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The West Indian Reports/Volume 17 /Vysick v Commissioner ! Police " #1$71% 17 WIR &$1
#1$71% 17 WIR &$1
Vysick v Commissioner Of Police
COURT OF APPEAL OF THE WEST INDIES ASSOCIATED STATES
A LEWIS C!" CECIL LEWIS AND ST #ERNARD !!A
$%" $& NOVE#ER"
Criminal law --Appeal --Preliminary objection that summons not issued in accordance with
relevant law --Preliminary objection overruled --Statement by defendant's solicitor that he was
appearing under protest and would not cross-examine --Defendant pleading to complaint
--ffect of cross-examination of prosecution witness by defendant's solicitor despite statement of
contrary intention --Criminal Procedure Code! Cap "" #$renada%! ss "&! "' (&)! "*! "+ (&)
--,otor -ehicles and .oad /raffic 0rdinance! Cap &1+ #$renada%! s 234
The appellant 'as convicted on 2( )eptem*er 1$71+ *y the magistrate o! the )outhern ,istrict o!
driving a motor vehicle on a pu*lic road 'ithout due care and attention and 'as !ined -1(
paya*le *y 27 )eptem*er 1$71+ and in de!ault o! payment he 'as ordered to undergo 1. days/
imprisonment0 1t the hearing o! the charge *e!ore the magistrate on 12 )eptem*er 1$71+ the
de!endant 'as not present *ut his solicitor 'as+ and he raised the preliminary point on his *ehal!
that the summons served on his client had not *een issued in accordance 'ith s 7. #1% o! the
Criminal Procedure Code+ Cap 77 34renada5 #hereina!ter re!erred to as 6the Code6% and there!ore
the magistrate had no 7urisdiction to entertain the complaint0 It 'as su*mitted that under s 7. #1%
o! the Code it 'as essential *e!ore a magistrate could issue a summons thereunder he should
see the complaint+ and as the magistrate never sa' the complaint in this case *e!ore the
summons 'as issued he 'as una*le to e8ercise the discretion vested in him *y s 7. #1% o! the
Code0 9vidence 'as given *y the magistrate/s clerk 'hich 'as uncontroverted and 'hich
conclusively esta*lished that the magistrate never sa' the complaint *e!ore it 'as issued and
that she had signed and issued the summons 'ithout re!erring the complaint to him0 The ruling on
the preliminary o*7ection 'as reserved and on 2( )eptem*er 1$71+ the magistrate gave his
reasons in 'riting overruling the o*7ection0 :e held in e!!ect that the summons 'as properly
issued although he had not seen the complaint previous to the issue o! the summons0
1!ter the o*7ection had *een overruled the de!endant/s solicitor said that he 'as appearing under
protest+ the de!endant pleaded not guilty to the charge and the !irst 'itness !or the prosecution
'as e8amined0 1t the end o! her e8amination"in"chie! the de!endant/s solicitor again stated that
he 'as there under protest and 6is not cross"e8amining60
The second 'itness !or the prosecution+ the police consta*le 'ho investigated the circumstances
out o! 'hich the complaint arose+ ne8t gave evidence and he 'as cross"e8amined0 The case !or
the prosecution 'as then closed and the solicitor !or the de!endant thereupon su*mitted 6that the
court has no 7urisdiction *ecause there is no proper complaint under s 7. in that there 'as no
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complaint *e!ore the magistrate60 :e then in!ormed the magistrate that he rested his case0 The
magistrate held that a prima facie case had *een made out against the de!endant and convicted
him and !ined him0 The de!endant gave 6ver*al notice o! appeal60 :is notice o! appeal contained
t'o grounds *ut only one 'as argued and this 'as 6that the magistrate had no 7urisdiction to
ad7udicate in the matter as the provisions o! s 7. #1% o! the Criminal Procedure Code+ Cap 77+ o!
