

“That clause was meant to cover questions of law arising out of the proceedings at the trial based upon facts admitted or conclusively found and not involving the appreciation or weighing of evidence by the appellate court. This is implied in the term ‘law alone’.”

9 Oliver Gauthier v. His Majesty the King [1931] S.C.R. 416 , was an appeal to the Supreme Court “on a question of law alone” under s. 1023 of the Criminal Code. Gauthier was convicted for stealing a car. His appeal to the Appellate Division of the Supreme Court of Ontario was dismissed. The Supreme Court per Anglin, C.J.C. (at p. 416) said

“The court is unanimously of the opinion that it has no jurisdiction to hear this appeal. On examination, it turns out that the questions raised are all questions of fact — questions of the appreciation of evidence … in regard to which there is no right of appeal to this court under section 1023 of the Criminal Code.”

10 And in Roy E. Belyea v. His Majesty the King, Harry Weinraub v. His Majesty the King, [1932] S.C.R. 279 the same learned Chief Justice of Canada said (at p. 296):

“The right of appeal … is, no doubt, confined to ‘questions of law.’ That implies, if it means anything at all, that there can be no attack by him (the appellant) in the Appellate Divisional Court on the correctness of any of the findings of fact.”

11 Bonner v. Lushington , (1893) 57 J.P. 168 was a decision on a case stated on a question of law. C., a prostitute, was convicted for the statutory offence of unlawfully in a public street behaving in a riotous and indecent manner. On appeal, the quarter sessions held C. was not guilty, but stated a case asking if, under the circumstances, she was guilty. Lord Coleridge, C.J. said (at p. 169): “This is a case which the court must decline to hear as not involving any point of law … it is nothing but a mere question of fact, and the appeal is dismissed.”

12 In Ross v. Rivenall [1959] 2 All E.R. 376, the recorder had allowed an appeal from convictions of Ross for unlawfully taking and driving away a car without the consent of the owner and unlawfully using it uninsured. He stated a case for the opinion of the Divisional Court as to whether on the facts found, his conclusion was correct in point of law. The court held he was wrong. Salmond, J. said (at p. 378):

“If, at the end of the case for the prosecution, he (the judge) found there was in law some evidence against the appellant but that it was not strong enough to call for an answer, I, for myself, have grave doubts whether this court could have interfered. The recorder's view might have been mistaken, but it would not have been a mistake in law and accordingly, would not have been a mistake that could successfully be challenged in this court … the recorder decided that in law there was no evidence to support the charge. This, in my judgment, was a wrong conclusion on a point of law…”

13 Williams v. Waterman (1961) 3 W.I.R. 499 was a decision of the Federal Supreme Court (Archer, C.J., Wylie and Lewis, JJ.). The appellant was convicted in the Magistrate's Court at Port-of-Spain of larceny and sentenced to nine months' imprisonment with hard labour. He appealed to the Court of Appeal of Trinidad and Tobago and his appeal was dismissed. The record did not contain reasons for the judgment of the Court of Appeal.

14 The evidence disclosed that monies belonging to the Fire Services Sports Club were in the custody of the person in charge of...