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OECS Juvenile Justice Reform Project OECS Juvenile Justice Reform Project Magistrates Conference Training Workshop For The Caribbean August 26 – 27, 2013.

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Presentation on theme: "OECS Juvenile Justice Reform Project OECS Juvenile Justice Reform Project Magistrates Conference Training Workshop For The Caribbean August 26 – 27, 2013."— Presentation transcript:

1 OECS Juvenile Justice Reform Project OECS Juvenile Justice Reform Project Magistrates Conference Training Workshop For The Caribbean August 26 – 27, 2013 The Veranda Resort & Spa Antigua And Barbuda Presentation: Magisterial Appeals Presenter: Agnes Actie Deputy Chief Registrar, Eastern Caribbean Supreme Court

2 INTRODUCTION Role of Magistrate in Magisterial Appeals 2

3 Right of Appeal Magistrate’s Code of Procedure Act of Antigua & Barbuda Cap 255- Section 167-  Where a Magistrate refuses to make a conviction the complainant may appeal to the Court of Appeal against such decision;  Where a magistrate makes a conviction the party against whom the conviction is made may appeal to the Court of Appeal against the decision;  There shall be a right of appeal from any judgment or order of a magistrate in any civil matter where the sum exceeds $ and in a matter relating to salvage or title of wreck. 3

4 1.Anguilla – Magistrate’s Code of Procedure Act of Anguilla M5-Sec Grenada – Magistrate’s Judgments (Appeals) Act Cap Unless the contrary is expressly provided by any Act any party may appeal from a judgment of the Magistrate. There shall be no appeal in criminal cases from any judgment dismissing the complaint, save by leave of the DPP. 3.Dominica – Magistrate’s Court of Procedure Act Chap 4:20 Section 141 – No appeal lies: I.In cases where the complaint has been dismissed, except by way of case stated on a point of law; II.where the defendant has pleaded guilty, save where the appeal is against excessive fine or penalty. 4

5 4.Montserrat – Criminal Procedure Act and the Magistrate’s Court Act- Section 163: Any person who is dissatisfied with any Judgment, Sentence or Order of the Magistrate may appeal. Limitation on right to appeal Section 165 No appeal shall be allowed in a case where the accused has pleaded guilty and has been convicted by the Magistrate of such plea, except as to the extent or legality of the sentence, unless the plea is alleged to have been equivocal or not voluntary. 5.St. Kitts & Nevis – Magistrate’s Court of Procedure Act of Saint Christopher and Nevis Cap same as Antigua 5

6 6.St. Lucia – Criminal Code Section 720 – right of appeal by either party against whom a decision is made. 7)St. Vincent & Grenadines – Criminal Procedure Code CAP 172 – Section 212 & 212(A) - a complainant who is dissatisfied with any judgment, sentence or order in any criminal cause or matter to which he is a party; The DPP shall be deemed to be a party to any criminal cause or matter other than those in which the proceedings were instituted and carried on as a private prosecution and which the conduct of such proceedings has not been taken over by the DPP. 8.Tortola- Magistrate’s Code of Procedure Act of Virgin Islands CAP 44 –sec Similar to Antigua -with further provision for a right of appeal to the Court of Appeal from any judgment or order of a Magistrate. 6

7 Appeal to be made on Motion or by Special case Every appeal shall be either by way of motion or by special case. Suspension of Execution - Appeal to operate as a stay; An appeal whether by way of motion or special case, shall have the effect of suspending the execution of the decision, judgment or order appealed from until final determination of such appeal. Upon a notice of appeal being given and such recognizances being taken or money being received, the enforcement of the judgment appealed against shall be suspended until the appeal has been determined by the Court of Appeal. EFFECT: An appellant whose sentence is suspended but who is not admitted to bail shall during the period in custody during the suspension be treated in the same manner as a prisoner awaiting trial i.e. on remand. 7

