The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 13 of 1998

Clinton Forbes Appellant

v.

Chandrabhan Maharaj Respondent

FROM

THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

---------------

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 24th February 1998, Delivered the

16th March 1998

------------------

Present at the hearing:-

Lord Steyn

Lord Clyde

Lord Hutton

  ·[Delivered by Lord Clyde]

-------------------------

Their Lordships regarded the circumstances of this petition as quite special.  While they did not consider it appropriate to resolve the one issue of general importance which was raised in argument they were persuaded that the error in the approach taken by the Court of Appeal was of sufficient gravity to justify the granting of special leave.  They were further satisfied that being then possessed of the full record of the proceedings in the lower courts they were as well placed as they would ever be to hear argument upon the principal point.  Having done so, they allowed the appeal and quashed the conviction for reasons to be given later.  Their Lordships' reasons for their decision now follow.

1. The petitioner was convicted on 14th April 1987 at Princes Town Magistrates Court in Trinidad and Tobago for the possession of cannabis, contrary to section 4(1) of the Narcotic Control Ordinance No. 27 of 1961.  He was sentenced  to  five  years imprisonment with hard labour.  He gave notice of appeal on the following day.  Under section 130A of the Summary Courts Act the Magistrate was bound within 60 days of the giving notice of appeal to draw up and sign a statement of the reasons for his decision.  That however was not done.  Their Lordships were informed that the petitioner remained in prison doing hard labour for the next nineteen months.  He was then released on bail pending appeal.  The appeal was heard on 24th March 1997.  The Court of Appeal on that date dismissed the appeal against conviction but ordered the sentence to be varied to one of eighteen months imprisonment with hard labour with the term of imprisonment to commence on that same day.  The variation in the sentence was made because the Magistrate had imposed the sentence not under the Ordinance as it stood at the time of the offence but under an amendment subsequently introduced by the Narcotic Drugs and Psychotropic Substances Control Act 1985.  The sentence imposed by the Court of Appeal of eighteen months imprisonment with hard labour was the maximum sentence permitted under the Ordinance before the amendment was made.

2. The Court of Appeal indicated in their judgment that they had considered dismissing the appeal on the ground of the non-appearance of the petitioner, but did not do so because of the absence of reasons by the Magistrate and the question of sentence.  However it is stated in an affidavit by the petitioner that he was present in the dock throughout the hearing of his appeal and indeed was taken from there without the necessity for any bench warrant to start the period of imprisonment which ran from that same date of 24th March 1997.  This apparent conflict in the reports of the event was not investigated before their Lordships and in the absence of any explanation which may exist their Lordships simply record the matter without further comment.

3. The propriety of requiring the petitioner to serve a further period of eighteen months imprisonment with hard labour some ten years after he had already undergone a period of imprisonment of nineteen months with hard labour for an offence for which the maximum penalty was eighteen months imprisonment with hard labour was raised before their Lordships as a matter of very real concern.  But since no sufficient notice had been given that the point might be canvassed, counsel for the respondent was not in a position to deal with it and it was accordingly not explored in any depth.  In these circumstances their Lordships do not propose to comment upon it.  The matter which was principally argued was the effect of the failure of the Magistrate to comply with the statutory duty to state his reasons.  In this connection their Lordships were referred to the case of Alexander v. Williams (1984) 34 W.I.R. 340.  Their Lordships were informed that that case had been cited before the Court of Appeal in the present case, although it is not considered or indeed mentioned in their decision.  The judgments in that case clearly recognise the fundamental importance of the furnishing of reasons particularly in circumstances where the deprivation of liberty is at stake.  The question was debated whether failure to provide reasons would necessarily lead to a quashing of the decision or whether in at least some cases the failure would not be fatal.  Their Lordships do not consider that the present case provides an appropriate occasion to resolve that question.  It is sufficient to observe that 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.  The absence of reasons at the least enables an appellant to argue from a strong position that there cannot have been a sound reason for the decision in issue.

4. But even if cases may occur where the failure is not fatal their Lordships are satisfied that the Court of Appeal was in error in proceeding to review the record in order, as they put it, "to see if there is sufficient evidence upon which the Magistrate could have come to the decision at which he arrived".  As expressed, that places too low a threshold for the upholding of the conviction.  If it is to be construed as seeking to reflect the proper standard for determining an appeal, it takes no account of the very real problems of the conflicts of evidence which existed in the case and the critical matters of credibility which required to be decided in it.  The Court of Appeal stated that the decision showed that the Magistrate rejected the issue of alibi.  But that does not necessarily follow from the decision.  As they themselves point out, the fact that the petitioner was not at home when the cannabis was said to have been discovered does not prevent him from qualifying under the statutory provisions as being in possession of the drug.  In the absence of reasons in the present case it may be unsafe to draw conclusions merely from the decision itself and it may be dangerous to speculate on what may or may not have been the factual conclusions which the Magistrate drew from the conflicting  evidence  before  him.  It is in the light of these

circumstances in the present case that their Lordships decided to grant special leave, to allow the appeal and quash the conviction.

© CROWN COPYRIGHT as at the date of judgment.