the ;a's o! 4renada 'ere not complied 'ith in that the complaint 'as not made *e!ore the
magistrate and accordingly the magistrate did not e8ercise his discretion to issue his summons60
<e!ore this court counsel !or the appellant su*mitted that i! a complaint is made in 'riting the
magistrate must see it *e!ore the summons is issued so that he may authorise the issue o! the
summons0
(&1"&) &" 56. *1& at *1'
Counsel sought and o*tained leave to argue the additional point that the complaint itsel! 'as
de!ective0 n this issue he su*mitted that s 71 o! the Code lays do'n the methods *y 'hich
proceedings shall *e instituted in the magistrate/s court+ that one o! these methods is *y
complaint 6made *e!ore the magistrate6+ that 6*e!ore6 means 6in the sight o!6 and in this conte8t
connotes that the magistrate must have seen the complaint+ it must have come to his kno'ledge0
:e !urther contended that on the evidence no complaint had at any time *een made *e!ore the
magistrate+ and as a complaint institutes proceedings+ i! no complaint is made+ everything else
!lo'ing there!rom 'as void0
1s to the e!!ect o! his action in cross"e8amining a 'itness !or the prosecution a!ter indicating that
he 'as taking no part in the trial and 'as appearing under protest+ counsel !or the appellant #'ho
also appeared in the court *elo'% su*mitted that his cross"e8amination 'as directed to the same
=uestion raised *y the preliminary o*7ection as to the 7urisdiction o! the court+ that he did not
contest the case on its merits as he never touched the vital =uestion 'hether the de!endant 'as
driving 'ithout due care and attention+ and that his cross"e8amination o! the policeman 'as only
directed to ascertaining 'hether or not he had 'arned his client that he 'as likely to *e
prosecuted0
Hel'( #i% 61 summons is the result o! a complaint 'hich has *een made to a magistrate on 'hich
a magistrate must *ring his 7udicial mind to *ear and decide 'hether or not on the complaint
*e!ore him he is 7usti!ied in issuing the summons6 #per ;R, 4,,1R,+ C> in . v 5ilson! ex
parte 7attersea 7orough Council #. v 5ilson! ex parte 7attersea 7orough Council+ 31$.25 2 1ll
9R 2?$%+ 31$.75 2 1ll 9R at p 27(%0 There!ore the very essence o! this matter is that the
magistrate must give 7udicial consideration to the complaint and decide 'hether or not he 'ill
issue the summons+ and he can only do this i!+ in the case o! a 'ritten complaint+ this document is
*e!ore him0 :e cannot e8ercise his discretion in vacuo0 The magistrate 'as accordingly 'rong in
overruling the de!endant/s o*7ection and in holding that the summons 'as properly issued0
#ii% n the =uestion o! the validity o! the complaint+ the evidence disclosed that the magistrate sa'
the complaint on 12 )eptem*er 1$71+ 'hen the hearing *egan and on that date *oth the
complainant and the complaint 'ere *e!ore him0 The limitation period o! three months !i8ed *y s
72 #1% o! the Code !or *ringing a complaint !or the o!!ence in respect o! 'hich the appellant 'as
charged had not yet e8pired and there!ore the complaint 'as properly *e!ore the magistrate and
'as valid0
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#iii% <y pleading to the charge and *y permitting a 'itness !or the prosecution to *e
cross"e8amined on his *ehal! a!ter his solicitor had indicated that he 'as appearing under protest
and 'as not cross"e8amining+ the appellant took steps 'hich 'ere 6une=uivocally re!era*le to the
issue on the merits6 o! the charge0 @oreover the su*stance o! the cross"e8amination o! the
'itness 'as directed to the merits o! the case and 'as not con!ined to matters relating to the
7urisdiction o! the magistrate raised *y the preliminary o*7ection0 1ccordingly+ the appellant must
*e deemed to have su*mitted to the 7urisdiction o! the court0
1ppeal dismissed0
C)ses referre' *o(
. v 5ilson! ex parte 7attersea 7orough Council+ 31$.25 2 1ll 9R 2?$
6n re Dulles' Settlement (8o ') Dulles v -idler+ 31$215 Ch A.2
Dixon v 5ells+ 17 CCC .A
A++e)l
1ppeal !rom a decision o! the magistrate o! the )outhern ,istrict in 4renada in 'hich he
convicted the appellant on 2( )eptem*er 1$71+ o! driving a motor vehicle on a pu*lic
road 'ithout due care and attention0
C 7ristol and A /aylor !or the appellant0
D 9ambert #1g ,irector o! Pu*lic Prosecutions% !or the respondent0
(&1"&) &" 56. *1& at *1*
LEWIS C!, I have had the advantage o! reading in advance the 7udgments 'hich are a*out to *e
delivered *y my ;ords0 Bor the reasons 'hich they have given I agree that this appeal should *e
dismissed 'ith costs0
CECIL LEWIS !A, The !acts out o! 'hich this appeal arises are that on 2( )eptem*er 1$71+ the