8 Stay/Suspension Saint Vincent & Grenadines Section 215- Appeal to operate as a stay An appeal shall have the effect of suspending the execution of the decision appeal against until such appeal shall have been determined, and shall be on motion or by special case whether by way of motion or special case shall have the effect of suspending the decision, judgment or order appealed from until the final determination of such appeal. 8

9 Notwithstanding the provisions of subsection (1)- Where the decision involves a sentence of imprisonment, the filing of an appeal shall not require that the convicted person be released from custody except in accordance with section 218 (bail); Where the decision involves the cancellation or suspension of any licenses to drive a motor vehicle, such license shall be deemed to be cancelled or suspended until the determination of the appeal unless the court shall direct otherwise upon application made by the appellant. 9

10 Time for filing Notice of Appeal 1. Antigua Section 170: The appellant may file an appeal within 14 days after the day on which the Magistrate has given his decision shall serve a notice on the other party and on the magistrate of his decision to appeal and the notice shall contain the reasons for appeal. 2. Anguilla - Section 197 – same as Antigua 3. Dominica – Section At the time of the pronouncement of the judgment give verbal notice to the Magistrate and the opposite party of his intention to appeal. Within Fourteen (14) days after the day on which the Magistrate has given his or her decision, serve a notice of appeal in writing in Form A in the third schedule on the magistrate and on the opposite. 10

11 Where the appellant is in prison, the officer in charge of Prison Discipline shall, on being requested to do so, render all reasonable assistance in the preparation of the notice and shall cause it to be lodged and a copy served on the Magistrate and the opposite party. 4. Grenada - Section 4: - Same as Dominica save Where the appellant is in prison, the commissioner of prisons shall,on being requested by the appellant render to the appellant all reasonable assistance in the preparation on the notice of appeal and shall cause it to be lodged and served without payment of any fees or expenses. 5. Montserrat - Section 164 (3) - within 14 days after the decision; stating his intention and grounds of appeal. 11

12 Extension of time to Appeal Section 164 (3); Any person aggrieved by the decision of the Magistrate may upon giving notice to the other party, apply to the Court of Appeal for leave to extend the time prescribed within which such notice of appeal may be served and the court may do so if it deems fit. Section 110(1) of the Magistrate’s Court Act gives the Magistrate Court and the Court of Appeal jurisdiction to extend the time for filing the notice of appeal for such period not exceeding 30 days. 6. St. Kitts & Nevis - Section within Fourteen (14) days after the day on which the Magistrate has given his or her decision; 7. St. Vincent & The Grenadines - Section 213 Magistrate to inform accused of right of appeal 12

13 Where any person is convicted by a magistrate, the magistrate shall inform him, at the time of the sentence is passed of his right of appeal and the steps which must be taken by a party wishing to appeal. A note shall be made at the time by the magistrate that such information has been given by him to such person and such note shall be conclusive as to the provision of this section having been complied with. Upon being so informed, the convicted person may then and there give oral notice of his intention to appeal and such notice shall be recorded by the magistrate and by the prosecutor. 13

14 An appellant who has not given notice under subsection (2) or has given notice but has not at the time stated the general grounds of his appeal, within 21 days after the day upon which the decision was given serve notice in writing, signed by appellant/counsel, on the other party and on magistrate stating his intention to appeal and of the grounds to appeal. Any person aggrieved by a decision of a magistrate’s court may upon notice to the other party, apply to the court of appeal for leave to extend the time for prescribed within which the notice of appeal may be served. The Court upon hearing such application may extend such time as it deems fit, and may do so either before or after the expiration of the time prescribed. 14

15 8. St. Lucia Section 724 – The Appellant shall give notice in open court in the presence of the other party either by himself/herself or by his/her Counsel of his intention to appeal; or within 15 days after the decision of the Court, the Appellant shall serve a Notice of Appeal in writing upon the Clerk of Court signed either by the Appellant or his/her Counsel. Illiterate Appellants - If the appellant signs by means of his/her mark, the mark shall be verified by at least one witness, who shall sign his/her name. 9. Tortola - Section within six weeks (6 weeks) after the day on which the Magistrate has given his or her decision, shall file and serve a notice of appeal on the other party and on the Magistrate of his or her intention to appeal, and the notice shall also contain the reasons for appeal. 15

