UNIT NINE

IMPORTANT ASPECTS OF SUMMARY PROCEDURE

• STATUTORY PROVISIONS ON SECURING APPEARANCE OF THE

DEFENDANT AT TRIAL

SUMMARY COURTS ACT CHAP 4:20

ENFORCING APPEARANCE OF THE DEFENDANT
Section 42:
In every case where a complaint is made before a Magistrate or Justice that any person has
committed, or is suspected to have committed, any summary offence within the district of
such Magistrate or Justice, such Magistrate or Justice may issue his summons directed to
such person, stating concisely the substance of such complaint, and requiring him to appear at
a certain time, being not less than forty-eight hours after service of such summons, and at a
certain place, before the Court to answer the said complaint, and to be further dealt with
according to law.
(2) A single summons may be issued against a person in respect of several complaints; but
the summons shall state the matter of each complaint separately and shall have effect as
several summonses each issued in respect of one complaint.
(3) The Court may, if it thinks fit, with the consent of parties, hear and determine a complaint
notwithstanding that the said period of forty-eight hours may not have elapsed.
(4) The Court may, if it thinks fit, issue a summons directing a defendant to appear forthwith
in cases where an affidavit is made by the complainant that such defendant is likely to leave
Trinidad and Tobago within forty-eight hours.
(5) Nothing herein contained shall oblige any Magistrate or Justice to issue any such
summons in any case where the application for an order may by law be made ex parte.
Section 43:
(1) Every such summons shall be served by an authorised officer upon the defendant either
by delivering a copy of it to him personally, or, if he cannot be found, by leaving a copy of it
with some person for him at his usual or last known place of abode.
(2) The officer by whom the summons is served shall attend at the time and place specified
therein, in order, if necessary, to produce the service. However, the Court may, in its
discretion, receive proof of
such service by affidavit in the manner hereinafter mentioned.
(3) In this section “authorised officer” means a constable or a Transport Officer acting in his
capacity as such under the provisions of the Motor Vehicles and Road Traffic Act or any
other person whom the Minister may, by Order subject to affirmative resolution of
Parliament, authorise for the purposes of this section.
Section 44:
If the defendant does not appear before the Court at thetime and place mentioned in the
summons, then, after proof upon oath, to the satisfaction of the Court, that the summons was
duly served or that the defendant wilfully avoids service, the Court may, in its discretion,
either—
(a) unless the written law on which the complaint is founded otherwise directs, proceed
ex parte to the hearing of the complaint, and adjudicate thereon as fully and
effectually as if the defendant had personally appeared before it in obedience to the
summons;
(b) adjourn such hearing to some future day; or
(c) upon oath being made by or on behalf of the complainant, substantiating the matter of
the complaint to the satisfaction of the Court, issue a warrant to apprehend the person
so summoned or avoiding service, and to bring him before the Court to answer the
said complaint, and to be further dealt with according to law.
Section 45:
On a complaint in writing being made before a Magistrate or Justice for any summary
offence, the Magistrate or Justice may, upon oath being made before him substantiating the
matter of such complaint to his satisfaction, instead of issuing a summons, issue in the first
instance a warrant to apprehend the person against whom such complaint has been made, and
to bring him before the Court to answer the said complaint, and to be further dealt with
according to law.
Text: Commonwealth Caribbean Criminal Practice and Procedure - Dana S.
Seetahal (2014) 4th Edn. Cavendish Publishing House Chaps 7 & 8.

CHAPTER 7 NOTES:

SUMMARY TRIALS:

All summary offences are tried in the magistrates’ court. Statute provides for certain indictable
offences to be tried summarily. Once a summary complaint is laid before a magistrates’ court, the
attendance of the defendant must be secured and then summary trial may commence.

PRELIMINARIES:

The Complaint:

The complaint is the document which initiates proceedings in the magistrates’ court. A complaint
must contain:

• A statement of the specific offence of which the accused is charged

• The particulars necessary for giving a reasonable information as to the nature of the charge
Stated in Summary Courts Act Chap 4:20 s 38 (1) Trinidad and Tobago.
• Reference to the statute breached (if the offence is Statute Based)

It is unnecessary for a complaint to bear the signature of either the magistrate or the justice before
whom it is instituted: D’Oliveira v Singh (1963) 6 WIR 193. However, the complainant must sign
the complaint.

Gould v Williams [1962] 5WIR 122:

It is immaterial that the statutory section creating the offence was not stated since sub-s 35 (4) of the
Summary Courts Ordinance provided that the charge was valid once it would have been sufficient
before the legislation (s 35(2)), requiring that the statute be cited, came into effect.

Regarding challenges to a complaint the essential determinant is whether the alleged defect misled the
defendant in any way so as to affect his fair trial.

Williams v Daniel and Bobb [1963] 13 WIR 490:

The issue came up for consideration in the summary trial of an indictable charge (which was triable
summarily by statute).

Facts: The defendant was charged under the (then) Criminal Offences Ordinance of Trinidad and
Tobago which stipulated that a clerk or servant in the public service who ‘wilfully and with intent to
defraud’ made certain false entries was guilty of an offence. In the particular charge against the
defendant, the word ‘wilfully’ was omitted.

Held: Wooding CJ; that the omission of this word from the charge did not make the complaint invalid.

Ludris Wheatlet et al v Commissioner of Police [2006] UKPC 24:

Held: Where the language in the complaint did not mirror the words in the statute creating the offence
the charge was not invalidated as long as the defence could discern the gravamen of the offence.

A complaint can be sworn or unsworn. Under summary matters it is made on oath if a warrant of
arrest is sought.

SUMMONS:

A summons is in effect a notice to a person to appear at a certain place and time. Can be given
personally or to an adult at the known address. – Summary Courts Act Chap 4:20, ss 42-43

In summary criminal proceedings, the summons is issued after the complaint is laid since the
particulars contained in the summons will be based on the complaint.

A summons will be issued either by a magistrate or Justice of the Peace in the are where the complaint
is laid. The complaint will be laid in the administrative office of the magistrates’ court in the district
where the offence occurred.

The summons entitled ‘Summons to the Defendant’ will inform him of the charge and the particulars
and the date of hearing. Must be served at least 48hrs before the date of hearing.

Vysick v Commissioner of Police [1971] 17 WIR 391:

Held: A magistrate must see the complaint before he authorises the issuing of summonses for the
defendant.
Despite this decision it appears that in practice, a magistrate or justice rarely gives any judicial
consideration to the merits of a complaint before issuing a summons for the appearance of the
defendant.

While it is true that the function of a magistrate in determining whether a summons should be issued
is a judicial one, the magistrate must only bring his mind to bear to decide whether or not on the
material before him he is justified in issuing the summons.

He may consider the complaint to determine whether:

(a) the allegation is an offence known to law;

(b) the offence is not out of time;

(c) the court has jurisdiction or

(d) the complainant has any necessary authority to prosecute.

Summonses can be made for the appearance of witnesses for both the prosecution and the defence.

AT THE HEARING

At the hearing the magistrate is both the tribunal of fact and of law.

The defendant must be given the full opportunity to be heard on the charge., this includes the right to
legal representation.

Aris v Chin [1972] 19 WIR 459:

Facts: The appellant, a solicitor in Jamaica who was on a disciplinary charge, requested an
adjournment of two weeks and produced a medical certificate in support of his request. The
Committee refused and granted an adjournment of only one week to facilitate the complainant’s
giving of evidence. On the adjourned date the solicitor again asked for an adjournment after the
complainant gave evidence to prepare himself to give his own evidence. This was refused.

