OECS Juvenile Justice Reform Project
Magistrates Conference
Training Workshop For The Caribbean
August 26 – 27, 2013
The Veranda Resort & Spa
Antigua And Barbuda
Presentation: Magisterial Appeals
Presenter: Agnes Actie
Deputy Chief Registrar, Eastern Caribbean Supreme Court
INTRODUCTION
Role of Magistrate in Magisterial Appeals
2
Right of Appeal
Magistrate’s Code of Procedure Act of Antigua & Barbuda Cap
255- Section 167 Where a Magistrate refuses to make a conviction the
complainant may appeal to the Court of Appeal against such
decision;
 Where a magistrate makes a conviction the party against
whom the conviction is made may appeal to the Court of
Appeal against the decision;
 There shall be a right of appeal from any judgment or order of
a magistrate in any civil matter where the sum exceeds
$300.60 and in a matter relating to salvage or title of wreck.
3
1. Anguilla – Magistrate’s Code of Procedure Act of Anguilla
M5-Sec 194
2. Grenada – Magistrate’s Judgments (Appeals) Act Cap 178 Unless the contrary is expressly provided by any Act any
party may appeal from a judgment of the Magistrate.
There shall be no appeal in criminal cases from any
judgment dismissing the complaint, save by leave of the
DPP.
3. Dominica – Magistrate’s Court of Procedure Act Chap 4:20
Section 141 – No appeal lies:
I.
II.
In cases where the complaint has been dismissed, except by way of case stated on
a point of law;
where the defendant has pleaded guilty, save where the appeal is against
excessive fine or penalty.
4
4. Montserrat – Criminal Procedure Act and the Magistrate’s
Court Act- Section 163: Any person who is dissatisfied with any
Judgment, Sentence or Order of the Magistrate may appeal.
Limitation on right to appeal Section 165
No appeal shall be allowed in a case where the accused has pleaded guilty and has
been convicted by the Magistrate of such plea, except as to the extent or legality of
the sentence, unless the plea is alleged to have been equivocal or not voluntary.
5. St. Kitts & Nevis – Magistrate’s Court of Procedure Act of Saint
Christopher and Nevis Cap 3.17- same as Antigua
5
6. St. Lucia – Criminal Code Section 720 – right of appeal by
either party against whom a decision is made.
7) St. Vincent & Grenadines – Criminal Procedure Code CAP 172 –
Section 212 & 212(A) - a complainant who is dissatisfied with
any judgment, sentence or order in any criminal cause or
matter to which he is a party; The DPP shall be deemed to be a
party to any criminal cause or matter other than those in which
the proceedings were instituted and carried on as a private
prosecution and which the conduct of such proceedings has
not been taken over by the DPP.
8. Tortola- Magistrate’s Code of Procedure Act of Virgin Islands
CAP 44 –sec. 155- Similar to Antigua -with further provision for
a right of appeal to the Court of Appeal from any judgment or
order of a Magistrate.
6
Appeal to be made on Motion or by Special case
Every appeal shall be either by way of motion or by special case.
Suspension of Execution - Appeal to operate as a stay;
An appeal whether by way of motion or special case, shall have the effect
of suspending the execution of the decision, judgment or order appealed
from until final determination of such appeal.
Upon a notice of appeal being given and such recognizances being taken
or money being received, the enforcement of the judgment appealed
against shall be suspended until the appeal has been determined by the
Court of Appeal.
EFFECT: An appellant whose sentence is suspended but who is not
admitted to bail shall during the period in custody during the suspension
be treated in the same manner as a prisoner awaiting trial i.e. on
remand.
7
Stay/Suspension
Saint Vincent & Grenadines
Section 215- Appeal to operate as a stay
An appeal shall have the effect of suspending the
execution of the decision appeal against until such
appeal shall have been determined, and shall be on
motion or by special case whether by way of
motion or special case shall have the effect of
suspending the decision, judgment or order
appealed from until the final determination of such
appeal.
8
Notwithstanding the provisions of subsection (1)Where the decision involves a sentence of
imprisonment, the filing of an appeal shall not require
that the convicted person be released from custody
except in accordance with section 218 (bail);
Where the decision involves the cancellation or
suspension of any licenses to drive a motor vehicle,
such license shall be deemed to be cancelled or
suspended until the determination of the appeal
unless the court shall direct otherwise upon
application made by the appellant.
