IN THE COURT OF APPEAL. San Fernando Magisterial Appeal No. 35 of 2005 BETWEEN AND ALLISTER COWIE

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL San Fernando Magisterial Appeal No. 35 of 2005 BETWEEN PETER ELLIS APPELLANT AND ALLISTER COWIE P.C. #14515 RESPONDENT PANEL: R. Hamel-Smith, J.A. W.N. Kangaloo, J.A. APPEARANCES: Mr. S. Ramlal for Appellant Mr. W. Rajbansee for Respondent DATE DELIVERED: 12 th December 2005 JUDGMENT Delivered by W.N. Kangaloo, J.A. 1. On the 30 th June 2005 we reserved our decision in this appeal after having heard counsel for the appellant. We did not at the time hear counsel for the respondent as the appellant s skeleton arguments were only filed on the 29 th June 2005 and Mr. Rajbansee needed an opportunity to do skeleton arguments in reply, which he has subsequently done. We wish to commend the attorneys for the comprehensive quality of their skeleton arguments. This, being a Magisterial Page 1 of 9

2 appeal, there is no requirement for the filing of skeleton arguments, but a salutary practice has developed of attorneys filing such arguments which are helpful to the Court in its preparation of the appeal. We commend this practice and recommend it to all attorneys appearing in Magisterial appeals. 2. The appeal raises three points for our consideration. They are: (a) Whether the learned Magistrate erred in allowing an amendment to the complaint; (b) Whether the learned Magistrate erred in law in convicting the appellant for breaking, entering and stealing, notwithstanding there was no evidence from the Prosecution that the owner did not give permission to take away the stolen items; (c) Whether the charge was duplicitous. FACTS 3. The prosecution s case is simple and straightforward. On the Friday 20 th June 2003, at about 5:30 a.m. the complainant and P.C. Ramdass were on mobile patrol, travelling north along Chancery Lane in San Fernando, when they observed the appellant in the vicinity of the Institute of Tertiary Tutors (ITT) carrying two wooden chairs on his head. He was apprehended by the officers and asked from where he got the chairs. The appellant replied In the back and he took the officers to the back of the building where they observed that the gate which secured a room in that part of the building was open, the lock having been broken and the chair left hanging. The appellant is alleged to have said Boss give me a chance. The appellant was arrested and taken into custody. On Monday 23 rd June, the complainant contacted Russel Sealey, the operations manager of ITT who came to the police station and identified the chairs as belonging to ITT. After investigation Sealey was of the view that 12 chairs were missing. The value Page 2 of 9

3 of each chair was put by Sealey at $140.00, the total value of the twelve being $1, CASE FOR THE DEFENCE 4. The appellant s case was equally simple and straightforward. It was, that, at about 5:30 a.m. on the Friday 20 th June 2003, he was found in possession of the 2 chairs by the police officers, but this was not on Chancery Lane near ITT. It was on Broadway, near the bus terminus (approximately half-mile away). He found the chairs on Independence Avenue, next door to a boat place which was next to a printery. The chairs were soaking wet, he thought they were garbage. He cleaned them up and intended to take them to a place at King s Wharf where he was staying. He did not break into ITT. MAGISTRATE S DECISION 5. The learned Magistrate applied the doctrine of recent possession and rejected the explanation offered by the appellant. He disbelieved the appellant when he said the chairs were soaking wet and he cleaned them up before he was found with them by the police. The Magistrate had the jurisdiction to disbelieve the appellant, as he was the trier of facts. Having disbelieved the appellant, the Magistrate went back to the prosecution s case and found the witness to be truthful and accurate in their details of the evidence. He therefore found that the appellant was found in possession of the chairs in the driveway of ITT and that he took the officers to the back where they discovered the lock on the gate had been broken. No complaint has been made (except for the issue of ownership ) that the decision is not in keeping with the evidence. THE AMENDMENT ISSUE Page 3 of 9

