UNIT TEN

SUMMARY APPEALS

CASES:
Cedeno v Logan
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
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.
There might be cases where no reasons are given because a magistrate died or retired, and therefore
in such an instance, esp where the decision was obvious.

Griffith v Niwenkirk
Facts:
In October 1995 the appellant was charged on indictment with three counts of embezzlement by a
public officer, contrary to s 191 of the Criminal Law (Offences) Act. The charges were later tried
summarily and in June 2001 a magistrate found the appellant Guilty on all three charges and
imposed a two-year non-custodial sentence. The appellant appealed to the Court of Appeal later in
June 2001. The magistrate failed to set down the reasons for her decision (contrary to the Summary
Jurisdiction (Appeals) Act, s 8; cf art 144(3) of the Constitution of Guyana); subsequently the
magistrate resigned from the Bench and emigrated from the country. The appellant applied to the
Court of Appeal for directions as to the prosecution of her appeal.

Held,
that the appellant had been found Guilty in June 2001 of offences of embezzlement which had
been charged in October 1995; as the magistrate had failed to provide the reasons for her decision,
had resigned from the Bench and had emigrated, it was unlikely that the reasons for her decision
would ever be forthcoming and the interests of justice dictated that the appeal be allowed and the
conviction and sentence be quashed.

Rochester v Chin & Matthews

Facts:
Section 256 of the Judicature (Resident Magistrates) Law, Cap 179 [J], requires an appellant from
the decision of a resident magistrate in a civil action to serve a written notice of appeal upon the
opposite party or upon his solicitor within fourteen days after the date of the judgment appealed
from. Section 266 provides that the provisions of the law conferring a right of appeal in civil
matters shall be construed liberally in favour of such right, and if any of the formalities have been
inadvertently or from ignorance or necessity omitted to be observed, the Court of Appeal may in
certain circumstances (there set out) admit the appellant to impeach the judgment appealed from.

The notice of appeal, though served upon the clerk of the courts, was received by the respondent
after the expiry of fourteen days after the date of the judgment.

Held:
the giving of a notice of appeal is a condition precedent to the hearing of the appeal, the
performance of which founds the jurisdiction of the court of appeal to hear the appeal, and it is not
a formality. The court therefore had no power to enlarge the time for the service of the notice of
appeal. Although this case was related to a civil appeal, the principle applies to criminal appeals.
Preliminary objection sustained and appeal dismissed.
Reynolds v Yarde
Facts:
In most jurisdictions, the period for serving a notice of appeal is 14 days. Most Interpretation Acts
make it clear that where a statutory limit has been expressed to be less than 7 days, weekends may
not be counted; however, when the period is 14 days or longer, all days, including Sundays must
be counted.
The appellant filed a notice of appeal 16 days after Magistrate’s decision.
Held:
Sundays were correctly counted, and therefore the appeal was outside the 14 day limitation period.

Partin v d Olivieira
Facts:
The applicant, a foreign national, was convicted in the magistrate's court on 15 May 1970. He was
charged for that he being an intransit passenger at the Timehri International Airport, attempted to
export a quantity of diamonds and platinum valued $20,000 and $2,500 respectively

The charge was laid under s 219 of the Customs Act, Cap 82:01, and bail was allowed pending the
hearing in the sum of $15,000. Later, on 31 July 1970, he was found guilty and ordered to pay the
sum of $67,500, and in default undergo eleven months' imprisonment

Following on the hearing in the magistrate's court, the applicant, through an oversight by those in
authority, did not renew his bail when entering his recognisances for appeal to the Full Court, and
that court for some unknown reason, did not give its decision dismissing the appeal until 17
January 1975, ie, some 41/2 years after the hearing began. Meanwhile, the applicant had left
Guyana illegally, ie, without informing either the Full Court or the police authorities of his
intended departure and had commuted between Brazil, Venezuela and the United States. He is still
out of jurisdiction and in his affidavits in support of this application, he now asks for an extension
of time within to appeal from the decision of the Full Court to the Guyana Court of Appeal