appellant 'as convicted *y the magistrate o! the )outhern ,istrict o! driving a motor vehicle on a
pu*lic road on 22 >une 1$71+ 'ithout due care and attention0 :e 'as !ined -1( paya*le *y 27
)eptem*er 1$71+ and in de!ault o! payment 'as ordered to undergo 1. days/ imprisonment0
It is unnecessary to go into the !acts o! this case in detail *ecause the appeal is *eing argued on
a point o! la' #the same 'hich 'as raised in the court *elo'% 'hich goes to the 7urisdiction o! the
magistrate0 It is su!!icient to state that on the date in =uestion the appellant/s vehicle 'as involved
in a head"on collision 'ith another vehicle on the @orne Rouge pu*lic road+ and a!ter an
investigation on the spot *y a mem*er o! the police !orce+ the appellant 'as there and then
in!ormed *y the consta*le that he 'ould 6charge him !or driving 'ithout due care and attention60
:e 'as duly charged+ 'ith the result indicated a*ove0
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1t the hearing *e!ore the magistrate on 12 )eptem*er 1$71+ the de!endant 'as a*sent+ *ut 'as
represented *y his solicitor 'ho raised a preliminary o*7ection to the 7urisdiction o! the court0 :e
said that the summons served on his client 'as not issued in accordance 'ith the provisions o! s
7. #1% o! the Criminal Procedure Code+ Cap 77+ and there!ore the magistrate had no 7urisdiction
to entertain the complaint0 This su*section #omitting the proviso% readsC
D7.0 #1% Where a complaint is made *e!ore a @agistrate that any person has committed or is suspected
to have committed+ 'ithin the 7urisdiction o! the @agistrate+ a summary o!!ence+ it shall *e la'!ul !or the
@agistrate+ in his discretion to issue his summons directed to the person+ stating concisely the su*stance
o! the complaint+ and re=uiring him to appear at a certain time+ *eing not less than !orty"eight hours a!ter
the service o! the summons+ and at a certain place+ *e!ore the @agistrate/s Court+ to ans'er the said
complaint+ and to *e !urther dealt 'ith according to la'000/
The su*mission *ased on this su*section 'as that it 'as essential *e!ore a magistrate could
issue a summons thereunder that he should see the complaint #'here it is made in 'riting as 'as
done in this case% and+ as the magistrate never sa' the complaint *e!ore the summons 'as
issued he 'as una*le to and did not in !act e8ercise the discretion vested in him *y the
su*section0 In order to su*stantiate this su*mission the magistrate/s clerk+ Clementine <u8o+ 'as
called as a 'itness *y the de!endant/s solicitor0 :er evidence+ 'hich 'as uncontroverted+
esta*lished *eyond dou*t that the magistrate never sa' the complaint *e!ore the summons 'as
issued and that she had signed and issued the summons 'ithout re!erring the complaint to him0
The ruling on the preliminary su*mission 'as reserved+ and on 2( )eptem*er 1$71+ the
magistrate gave his reasons in 'riting overruling the su*mission0 The relevant part o! the ruling
readsC
DIn this case there is a charge in 'riting !iled in the @agistrate/s Court+ and as such that charge is
properly *e!ore the @agistrate0 The charge 'as laid *y the complainant0 )u*se=uently a summons 'as
issued and served on the de!t0 In the circumstances 'hat has the magistrate to do 'hen the de!t appears
or does not appearE The ans'er is no in7ustice has *een done and I cannot possi*ly say that *ecause it
is alleged that the magistrate did not see the complaint+ that invalidates the hearing0/
The magistrate thus held in e!!ect that the summons 'as properly issued although he had not
seen the complaint previous to the issue o! the summons0
(&1"&) &" 56. *1& at *1+
Counsel !or the appellant *e!ore this court made the same su*mission as 'as put !or'ard in the
magistrate/s court0 :e said that the magistrate must see the complaint so that he might authorise
the issue o! the summons0 In support o! this su*mission+ counsel re!erred to . v 5ilson! ex parte
7attersea 7orough Council #. v 5ilson! ex parte 7attersea 7orough Council+ 31$.25 2 1ll 9R
2?$%+ in 'hich ;R, 4,,1R,+ C>+ e8pressed his opinion as to the nature o! a summons issued
as a result o! a complaint *e!ore a magistrate0 :e said at p 27(C
D1 summons is the result o! a complaint 'hich has *een made to a magistrate on 'hich a magistrate
must *ring his 7udicial mind to *ear and decide 'hether or not on the complaint *e!ore him he is 7usti!ied
in issuing the summons0/
There!ore+ the very essence o! this matter is that the magistrate must give 7udicial consideration
to the complaint and decide 'hether or not he 'ill issue the summons and he can only do this i!
