The Judicial Committee of the Privy Council Decisions

Cedeno v. Kenwin Logan (Trinidad and Tobago) [2000] UKPC 48 (18th December, 2000)

Privy Council Appeal No. 34 of 1999

Dean Cedeno Appellant

v.

 

Kenwin Logan Respondent

FROM

 

THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

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

 

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

 

Delivered the 18th December 2000

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

Present at the hearing:-

Lord Hope of Craighead

Lord Cooke of Thorndon

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

[Delivered by Lord Hobhouse of Woodborough]

 

1. The appellant Dean Cedeno appeals against the decision of the Court of Appeal of Trinidad and Tobago upholding his conviction on, 18^th May 1989, by the magistrate at the St George West Magistrates Court on a charge of simple larceny and the increase, by the Court of Appeal, of his sentence from the two years’ imprisonment passed by the magistrate to one of five years. The issue at the trial was whether the appellant had been correctly identified as one of the thieves by a witness called Albonio Serrao. The magistrate rejected a submission of no case to answer and, the appellant not calling any evidence, the magistrate found the case proved. The sentence which he passed was the maximum sentence for the offence at the time it was committed. The appellant exercised his right of appeal and served a notice of appeal dated 24^th May 1989. His grounds of appeal were -

 

             "(1) I am not guilty.

(2) That the decision of the magistrate is unreasonable and against the weight of the evidence."

 

[(3) and (4) related to the sentence.]

 

2. Ground (2) corresponded to reason (g)(iii) in section 132 of the Summary Courts Act (C.4:20) - "unreasonable or cannot be supported having regard to the evidence". Section 132 is the section which effectively defines the jurisdiction of the Court of Appeal on appeal from magistrates' courts since it provides: "A notice of reasons for appeal may set forth all or any of the following reasons, and no others" (emphasis supplied).

 

3. Section 128(2) of the same Act gives to the convicted person the right of appeal and section 130 provides that the right shall be invoked by giving to the clerk a notice of appeal. By section 130A, where a notice of appeal has been served, the magistrate shall within 60 days of the notice draw up and sign a statement of his reasons; the parties are then entitled on application to the clerk to obtain a copy of those reasons. In the present case the magistrate was shortly to retire and never fulfilled his statutory obligation. The administration at the time apparently did not ensure that retiring magistrates should do so. The result was that when the matter came before the Court of Appeal, that court did not have any statement of the magistrate's reasons. No one took any point on this before the Court of Appeal nor did the court itself. The court had the magistrate's notes of the evidence and the submissions made to him. The reasons given by the Court of Appeal for dismissing the appeal were very brief. Their Lordships have a transcript of the hearing. The appellant was represented by the same counsel as had represented him at the trial.

 

4. Having dismissed the appeal against conviction, the court turned to the question of sentence. They were under the mistaken belief that the appellant had not received the maximum sentence. Neither counsel corrected them. The court increased his sentence to 5 years. It is now belatedly conceded that this was an unlawful sentence. The appellant was returned to custody and remained in custody until he was granted bail by order of their Lordships' Board. It was necessary for the appellant to appeal to the Board in order to obtain his release from custody and the setting aside of the unlawful sentence. This will be material to a costs application he has made. He is privately represented and is not in forma pauperis.

 

5. The surviving issues with which the hearing before their Lordships' Board has been concerned are those relating to the appellant’s appeal against his conviction and the point on costs. The appellant has presented through Mr Knowles, for whose argument their Lordships are grateful, two interlinked submissions. The first is that the identification evidence before the magistrate was of inadequate quality and insufficiently reliable to satisfy the criteria laid down in Reg v Turnbull [1977] QB 224, reconfirmed in Reid (Junior) v The Queen [1990] 1 AC 363. The second is that in the absence of the magistrate's reasons the Court of Appeal should have allowed the appeal since it 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 of identification correctly.

 

6. The charge against the appellant was that on Saturday 12^th March 1988 he had stolen a motor car. The evidence of Mr Serrao was that he had stopped in the road at about 11 o'clock in the morning whilst his passenger got out to buy some pigeon peas from a roadside stall. He too got out and shortly afterwards he saw two men go over to his car and get in. They were only a short distance away. The one closer to him got into the driver's seat. Mr Serrao went to the driver's window in order to try and stop them but thought better of intervening when he saw some shiny metal object on the lap of the driver. Fearing that he would get hurt if he did intervene he desisted. The thieves drove off in the car. Neither of the two thieves were known to Mr Serrao but he was able to give the police a description of the driver, albeit apparently not very detailed. Four days later, he was called to the police station to see if he could identify as his a car which had been recovered. He did identify it as his car. He was also shown a man who had been arrested for receiving stolen property. Mr Serrao told the police that that man was not one of the two men whom he had seen stealing the car.