16 Grounds of Appeal 1. Antigua Section Section 197 (2) The notice may set forth any of the following reasons, and no other, ---- (a) That the court had no jurisdiction in the case ; provided that it shall not competent for the Court of Appeal to entertain such reasons for appeal, unless objection to the jurisdiction of the Court has been formally taken at some time during the progress of the case and before the pronouncing of the decision or 16

17 (b) That the Court exceeded its jurisdiction in the case or (c) That the Magistrate was personally interested in the case or (d) That the Magistrate acted corruptly or maliciously in the case; (e) That the decision was obtained by fraud or 17

18 (f) That the case has already been heard or tried and decided by, or forms the subject of a hearing or trial pending before, some competent tribunal; or (g) That illegal evidence substantially affecting the merits of the case was rejected by the Court; or (h) That illegal evidence was admitted by the Court and that there is not sufficient legal evidence to sustain the decision after rejecting such illegal evidence. 18

19 (i) That the decision is unreasonable or cannot be supported having regard to the evidence or (j) That the decision was erroneous in point of law; or (k) That some other specific illegality, not hereinbefore mentioned, and substantially affecting the merits of the case was committed in the course of the proceedings in the case; or (l) That the judgment or sentence passed was based on a wrong principle or was such that a Magistrate viewing the circumstances reasonably could not properly have so decided; or (m) That the sentence imposed was unduly severe. 19

20 (3) … (4) Where the reason for appeal is not guilty, no particulars need to be stated. Anguilla – same grounds as Antigua Grenada - Section 9-11: Notice of reasons for appeal may be served either at the same time of giving/serving the notice of appeal or at some other time and maybe embodied in the notice of appeal when such notice is in writing or in a separate document. An appellant shall set forth reasons for appeal the particular matter in which he relies or complains. 20

21 Dominica Section The appellant shall file notice of appeal within 14 days and serve within twenty eight (28) days serve a memorandum of reasons for the appeal ; Sec 147; Where appellant is in custody –superintendent of prison when requested shall render all reasonable assistance in preparation of NOA and serve on magistrate and other parties A judge may on application extend the time for such service for any sufficient reason; St. Kitts & Nevis- Section 166 – same as provisions for Antigua 21

22 St. Lucia Section 727 – The Appellant shall within twenty-one (21) days after the decision of the Court, serve notice in writing of the grounds of appeal; grounds may be served either at the time of giving or serving the Notice of Appeal, or within twenty- one (21) days of the decision of the Court, or embodied in the written Notice of Appeal or in a separate document to him. Where the Appellant is an inmate, a Correctional Officer shall cause a written notice of the Grounds for Appeal if communicated to him to be served. 22

23 Section 732 – Statutory grounds of appeal -Where no specific grounds of appeal have been served, the following general grounds of appeal shall be presumed with respect to an appellant – who is a Defendant- is not guilty of the offence; the decision is not altogether supported by the evidence; the punishment is excessive who is a Complainant – that the defendant committed the offence with which he is charged; the dismissal of the complaint is not altogether supported by the evidence; order made against him is not warranted by the evidence Tortola- same as Antigua 23

24 Service of Notice of Appeal Section 171 Every Notice shall be in writing signed by the appellant, his or her counsel or solicitor. The Notice may be transmitted as a registered letter through the post and shall be deemed to have been served at the time it would have been delivered in the ordinary course of the post. 24

25 Role of the Magistrate in an Appeal Recognizance Section 172 The appellant shall within three (3) days after the day on which he or she served notice of his or her notice of intention to appeal, enter into a recognizance before a Magistrate with or without sureties as the Magistrate may direct conditioned to appear before the Court of Appeal and to try the appeal and to abide the judgment of the Court of Appeal and to pay such costs as may be awarded by the said Court. 25