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in the case o! a 'ritten complaint this document is *e!ore him0 :e cannot e8ercise his discretion
in vacuo0 The magistrate 'as accordingly 'rong in overruling the de!endant/s o*7ection and in
holding that the summons 'as properly issued0
This+ ho'ever+ is not the end o! the matter+ !or counsel !or the appellant also argued that the
complaint itsel! 'as de!ective0 This 'as not a ground o! appeal *ut counsel su*mitted #a% in vie'
o! the !act that at the end o! the case !or the prosecution+ the su*mission 'as made 6that the
court has no 7urisdiction *ecause there is no proper complaint under s 7. in that there 'as no
complaint made *e!ore the magistrate6+ and #*% the magistrate in his ruling on the preliminary
o*7ection had stated that during the argument on this o*7ection the provisions o! ss 71+ 7& and 7.
#1% 'ere e8amined+ he should *e allo'ed to argue this point as in reality it 'as not a ne' one0
The court allo'ed him to argue the point as it appeared !rom the su*mission 'hich 'as made in
the court *elo' that the =uestion o! the validity o! the complaint had *een at least mentioned at
the trial0 Counsel then re!erred to s 71 o! the Criminal Procedure Code+ Cap 77+ 'hich reads as
!ollo'sC
D710 9very proceeding in the Court !or the o*taining o! an order against any person shall *e instituted *y
in!ormation or complaint made *e!ore a @agistrate0
It shall *e la'!ul !or any person to make a complaint against any person committing a summary o!!ence+
unless it appears !rom the statute on 'hich the complaint is !ounded that any complaint !or such o!!ence
shall *e made only *y a particular person or class o! persons0/
:e su*mitted that this section lays do'ns the methods *y 'hich proceedings shall *e instituted in
a magistrate/s courtF that one o! these methods is *y complaint 6made *e!ore a magistrate6F that
6*e!ore6 means 6in the sight o!6+ and in this conte8t connotes that the magistrate must have seen
the complaint+ that it must have come to his kno'ledge0 :e !urther su*mitted that according to
the evidence in this case no complaint had at any time *een made *e!ore the magistrate+ and as
a complaint institutes proceedings+ i! no complaint is made+ everything else !lo'ing there!rom is
void0
In considering these su*missions+ regard must+ ho'ever+ *e had to a passage in the magistrate/s
ruling on the preliminary o*7ection in 'hich he saidC
DIn this case there is a charge in 'riting !iled in the magistrate/s court+ and as such that charge is properly
*e!ore the magistrate0 The charge 'as made *y the complainant0/
This passage sho's that the magistrate+ at some time had the complaint *e!ore him+ and an
ans'er given *y the magistrate/s clerk in her evidence !urnishes some indication as to the time
'hen the magistrate 'ould normally see
(&1"&) &" 56. *1& at *12
complaints0 )he said in cross"e8aminationC 61t least the magistrate 'ould see the cases *e!ore
the day o! the hearing as he usually asks to see them06
It 'ould appear there!ore+ that the magistrate may have seen the complaint on 1. )eptem*er
1$71+ the day *e!ore the hearingF he certainly sa' it on 12 )eptem*er 1$71+ 'hen the hearing
*egan and on that date *oth the complainant and the complaint 'ere *e!ore him0 The limitation
period o! three months !i8ed *y s 72 #1% o! the Criminal Procedure Code+ Cap 77+ !or *ringing a
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complaint !or the o!!ence 'ith 'hich the appellant 'as charged had not yet e8pired+ and there!ore
the complaint 'as+ in my vie'+ properly *rought *e!ore the magistrate and 'as valid0
I no' turn to the =uestion 'hether or not the appellant su*mitted to the 7urisdiction o! the court
despite his preliminary o*7ection thereto0 1t the ad7ourned hearing on 2( )eptem*er 1$71+ 'hen
the ruling on the preliminary o*7ection 'as given the !ollo'ing entry appears on the recordC
DWritten ruling0 *7ection overruled0 @r <ristol no' represents the de!t and says he is appearing under
protest0 PleaC not guilty0/
The solicitor 'ho appeared !or the de!endant on that day in the magistrate/s court no' appears
