Andrew et Al v Blaize

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Lewis, C.J.
• Judgment Date: 03 May 1968
• Neutral Citation: AG 1968 HC 1
• Docket Number: Criminal Appeal No. 7 of 1966
• Date: 03 May 1968

High Court of Justice

Lewis, C.J., Louisy J, Glasgow

Criminal Appeal No. 7 of 1966

Andrew Et Al.

and

Blaize

Appearances:

C.E. Hewlett for the appellants.

Charlesworth Ross, Acting Legal Assistant, for the respondent.

Practice and Procedure - Appeal - Procedure in making appeal - Magistrates Code of Procedure Act s. 165(2), Cap. 48 - Whether the appellant followed proper procedure.

Practice and procedure - Courts - High Court - Power to impose imprisonment in default of payment of penalty - Trade and Revenue Ordinance, Cap. 274, s.53 - Magistrates Code of Procedure Act, Cap. 48, s. 165 (2)

Practice and procedure - Charge - Framing of charge - Whether appellant's conviction was valid.

Facts: Evidence revealed that the appellant's appeal only consisted of the statutory reason for appeal.

Facts: The question for determination was whether the court was empowered to impose imprisonment in default of payment of penalty. The matter was governed by the Trade and Revenue Ordinance, s. 53 which provided for the recovery of penalties under the provisions of the Magistrates Code of Procedure Act.

Facts: Evidence revealed that the court used the work “smuggled” instead of “smuggling” goods. The court found that the appellant had not been misled by the use of the word “smuggled” and based on their defence they were well aware of the offence for which they were being charged.

Held: The appeal, if it was to be valid must state the actual points to be argued and the matters complained of in such a manner as to inform the respondent thereof. Appeal dismissed.

Held: The appellant's submission failed to distinguish between a fine which is the normal penalty for some criminal offence, and a penalty which is recoverable under the Trade and Revenue Act. If a party is convicted under s. 53 of the latter Act nothing intervenes between the order for payment of the penalty and the order for imprisonment in default. Appeal dismissed.

Held: The word “smuggled” be replaced by the word “smuggling”. Appeal dismissed.

Lewis, C.J.

1 This appeal was heard on the 28th July 1967 by a court consisting of two judges. They were unable to agree, and the appeal was deferred for re-hearing by a court of three judges.

2 The appellants were convicted on the 21st of June 1966, of offences under section 41 of the Trade and Revenue Ordinance, Cap. 274, for being concerned in smuggling goods. The charges and the conviction, both used the word “smuggled” instead of “smuggling”, and out of this one of the grounds of appeal has arisen.

3 The appellant Andrew was ordered to pay a penalty of $2,400.00, and the appellant Joseph was ordered to pay a penalty of $1,500,00. In the alternative, in default of payment, Andrew was sentenced to imprisonment for one year, and the appellant Joseph to imprisonment for nine months.

4 The evidence for the prosecution, as given by two police officers and the senior customs officer, was as follows.

5 The police received certain information as a result of which, at about 8.00 p.m. they left St. John's for Falmouth Bay in a car. On arriving there they saw the defendant Andrew and the defendant Joseph, and also a substantial quantity of liquor on the seashore:

32 boxes of Doorly' s Macaw Rum,

18 boxes of Mount Gay Rum,

3 cases of McCallum's Whisky,

3 cases of Quinquina wine,

4 boxes of Booker's Dry Gin,

10 single bottles of Booker's Dry Gin.

6 The appellant Andrew was lying about a foot away from the liquor and Joseph was standing beside it. Nearby lying at anchor, was a rowboat.

7 The police brought their car to a halt, and quickly jumped out of it and made towards the appellants. Their evidence was that Joseph moved away quickly in a westerly direction. The police followed Joseph and arrested him, and also arrested the other appellant.

8 According to the appellant Andrew, the police told them that they were arresting them for smuggling.

9 The defence was that these two men had nothing to do with each other; that Joseph Andrew, the owner of a night club, had gone with two other men to look for lobsters, and that having proceeded a certain distance along the beach, walking in the water, he decided not to go any further; that he stayed on the road waiting for them, and fell asleep; that he was aroused by the police who took him around a corner and showed him some goods, but that he knew nothing at all about these goods. He knew nothing of Joseph, and didn't see him until he was brought to the car by the police.

10 Joseph said that he had gone to Falmouth to see the first appellant. He keeps a tavern - which, I understand, is the local name for a liquor shop. He was on the beach when the police met him walking along on the sand, and the police flashed a torch light on him and arrested him and told him that they were arresting him. He said that he saw the cartons on the sand but that he had nothing to do with them.

11 On this evidence the learned magistrate convicted the appellants. Three grounds of appeal have been argued, the other two, which appear on the Notice of Appeal having been abandoned. Grounds 2 and 3 were argued together. Ground 2 follows the wording of one of the grounds which are set out in the Magistrate's Code of Procedure Act (Cap. 48) as admissible grounds of appeal, and states that the judgment was based on a wrong...