Held: Denial of an adjournment to obtain legal advice and to get witnesses, in certain cases may
amount to a denial of the opportunity to be heard.
Allete Chief of Police [1965] 10 WIR 243:

The Court of Appeal of the Windward Islands allowed the appeal and strongly emphasised that the
denial to a defendant of the opportunity to retain and instruct counsel or to summon witnesses was a
‘clear denial of natural justice’.

Harrington v Roots [1984] 2 All ER 474:

Denial of an application for an adjournment made by the prosecution is in itself not a basis for
dismissal of the case. The prosecution must yet be given the opportunity to be heard and failure to do
so will render any dismissal a nullity.

R v Kingston upon Thames JJ ex p Martin [1993]:

In deciding whether to grant an adjournment, a court should consider the adverse consequences likely
to accrue to the person seeking the adjournment: the convenience of the court, the importance of the
proceedings and the extent to which the applicant has been responsible for the circumstances leading
to the application.

R v Bolton JJ ex p Merna et al [1991] 155 JP 612:

Facts: The defendant claimed that he was too ill to attend trial. It was held that the principal
consideration in deciding whether to proceed ex parte is fairness. Even if the court suspects that the
reason for requesting an adjournment is spurious, it should express its doubts and grant the
adjournment, giving the defendant the chance to provide professional support for his claim.

EX PARTE TRIAL:

Summary Courts legislation in most jurisdictions provides that where a defendant who has been
properly notified of the date of hearing fails to appear for his trial, the magistrate may proceed ex
parte or issue a warrant for arrest of the defendant. He cannot do both: Perreira v Cato [1979] 28 WIR
169.

Facts: The appellate fail to appear before the court on 6 occasions for her summary trial for wounding.
She had previously served to appear and a warrant was issued as a result of her failure to appear on 29
November. The magistrate did not, however, await the execution of the warrant of arrest, but
proceeded to the matter ex parte on the 20 December.

Held: The Guyana full court that the legislation did not envisage that the court should pursue more
than one course of action at a time.

Defendants must be properly notified of the date of the hearing and proof of such must be shown.

Legislation throughout the region also provides that ex parte trial is possible on an adjourned date
once the defendant knew of the date and fails to appear: Wilson v Gellizeau (above). There must be
satisfactory proof that the adjournment was made in the presence and hearing of the defendant or his
representatives. Where neither are present notice must be given of the set date: R v Seisodon JJ ex p
Dougan [1983] 1 All ER 6.

The question of culpable neglect was brought up in the case of; Spencer v Bramble [1960] 2 WIR 222

Facts: In that case, the defendant and his lawyer were present when the magistrate adjourned his case
(two traffic charges) to a fixed date for trial. On that date the defendant did not appear and no
explanation was forthcoming as to his absence. The magistrate proceeded ex parte. The defendant
later appealed against his convictions on the basis that he was genuinely mistaken as to the adjourned
date.

Held: The defendant had been given every reasonable opportunity to be heard. Through his own fault
he had failed to grasp that opportunity. Being mistaken as to the date fixed for trial did not mean that
he was not at fault.

The court went on to say that if the defendant is without fault in his non-appearance then he is not
guilty of ‘culpable neglect’.

An issue that may arise if a magistrate were to proceed ex parte and during the course of the hearing
the defendant appears. The question; whether the magistrate should proceed with the defendant now
participating or restart the matter?

Agdoma v Tomy [1968] 12 WIR 296:

Facts: A magistrates’ court in St Lucia embarked on a summary trial where a properly served
defendant failed to appear (proof upon oath having been given). The magistrate proceeded to hear the
complaints, adjudicated and convicted the defendant on both charges. In the afternoon of that day the
defendant and his lawyer appeared and submitted a medical certificate for the defendant’s non-
appearance earlier that day. The magistrate purported to set aside the earlier convictions and then
referred the matter to the High Court for opinion on a certified question.

Held: Since the magistrate in hearing the complaints had jurisdiction to do so, the matter was not a
nullity. The magistrate was functus officio and could not set aside the convictions.

Question; Whether a magistrate who had not yet convicted could have rescinded his earlier decision?

R v Dewsbury Magistrates Court Ex p K [1994] The times, 16:

Facts: the defendant appeared before conviction but after the court had reached a guilty verdict in
respect of his ex parte trial. The defence applied for a rehearing under s 52 of the English Magistrates’
Courts Act, but was refused.

On appeal it was held that in the particular circumstances of the case and the fact that the matter was a
serious one the interest of justice demanded that the case be reheard.

BIAS IN MAGISTRATES’ COURTS:

It is perhaps more likely in the magistrates’ courts that issues of bias may arise, since the court is both
the tribunal of law and fact. There exists a basic principle that a tribunal ought not to sit on any matter
in which it or any of its members has a personal interest.

A personal interest may be financial or may stem from a relationship between the parties or particular
knowledge by the tribunal of fact which may result in prejudice. It is now settled law that the test to
be applied in cases of apparent bias by a jury, arbitrator, magistrate or other tribunal members is
whether there is a real danger that injustice will occur as a result of the alleged bias: R v Gough
[1993] AC 646.

The issue is whether a fair minded and informed observer would conclude that there is a real
possibility that the tribunal was biased. If the magistrate has previously convicted the person or knows
them personally, there is the question of whether the magistrate should disqualify himself.

R v McElligott ex p Gallagher and Seal [1972] Crim LR 332 (English Case):

Facts: The defendants appeared before the respondent magistrate charged with loitering. When the
matter was called, their lawyer asked for the case to be tried before another magistrate since they had
been tried and convicted before the respondent magistrate previously. The magistrate refused. The
defendants applied for an order of prohibition. The Queen’s Bench Division refused the application
holding that there was no proposition of law that a defendant whose past record was known to a
magistrate should not be tried by him. While it may be desirable to have another magistrate try the
case, this statement ‘could not be elevated to a point of law’. The order was refused.

Criminal law Review Commentary: The authors recognised the apparent conflict in treatment of
cases where a jury might have heard of the defendant’s previous convictions. They suggest that the
explanation as to why a magistrate who is familiar with a defendant’s convictions might still try him
is perhaps historical: ‘In small communities all the magistrates would inevitably come to know
the persistent offender. He could not be tried in the locality at all except by those who knew
him.’ This historical explanation perhaps is still relevant in small Caribbean countries today.

R v Ruel Gordon [1969] 14 WIR 21 (Jamaican Case):

Facts: The defence submitted that there was a breach of natural justice by a magistrate trying a
defendant whom he had previously convicted. The Court of Appeal dismissed the appeal, holding that
where a magistrate is a trained lawyer he must be taken to have disabused his mind from any latent
prejudice of a previous trial. It was expected that he would apply himself to the issues in the
subsequent case.

If the defence, however, raise the question of bias as emanating from any circumstance outside
of the norm (not merely trying a previous case or knowing counsel), the court must give serious
consideration to the allegations.

NOTES OF EVIDENCE:

It is necessary that a record be taken of what transpires in court in respect of every matter. An appeal
court will look to the record not only to ascertain what evidence was given at the hearing, but also to
determine what happened prior to or after the actual hearing.

The most important; the ‘notes of evidence’, which is a record of the facts and circumstances
connected with the charge whether taken on oath or not: Sam v Chief of Police (1965) 10 WIR 245.