Held:
(i) that the appellant being under conviction and sentence should have requested and obtained leave
of the Full Court during the pendency of his appeal to that court before travelling outside the
jurisdiction because his conviction and sentence were merely suspended until his appeal was
determined;
(ii) that whenever the jurisdiction of an appellate court is invoked, it must have the right to exercise
control over the movements of a convicted person who wishes to travel abroad, particularly when
the hearing has begun;
 (iii) that the fact that an applicant has absented himself from the jurisdiction of the court without
permission is a relevant factor for the court to take into consideration when exercising its discretion
whether to grant an extension of time; also the fact that his remaining away has put it beyond the
power of the law to enforce its order should his intended appeal fail or be discontinued;

(iv) that it is an abuse of the process of the court for the applicant to seek to put the appeal
machinery of the court into motion and at the same time for him to show no intention of returning
to jurisdiction;

(v) that there is no merit in the application. The applicant cannot be allowed to conduct from afar
an appeal in which his presence is absolutely necessary

Application refused. Order of Full Court affirmed

Vyse v Corporal Warwick

Court of Appeal granted an extension of notice to appeal, several months after conviction. He had
left the jurisdiction the day after his conviction, but had taken several steps towards effecting an
appeal. The Court found that he had formed an early intention to appeal, and had pursused that
intention with due diligence.

Stanley v Andrews
Facts:
The appellant was convicted by a magistrate in Port of Spain on 19 March 1962, for the offence
of housebreaking and larceny and remanded for sentence to the next day when he was ordered to
be imprisoned with hard labour for 12 months. He thereupon gave verbal notice of appeal which
was reduced to writing the same day but the appellant did not sign it until 19 September 1962.

By s 129 of the Summary Courts Ordinance, Cap 3, No 4 [T]:

“(1) An appeal shall be commenced by the appellant giving to the clerk notice of such appeal, which
may be verbal or in writing, and if verbal shall be forthwith reduced to writing by the clerk and
signed by the appellant, or by his counsel or solicitor if he has appeared by counsel or solicitor.

(2) The notice of appeal shall be given in every case before the expiration of the seventh day after
the day on which the court has made the order or given the refusal appealed against.'

Held:
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; and as he had failed to sign it within the time
prescribed there was no appeal before the court.
Appeal struck out.

Bach v Ferriera
Facts:
B was convicted by a magistrate of dangerous driving. He was fined $120 with costs $15 and
ordered, in default, to serve 3 months imprisonment with hard labour; he was ordered also to be
disqualified for holding or obtaining a driving permit for a period of 6 months. He appealed against
the conviction and sentence. Upon the appeal coming on for hearing on 14 October 1965 counsel
on his behalf explained that the appellant was abroad. The hearing was adjourned to 4 November.
By that date the appellant's solicitor filed an affidavit stating the appellant was transferred by his
employers to Salvador, Brazil, and that it was not then possible for his employers to give any
indication as to exactly when the appellant was likely to return. The appellant is a citizen of the
Republic of France and at the time of the offence was an engineer employed by Schlumberger
Surenco SA, a corporation which carries on the business of oilwell technicians throughout the
world. Upon the appeal coming on for hearing on 4 November counsel asked the court to hear and
determine the appeal in the absence of the appellant.

Held:
(i) that the word “appear” in s 139 (1) means “appear in person” and therefore an appellant who
wishes to prosecute an appeal under the Summary Courts Ordinance, Cap 3 No 4 [T], must
therefore appear personally at the Court of Appeal when his appeal comes on to be heard. Having
so appeared he may then prosecute his appeal by representation through counsel;
(ii) that an order striking out an appeal under s 139 has the effect of finally disposing of the appeal
as if it had been dismissed on the merits.

Spencer v Bramble
Facts:
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.
Law:

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;”

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.
STATUTE:
Trinidad and Tobago Summary Courts Act, Chap 4:20 ss. 128-158
Pgs 80 – 94 of pdf