as his counsel on this appeal and he con!irmed the accuracy o! this entry0 :e in!ormed this court
that the appellant+ 'ho had not appeared originally+ appeared under protest a!ter the ruling on the
preliminary point and pleaded not guilty0 The o*vious in!erence to *e dra'n !rom the !act that the
appellant pleaded is that the charge 'as read to him0 T'o 'itnesses gave evidence !or the
prosecution0 1t the end o! the evidence o! the !irst 'itness there is a note on the record 'hich
readsC 6@r <ristol says he is here under protest and he is not cross"e8amining06 :e accordingly
did not cross"e8amine this 'itness0 The other 'itness+ police consta*le Cra'!ord+ 'ho carried out
the investigation at the scene o! the accident 'as cross"e8amined *y the de!endant/s solicitor0 :is
cross"e8amination 'as as !ollo'sC
DG G, *y <ristolC H Why did you serve a notice o! intended prosecution on @rs )heltusE 1 When 'e visit
the scene o! accident 'e usually serve a notice on *oth drivers0 H WhyE 1 It is the usual procedure0 H
Whether or not you made up your mind to prosecute you serve noticeE 1 Ies+ sir0 I have no 'ritten
statement !rom the de!t0 H Is it not correct that he re!used to give a 'ritten statementE 1 Ies0 H Is it not
correct that his arrest 'as contemplated *ecause o! his re!usal to give the statementE 1 Jo0 H Iou had
charge o! the investigation in this matterE 1 Ies0 While going round the corner he sa' a car P.A(A
coming in the opposite direction and in a minute time they 'ere crashed head on0 I asked him i! there
'as any one also in his car &.(&0 :e told me his 'i!e0 I asked him i! his 'i!e 'as in7ured0 :e said no0 I
asked him nothing else0 I had asked him that *e!ore0 H Then you took measurementsE 1 Ies0 I made a
note in my o!!icial pocket *ook0 Then I in!ormed him that I 'ould charge him !or driving 'ithout due care
and attention0/
1t the close o! the case !or the prosecution+ the de!endant led no evidence and rested his case
on the su*mission that 6the court has no 7urisdiction *ecause there is no proper complaint under s
7. in that there 'as no complaint made *e!ore the magistrate60 The magistrate !ound a prima
facie case had *een made out+ and convicted the de!endant 'ho then gave 6ver*al notice o!
appeal60
The de!endant did t'o acts in re!erence to the proceedingsC #a% he pleaded to the charge+ and #*%
a 'itness !or the prosecution 'as cross"e8amined on his *ehal!0 Counsel !or the appellant himsel!
posed the =uestion as to 'hat 'as the e!!ect in the circumstances o! this case o! his
cross"e8amination o! a 'itness a!ter he had stated that he had appeared under protest and 'as
o*7ecting to the 7urisdiction o! the court0 The ans'er to counsel/s =uestion is to *e !ound
(&1"&) &" 56. *1& at *1:
*y applying the principle laid do'n *y ;R, 9V9R):9,+ @R+ in 6n re Dulles' Settlement (8o ')
Dulles v -idler #6n re Dulles' Settlement (8o ') Dulles v -idler+ 31$215 Ch A.2%+ a case in 'hich
o*7ection had *een taken to the 7urisdiction o! the court and+ *y reason o! certain a!!idavit
evidence given *y the party taking the o*7ection+ it 'as alleged that he had 6involved himsel! in
the =uestion o! the merits o! the application60 The @aster o! the Rolls said at p A.7
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DIt is+ o! course+ plain that 'here a =uestion o! 7urisdiction arises a man cannot *oth have his cake and
eat it0 :e cannot !ight the issue on the merits+ and at the same time preserve the right to say+ i! the 'orst
comes to the 'orst+ that the court has no 7urisdiction to decide against him0 1nd he cannot consistently
'ith that principle take any steps une=uivocally re!era*le to the issue on the merits0/
Were the steps mentioned a*ove 'hich 'ere taken *y the de!endant 6une=uivocally re!era*le to
the issue on the merits6 o! the charge in this caseE I! they 'ere+ then he must *e deemed to have
su*mitted to the 7urisdiction o! the court and to have a*andoned his o*7ection thereto0 Counsel !or
the appellant contended that he did not a*andon his original stand as to the a*sence o!
