Rambarran et Al v The Queen
| Jurisdiction | Barbados |
| Judge | Moore JA,Moore, JA |
| Judgment Date | 24 March 2015 |
| Neutral Citation | BB 2015 CA 5 |
| Docket Number | Criminal Appeal 6 of 2009; Criminal Appeal 9 of 2009; Criminal Appeal 10 of 2009; Criminal Appeal 2 of 2010 |
| Court | Court of Appeal (Barbados) |
| Date | 24 March 2015 |
Court of Appeal
Gibson, C.J.; Moore, J.A.; Mason, J.A.
Criminal Appeal 6 of 2009; Criminal Appeal 9 of 2009; Criminal Appeal 10 of 2009; Criminal Appeal 2 of 2010
Sir Richard Cheltenham, K.A., Q.C., Miss Shelly-Ann Seecharan with him for the appellant Rambarran
Mr. Marlon Gordon and Miss Safiya Moore for appellants Greene and Persaud Mr. Arthur Holder and Mr. Kendrid Sergeant for appellant Campbell
Mr. Charles Leacock, Q.C., Mr. Lancelot Applewhaite with him for the respondent
Criminal practice and procedure - Functus officio — Whether the Court of Appeal was functus officio and could grant the order to extend the time for filing the application for leave to appeal — Limitation of time — Applications for extension of time denied — Finding that one applicant granted leave to extend the time.
On 13 instant we held that this Court was functus officio, had no jurisdiction to entertain these applications and we denied them. We promised to give our reasons today. We now do so.
On 2 December 2014, in his usual robust style and in plain and unambiguous language, Sir Richard Cheltenham, K.A., Q.C. (Sir Richard) argued eruditely that there was no need for Rambarran to apply for an extension of time to file a notice of appeal or an application for leave to appeal against conviction in accordance with section 19 of the Criminal Appeal Act, Cap. 113A (Cap. 113A). Sir Richard's argument was in response to the preliminary point taken by Mr. Charles Leacock, Q.C., Director of Public Prosecutions (DPP), on 23 September 2014, that the appellant, among others, had filed his notice of appeal out of the time prescribed by section 19 of Cap.113A for filing such a notice and therefore had no valid appeal before this Court.
Having had time for reflection, and seemingly persuaded that his argument was without merit, Sir Richard made a volte face and applied for an order to extend the time for filing an application for leave to appeal on the eve of our decision. That application was supported by affidavit.
On 9 February 2015, on behalf of Persaud and on 10 February 2015, on behalf of Green, Mr. Gordon filed applications for an extension of time in which to apply for leave to appeal against conviction in the case of Green and conviction and sentence in the case of Persaud. These applications were also supported by affidavits.
It is with the propriety of those applications for extension of time that we are here engaged.
On 13 instant, Sir Richard submitted that this Court was not functus officio and should, therefore, grant the order sought in the application filed on 4 February 2015 on behalf of Rambarran.
The DPP contended that this Court having held on 5 February 2015:
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(a) that section 19 of Cap. 113A requires that notice be given within the time limit of 21 days for the filing of an application for leave to appeal or notice of appeal against conviction or sentence, as the case may be; and
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(b) that none of the purported appellants had a valid appeal against conviction before this Court.
this Court is functus officio, without jurisdiction and cannot entertain the present applications.
We must, therefore, now consider whether this Court has jurisdiction to entertain the present applications.
The Fifth Edition of Black's Law Dictionary defines functus officio thus:
“Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. Applied to an … agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect.”
When a judge finally disposes of the matter before him he is functus officio and neither he nor any other judge of equal jurisdiction may vary that order: Re VCM Holdings Ltd. [1941] 3 ALL ER 417, R v. British Coal Cooper (No.2), ex p Price [1993] COD 323. If the Court has discharged all judicial functions in a matter it is said to be functus officio: R v. Camberwell Green Magistrates' Court ex p Brown [1983] 4 FLR 767.
In the High Court of Australia in Bailey v. Marinoff (1971) 125 CLR 529 Barwick CJ said at 531:
“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a Court that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would-be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. The finality of the order dismissing the appeal does not seem to me to partake of injustice in the circumstances or to call for any departure from well settled principles, themselves essential in my opinion to the due administration of our system of law.”
The policy of the law is that there should be finality in litigation. Finality is a requirement of good administration because people who are affected, directly or indirectly, need to know where they stand. Accordingly, the general rule is that a court has no power to set aside its own final judgment once it has been passed and entered. However, an order is ordinarily effective from the moment of its pronouncement. Authority for that proposition, if needed, may be found in the following statement of Lord Westbury L.C. in Re Risca Coal & Iron Co., Ex parte Hookey (1862) 4 De G. F. & J. 456 at pg. 460:
“The theory of judicial procedure is that the cogent and binding effect of the order begins immediately from the time when the order is pronounced by the lips of the judge, and if that could be done physically which legally is supposed to be...
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...on 16 June 2017. [The oral decision was immediately binding: Edmund et al v. The State TT 2007 CA 39; Rambarran et al v. The Queen BB 2015 CA 5; and Re Barrell Enterprises and others [1972] 3 All ER 631.] However, Mr Arthurs, counsel for Mr. Henry, submitted that a judge who recognized that......