In most jurisdictions, a magistrate has a statutory duty either to take notes of the evidence himself or
to cause notes to be taken of the evidence. It is apparent that even if statute were not to require that a
record of the evidence given at a hearing be taken, it must be a mandatory practice, since on appeal an
appellant is entitled to consider and utilise the evidence given at trial to argue his appeal.
In Trinidad and Tobago a clerk takes the notes. In either event, the magistrate usually must sign daily
the record book of proceedings.

In Canterbury v Joseph (1964) 6 WIR 205 (which was followed in Sam (above)), the British Guiana
Supreme Court emphasised that on a plea of guilty, it was insufficient for the magistrate’s notes to
record ‘Deft pleads guilty’ and the sentence. His duty to take notes of evidence extended to recording
facts narrated by the prosecutor as well as the statement made by the defendant afterwards. The record
of the proceedings is usually considered conclusive evidence of what transpired at any hearing, even
if statute does not so stipulate, as do ss 11–12 of the Trinidad and Tobago Summary Courts Act,
Chap 4:20.

PROCEDURE:

Trial in the magistrates’ court, as in the High Court, is in ‘open court’ unless the court decides to clear
the court room for special reasons. In the magistrates’ court, such situations will usually be dictated
by statute. It is usually referred to as “a hearing in camera”.

The Trinidad and Tobago Summary Courts Act, Chap 4:20, in this regard seems to confer on
magistrates powers as wide as those of a judge’s inherent power to run his court. In respect of
summary offences: ‘a Magistrate or Justice may, on special grounds of public policy, decency or
expediency, in his discretion exclude the public at any stage of the hearing; and in every such case
shall record the grounds on which such order has been made.’

Summary Courts Act, s 54 (2) Chap 4:20

APPEARANCE OF PARTIES:

The defendant and complainant are expected to be present at that time on the date fixed for hearing.
They will have been notified of the particular court to attend within the specified magisterial district.
Witnesses who have been summoned are also expected to attend.

When the case is called, if the complainant, does not appear but the defendant appears, the court may
dismiss the charge or adjourn the case at its discretion. Summary procedure legislation in all
jurisdictions gives the magistrate this prerogative. Similarly, if both the complainant and the
defendant fail to appear, the court has a discretion to dismiss or adjourn the case.

Many factors will influence a court’s decision to adjourn or not [examples];

 • whether it is the first time that the matter is called
• whether there is a valid excuse for lateness or absence of the complainant

Even though the alleged victim and witnesses might be present, the magistrate cannot embark on ex
parte trial for failure of the defendant to appear unless statute so provides. However, Not permissible
on the date set for the first appearance.

Summary Courts Act, Chap 4:20, s 66(4), Trinidad and Tobago

BOTH PARTIES APPEAR:

Once both parties appear, the magistrate may embark on the trial. Before the trial can proceed, the
charge must be read to the accused person and he is then asked to plead. If the defendant pleads
guilty, the prosecutor will read a summary of the facts of the case. The defendant is then asked by the
magistrate for his reply to the facts.

Once the defendant’s reply does not show the plea to be ambiguious, the magistrate will then proceed
to sentence or may, in extenuating circumstances and if legislation permits, make an order of an
absolute discharge. The effect of such a discharge is that no conviction is recorded against the
defendant. Even a defendant who is found guilty after a full hearing may benefit from an order of
absolute discharge.

If a plea of not guilty is recorded on behalf of the defendant, the prosecution is then put to proof of all
the elements necessary to constitute the offence.

DELAY:

Often trials at magistrates’ courts are delayed simply because of the number of cases listed before
these courts. Arguments to stay proceedings on the ground of delay, while they may be entertained by
magistrates, appear to be rare.

COURSE OF THE TRIAL:

The basic procedure for trial is set down in the summary procedure statutes throughout the region,
although such legislation does not usually specify that preliminary submissions or a no case
submission may be made. The basic procedure for making preliminary submissions is the same for
any trial.

1. Once the court indicates that the matter will start, defence counsel may make any preliminary
submission at this stage. Once entertained, this will have the effect of starting the ‘trial
process’ even though no evidence is yet given: R v Horseferry Road Magistrates’ Court ex p
K (1996)160 JP 441.

The prosecutor, too, may make preliminary submissions such as to seek an amendment of the charge.

2. After the preliminary submissions are dealt with, the actual hearing will commence.

An opening address is rarely made by the prosecution, instead the first witness is called.

• Trinidad and Tobago passed legislation by Act No 15 of 2005 amending the Summary Courts
Act to allow proof by formal admissions in a summary criminal trial without the need to call
witnesses to these admissions. The defence must agree to such formal admissions which may
be made before the proceedings or in court.
• When the case is about to start, witnesses in the case will be sent out of court and hearing and
in Commonwealth Caribbean jurisdictions this usually includes expert evidence whose
evidence might be critical.
• Warrants can be issued for notified witnesses if they fail to show, if it is the alleged victim
who is absent, the court may require the prosecution to proceed on what evidence it has.
• All witnesses must give sworn evidence at trial except for children (in general, persons under
14) in certain circumstances. Any unsworn evidence otherwise given for the prosecution
constitutes a nullity; it is as if no evidence was given. A witness may be sworn in any
manner which is recognised as binding on his conscience: R v Hines and King (1971) 17
WIR 326.

3. The prosecutor will call each of the prosecution witnesses in time to give evidence following
which the defence may cross-examine the witness.

A witness is permitted to remain in court after having given evidence or may be relieved from further
attendance at the discretion of the court.

Opposing counsel will usually challenge the evidence of witnesses that directly conflicts with his
client’s case. It is generally expected where a witness’s veracity is being questioned that this should
be made clear to the tribunal of fact.
In the magistrates’ court, frequently one party or the other may be represented by a person who is not
a qualified professional advocate and may be insufficiently skilled to appreciate the necessity of
putting matters that are challenged clearly to the witness for the other side.

O’Connell v Adams [1973] Crim LR 113:

Facts: On a summary trial of a defendant for permitting his taxicab to be used with defective tyres it
was the police prosecutor who failed to suggest to defence witnesses that any part of their evidence
was untrue. On appeal against conviction, the defence contended that this unchallenged evidence must
be regarded as credible. The appeal was dismissed.

Held: Allowance must be made for the inexperience and lack of qualification of the representation in
the magistrates’ courts.

4. After the prosecution closes its case, the defence may make a no case submission.

If the magistrate finds a prima facie case is made out, the defence must be given an opportunity to
answer the charge (based on the principle of natural justice; both sides must be heard)

• The defence may choose not to call the defendant or, for that matter, any witnesses.
• The defendant has a right to refuse to give evidence (although it puts him at a disadvantage)

If the defendant chooses to give evidence, he is the first witness to be called by the defence.

R v Midhurst JJ ex p Thompson et al [1973] 3 All ER 1164:

If a court makes a pronouncement ‘There will be a conviction’ after the prosecution has closed its
case and before the defence is allowed to present its case, this will be of no effect.

Harrington v Roots [1984] 2 All ER 474, HL:

A decision to acquit without calling on the prosecution to lead its evidence is a nullity

Facts: The prosecution sought an adjournment because the complainant was away on holiday. The
justices (magistrates) at first agreed to the adjournment, but when the defence objected to the
suggested date, they dismissed the charge without at least calling upon the prosecution to proceed
on the evidence that was available.

Held: The justices acted in breach of their statutory duty (to hear the prosecution) and the
acquittal was a nullity.
 5. Each party is entitled to make a closing address. This is at the end of the case when both sides
have presented their respective cases.

s 65 of the Summary Courts Act, Chap 4:20 provides that the defendant ‘shall be entitled to address
the court at the commencement or the conclusion of his case as he thinks fit’.