7urisdiction in the magistrate *y cross"e8amining a 'itness !or the prosecution0 :e su*mitted
#a% that i! cross"e8amination is directed to the same =uestion raised *y a preliminary point as to
the 7urisdiction o! a court+ this does not mean that the party raising the point 'ould *e su*mitting
to the 7urisdiction o! the courtF
#*% that he did not contest the case on its merits as he never touched the vital =uestion 'hether
the de!endant 'as driving 'ithout due care and attention and con!ined his cross"e8amination to
the issue 'hether the magistrate/s 7urisdiction 'as a!!ectedF
#c% that he cross"e8amined the policeman only on the =uestion o! notice o! intended prosecution
'hich 'as a matter relating to the 7urisdiction o! the magistrate+ *ecause the giving o! notice o!
intended prosecution 'as a pre"re=uisite !or !ounding the magistrate/s 7urisdiction to entertain the
charge and the purpose o! the cross"e8amination o! the policeman 'as merely to !ind out i! he
had really 'arned the de!endant that he 'as likely to *e prosecuted0
9ven a casual re!erence to the cross"e8amination o! police consta*le Cra'!ord 'ill reveal that no
support can *e !ound !or these contentions0 The cross e8amination 'as not directed to the same
=uestion as had *een raised on the preliminary o*7ection to the magistrate/s 7urisdiction0 This
o*7ection 'as *ased on t'o grounds+ vi;+ the validity o! the summons and the validity o! the
complaint+ and no assistance could *e o*tained in the determination o! these issues *y the
=uestions put to the police 'itness *y the de!ence0 Whether or not the de!endant had *een
'arned o! an intended prosecution 'as not a !actor 'hich could a!!ect the magistrate/s
7urisdiction+ as his 7urisdiction to entertain the complaint 'as not dependant on the esta*lishment
o! this point0 )ection 2( o! the @otor Vehicles and Road Tra!!ic rdinance+ Cap 1$.+ lays do'n
certain re=uirements 'hich must *e complied 'ith *e!ore a person can *e convicted o! careless
driving and notice o! intended prosecution is one o! these re=uirements0 It also provides that 6the
re=uirements o! this section shall in every case *e deemed to have *een complied 'ith unless
and until the contrary is proved6+ so there is a re*utta*le presumption in !avour o! the prosecution
that the necessary 'arning had *een given to the de!endant0 <y cross"e8amining on this issue+
the de!endant/s solicitor 'as presuma*ly hoping to sho' either that the 'arning had not *een
given or to create a su!!icient dou*t in the magistrate/s mind on this point to persuade him to
dismiss the complaint0 In so doing+ he clearly got himsel! involved in the =uestion o! the merits o!
the case0 Huestions as to 'hether the de!endant had given or had re!used to give a 'ritten
statement+ a*out the vehicle crashing head"on and as to the taking o! measurements 'ere+ in my
opinion+ also directed to the merits0
(&1"&) &" 56. *1& at *1"
@oreover+ the appellant/s act in pleading to the charge had the e!!ect o! putting in issue the !acts
'hich the prosecution had a duty to produce in support o! the complaint+ and the prosecution 'as
there*y put in a position 'here it 'as *ound to lead evidence0 I! it did not lead any evidence+ or i!