26 If the Magistrate thinks it expedient he or she may instead of entering into recognizances give such other security by payment of money into Court or otherwise as the Magistrate deems sufficient. Anguilla-Section 199 – same Dominica -Section 145 The appellant shall enter into recognizance within fourteen (14) days after the judgment appealed against is pronounced before the Magistrate with or without sureties Magistrate thinks it expedient he or she may instead of entering into recognizances give such other security by deposit of money with the Magistrate or otherwise 26

27 The Magistrate shall without undue delay transmit to the Registrar of the High Court all papers relating to the appeal. When the State is the appellant it is sufficient for the officer acting on behalf of the state to give notice in writing to the Magistrate and to the other part without entering into a recognizance. Section145(2): A defendant who, being committed to prison on a Magistrate’s conviction or Order, who has given notice of appeal and is unable to find the necessary surety or sureties or give such other security may prosecute his appeal without entering into a recognizance provide he remains in custody pending the hearing of the appeal. In such case the Magistrate shall, by warrant direct the appellant be detained in custody accordingly, and shall in the warrant intimate to the officer in charge of Prison Discipline that the notice of appeal has been given. 27

28 The appellant in such a case be detained in custody and may be taken without any fresh order or warrant in the custody of a constable to the Court to attend the hearing of his appeal. The Magistrate shall, when the appellant is detained in custody, transmit to the Registrar without undue delay a copy of the proceedings in which judgment has been appealed against. an appellant may at any time before his appeal is heard enter into a recognizance or give such other security and thereupon he shall be liberated unless he is custody in respect of any other charge or matter. 28

29 Grenada- Section 5-7 ; The appellant shall also, within 14 days after the judgment appealed against is pronounced enter into recognizance before the magistrate with or without sureties in the discretion of the Magistrate, conditioned for the due prosecution of the appeal ; may instead give such other security by deposit of money with the Magistrate or otherwise as the Magistrate deems sufficient. Where the Crown is the appellant, it shall be sufficient to give notice in writing to the Magistrate and to other party without entering into recognizance; if the crown fails to prosecute the appeal to a final determination, the other party shall be entitled to recover his/her costs of appeal from the Crown on production of a taxed bill of costs signed by the Registrar. 29

30 A defendant who, on being committed to prison on a Magistrate’s conviction or order, who gives notice of appeal and is unable to find the necessary surety(ies) may prosecute his appeal without entering into recognizance; provided he remains in custody pending the hearing of the appeal. In such a case the Magistrate shall by warrant direct the appellant to be detained in custody and shall intimate to the Commissioner of Prisons that notice has been given of appeal. The appellant shall in such a case be detained in custody and may be taken without fresh any order or warrant in custody by a constable to the Court to attend the hearing of his appeal. 30

31 The Magistrate shall, when the appellant is detained in custody, transmit to the Registrar within 3 days of the judgment a copy of the proceedings in which the judgment has been appealed against. The court shall hear and determine with all possible dispatch any appeal in which the appellant is detained in custody. Notwithstanding, an appellant may at any time before the appeal is heard, enter into a recognizance or give such security and thereupon may be released unless he/she is in custody in respect of any other charge/matter. 31

32 St. Kitts & Nevis - Section The appellant shall within three (3) days after the day on which he or she served notice of his or her notice of intention to appeal, enter into a recognizance before a Magistrate with or without sureties or by payment of money into court or other means; such other security instead of entering into recognizances. St Lucia -Section (1) after service of notice of appeal, and within fifteen (15) days after the decision of the Court, enter into a recognizance, with one sufficient surety, to the satisfaction of the Magistrate, for the due prosecution of the appeal and for abiding by the result of the appeal, including the payment of all costs of the appeal. 32

