Green v Stoute

• Jurisdiction: Barbados
• Judge: Field, C.J.,Vaughan, .J.
• Judgment Date: 07 December 1959
• Neutral Citation: BB 1959 HC 26
• Docket Number: Nos. 81 and 82 of 1959
• Date: 07 December 1959
• Court: High Court (Barbados)

Supreme Court

Field, C.J. (Ag.); Vaughan, .J. (Ag.)

Nos. 81 and 82 of 1959

Green

and

Stoute

Appearances:

The appellant in person.

Mr. G. E. Wellington for the respondent.

Criminal law - Sentences — Conviction for stealing an agricultural fork and assaulting a police constable in execution of his duty — Whether sentence of six months excessive.

Practice and procedure - Courts — Magistrate's court — Summary trial — Magistrates' (Jurisdiction and Procedure) Act, 1956, s. 118 — Section permits magistrate to try more than one information at the same time if they are founded on the same facts or relate to a series of offences of similar nature.

Judgment of the Court:

1 The appellant was convicted by a magistrate of District A on two charges, viz., stealing an agricultural fork of the value of $5 and assaulting a police constable in the execution of his duty. He was sentenced to six months' imprisonment in respect of each offence and the sentences were to run concurrently. He now appeals against those decisions on two grounds:

• (1) that the decisions are against the weight of evidence, and

• (2) the decisions are erroneous in point of law.

2 He was unrepresented in the court below and is unrepresented before this court.

3 From the records sent to this court it appears that the two informations in respect to these offences were tried together. There is nothing on the record to indicate whether the appellant consented to this procedure. We therefore felt that the magistrates should be required to make an affidavit stating whether or not the consent of the appellant was obtained in respect of the trial of these two informations together. That affidavit has been supplied after the adjournment of the hearing of these appeals for that purpose. The affidavit states, inter alia:

“Both of the charges were read to the accused and he pleaded not guilty to each. The accused was asked whether he consented to having both charges tried together and he said yes.”

4 The two offences alleged in the information are separate and distinct offences. The larceny offence is punishable as such by virtue of section 31(1) of the Magistrates' (Jurisdiction and Procedure) Act 1956. The offence of assaulting the police constable in the execution of his duty is punishable by virtue of section 92 of the Police Act 1908. Both offences are triable summarily by a magistrate without the consent of the person charged. In effect what the magistrate did was to hear all the evidence in respect of both offences but he gave judgment on the offence of larceny by convicting the appellant and sentencing him to six months' imprisonment before giving judgment and convicting him in respect of the offence of assaulting the police constable and sentenced him to six months' imprisonment to run concurrently with the earlier sentence.

5 The procedure for the trial of an information in respect of an offence triable summarily is contained in section 47 of the Magistrates' (Jurisdiction and Procedure) Act 1958 which is as follows:

• “(1) On the summary trial of an information the magistrate shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not.

• (2) The magistrate after hearing the evidence and the parties, shall convict the accused or dismiss the information.

• (3) If the accused pleads guilty, the magistrate may convict him without hearing evidence.”

6 Those provisions indicate that each information for an offence must be tried separately. By section 118 of the same Act it is permissible for a magistrate to try more than one information at the same time provided such informations are founded on the same facts or relate to a series or part of a series of offences of the same or a similar nature, unless he is of the opinion that the interests of justice would require separate trials. It is obvious that section 118 could not apply to these informations as they are not founded on the same facts nor do they relate to a series or part of a series of offences of the same or a similar nature. The offence of larceny was alleged to have been committed on the 15th day of August, 1959, whereas the offence of assaulting the constable was alleged to have been committed on the 5th day of September, 1959. The only connecting link between the two offences was the fact that the constable was purporting to execute a warrant of arrest for the appellant in respect of the stealing of the fork. That fact however does not bring the informations within the scope of section 118.

7 In Paley on Summary Conviction, 10th Edition at page 65, it is stated under the heading “Joint Hearing of Separate Charges”:

“If two charges are made against a defendant and it is proposed that the two matters should be heard together this can be done only if the defendant expressly consents to the joint...