 

7. A month later, on 16^th April, he was called to the police headquarters, apparently by the officer in charge of the investigation, PC Logan. The appellant had been arrested the previous day. PC Logan told Mr Serrao that they wanted him to come down because the man they suspected was at the police station. The actual identification parade was conducted by PS Anthony. On his evidence it was properly conducted. The appellant was given opportunities to object, to have witnesses present and to choose his clothing and place in the line of 9 men of similar general appearance. Mr Serrao was shown in, asked to repeat briefly in the presence of the men standing on the parade his account of what had occurred on 12^th March and then asked whether he could identify either of the men he had seen that day. He picked out the appellant as the man he had seen in the driver's seat.

 

8. The trial before the magistrate took place over three days. On the first, the appellant's counsel was not present but the appellant, who had been in custody, was. On the second both the appellant and his counsel were present. At the end of that day, on counsel's application, the appellant was granted bail. On the third day, the appellant did not answer to his bail, a further prosecution witness was called and the prosecution case was closed; counsel's submission of no case to answer was rejected; the defence called no evidence; the appellant was found guilty by the magistrate and was sentenced in his absence.

 

9. The evidence of Mr Serrao was led on the first day and he was cross-examined by counsel at the start of the third day. He was the only eye witness called. All the other prosecution witnesses were police officers. His credit was challenged and a suggestion of collusion between him and PC Logan was implied but this was not supported by the evidence. There was no suggestion that the circumstances under which he made his observation of the two men were adversely affected by any lack of light or such like. But it was suggested that he had never got more than a fleeting glance of the men and that he had not had an opportunity to get a good look at them. These suggestions were rejected by the witness. He said that he got a good look at the man in the driver's seat; he was directly in front of him. The incident had lasted up to a minute in all.

 

10. Counsel's submission of no case, of which, it appears, a full note was made by the magistrate, took a number of points which cannot have had any persuasive weight. But counsel included a criticism of the adequacy of the identification evidence. It seems that counsel referred to Turnbull and tailored his submission to what had been said in that case. He said -

 

" If you rely on the evidence of Serrao you would be falling in error. He had less than a minute to see the man who stole his car. The man did not know the defendant before, the police do not have any [corroborating] witnesses. ...... A man you do not know before and saw him in a fleeting moment, the court cannot rely on those evidences, the court must have other evidence and there are no other evidences".

 

11. He submitted that the witness was convincing but he was mistaken for the reasons given. Counsel for the prosecution responded to this submission by referring to the fact that Serrao had said that he had had a good look at the driver of the car on the day in question and had further positively identified the appellant on 16^th April at a properly conducted identification parade; on the evidence the prosecution had proved identification. The essential issue was clear: had the prosecution proved by reliable evidence that the driver was the appellant? The magistrate found that they had. There can have been no doubt in anyone's mind that the magistrate had come to that conclusion because he had believed the prosecution witnesses and had, on the evidence, found Mr Serrao's identification to be reliable.

 

12. The Court of Appeal did not hear the appeal until December 1996. By this time the decision of their Lordships' Board in Reid (Junior) had long since been published. The hearing was very brief. The court had read the papers and was obviously under greater pressure of time than one would believe to have been desirable. Counsel did not put as his main argument the criticism of the quality of the identification evidence; rather he concentrated upon criticising the police evidence and suggesting that it was not proved that the man who had been arrested as the receiver was not the thief. The short reasons which the court gave for dismissing the appeal accepted one of the criticisms of PC Logan but pointed out that the case turned on identification. Justice Sharma J.A. said:

 

" I think it is elementary and trite law that the courts must look at all the evidence in the case to determine whether the evidence was reliable or not. And we think that having regard to the facts of this particular case and the identification of the person whose car was stolen, there was ample evidence on which a reasonable tribunal, properly directing itself on the question of the identification evidence could have come to the conclusion that it did."