33 (2) The Appellant may instead of entering into a recognizance, lodge with the Clerk of Court, the amount awarded by the decision as well as the amount of the costs, together with the sum of $500 to abide the costs of the appeal or the amount of costs of the appeal only as the case may be, and in addition shall pay to the Clerk of Court all fees in respect of the appeal, if any. (3) If in custody, he may be released from custody on the order of the Magistrate if he/she complies with the requirements of this section. (4) A person aggrieved by the decision of the Magistrate pursuant to Section 3 (para. 3) may appeal to a judge of the High Court in Chambers who may confirm, reverse or vary the decision of the Magistrate. 33

34 The Magistrate may dispense with the requirements of such recognizance, deposit or fees. Person prosecuting or defending or appearing as a public officer or in the public interest shall not be bound or required to enter into any recognizance or make a deposit or pay any fees. St. Vincent – Section 216 – The appellant shall within seven (7) days after the day on which he served notice of his notice of intention to appeal, enter into a recognizance before a Magistrate conditioned to prosecute the appeal to judgment of the court and to pay such costs as may be awarded. 34

35 The appellant may instead of entering into recognizances give such other security by deposit of money with the magistrate’s court or otherwise as the Magistrate deems sufficient. If the complainant is acting on behalf of the Crown, DPP, Commissioner of Police or public officer acting in his official capacity shall not be required to be bound by any recognizance or to give any security. 35

36 Tortola Section 160 – Recognizance- The appellant shall within three (3) days after the day on which he served notice of his notice of intention to appeal, enter into a recognizance before the Magistrate with or without sureties as the Magistrate may direct,; may instead of entering into recognizances give such other security by payment of money into Court or otherwise as the Magistrate deems sufficient. 36

37 Error or defect in recognizance ;Section 177 Where any recognizance(s) have been entered before any Magistrate for the purpose of complying with such condition of appeal shall appear to the Court of Appeal to have been insufficiently entered into or to be otherwise defective or invalid, it shall be lawful for the court of appeal, if it thinks fit, to permit the substitution of a new and sufficient recognizance(s) to be entered into before the Court of Appeal in place of such insufficient, defective or invalid recognizance(s) as the Court of Appeal shall appear to be just and reasonable. 37

38 Montserrat - Section appellant shall within (3) days after serving notice of intention to appeal enter into a recognizance before a Magistrate with or without a surety as the Magistrate may direct, conditioned to prosecute the appeal and to pay such costs as,may be awarded; appellant may instead of entering a recognizance’s give such other security by deposit of money with the Magistrates Court or otherwise as the Magistrate deems sufficient; provided that if the Complainant is acting on behalf of the Crown, the DPP, Commissioner of Police or any department of the Government or is a public officer acting in his official capacity he shall not be required to be bound by the recognizance or to give any security. 38

39 Where any recognizance entered into appears to the Court of Appeal to be insufficient or defective or invalid, the Court of Appeal may permit the substitution of a new and sufficient recognizance for that entered into before the Magistrate and for that purpose may allow such time and impose such. Magistrate’s Court Act Sec.112 (3) 39

40 NOTE It has been said that Magistrates sometimes request exorbitant sums for recognizance. In MCRAP 1 of 2009 (Antigua) Lester Charles etal v The Commissioner of Police, the Court of Appeal on the issue of recognizance; Per Baptiste JA 40

41 BAIL – Antigua Section where the appellant is in custody the Magistrate before whom he appears to enter into a recognizance shall on his doing or on giving such other security release him from custody; Anguilla - Section 201- same as Antigua Grenada - Section 6 : If the appellant is in custody, he/she may be released on the order of the Magistrate Provided that nothing shall prevent the Magistrate from granting a stay of execution at the time of judgment on such terms as he/she thinks proper. Montserrat – Section Criminal Procedure Code ; Where the appellant is in custody, a judge, or the Magistrate’s court may, if the circumstances of the case he or it thinks fit, order that he be released on bail with or without sureties, pending the determination of the appeal; provided if the appeal is abandoned or withdrawn or is dismissed, any such order for bail shall be cancelled. 41