the evidence led 'as insu!!icient to esta*lish the guilt o! the de!endant he 'ould *e entitled to *e
ac=uitted on the merits and the same charge could not a!ter'ards *e *rought against him0 In my
vie'+ the de!endant *y pleading and cross e8amining a 'itness on the points 'hich he did+ took
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steps 'hich 'ere 6une=uivocally re!era*le to the issue on the merits6 and he must there!ore *e
held to have su*mitted to the 7urisdiction o! the court0
There 'as enough evidence to support the magistrate/s !inding that the appellant 'as guilty+ and I
'ould accordingly dismiss the appeal 'ith costs0
ST #ERNARD !A, The appellant 'as convicted and sentenced on a charge arising out o! a
driving o!!ence committed on 22 >une 1$710
1t the trial 'hich commenced on 12 )eptem*er 1$71+ the appellant 'as a*sent *ut 'as
represented *y counsel0 :is counsel o*7ected to the 7urisdiction o! the magistrate to hear the
complaint on the ground that su*"s #1% o! s 71 o! the Criminal Procedure Code+ Cap 77 o! the
;a's o! 4renada had not *een complied 'ith+ in that the magistrate had not e8ercised his
discretion *e!ore a summons 'as issued to the appellant0 That su*section reads as !ollo'sC
D7.0 #1% Where a complaint is made *e!ore a magistrate that any person has committed or is suspected
to have committed+ 'ithin the 7urisdiction o! the @agistrate+ a summary o!!ence+ it shall *e la'!ul !or the
@agistrate+ in his discretion+ to issue his summons directed to the person+ stating concisely the
su*stance o! the complaint+ and re=uiring him to appear at a certain time+ *eing not less than !orty"eight
hours a!ter the service o! the summons+ and at a certain place+ *e!ore the @agistrate/s Court+ to ans'er
the said complaint+ and to *e !urther dealt 'ith according to la'C
Provided that the Court may+ i! it thinks !it+ 'ith the consent o! the parties+ hear and determine a
complaint not'ithstanding the said period o! !orty"eight hours may not have elapsed0/
In order to prove that the provisions o! the a*ove su*section had not *een complied 'ith+ counsel
!or the appellant called Clementine <u8o+ the magistrate/s clerk+ as a 'itness0 )he gave evidence
regarding the procedure adopted in the magistrate/s court *e!ore the issuing o! a summons to
de!endants on charges pre!erred against them0 That evidence as it a!!ects this case 'as that a
summons had *een issued to the appellant 'ithout the magistrate having seen the complaint0
The e!!ect o! her evidence 'as that she had issued a summons+ dated 1 >uly 1$71+ to the
appellant 'ithout any instructions !rom the magistrate0
The ruling on this su*mission o! counsel 'as reserved until 2( )eptem*er 1$710 n that date the
magistrate overruled the o*7ection and the appellant 'ho 'as present in court pleaded not guilty
to the charge0 :is counsel stated that he 'as appearing under protest0 The trial continued on that
date in the presence o! the appellant0 There 'ere t'o 'itnesses0 1t the end o! the evidence o! the
!irst 'itness+ counsel said he 'as appearing under protest and 'as not cross"e8amining the
'itness0 :o'ever+ at the end o! the evidence o! the second 'itness counsel cross"e8amined the
'itness in respect o! the service o! a notice o! intended prosecution on that 'itnessF a*out the
appellant/s re!usal to give a 'ritten statementF a*out the appellant/s version o! the accident and
a*out the measurements taken at the scene0 1t the end o! the trial counsel su*mitted that the
complaint 'as *ad in la' and rested his case0 There is a note on the record 'hich statesC 6@r
<ristol says he rests his case06 The magistrate overruled the su*mission+ !ound that a prima facie
case 'as made out and convicted the appellant0
(&1"&) &" 56. *1& at *1<
Brom this conviction and sentence the appellant has appealed on t'o grounds+ namelyC
Page 1(
D#a% That the magistrate had no 7urisdiction to ad7udicate in the matter as the provisions o! s 7. #1% o! the
Criminal Procedure Code+ Cap 77 o! the ;a's o! 4renada 'ere not complied 'ith in that the complaint
'as not made *e!ore the magistrate and accordingly the magistrate did not e8ercise his discretion to
issue the summons0
#*% That the magistrate/s decision is unreasona*le and cannot *e supported *y the evidence0/
Counsel+ at the hearing o! this appeal+ a*andoned ground t'o and relied on ground one0 :e
su*mitted that the evidence o! the magistrate/s clerk sho'ed that the magistrate did not *ring his
7udicial mind to *ear and decide 'hether or not a summons should issue and there!ore the issue
o! a summons in those circumstances 'as irregular0 :e !urther su*mitted that the complaint itsel!