A closing address takes the form of a short summary of the pertinent matters of which each side seeks
to remind the court.

6. After the closing addresses, the magistrate will render a verdict. This is generally done
immediately, since the matter is after all of a summary nature.

If the defendant is found guilty, he will be allowed a plea in mitigation which will be made by his
lawyer if he is represented. Sentence will then be passed.

DISCLOSURE:

The basic principles enunciated in Dallison v Caffery [1964] 2 All ER 610 are applicable. If
prosecuting attorney knows of a credible witness who can speak of material facts which can assist the
defence, he must either call the witness himself or make his statement available to the defence.

R v Leyland JJ ex p Hawthorn [1979] 1 All ER 209:

Facts: The defendant was tried for driving without due care and attention as a result of a collision in
which he was involved. Two witnesses had given the police statements whose contents were helpful
to the defence. These were, however, only given to the defence after the defendant had been
convicted.

Held: The conviction must be quashed. The defendant was denied natural justice.

Any witness, who appears credible and who can be helpful to the defence, must be made available to
the defence as soon as possible. Furthermore, the prosecution must disclose any previous statement of
a prosecution witness which is inconsistent with the witness’s evidence at trial. This is part of the
elementary rule of fairness.

R v Kingston upon Hull JJ ex p McCann (1991) 155 JP 569. McCullough J expressed this opinion, p
572:

There is no general obligation on a prosecutor to disclose witness statements in advance of a summary

trial.
The courts have recognised that if the offence is ‘serious’ or complex, albeit a summary offence,
disclosure of witness statements should be afforded the defence: Franklyn and Vincent v R (1993) 42
WIR 262 PC.

NO CASE SUBMISSION:

If he chooses to do so, it is not proper for the magistrate to ask him to elect whether he is going to
stand by his submission and call no witnesses: Bascombe v Commissioner of Police (1970) 17 WIR
361, p 303. In criminal cases, a defendant cannot be called upon to elect between making a no case
submission and calling witnesses.

The grounds on which a no case submission may be made in the magistrates’ court (and indeed in any
criminal proceedings) were set out in the English Practice Note [1962] 1 All ER 448 which was
adopted by the Trinidad and Tobago Court of Appeal in Riley v Barran (1965) 8 WIR 164.

The Practice Note stipulates that: … a submission of no case may properly be made and upheld:

(a) when there has been no evidence to prove an essential element in the alleged offence; or

(b) when the evidence adduced by the prosecution has been so discredited as a result of cross
examination or is so manifestly unreliable that no reasonable tribunal could safely convict.

The Practice Note reflects the law on no case submission which was subsequently developed in
relation to indictable proceedings in R v Galbraith (1981) 73 Cr App R 124. Galbraith was
followed by the Privy Council in Daley v R [1994] 1 AC 117, PC, an appeal from Jamaica, thus
confirming its applicability to the region.

Hernandez v Brooks Mag App No 333 of 1969 (unreported):

The Court of Appeal rejected the submission that the magistrate is empowered at the close of the case
for the prosecution to accept or reject some of the evidence in order to determine if a prima facie case
is established. The court said ‘it is not the duty of a magistrate at that stage to determine which, if any,
of the witnesses have spoken the truth or whether there are discrepancies in the evidence, except
where the evidence is of such a quality that no reasonable tribunal might consider it in any sense
worthwhile …’.
The court felt that at the stage (of the no case submission) the magistrate must determine whether
there is evidence which, if believed, supports the charge. If there is, the no case submission should be
rejected.

Since it is the duty of the prosecution to prove its case beyond reasonable doubt, if the magistrate
finds the case not proven at the end of the case for the prosecution, he should at that stage be entitled
to dismiss the charge, regardless of whether a mythical tribunal might believe the evidence or not.

After the defence makes its submission of no case, the prosecution will reply to the submission. The
magistrate will then rule on the submission. If the submission is upheld, the case is dismissed and the
defendant acquitted. If the submission is overruled, the defence has the option to call evidence.

FUNCTUS OFFICIO:

If the court has discharged all judicial functions in a matter it is said to be Functus Officio: R v
Camberwell Green Magistrates’ Court ex p Brown (1983) 4 FLR 767.

Where a court has convicted and sentenced a defendant, it has no further jurisdiction to deal with the
matter: Beswick v R (1987) 36 WIR 318, PC;

Lord Griffiths; ‘Once he had recorded the conviction and sentence (the magistrate) had exhausted his
jurisdiction to deal with the offence and was functus officio’. A conviction comprising both a decision
establishing guilt and the sentence is a final adjudication: Richards v R.

While ‘an adjudication’ leading to a finding of guilt is not a full conviction (for the purposes of
autrefois) it is nevertheless an exhaustion of the magistrates’ function as far as the determination of
guilt is concerned.

Commonwealth Caribbean courts in general do not have the statutory power granted to English
justices by virtue of s 142 of the Magistrates’ Court Act 1980 to rescind and vary sentences.

A magistrate may reopen a case after conviction to vary or rescind the sentence or order made. He
may also decide to remit a case in which he has found a defendant guilty for trial by another
magistrate. Both of these provisions must be exercised within 28 days of the order.
Note: That on a plea of guilty a magistrate is not functus officio and may allow the defendant to
change his plea at any stage before sentence.

The question of functus with regard to a jury was considered by the Trinidad and Tobago Court of
Appeal in Cummings et al v The State (1995) 49 WIR 406:

The Court of Appeal found that the jury became functus officio when the trial judge made the order
for a retrial.

A magistrate is not functus officio the entire case because he will still have functions to perform such
as hearing a plea in mitigation and sentencing.

Where a defendant pleads guilty to an offence and in mitigation disputes some of the prosecution
facts, a magistrate has no jurisdiction to dismiss the charge once the defendant clearly accepts he
committed the offence: PC Dass v Dexter Danclair Mag Appeal No 70 of 2002 (unreported), a
judgment of De la Bastide CJ.

Note: If the hearing was a nullity where the court had acted illegally in proceeding, as in R v Seisdon
JJ ex p Dougan [1983] 1 All ER 6, then the court may refuse to proceed to sentencing and instead may
rehear the case.

If prior to sentencing the magistrate reviews his earlier finding and now believes the defendant
should not be convicted, the magistrate may request the DPP to discontinue proceedings.

CHAPTER 8: Summary Appeals

TO EXERCISE THE RIGHT:

In general, any person dissatisfied by a conviction or order in the magistrates’ court may appeal. Thus
a complainant may appeal against the failure of the court to make a conviction or a defendant may
appeal against a conviction or order made against him. As provided in Summary Courts Act, Chap
4:20, s 128, Trinidad and Tobago

In most jurisdictions a magistrate, on the application of either party, may apply to the High Court or
the Court of Appeal, whichever is stipulated by the relevant law, for a case to be stated on a point of
law. Any decision given by the appellate court in respect of a case stated will not affect the actual
decision of the magistrate, but will provide guidance on the law and practice.

MIGISTRATES REASONS:

A magistrate must give reasons upon an appeal as provided in the Summary Courts Act, Chap 4:20, s
130A, as amended by Act No 13 of 1986, Trinidad and Tobago.

Even without statutory requirement, it has been authoritatively affirmed that it is of ‘fundamental
importance’ that reasons be furnished especially in circumstances where the deprivation of liberty is
at stake.

Aqui v Pooran Maharaj (1983) 34 WIR 282:

Facts: The Court of Appeal ordered a new trial in a magisterial appeal where no reasons had been
provided by the magistrate. The court considered that without reasons, the decision of the magistrate
could not stand.