42 When the appellant is released on bail or the sentence is suspended pending the appeal, any time during which he is at large after being so released or during which the sentence has been suspended shall be excluded in computing the term of any sentence to which he is subject. Provided that in the case of an appellant whose sentence is suspended but who is not released from custody the Court hearing the appeal, may order that the time s spent in custody or any part thereof, awaiting the hearing of the appeal, any be included in computing the terms of the sentence. (iii)An appellant whose sentence is suspended but who is not admitted to bail shall during the period in custody during such suspension be treated in the same manner as a prisoner awaiting trial. 42

43 St. Vincent & The Grenadines- Section 218 – where appellant is in custody, a judge or the magistrate’s court may, if in the circumstances of the case thinks fit, order that he be released on bail, with or without sureties pending the determination of the appeal; Provided that if the appeal is abandoned, withdrawn or dismissed, any such order for bail shall forthwith. Where the appellant is released on bail or the sentence is suspended but who is not released from custody, the court of appeal, in its discretion, may order that the time so spent in custody, or any part thereof, awaiting the hearing of the appeal, may be included in computing the terms of the sentence. 43

44 An appellant whose sentence is suspended but who is not admitted to bail shall during the period in custody during the suspension be treated in the same manner as a prisoner awaiting trial. 44

45 St. Kitts & Nevis -Section 169 (amended no 25 of 2009( ) Where the appellant is in custody the Magistrate before whom he appears to enter into a recognizance may upon application being made by or on behalf of such person and if the Magistrate thinks fit, having regard to the following; the character of the person; the nature and seriousness of the offence for which such person was convicted; 45

46 the likelihood of such person absconding or committing the same or a like offence if he is released from custody; such other exceptional circumstances which appear to the court to be relevant; order such person be released from custody with or without a surety or sureties until after such time as the appeal is determined, abandoned or withdrawn. Notwithstanding the provisions of subsection (1) a person shall only be entitled to bail pending appeal, where the sentence which was imposed upon the person does not exceed 6 months 46

47 Bail Tortola - Section 161 – Where the appellant is in custody the Magistrate before whom he appears to enter into a recognizance shall on his so doing or on giving such other security as aforesaid, release him from custody. 47

48 Appeals by Special Case Appeals to the Court of Appeal may also be by way of case stated The magistrate may in his/her discretion or on the application of either party or Their solicitor The DPP May state a case on any point of law arising in the case for the opinion of the court of appeal 48

49 The appellant makes application to a magistrate to state a case on an issue of law within the same timeline as an appeal by way of motion; The provisions of relating section recognizance & appellant to go at large (bail) apply. If on application being duly made to a magistrate to state a case the Magistrate declines to do so, the appellant may apply to the High Court or to any judge of that court for an order requiring the case to be stated. 49

50 Duty of Magistrate as to a Special Case The Magistrate upon receiving an application or notice or on his or her own motion decides to state a case for the opinion of the Court of Appeal shall draw up the special case, (a) concisely setting forth such facts and documents (if any) as may be necessary to enable the Court of Appeal to decide the question raised in the case and (b) shall forthwith transmit the same together with a certified copy of the conviction order or judgment appealed from and all documents alluded to in the special case to the Registrar of the High Court. 50

51 Enforcement of Judgment After the pronouncement of the judgment of the Court of Appeal, the Magistrate of the court from which the appeal came shall have the same jurisdiction and power to enforce any decision which has been affirmed, modified or amended by the Court of Appeal or any judgment pronounced by the Court of Appeal, in the same manner all as if the decision or judgment had been pronounced by himself or herself. Provided that in any case where an order of imprisonment of a person is affirmed on appeal, the court of appeal may, if it considers it expedient to do so, forthwith commit the person to prison in pursuance and in execution of the order. 51

52 The imprisonment of the person (if it has not previously commenced ) shall be reckoned to begin from the day on which he or she is arrested to be taken to the prison wherein he or she has been ordered to be imprisoned: If the person has been released from custody, on giving security, he or she shall be imprisoned for such further period as, with the time during which he or she has been already imprisoned, is equal to the period for which he or she was ordered to be imprisoned as aforesaid. 52

53 THE END Discussions 53


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