 

13. Mr Knowles criticised this passage as inadequate where no reasons had been supplied by the magistrate. (Alexander v Williams (1984) 34 WIR 340, Forbes v Maharaj (1998) 52 WIR 487. But it should be noted that the response of the Court of Appeal was apt to answer the only substantive ground of appeal and was appropriate to the wording of section 132. No point had been taken before them upon the absence of the reasons nor upon any possible lack of understanding on the part of the magistrate of the guidance given by Turnbull. There was only one real issue at the trial - identification - and critical to that issue was the reliability of Mr Serrao as an identifying witness. The Alexander and Forbes cases demonstrate that the significance of the absence of reasons must depend upon the issues raised in the case before the court. Here there was no complexity of issues. The basis of the magistrate's decision was clear. The relevant law was covered in the submissions made to the magistrate and was not in dispute. The decision of the magistrate was the decision to be expected upon the evidence.

 

14. The other way of putting the point on the absence of reasons is that it shows a serious departure from due process and that the appeal ought to have been allowed on that basis. The starting point for the evaluation of this argument is that the statute does not require the magistrate to give these reasons at the time of the trial. The duty to give and the right to have the written reasons arises only when a notice of appeal is given. The requirement of the statutory reasons is not for the trial nor even for the purpose of deciding whether or not to appeal. It is for the purpose of the appeal hearing. The absence of these reasons does not vitiate the trial which has already taken place. The question is whether it invalidates the appeal and has the practical effect of requiring the Court of Appeal to decide the appeal in favour of the appellant so that he is not deprived of his right of appeal. The criticism here of the magistrate is not for anything he failed to do at the trial but of a later independent failure which, it is submitted, compromised the appeal.

 

15. There are two related answers to this submission. First, as a matter of fact, the appeal patently was not prejudiced by the absence of the statutory reasons. The basis of the magistrate's decision was clear. The one substantive ground of appeal could be properly evaluated and decided. None of those present even referred to the absence of the reasons, let alone complained of their absence. The argument is unpersuasive on the facts. Secondly, the authorities, while emphasising the importance of the giving of reasons as part of due process, also make clear that whether or not the 'unreasoned' decision should without more be set aside depends upon the circumstances of the particular case. A valuable judgment summarising the effect of the previous authorities is that of the Court of Appeal in Flannery v Halifax Estate Agencies Ltd. (trading as Colleys Professional Services) [2000] 1 WLR 377. In Forbes v Maharaj it was accepted (without deciding) that there may be cases where the absence of reasons may not lead to the quashing of the magistrate's decision. To a similar effect was the judgment of Lord Lane CJ in Reg v Immigration Appeal Tribunal Ex parte Khan (Mahmud) [1983] QB 790 (at 794-795):

 

" A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

 

16. Cases which fall on the other side of the line are those where there is some complexity of the law or the facts which requires more than a simple statement of the conclusion (eg. Reg v Harrow Crown Court Ex parte Dave [1994] 1. WLR 98) In the present case, so far as the trial itself was concerned, no complaint is made: so far as the appeal was concerned, the basis of the magistrate's decision was obvious without the provision of the statutory reasons. It would be wrong to leave this topic without pointing out that it would be quite possible that a magistrate might die or become disabled between the time that he decided a case and the time when he was required to give the statutory reasons. Would it be a rational construction of the statute to say that in such a situation all his decisions should be set aside regardless of whether or not there was any real ground of appeal merely because he was now unable to give the statutory reasons?

 

17. The appeal against conviction is accordingly dismissed. As previously stated the sentence passed by the Court of Appeal was illegal. The appeal against sentence is allowed and the sentence set aside.

 

18. The appellant has asked for an order for costs against the respondent. He had to come on appeal to their Lordship's Board in order to obtain his release from custody and the setting aside of the illegal sentence passed by the Court of Appeal. The appeal against conviction has failed but a significant proportion of the time on the hearing was taken up with the argument arising out of the failure (without any excuse whatsoever) of the magistrate to perform his statutory duty to provide written reasons. The Board has a general and well established practice of not awarding costs against the prosecution in criminal cases. But this does not preclude the Board from doing so in wholly exceptional circumstances. (The Queen v Beckford (30 June 1993) The Times Law Reports). Their Lordships consider that this is such an exceptional case and that it would be unjust to the appellant if the respondent were not ordered to pay the costs of the appellant of this appeal to their Lordships' Board, including the applications for leave and for the order for bail; and their Lordships so order.