Held: Although no statutory provision (at that time) expressly required a magistrate to state the
reasons for his decision, the practice of doing so had grown up and had been adhered to over the years
so that it was now properly regarded as a rule of law.

The court considered that it is a fundamental principle of justice that parties to litigation are entitled to
know the reasons for the decision of a court of law.

Alexander v Williams (1984) 34 WIR 340, the Court of Appeal:

Followed its own previous decision in Aqui.

Facts: For over four years a magistrate failed to provide reasons for the conviction of the appellant,
which entailed a term of imprisonment. The Court of Appeal was faced with an ironic situation in that
the matter was not listed earlier because the lack of the magistrate’s reasons rendered the record of
proceedings incomplete.

Held: Quashing the conviction, applied Aqui and reiterated that it was a rule of law that in criminal
proceedings a magistrate must provide his reasons when the defendant lodges an appeal against
conviction.
Furthermore, the court held, in cases involving the liberty of the subject, the furnishing of reasons by
a magistrate in cases in which appeals have been lodged was an indispensable requirement of due
process.

The Privy Council in Forbes v Maharaj (1998) 52 WIR 487, PC:

‘without the statement of reasons it will usually be impossible to know whether the magistrate has
misdirected himself on the law or misunderstood or misapplied the evidence.’

Following Alexander, the Trinidad and Tobago legislature amended the Summary Courts Act,
Chap 4:20 to require every magistrate to submit reasons for his decision within 60 days of an
appeal; s 130B.

In all cases of appeal, therefore, whether statute so requires or not, it is evident that a magistrate
ought to give reasons for his decision. Failure to do so is unfair to an appellant and in cases where the
liberty of the citizen is at stake, it is usually considered necessary that a court should justify its
decision to convict.

An exception to the general rule is Cedeno v Logan (2000) 58 WIR 411 PC:

Facts: A magistrate having convicted the defendant of larceny retired without giving reasons.

Held: The Privy Council upheld the conviction stating that the basis for the magistrate’s decision was
obvious.

Recognising that there might be cases where no reasons are given because a magistrate died or retired.

THE APPELLATE COURT:

In general, an appeal from the magistrates’ court is to the Court of Appeal. For magisterial appeals the
composition of the Court of Appeal may vary, consisting of one or two judges instead of the usual
three; Summary Courts Act, Chap 4:20, s 128.

PROSECUTING THE APPEAL:

The provisions governing the procedure for appeals from the magistrates’ court are outlined in the
relevant Acts throughout the region.
Such legislation specifies, inter alia, the requirement for:

• making the appeal including the signing, giving and service of notice of appeal and also notice of the
grounds of appeal;

• recognisance or giving of security to prosecute the appeal;

• the hearing of the appeal and judgment including the need for appearance of the parties; the
question of amendment of defects in the proceedings, and the statutory grounds of appeal.

NOTICE OF APPEAL:

The giving of notice of appeal is a condition precedent to the initiation of the appeal. The notice
initiates the appeal. Must be in the specified time period. While notice may be given orally, it must be
reduced to writing within that time period. If notice is not given or if the notice of appeal is invalid,
there can be no appeal. This is a mandatory statutory requirement.

Rochester v Chin and Matthews (1961) 4 WIR 40(Jamaican case):

The court held that the giving of a notice of appeal is a condition precedent to the hearing of the
appeal. It was not a mere formality which could be waived by the court.

S 130(1) of the Summary Courts Act Chap 4:20 of Trinidad and Tobago specifically provides: ‘An
appeal shall be commenced by giving to the clerk notice of the appeal…’.

Where the period is 14 days or longer however, all days, including Sundays, must be counted in
computation of the period: Reynolds v Yarde (1962) 4 WIR 268.

EXTERNSION OF TIME:

Unless statute so provides, there can be no extension of the statutory time period to fi le a notice of
appeal. In Trinidad and Tobago leave to appeal out of time may be sought. The court will carefully
consider the circumstances before granting such leave to ensure that the appellant is not abusing the
process.

Jonathan Eaton Vyse v Cpl Warwick (unreported) Mag Appeal No 14 of 2009, JA Soo Hon:
Facts: The appellant, a foreigner, had been arrested on a ship before he had even entered the country
and left the day after his conviction, two days after his arrest. The day after his arrival home in the US
he took steps toward effecting an appeal.

Held: Granted an extension of time to the appellant to appeal his conviction after a period of several
months.

The Court found that the appellant had formed an early intention to appeal and had pursued that
intention with due diligence.

SIGNING THE NOTICE:

Even if oral notice of appeal is given, a written signed notice of appeal should be submitted to the
relevant clerk in the magistrates’ court, where the appeal is made.

A failure to sign the notice could render it invalid: Stanley v Andrews (1963) 5 WIR 457;

Facts: The appellant gave verbal notice of appeal in March. It was reduced to writing, but was not
signed by the appellant until some six months later.

Held: The appeal was void, since the law required that a verbal notice of appeal should be reduced to
writing and signed by the appellant as a necessary condition of its efficacy. That was not done. The
notice was invalid if it was not signed within the statutory time specified to file it.

George v Darlington [1954–55] 15 Tri LR 53: Although the headnote in that case speaks of ‘Notice
of Appeal’, the judgment makes it clear that it was the notice of reasons that was not signed by the
appellant. This was not fatal to the appeal.

Note: Statutory provision provides that ‘the complainant’ may appeal on the magistrates failure to
convict.

No matter how serious the summary offence was or how minor a role the complainant may have
played in the prosecution of the offence, he was the person required to appeal. Following the
dismissal of a number of appeals on this basis the law was changed. ‘Complainant’ now includes
Director of Public Prosecutions.

THE RECOGNISANCE:

The ‘recognisance’ referred to in summary appeals statute is a bond to prosecute the appeal. In
general, an appellant must enter into such a recognisance with or without securities within a specified
time following filing of notice of appeal.

It is almost universally provided in the region that in lieu of a recognisance the appellant may give
security by way of deposit of money to prosecute the appeal.

In general, an appellant who remains in custody need not enter into a recognisance or pay a security to
prosecute the appeal.

Note: It would seem that a complainant who appeals on a failure to convict should not be required to
enter into recognisance since he has not been convicted.

An appellant who appeals on a failure to convict need not enter into a recognisance. This type of
provision seems to make it clear that a recognisance to prosecute an appeal is not the same as a bail
bond, despite how it is treated in practice, but is really an undertaking to commit to the appeal;
Summary Courts Act, Chap 4:20, s 133A.

It has been held that once the defendant does not remain in custody, the entering into a recognisance is
a condition precedent to the prosecution of an appeal from the magistrates’ court: Tai v Charles
(1959) 1 WIR 346.

BAIL:

It is evident, then, that a recognisance to prosecute an appeal is not the same as a bail bond.

In contrast, the Trinidad and Tobago Summary Courts Act, Chap 4:20 actually seems to equate bail
with the entering of a recognisance by a defendant who is sentenced to imprisonment. Section 133A
provides:

(1) Where an appellant who is sentenced to a term of imprisonment for less than three months has
given notice of appeal then if he is in custody the magistrate … shall grant him bail …
(2) Within nine days after the pronouncement of the decision an appellant to whom sub-section(1)
applies, shall, unless he remains in custody under Section 136, enter into a recognisance...

Section 136 dispenses with the requirement for a recognisance if the appellant remains in custody and
s 135 provides that the court ‘shall release the appellant from custody once he gives notice of appeal
and enters into the recognisance’.