4 6. The charge as laid was that Peter Ellis during the period Wednesday 18 th June 2003 and Monday 23 rd June 2003 at Chancery Lane, San Fernando in the county of Victoria did break and enter the warehouse of Selwyn Jagdeo and stole therein twelve chairs together valued $1,680.00, the property of the said Selwyn Jagdeo contrary to section 12 of the Summary Offences Act Chap.11: The Magistrate during the course of the hearing, after the Prosecution witnesses gave evidence, realised that the Act and the section named in the complaint were inaccurate and brought this to the attention of the Prosecutor and Mr. Chatoor for the defence. The Prosecutor applied to amend and Mr. Chatoor objected. The Magistrate amended the complaint to read contrary to section 28(a) of the Larceny Act Chapter 11:02 as amended by Act 28 of 1996 instead of section 12 of the Summary Offences Act Chap. 11:02. The Magistrate then read the amended charge to the appellant, who again pleaded not guilty. Mr. Chatoor asked that the three witnesses for the prosecution be recalled for cross-examination and this was done. 8. Mr. Ramlal argued before us that based on sections 38 and 118 of the Summary Courts Act (the Act) and the authority of Conliff v Weekes (1963) 5 WIR 180, the learned Magistrate erred as he exercised a jurisdiction he did not have. We are of the view that section 38 which merely sets out what is required in a complaint for an offence, is of no assistance to the appellant. Mr. Rajbansee cites Section 118(3) of the Act and the learning in Commonwealth Caribbean Criminal Practice and Procedure by Dana S. Seetahal at pg particularly at pg. 96 where the learned author says: There are many other bases on which a charge may be considered defective other than that it is duplicitous. If so the charge may be amended. This is a general power of any court, which is now incorporated in statute in most jurisdictions in respect of both summary Page 4 of 9

5 court and indictable proceedings. They may be found in the respective summary procedure legislation and the legislation in respect of indictments and the attendant indictment rules. The learned author then cites Section 118(3) of the Act in our jurisdiction as giving the power to Magistrates to amend. Section 118 in its entirety is as follows: (1) In any case in the Court, no variance between the complaint or summons or warrant and the evidence adduced in support thereof, as to the time at which the cause of complaint is alleged to have arisen, shall be deemed material, if it is proved that such complaint was in fact made within the time limited by law for making the same; and no variance between such complaint or summons or warrant and the evidence adduced in support thereof, as to the place in which the complaint is alleged to have arisen, shall be deemed material. (2) No objection shall be taken or allowed, in any proceeding in the Court, to any complaint, summons, warrant, or other process for any alleged defect therein in substance or in form, or for any variance between any complaint or summons and the evidence adduced in support thereof. (3) Where any variance or defect mentioned in this section appears to the Court at the hearing to be such that the defendant has been thereby deceived or misled, the Court may make any necessary amendments, and, if it is expedient to do so, adjourn, upon such terms as it may think fit, the further hearing of the case. Page 5 of 9

6 9. Thus it will be seen from subsection (3) that there is a discretion to amend. The authorities referred to by Seetahal in the quoted text all suggest that once there is the jurisdiction given to the Magistrate by Statute to amend, the discretion should not be exercised when there is serious prejudice to the accused person. Seetahal also points out that Conliff v Weekes was decided by the Court of Appeal in Barbados, which does not have a specific statutory provision allowing an amendment at the summary level. We are therefore of the view that that authority can be easily distinguished. We are of the view that the learned Magistrate adopted the correct procedure in having the amended charge read to the appellant and in allowing the prosecution witnesses to be recalled. We are of the view that there is jurisdiction in our Magistrates to amend a complaint and that in this case that jurisdiction was exercised fairly with no resulting prejudice to the appellant. We are of the further view that the defect was technical in nature and that the amendment was within six months of the offence. We therefore find no merit in this ground. THE OWNERSHIP ISSUE 10. The gist of Mr. Ramlal s submission is that under the Larceny Act a person steals when he takes away goods capable of being stolen from the owner without the owner s consent. Lack of consent of the owner is a necessary ingredient to any offence involving stealing, and there was no such evidence in this case. 11. We are unable to accept that submission in this case. In the first place, the Larceny Act itself says in section 3(d) that: the expression owner includes any part owner or person having possession or control of, or a special property in, anything capable of being stolen and the evidence of Russel Sealey is that he was the operations manager of ITT and that he was in charge of security of the Institute and in charge of all the equipment on the premises to make sure that they are safe. He also had a duplicate set of keys for the Institute, the original being in the possession of Mr. Selwyn Jagdeo who owns the Institute. He further gives the Page 6 of 9

