Ray Morgan v The King
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens |
| Judgment Date | 11 July 2023 |
| Neutral Citation | [2023] UKPC 25 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0071 of 2022 |
[2023] UKPC 25
Lord Lloyd-Jones
Lord Briggs
Lord Burrows
Lord Stephens
Lord Richards
Privy Council Appeal No 0071 of 2022
Privy Council
Trinity Term
From the Court of Appeal of Jamaica
Appellant
Terrence F. Williams
John Clarke
Celine Deidrick
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 19 April 2023
This appeal is a challenge to the judgment of the Court of Appeal of Jamaica which held that it would not hear and determine the appeal of Ray Morgan (“the appellant”) against the consecutive sentences imposed on him on 7 February 2011 in the Resident Magistrate's Court, amounting in total to 12 years' imprisonment.
On the same day that the appellant was convicted and sentenced, he gave a valid verbal notice of appeal against both conviction and sentence in accordance with section 296(1) of the Judicature (Resident Magistrates) Act (“the Resident Magistrates Act”). Thereafter, and within 21 days after the date of the judgment, he was obliged to file grounds of appeal with the Clerk of the Courts, who is an officer of the Resident Magistrate's Court. The appellant failed to file grounds of appeal in relation to his appeal against conviction. However, due to an administrative error by the prison authorities, and despite the appellant personally doing everything reasonably possible, his grounds of appeal against sentence were not filed with the Clerk of the Courts. Rather, the grounds were sent in error by the prison authorities to the Registrar of the Court of Appeal. Accordingly, they were not filed with the Clerk of the Courts with the consequence, pursuant to section 296(1) of the Resident Magistrates Act, that the appellant was deemed to have abandoned his appeal against sentence.
The appellant, who made several requests over many years for his appeal against sentence to be heard, was first informed of this administrative error in 2017. However, he was not then informed that because his grounds of appeal against sentence had not been filed with the Clerk of the Courts, under section 296(1) of the Resident Magistrates Act, he was deemed to have abandoned the appeal. Furthermore, he was not then informed that under the proviso to section 296(1) (“the proviso”), the Court of Appeal may, in any case for good cause shown, hear and determine the appeal notwithstanding that the grounds of appeal were not filed within the prescribed time of 21 days.
By 7 June 2021, the date upon which his appeal eventually came before the Court of Appeal, the appellant had been released from custody having served the sentences of imprisonment. Moreover, given the time that had then passed, efforts to obtain the record of the proceedings in the Resident Magistrate's Court had proven unsuccessful.
The Court of Appeal (Brooks P, Straw and Edwards JJA), in its judgment dated 21 June 2021 ( [2021] JMCA App 15), held that by virtue of section 296(1) of the Resident Magistrates Act, the appellant was deemed to have abandoned the appeal as the grounds of appeal had not been filed with the Clerk of the Courts within 21 days. The Court of Appeal determined that it should not exercise its discretion, under the proviso, to hear and determine the appeal notwithstanding that the grounds of appeal were not filed within 21 days, in essence for two reasons. First, the Court of Appeal considered that the appeal against sentence was “an academic exercise” given that the appellant “essentially, has already served those sentences”. Second, that “[it] would not be in the interests of the administration of justice, bearing the time that has passed since his case was determined in the court below, to attempt to unearth [the record] from that court …”.
On 13 October 2021, the Court of Appeal refused the appellant's application for leave to appeal to Her Majesty in Council. The appellant then sought special leave to appeal, on the basis, amongst others, that the Court of Appeal erred in its approach to the exercise of discretion under the proviso. On 14 December 2022, His Majesty, on the advice of His Privy Council, granted the appellant permission to appeal in so far as the appeal related to the sentences imposed on the appellant.