GROUNDS FOR APPEAL:

Statute provides that an appellant must serve notice of ‘reasons’ for his appeal shortly after he gives
notice of appeal.

It is not mandatory as the time for filing a notice of appeal usually is. Also, It is not unusual to be
granted an extension of time to serve a notice of reasons. Like the notice of appeal, the notice of
reasons must be served not only on officials at the relevant magistrates’ court, but also on the
respondent.

In most jurisdictions, the reasons or grounds of appeal are stipulated by statute and are very wide.
They include grounds such as that the magistrate had no jurisdiction or exceeded it;
inadmissible evidence was admitted; the decision was unreasonable or the magistrate made an
error of law.

Court of Appeal will usually grant leave to amend the reasons to include others: Richardson v
Emmanuel [1954–55] 15 Tri LR 33. This is so as not to deny an appellant the opportunity to be fully
heard.

The reasons or grounds for the appeal usually relate to matters of law. The Court of Appeal will not
lightly interfere with or overrule the trial court’s fi ndings of fact: Peters v Peters (1969) 14 WIR
457;

Held: where a magistrate has made fi ndings of fact in accordance with his functions, and there is
evidence to justify his fi ndings, it is not the function of the Court of Appeal to interfere by
substituting its own view of the facts. If it is alleged, however, that the magistrate’s decision is totally
unreasonable, having regard to the evidence, the appellate court will review the finding of facts:
Bracegirdle v Oxley et al [1947] 1 KB 349.
APPEARANCE:

In general, on summary appeal the legislation must be strictly followed and the requirements for
appearance are considered mandatory.

Bach v Ferreira (1965) 9 WIR 282:

Facts: The appellant, a national in France, was out of the country at the date of the hearing of the
appeal.

Held: ‘appears’ in the statute means ‘appear in person’ and an appellant, though represented by
counsel, must personally appear to prosecute the appeal. In the circumstances, the appeal was struck
out.

An appeal will be dismissed if the appellant, having been served properly, personally at his home or
by registered mail, fails to appear without a valid explanation (such as medical excuse).

FRESHH EVIDENCE:

The appellate court has power throughout the region to hear fresh evidence on appeal. This will
usually constitute material evidence that was either not known of at trial or was otherwise unavailable.
The evidence may be given by means of affidavit or even orally.

Spencer v Bramble (1960) 2 WIR 222, p 226:

It stated that the proper procedure was to make an application to the appellate court by way of motion
seeking leave to fi le affidavits or otherwise adduce evidence. To the application should be exhibited a
statement of the evidence sought to be adduced. The court will be moved to consider whether or not
leave should be granted. If the necessity for adducing evidence only arises during the hearing of the
appeal, the court may make any order that the justice of the case required.

THE HEARING:

1. In arguing the appeal, the appellant must go first. If fresh evidence is to be called, this will be
given before any legal arguments.
The appellant should have served the court and respondent with relevant legal authorities, but the
requirement is not as strict.

2. The judge or judges of the appellate court may ask questions of the appellant during his
submissions. If the appellant has not raised any viable argument, the Court of Appeal may not
even call upon the respondent.
3. After the appellant has argued his grounds, the respondent may be called upon to reply in
whole or in part (some grounds may not be viable).
4. After the respondent makes his submission, the appellant usually has a right of reply in
respect of new matters raised by the respondent.

THE JUDGMENT:

The court may affirm the magistrate’s decision, be it a dismissal or a conviction, by itself dismissing
the appeal if it finds that it is without merit.

The appellate court may modify or amend the decision in whole or in part. It may also substitute
another sentence for the original sentence if it thinks that is warranted.

The Court of Appeal may ‘make such an order for disposing of the case as the justice may require’ or
refer the case back to deal with as the court thinks fit (instead of simply to rehear it).

An example of a different type of order is that in Williams v Daniel and Bobb (1968) 13 WIR 490,
where the order was ‘Appeal allowed, case remitted to the magistrate to call on the respondents for
their defence and thereafter to adjudicate according to law’.

Paynter v Lewis (1965) 8 WIR:

Facts: the complainant appealed against a decision of the magistrate to recall a conviction, the appeal
was allowed.

Held: The Court of Appeal of Trinidad and Tobago further ordered that a conviction of larceny be
entered against the respondent and the case remitted to the magistrate to pass sentence.

Summary procedure legislation throughout the region provide that the appellate court may order either
party to pay costs both at the summary court level and the Court of Appeal.

Such costs may be awarded even if the appeal is abandoned or withdrawn. The awarding of costs in
criminal cases is not usual, and the power to do so is dependent on statute. These costs are, however,
determined by the Court of Appeal at the time it makes its order.
APPEALING FROM THE COURT OF APPEAL:

While an appellant does not need leave to appeal from a decision of a magistrate, if he wishes to
appeal from a dismissal of his appeal by the Court of Appeal he must obtain leave to do so.

• NOTE

1) A defendant must be given a reasonable opportunity to prepare his case/call witnesses/retain

counsel. A similar obligation arises regarding the prosecution. If this is not done, any
conviction may be quashed (Aris v Chin).

Aris v Chin [1972] 19 WIR 459:

Facts: On 17 April 1969, there came on for hearing before the Solicitors Disciplinary Committee a
complaint by one JT against the appellant, a solicitor. The appellant was absent but sent a medical
certificate stating that he would be unable to do any heavy work for six weeks. The hearing was
postponed to 19 June on which date the appellant appeared before the Committee and produced
another medical certificate recommending two weeks' leave of absence from his duties. The appellant
applied for a further postponement. On JT advising the Committee that she would be leaving Jamaica
permanently on 29 June the Committee postponed the hearing of her complaint to 26 June and told the
appellant that JT's evidence would be taken on 26 June whether he was able to be present or not and
that if he could not be present he should take steps to be legally represented. On 26 June the appellant
was present but not legally represented. JT's evidence was taken, the appellant declined the
Committee's invitation to cross-examine her and her case was closed. The appellant thereupon asked
the Committee to adjourn the matter to enable him to give evidence when he felt better. This request
was refused and the Committee reserved its decision. Immediately thereafter the respondent's
complaint came on for hearing and the Committee decided to proceed therewith. Again the appellant
applied for a postponement, and again his application was refused. The respondent commenced her
evidence during which it was sought to put in certain correspondence. The appellant refused to
consent thereto and left the room. Thereafter the evidence of two witnesses was taken. On 1 July the
Committee gave its decision on the respondent's complaint, namely, that the appellant was guilty of
professional misconduct and that his name should be removed from the roll of solicitors. On his
appeal against the Committee's decision the appellant argued that by refusing his application for
postponement of the hearing of the respondent's complaint of 26 June the Committee had denied him
a full and fair opportunity of being heard in answer to that complaint. It was also argued that the
appeal was not competent since the right of appeal given the appellant under the Solicitors Law, Cap
363 [J], had not survived the repeal of that Law by the Legal Profession Act 1971.

Held:

(i) (per Smith and Robinson JJ A, Fox JA, dissenting) that by its refusal on 26 June of the appellant's
application for a postponement of the hearing of the respondent's complaint the Committee had denied
the appellant a full and fair opportunity of being heard in answer to that complaint, and that its order
removing his name from the roll of solicitors could not be allowed to stand;

(ii) (per Fox, Smith and Robinson JJ A) that the appellant's appeal was perfectly competent since his
right of appeal under the Solicitors Law survived the repeal of that Law by the Legal profession Act
1971 by virtue of the provisions of the Interpretation Act of 1968 which expressly saved rights
acquired or accrued under the repealed enactment;

(iii) (per Smith and Robinson JJ A) that the appellant's right of appeal under the repealed Solicitors
Law also survived at common law since on long settled principles the Legal Profession Act did not
operate retrospectively.

