Ho v The Queen

• Jurisdiction: Saint Kitts and Nevis
• Judge: Robotham J.A.
• Judgment Date: 01 March 1983
• Neutral Citation: KN 1983 CA 3
• Docket Number: No. 2 of 1981
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 01 March 1983

Court of Appeal

Peterkin, C.J., Berridge and Robotham, JJ.

No. 2 of 1981

Ho

and

The Queen

Appearances

L. Moore for the appellant

A.J. Redhead, Director of Public Prosecutions for the Crown

Criminal law - Appeal against Conviction (Fraudulent conversion)

1 Robotham J.A. delivered the judgment of the court: On November 4 ^th, 1981, this appellant was convicted upon an indictment containing six counts. In that indictment, counts one, two, five and six were for fraudulent conversion, and counts three and four were for embezzlement. He was sentenced to three years hard labour on each count to run concurrently.

2 From this conviction, there was an appeal to this court, which was heard on November 9th, 1982, when we reserved judgment.

3 There were four grounds of appeal but as ground one if successful would be sufficient to dispose of the appeal in favour of the appellant on all the counts of the indictment, we think it expedient that this should first be dealt with.

4 Ground one alleged that the indictment was based upon an improper committal and ought to have been quashed. The wording of this ground is suggestive of the fact that the point was taken at the trial on behalf of the appellant without success. This however is not the case. The point was being taken for the first time upon the hearing of this appeal.

5 The facts surrounding the committal of the appellant were not in dispute. The record shows that on May 14th, 1981, upon the conclusion of a preliminary enquiry into the charges by the Magistrate, he committed the appellant for trial at the Assizes “in the month of May next.” In fact when this committal order was made, the Assizes was already in progress, having commenced on May 12th.

6 On these facts, counsel for the appellant submitted that there had been a failure on the part of the Magistrate to comply with the statutory requirements of section 61 of the Magistrates Code of Procedure Cap. 46. The duty of the magistrate under that section was to commit the accused for trial before the Circuit Court which shall next be held after such committal. That would have been the sitting to commence in September 1881, and could not mean the sitting already in progress. The end result counsel submitted was that the indictment, which was signed on June 1 ^st, 1981, was based on an improper committal, and was therefore a nullity. It followed that the subsequent trial and conviction of the appellant, based on a bad indictment, was also a nullity. The conviction therefore should be quashed by this court.

7 It is of some importance to note that although the committal was for the May Assize, the case was at that session, on the application of the Director of Public Prosecutions traversed to the session to commence in September 1981, and the trial in fact did not begin until October 23 ^rd. In the interim the appellant had been on bail.

8 Counsel for the appellant cited several authorities to this court, the first being R. v. Gee and others [1936] 2 ALL E. R. 89, 25 Cr. Appeal rep. 198. In that case the committing justices did not take the depositions in the manner prescribed by the Indictable Offences Act 1848 (Cap. 42 sec. 17 — repealed). The witnesses were examined from typewritten statements which were checked by the clerk and ultimately signed by each witness. Nothing was taken down in writing by the magistrates, and no copies of the statements were furnished to the defendants. The Court of Criminal Appeal held that the proceedings were so defective by reason of the non-compliance with the Indictable Offence Act, that there was no committal for trial and consequently no bill of indictment could be preferred upon it against the appellants.

9 He also referred us to the case of R. v. Wharmby, Lindley and Lindley (1946) 31 Cr. Appeal rep. 174 where an indictment was quashed also because of non-compliance with the provisions of the Indictable Offences Act 1848. There the justices' clerk corrected the statements given to the police by each witness as they gave evidence, and these corrected statements were retyped in each case. At the close of the whole of the evidence for the prosecution these retyped statements were read over to and signed by the respective witnesses.

10 In both these cases however, it is clear that there was a substantial departure from the well known statutory provisions of the Act. It made a mockery of these statutory provisions and the procedure in each case being so irregular and contrary to law, it was regarded as sufficiently grave as to invalidate the committal. See also R. v. Phillips and Quayle [1938] 3 ALL E.R. 674.

11 The learned Director of Public Prosecutions submitted that even if there was an irregularity in the committal, it did not render the subsequent trial bad as the appellant was never prejudiced in the preparation of his defence, the trial having been postponed from the May sitting of the Assizes to September. In any event, he submitted that no substantial miscarriage of justice had occurred, and that this would be a fitting case in which to apply the proviso.

12 In this appeal, there has been no complaint that the depositions were irregularly taken, or that any provision of the Magistrates Code of Procedure other than that relating to the committal of the appellant has been infringed.

13 In R. v Thomas Maddison and others 1949 – 33 Cr. Appeal rep.30, the accused were committed for trial on the very same day of the commencenent of the Lincolnshire Autumn Assize for housebreaking, and an indictment was prepared and signed charging them with that offence. Byrne J. held that the committal was bad on the ground that a committal to...