The Judicature (Resident Magistrates) (Amendment and Change of Name) Act 2016 changed the terminology used such that Resident Magistrate's Courts are now known as the Parish Courts, Resident Magistrates are now known as Parish Judges, and the Judicature (Resident Magistrates) Act is now the Judicature (Parish Courts) Act. These proceedings relate to events commencing in 2011, before the changes to the terminology occurred, and the old terms are used in the Court of Appeal judgment. When faced with this situation, the Board in Powell v Spence [2021] UKPC 5 adopted the old terms for its judgment, and the Board follows this approach in this judgment.
The appellant was charged with and convicted of four counts under section 35 of the Larceny Act of obtaining money by false pretences (“the four indictable offences”). Section 35, in so far as relevant provides that:
“Every person who, by any false pretence … with intent to defraud, obtains from any other person any …, money, … shall be guilty of a misdemeanour, and on conviction thereof liable to imprisonment with hard labour for any term not exceeding five years.”
The Supreme Court of Jamaica is responsible for hearing serious criminal trials on indictment with a jury. However, at the parish level, the Resident Magistrate's Courts can try certain criminal offences on indictment, including offences specified in section 35 of the Larceny Act; see section 268(1)(b) of the Resident Magistrates Act. A Magistrate can order that a defendant will be tried on indictment in the Resident Magistrate's Court if the court has jurisdiction to try the offence and Magistrates have sufficient powers to order sentence; see section 272 of the Resident Magistrates Act. A trial on indictment in the Resident Magistrate's Court is commenced by the Clerk of the Courts preferring an indictment against the accused; see section 274 of the Resident Magistrate's Act.
If an offender is convicted on indictment in the Resident Magistrate's Court, then he “shall be liable to the same punishment as for such offences he is now or hereafter may be liable to” provided that “no [Resident Magistrate's] Court shall award a sentence of more than three years' imprisonment, with or without hard labour …”; see Section 268(2) of the Resident Magistrates Act. It is clear that the Magistrate could not impose the statutory maximum of five years' imprisonment in relation to any of the four indictable offences under section 35 of the Larceny Act. However, one of the grounds of appeal which the appellant wishes to advance is that section 268(2) of the Resident Magistrates Act restricts the overall sentence in respect of all the counts on an indictment to one of three years' imprisonment, so that the overall effective sentence of 12 years' imprisonment imposed by the Magistrate was unlawful.
The first paragraph of section 291 of the Resident Magistrates Act provides that “In all proceedings in a [Magistrate's] Court by way of indictment, …, there shall be recorded on or in the fold of the indictment …, in the form in Schedule E or to the like effect, the plea of the accused, the judgment of the Court and in case of conviction the sentence”. Schedule E makes provision for the form of the record to include matters such as “[the] names of the witnesses for the prosecution and defence (if any)”. Furthermore, under the heading of “Evidence”, Schedule E provides:
“N.B. – this will be taken down on his notes by the Resident Magistrate, and the same, or a copy thereof, shall accompany the case at appeal, but need not be set out on the record.”
The first paragraph of section 291 also provides that “the Magistrate …, shall sign his name once at the end of the record”.
In relation to offences specified by the Minister by order (“the specified offences”), the third paragraph of section 291 provides that “Where any person … is found guilty of [a specified offence], the Magistrate shall record or cause to be recorded in the notes of evidence, a statement in summary form of his findings of fact on which the verdict of guilty is founded”. The Minister, by the Judicature (Resident Magistrates) (Specified Offences) Order 1974, ordered that all indictable offences are specified offences to which the third paragraph of section 291 shall apply.
The fifth paragraph of section 291 provides for the safekeeping of the notes of evidence. If the notes of evidence are taken in a book, then the book shall be preserved in the office of the Clerk, and a reference to the same shall be noted in the fold of the indictment. If the notes of evidence are taken on loose sheets, such sheets shall be attached to the indictment.
The sixth paragraph of section 291 provides that the indictment with the record made thereon with the notes of evidence shall constitute the record of the case and each such record shall be carefully preserved in the office of the Clerk of the Courts, and an alphabetical index shall be kept of such record.
An appeal from any judgment of a Magistrate in any case tried by them on indictment lies to the Court of Appeal...
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