2) Where a defendant fails to appear for his trial, having had proper notice of the adjourned date
and offers no reasonable explanation for his absence e.g. illness, then the court may issue a
warrant of arrest (upon proof of service) or proceed in his absence (not both) See Perreira v
Cato. This power is statutory in territories such as Trinidad, Guyana, Barbados and St Lucia.

Perreira v Cato [1979] 28 WIR 169:

Facts: NO DOCUMENT ATTACHED TO LINK

3) There will be due notice where an attorney appears for the absent defendant and states that he
represents the defendant (Bharath v Cambridge).

Bharath v Cambridge [1972] 20 WIR 450:

Facts: The appellant was convicted in his absence of using obscene language to the
annoyance of persons contrary to s 54 of the Summary Offences Ordinance. He filed a notice
of appeal against conviction and sentence on two grounds–that he had been denied natural
justice and that he was not guilty. By his amended notice of appeal he pointed out that he had
been served no notice of the adjourned date of the hearing (ie 21 September 1971) and
therefore there had been a breach of natural justice.

Two main points arose for consideration:

(a) whether the magistrate's decision to hear and determine the complaint ex
parte complied with the statutory conditions for so doing so that the
conviction was regularly obtained;
(b) if they were, whether the appellant advanced any valid reason why the
conviction ex parte should be set aside. The appellant further contended that
he was not represented at all at the grant of the adjournment or that counsel
appearing for him was not authorised to do so.

Held:

(i) that all the prerequisites prescribed by the Ordinance were fulfilled and the conviction was
regularly obtained;

that all the prerequisites prescribed by the Ordinance were fulfilled and the conviction
was regularly obtained;

(iii) that magistrates are entitled to presume that practitioners who appear on behalf of
clients are properly authorised;

(iv) that where a defendant was afforded an opportunity to be heard but no use was made
of it, a conviction after a hearing ex parte would only be set aside if there had been no
culpable neglect on the part of the defendant. On the facts there was such culpable neglect
and the conviction would stand.
 4) A magistrate should not proceed ex parte where the defendant’s absence was not due to
culpable neglect (Spencer v Bramble).

Spencer v Bramble [1960] 2 WIR 222:

Facts: By s 63 (1) of the Summary Courts Ordinance, Cap 3, No 4 [T], it is provided that:

“At any time before or during the hearing of a complaint, it shall be lawful for the Court, in
its discretion, to adjourn the hearing of the same 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 or solicitor.”

And by sub-s (4) of the same section:

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

The appellant was charged before a magistrate in two complaints alleging the commission of
traffic offences. He pleaded not guilty to both and the magistrate in the hearing and presence
of the appellant and his solicitor adjourned the cases to a fixed date for trial.

On the day so fixed the appellant failed to appear and as no explanation for his absence was
forthcoming, and no application for any further adjournment was submitted on his behalf, the
magistrate in pursuance of the powers conferred upon him by s 63 (4) of the Summary Courts
Ordinance, Cap 3, No 4 [T], proceeded to hear the two complaints, and finding them proved,
convicted and fined the appellant.

The appellant appealed against both convictions stating as his ground of appeal on each: “I
was mistaken as to the date of hearing and the charge was heard ex parte.” He also made
reference to particulars being set out in an affidavit. No application had been made by or on
behalf of the appellant to file any affidavit, but in fact two affidavits, one by the appellant
himself and one by his solicitor, were included in the proceedings transmitted by the Clerk of
the Peace to the Registrar of the Supreme Court. The substance of these affidavits was to the
effect that the appellant had been under a genuine mis-apprehension as to the date to which
the hearing of the complaints had been adjourned, and that he had a good defence to the
charges.

By s 131 of the Summary Courts Ordinance, Cap 3, No 4 [T], it is provided that:

“A notice of reasons for appeal may contain all or any of the following reasons and no
others…”

The reasons which follow are set out in sub-ss (1) to (10). Absence from the trial for any
cause is not one of them, but sub-s (7) provides that an appellant may set forth as a ground of
appeal that he is “not guilty”; which reason shall entitle him to maintain:

“(a) that legal evidence substantially affecting the merits of the case has been rejected by the
Court; or

(b) that illegal evidence has been admitted by the Court and that there is not sufficient legal
evidence to sustain the decision after rejecting such illegal evidence; or

(c) that the decision is unreasonable or cannot be supported having regard to the evidence;”

By s 141 of the Summary Courts Ordinance, Cap 3, No 4 [T]:

“On the hearing, it shall not be competent for the appellant to go into, or to give evidence of,
any other reason for appeal than those set forth in his notice of reasons for appeal: Provided
that where, in the opinion of the Court, other reasons for appeal than those set forth in the
notice of reasons for appeals should have been given, or the statement of reasons is defective,
the Court, in its discretion, may allow such amendments of the notice of reasons for appeal
upon such conditions as to service upon the respondent and as to costs as it my think fit.”

And s 140 of the Summary Courts Ordinance, Cap 3, No 4 [T], includes a provision giving
the Supreme Court a discretion to.
“extend the time for service of notice of reasons for appeal upon such conditions as it may
think fit.”

Held: (i) where a defendant is convicted by a Summary Court in his absence under the
provisions of s 63 (4) of the Summary Courts Ordinance, cap 3, No 4 [T], and wished to have
that conviction set aside, the proper procedure is for him to lodge an appeal to the Supreme
Court under s 127 of the Summary Courts Ordinance, cap 3, No 4 [T], giving as his reasons
for appeal such of the reasons set out in s 131 as are appropriate to his case, and in the event
of none of those reasons proving directly appropriate, that he is “not guilty”;

(ii) although the appellant, by virtue of the provisions of s 131 of the Summary Courts
Ordinance, Cap 3, No 4 [T], was confined to the reasons set out in his notice of reasons for
appeal and had not included in those reasons any of the statutory grounds prescribed in s 31,
the court would exercise the discretion conferred on it by ss 140 and 141, and extent the time
for service of notice of reasons for appeal and at the same time grant leave to the appellant to
give as a reason for appeal that he was “not guilty” so as to enable him to be heard before the
court on that ground;

(iii) the filing of affidavits in support of the appeal without the leave of the court was
irregular. Section 146 of the Summary Courts Ordinance, Cap 3, No 4 [T], however, confers
power on the Supreme Court to order the adducement of evidence, when it considers it
necessary, by affidavit or otherwise; and when an appellant is desirous that such an order
should be made, the proper procedure is for him to make application to the Supreme Court by
way of motion seeking leave to file affidavits or otherwise adduce evidence, and exhibiting to
his application a statement of the nature of the evidence sought to be adduced;

(iv) notwithstanding that the filing of the affidavits was irregular, the court, in view of the
particular procedural problems involved, and having regard to the absence of any previous
practice direction on the subject, would allow the appellant to make application for leave to
adduce additional evidence, and as an exceptional measure would treat the affidavits
incorporated in the proceedings as filed with the leave of the court in support of such
application;
(v) on the merits of the appeal the first question for consideration was not whether the
appellant had been heard in his defence, which he clearly had not, but whether he had been
given a reasonable opportunity of being so heard, and it was obvious from the record that he
had been given such an opportunity;

(vi) the second question for consideration was whether, having been given the opportunity of
being heard in his defence, the appellant through his own fault had failed to take advantage of
that opportunity, or whether, through no fault of his own, he had been deprived of it. The
appellant's case clearly fell within the first category and in these circumstances there was no
justification for re-opening the cases.

