Cox v Stoute

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Stoby, C.J.
• Judgment Date: 18 May 1962
• Neutral Citation: BB 1962 HC 5
• Docket Number: No. 47 of 1961
• Date: 18 May 1962

High Court

Stoby, C.J., Field and Hanschell, (P.J.)

No. 47 of 1961

Cox

and

Stoute

Mr. C.A. Phillips for the appellant.

Mr. O. M. Browne for the respondent.

Practice and procedure - Court of Appeal — Decision of magistrate against weight of evidence — Principles on which Appeal Court acts on appeal from magistrate.

Held: (i) the language of the Magistrates (Jurisdiction and Procedures) Act, 1956 impelled the court to the conclusion that it was intended that an appellant to the Full Court in either a criminal or civil appeal should have his appeal heard on the principles applicable to civil appeals in England; (ii) where the ground is taken that the decision is against the weight of evidence, the principle in which an appeal court acts in relation to questions of fact have been the conflict of a number of decisions the best know of which is Benwax v. Austin Motor Co. Ltd. [1955] 1 All E.R. 326. Appeal dismissed.

Stoby, C.J.

1 The appellant was convicted of driving a motor lorry dangerously having regard to all the circumstances of the case, on August 9, 1960.

2 It has been contended on appeal that the decision is against the weight of the evidence. Before discussing the evidence and the arguments it will be convenient and perhaps desirable to express our views on the meaning of the words “against the weight of the evidence” and the principles on which the Full Court acts in relation to this ground of appeal.

3 Order 46, r.13 specifies that all appeals to the Full Court shall be by way of rehearing. This rule is similar to R.S.C. [U.K.], O. 58, r.3, which also states that appeals to the Court of Appeal shall be by way of rehearing. The English Act providing for appeals to the Court of Appeal does not specify what grounds are permissible. Since the Act relates only to civil appeals, the appellant formulates his own grounds of appeal. A not uncommon ground is that the decision is against the weight of the evidence. In criminal appeals to the Court of Criminal appeal there can be no such ground, as the Criminal Appeal Act stipulates the grounds which are available to the appellant. Lord Tucker, giving the judgment of the Judicial Committee of the Privy Council in Aladesuru v. R. 39 Cr. App. Rep. 184:

“It will be observed that the language of the West African Court o/ Appeal Ordinance follows that of the English Criminal Appeal Act, 1907, under which it has long been established that the appeal is not by way of rehearing as in civil appeals from a judge sitting alone, but is a limited appeal which precludes the court from reviewing the evidence and making its own valuation thereof. The position is correctly stated at p. 346 of Archbold's Criminal Pleading, Evidence and Practice, 33rd Edn., as follows: ‘In order to succeed the appellant must show, in the words of the statute …that the verdict is unreasonable or cannot be supported having regard to the evidence’ It is not a sufficient ground of appeal to allege that the verdict is against the weight of the evidence.”

4 The Magistrates (Jurisdiction and Procedure) Act, 1956, s.135(vi)(c) enable an appellant to appeal on the ground that the decision was against the weight of the evidence. The language of this Act impels us to the conclusion that it was intended that an appellant to the Full Court in either a criminal or civil appeal should have his appeal heard on the principles applicable to civil appeals in England. Where this ground is taken the principles on which an appellate court acts in relation to questions of fact have been the subject of a number of decisions. Perhaps the best known is Benmax v. Austin Motor Co. Ltd. where Viscount Simonds said ( [1955] 1 All E.R., 326 at p.327):

“ R.S.C., O.58, r.1, …prescribes that ‘All appeals to the Court of Appeal shall be by way of rehearing’ and r. 4: ‘The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made ….’ This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts.”

5 Bearing these principles in mind we proceed to examine the evidence. Carlisle Spencer, a witness for the prosecution, said he was driving motor bus M. 2460. Arriving at Rendezvous Hill he stopped to allow a passenger to get off...