'as *ad as it 'as not made *e!ore a magistrate in accordance 'ith s 71 o! the Criminal
Procedure Code+ Cap 77+ o! the ;a's o! 4renada0
In support o! his !irst su*mission counsel cited several authorities0 The case o! Dixon v 5ells
#Dixon v 5ells+ 17 CCC .A% 'as cited0 This 'as a case o! an in!ormation laid against the
appellant under )ale o! Bood and ,rugs 1cts 1A72 and 1A7$ *e!ore t'o 7ustices on 2(
)eptem*er 1A7$0 Jo summons 'as issued *y 7ustices *ut su*se=uently a summons returna*le
upon 2& cto*er 'as issued *y an other 7ustice 'ho had not heard the in!ormation0 The appellant
appeared and o*7ected to the 7urisdiction0 It 'as held that the summons 'as not legally issued0
This case is not directly on the point as in this case the summons 'as *ad *ecause under the
1cts it must *e served 'ithin 2A days !rom the time o! the purchase o! the article in =uestion0 It
does sho'+ ho'ever+ that a magistrate 'ho issues a summons must *e satis!ied *e!ore so doing
that a prima facie case 'as made out0 @1TT:9W+ >+ at p 2. statedC
DThe magistrate 'ho issued a summons must *e satis!ied *e!ore doing so that there is a prima facie
case against the person to 'hom the summons is addressed0/
In the case o! . v 5ilson ex parte 7attersea 7orough Council #. v 5ilson! ex parte 7attersea
7orough Council+ 31$.25 2 1ll 9R 2?$%+ 31$.75 2 1ll 9R at p 27(+ ;R, 4,,1R,+ C>+ statedC
D1 summons is a 7udicial act0 It is the result o! a complaint 'hich has *een made to a magistrate on 'hich
a magistrate must *ring his 7udicial mind to *ear and decide 'hether or not on the in!ormation or
complaint *e!ore him he is 7usti!ied in issuing his summons0/
It is clear !rom the authorities cited that the issue o! a summons is a 7udicial act+ and the
summons issued+ in this case+ 'as irregular as the magistrate had not complied 'ith the
provisions o! s 7. #1% o! the Criminal Procedure Code0 1 magistrate+ every time an in!ormation or
complaint is made *e!ore him+ must decide 'hether or not a summons should *e issued0
1lthough there is merit in counsel/s su*mission and this issue must *e decided in !avour o! the
appellant+ such decision does not+ ho'ever+ dispose o! this appeal0
In regard to the second su*mission+ counsel contended that the complaint itsel! 'as *ad as it 'as
not made *e!ore the magistrate in accordance 'ith s 71 o! the Criminal Procedure Code0 That
section readsC
D710 9very proceeding in the Court !or the o*taining o! an order against any person shall *e instituted *y
in!ormation or complaint made *e!ore a magistrate0/
Page 11
The o!!ence !or 'hich the appellant 'as charged 'as alleged to have *een committed on 22
>une 1$710 The complainant+ )ergeant )linger+ 'as present
(&1"&) &" 56. *1& at *11
in court on 12 )eptem*er 1$71+ and again on 2( )eptem*er 1$71+ 'hen the appellant appeared
personally0 n the latter date the magistrate stated as !ollo'sC
DIn this case there is a charge in 'riting !iled in the @agistrate/s Court+ and as such that charge is
properly *e!ore the magistrate0/
This statement sho's that the magistrate+ at least on that date+ had *rought his mind to *ear on
the complaint *e!ore him0 The period o! limitation !or making such complaints is three months
according to s 72 #1% o! the Criminal Procedure Code0 This period not yet having elapsed on 2(
)eptem*er 1$71+ in my opinion+ the complaint 'as good and valid0
1lthough+ in this case+ no summons 'as issued in accordance 'ith s 7. #1% o! the Criminal
Procedure Code and there!ore the summons 'as not valid+ yet in my opinion+ the conviction and
sentence o! the appellant should *e con!irmed !or the !ollo'ing reasons0 n 2( )eptem*er 1$71+
'hen the magistrate ruled that there 'as 7urisdiction to hear the case the appellant 'as present
in court0 The complainant 'as also present and there 'as a complaint in 'riting *e!ore the
magistrate0 The appellant pleaded not guilty to the complaint and the case proceeded0 ,uring the
course o! the trial his counsel cross e8amined a 'itness !or the prosecution on matters relating to
the merits o! the case0 Counsel contended that the =uestions asked 'ere =uestions 'hich did not
a!!ect the merits o! the case0 In my vie' there 'ere =uestions so asked+ though+ perhaps not all
o! them0 There 'ere =uestions relating to the notice o! intended prosecution and to 'hether or not
the appellant had given a 'ritten statementF =uestions relating to the cause o! the accident and
as to 'hether or not measurements 'ere taken0 The =uestions asked 'hen taken together 'ith
the plea o! not guilty entered *e!ore a court o! competent 8
Appeal dismissed4
)olicitorsC =enry! =enry and 7ristol !or the appellantsF ,irector o! Pu*lic Prosecutions !or the
respondent0