Appeals dismissed.

5) It is not absolutely essential that the complainant appear, provided that the other prosecution
witnesses are present. In such a case the court should not dismiss the case but adjourn or have
the prosecution call whatever witnesses are available (Thalia Silverton v WPC Burgess).
6) Where neither party appears the court may dismiss the case or adjourn it.

COURSE OF A SUMMARY TRIAL

1) The Prosecution calls its witnesses first. Each witness may be cross examined by the defence.
The prosecution then closes its case.

2) The Defence may elect to make a no case submission at the close of the prosecution case. See
The State v Kerry Samlal Crim. App. No. P 042 of 2015.

3) Should the no case be overruled, the defendant may elect to give evidence or to remain silent.
In any event he has the right to call witnesses. Failure to allow the defendant to testify or call
witnesses will mean any conviction is a nullity. Likewise any refusal to allow the prosecution
to lead evidence will lead to the court’s decision being a nullity (Harrington v Roots).
Harrington v Roots [1984] 2 All ER 474:

Facts: The defendant was charged with assaulting a police constable and using threatening behaviour
likely to cause a breach of the peace. On 13 August 1982, the date fixed for the hearing of the charges,
he appeared in a magistrates' court. Both he and the prosecutor were legally represented. At the start
of the hearing the prosecutor applied for an adjournment because the constable alleged to have been
assaulted was away on holiday. The defence raised no objection to an adjournment. The magistrates
decided to adjourn the case until 24 August. The defence then asked for an adjournment to another
date because the defendant would himself be away on holiday on 24 August. The magistrates refused
to allocate another date for the hearing of the case and instead, without asking the prosecution if they
were in a position to proceed forthwith, decided to dismiss the charges. The prosecutor applied for
judicial review of the magistrates' decision by way of orders of certiorari to quash the decision to
dismiss the informations and mandamus to direct the magistrates to hear the evidence against the
defendant. On the hearing of the application the defendant conceded that the magistrates had acted in
breach of natural justice in dismissing the informations without giving the prosecution an opportunity
to present their case but submitted that the decision to dismiss the informations amounted to an
acquittal and accordingly was not open to judicial review since to order the charges to be reheard
would be to put the defendant in jeopardy a second time. The Divisional Court upheld that contention
and dismissed the application. The prosecutor appealed to the House of Lords, where the defendant
further contended that the proceedings had been validly begun once his pleas of not guilty had been
taken and that therefore although the justices had acted improperly they had acted within their
jurisdiction and the acquittals which followed were not amenable to judicial review.

Held: By dismissing the information without first giving the prosecution an opportunity to proceed on
the basis of the evidence then available to them, the justices had been in breach of their statutory duty
under s 9(2) of the Magistrates' Courts Act 1980 to hear the evidence of the parties. It followed that
a

the dismissal had been without jurisdiction and was therefore a nullity. The Divisional Court
accordingly had had power to issue mandamus to remit the matter to the justices for a rehearing.
However, since the magistrates' decision was a nullity it would not have been appropriate to issue
certiorari. The appeal would therefore be allowed, but in the circumstances no other order would be
made.
 4) A party (especially the defendant) may object to a magistrate (or a Judge) hearing a case due
to bias. Bias may occur where the court knows the defendant or a prosecution witness. For
apparent bias see Porter v McGill.

5) The magistrate cannot change his decision after either finding a defendant not guilty or
finding the defendant guilty following a trial in which the defendant had entered a not guilty
plea (Paynter v Lewis). This is due to the functus officio principle.

Paynter v Lewis [1965] 8 WIR 318:

Facts: At the trial of the respondent on a charge of larceny the prosecution proved that the
respondent went into a store and there called for a few small articles which she was given together
with a cash bill to take to the cashier's counter. Instead of paying for them as she was expected to do
before leaving the store she placed the articles and the cash bill in her bag and walked out into the
street where she was arrested by a policeman on the information of the appellant who had her under
observation. At the close of the prosecution case the respondent's counsel submitted that the facts
disclosed a case of obtaining goods by fraud but did not support a charge of larceny. He rested his
case on that submission and elected to call no evidence. The magistrate thereupon convicted the
respondent but he later recalled the conviction and entered an acquittal holding finally that the offence
committed was one of obtaining credit by fraud. On appeal,

Held:

(i) the magistrate was functus officio after he had convicted the respondent and had no power to recall
the conviction thereafter and enter an acquittal. R v Sheridan ([1936] 2 All ER 883, [1937] 1 KB 223,
106 LJKB 6, 155 LT 207, 100 JP 319, 52 TLR 626, 80 Sol Jo 535, 34 LGR 447, 26 Cr App Rep 1, 30
Cox, CC 447, CCA, 33 Digest (Repl) 187, 355) applied; Ford v Pilgrim ((1913), 2 T'dad LR 254)
overruled;

(ii) on the facts proved by the prosecution the magistrate was right in convicting the respondent of
larceny since the clear inference was that ab initio when she took the goods for which she had called
she did so fraudulently without intending to pay for them and with intent to deprive their owner
permanently of them;

(iii) a conviction for larceny must be entered against the respondent and the case remitted to the
magistrate to pass such sentence upon her as may be just.
 6) In Barbados the magistrate has the statutory power to reopen a case after a conviction and
sentence to vary or rescind a sentence, or he may choose to send the case for retrial before
another magistrate

CASES:

Francis Jones v Sgt Sheldon David Mag. App No. 64 of 2014 (Cited Cedeno v Logan [2000]
All ER):

Facts: In May 1989, the Court of Appeal of Trinidad and Tobago upheld the conviction of
the defendant on a charge of simple larceny and increased his sentence from one of two years'
imprisonment to one of five years' imprisonment. In reaching that decision, the Court of
Appeal acted without a statement of reasons from the magistrate at the trial, which he was
obliged to give pursuant to s 130A of the Summary Courts Act. The defendant appealed
against his conviction and sentence, which had been acknowledged as unlawful, and claimed
costs. The defendant contended, inter alia, that the absence of magistrate's reasons amounted
to a serious breach of the requirement of due process and meant that the Court of Appeal
should not have been satisfied that the magistrate had approached the evidence correctly.

Held:

The Board ruled:

In the instant case, so far as the trial itself was concerned, no complaint was made: so far as
the appeal was concerned, the basis of the magistrate's decision was obvious without the
provision of the statutory reasons. The appeal against conviction would accordingly be
dismissed. However, the sentence passed by the Court of Appeal was illegal and would be set
aside. The Board had a general and well-established practice of not awarding costs against
the prosecution in criminal cases. However, that did not preclude the board from doing so in
wholly exceptional circumstances. The instant matter was such an exceptional case and it
would have been unjust to the defendant if the prosecution were not ordered to pay the costs
of the defendant of the appeal to the Board.

Dianne Burgess WPC No. 12795 v Thalia Silverton Mag Appeal No.98 of 2008:

Sadiq Baksh and Brain Kuei Tung v Senior Magistrate Ejenny Espinet:

Dr. Wayne Kublalsingh and others v The AG of Trinidad and Tobago:

NOTE FURTHER
Trinidad and Tobago CPR 2016 Rules 3-5, 7 -17, 22 and Schedule

CRIMINAL PROCEDURE RULES [2016]

http://www.ttlawcourts.org/index.php/component/attachments/download/4500