7 evidence that he did not give permission to anyone to remove or carry away the chairs. 12. In our view Mr. Sealey was in possession of the chairs in question and so fell within the definition of owner under the Larceny Act and his evidence was sufficient on the issue of lack of consent to remove the chairs to sustain the charge. The authorities referred to by Mr. Rajbansee of R. v Woodman 59 Cr. App. R 200 and R. v Harding 21 Cr. App. R 166 also support this view. In the former it was held that a person in control of a site by excluding others from it, was prima facie also in control of articles on that site. In the latter, the servant was held to have possession and a special property in goods committed to his charge and as a result need not be the owner to sustain the charge. We find no merit in this ground. DUPLICITY 13. Mr. Ramlal s argument is that because theft (and therefore by analogy larceny) is not a continuous offence, the act complained of was not a continuing one but several individual ones included in the one charge and so it was bad for duplicity. This argument ignores the fact that the charge was not stealing simply but breaking and entering and then removing the chairs. The offence under section 28(a) of the Larceny Act is breaking and entering and committing an arrestable offence therein. The charge against the appellant was not larceny of the 12 chairs under section 4 of the Larceny Act which deals with simple larceny, where the gist of the offence is the stealing but under section 28(a) where the gist of the offence is the breaking and entering and the commission of an arrestable offence. This, the prosecution alleges occurred sometime between Wednesday 18 th June 2003 and Monday 23 rd June 2003, obviously the exact date was unknown as it appears that Thursday 19 th June and Friday 20 th June were holidays as Sealey says he locked up on Wednesday 18 th June for the long weekend. If the exact date of the offence is unknown there is nothing wrong with the charge being framed the way it was. We do not agree it was therefore duplicitous. Page 7 of 9

8 14. We do however find it strange that the police would frame the charge against the appellant in the way it did, ending with the period Monday the 23 rd June 2003 when the appellant was in police custody since about 5:30 a.m. on Friday 20 th June Obviously between then and Monday 23 rd he would have been unable to commit the offence charged. This was obviously a mistake on the part of the police complainant but we are of the view that nothing turns on it except that it shortened the period within which the appellant could have committed the offence and this should have been reflected in the particulars of the offence. However this does not make the charge duplicitous. 15. We therefore find no merit in the grounds raised by the appellant. We therefore dismiss the appeal and order that the conviction and sentence do stand. For the sake of completeness we say that although the particulars of the charge assert that the arrestable offence committed by the appellant as a result of the breaking and entering was the stealing of 12 chairs, the prosecution has only been able to prove he stole 2 chairs. If the charge were under section 4 (simple larceny), larceny of 12 chairs but only 2 were proved, the appellant on the authority of Marchent v Quinn (1970) 2 ALLER 255 could still have been found guilty but the sentence would only relate to 2 chairs. However because the charge here was breaking, entering and the commission of an arrestable offence, the fact that the arrestable offence proved to have been committed was the stealing of only 2 chairs instead of the 12 as alleged, does not affect the sentence in this case because of the 11 previous convictions of the appellant, most of which related to larceny offences. The Magistrate obviously from his reasons wanted to prevent the appellant from any further breaking and entering for a long time in light of his notorious record. R. Hamel-Smith Justice of Appeal Page 8 of 9

9 W.N. Kangaloo Justice of Appeal Page 9 of 9