9
Time for filing Notice of Appeal
1. Antigua Section 170: The appellant may file an appeal within 14
days after the day on which the Magistrate has given his decision
shall serve a notice on the other party and on the magistrate of his
decision to appeal and the notice shall contain the reasons for
appeal.
2. Anguilla - Section 197 – same as Antigua
3. Dominica – Section 144 - At the time of the pronouncement of
the judgment give verbal notice to the Magistrate and the opposite
party of his intention to appeal.
Within Fourteen (14) days after the day on which the Magistrate
has given his or her decision, serve a notice of appeal in writing in
Form A in the third schedule on the magistrate and on the opposite.
10
Where the appellant is in prison, the officer in charge of Prison
Discipline shall, on being requested to do so, render all
reasonable assistance in the preparation of the notice and shall
cause it to be lodged and a copy served on the Magistrate and
the opposite party.
4. Grenada - Section 4: - Same as Dominica save
Where the appellant is in prison, the commissioner of prisons
shall ,on being requested by the appellant render to the
appellant all reasonable assistance in the preparation on the
notice of appeal and shall cause it to be lodged and served
without payment of any fees or expenses .
5. Montserrat - Section 164 (3) - within 14 days after the
decision; stating his intention and grounds of appeal.
11
Extension of time to Appeal Section 164 (3); Any person
aggrieved by the decision of the Magistrate may upon giving
notice to the other party, apply to the Court of Appeal for leave
to extend the time prescribed within which such notice of
appeal may be served and the court may do so if it deems fit.
Section 110(1) of the Magistrate’s Court Act gives the
Magistrate Court and the Court of Appeal jurisdiction to extend
the time for filing the notice of appeal for such period not
exceeding 30 days.
6. St. Kitts & Nevis - Section 166 - within Fourteen (14) days
after the day on which the Magistrate has given his or her
decision;
7. St. Vincent & The Grenadines - Section 213 Magistrate to
inform accused of right of appeal
12
Where any person is convicted by a magistrate, the magistrate
shall inform him, at the time of the sentence is passed of his
right of appeal and the steps which must be taken by a party
wishing to appeal. A note shall be made at the time by the
magistrate that such information has been given by him to
such person and such note shall be conclusive as to the
provision of this section having been complied with.
Upon being so informed, the convicted person may then and
there give oral notice of his intention to appeal and such
notice shall be recorded by the magistrate and by the
prosecutor.
13
An appellant who has not given notice under subsection (2) or
has given notice but has not at the time stated the general
grounds of his appeal, within 21 days after the day upon which
the decision was given serve notice in writing, signed by
appellant/counsel, on the other party and on magistrate
stating his intention to appeal and of the grounds to appeal.
Any person aggrieved by a decision of a magistrate’s court
may upon notice to the other party, apply to the court of
appeal for leave to extend the time for prescribed within
which the notice of appeal may be served. The Court upon
hearing such application may extend such time as it deems fit,
and may do so either before or after the expiration of the time
prescribed.
14
8. St. Lucia Section 724 – The Appellant shall give notice in open court
in the presence of the other party either by himself/herself or by
his/her Counsel of his intention to appeal; or
within 15 days after the decision of the Court, the Appellant shall
serve a Notice of Appeal in writing upon the Clerk of Court signed
either by the Appellant or his/her Counsel.
Illiterate Appellants - If the appellant signs by means of his/her mark,
the mark shall be verified by at least one witness, who shall sign
his/her name.
9. Tortola - Section 158 - within six weeks (6 weeks) after the day on
which the Magistrate has given his or her decision, shall file and serve a
notice of appeal on the other party and on the Magistrate of his or her
intention to appeal, and the notice shall also contain the reasons for
appeal.
15
Grounds of Appeal
1. Antigua Section Section 197 (2)
The notice may set forth any of the following reasons, and no
other, ---(a) That the court had no jurisdiction in the case ; provided
that it shall not competent for the Court of Appeal to entertain
such reasons for appeal, unless objection to the jurisdiction of
the Court has been formally taken at some time during the
progress of the case and before the pronouncing of the
decision or
16
(b) That the Court exceeded its jurisdiction in the case or
(c) That the Magistrate was personally interested in the case or
(d) That the Magistrate acted corruptly or maliciously in the case;
(e) That the decision was obtained by fraud or
17
(f) That the case has already been heard or tried and decided by, or
forms the subject of a hearing or trial pending before, some
competent tribunal; or
(g) That illegal evidence substantially affecting the merits of the
case was rejected by the Court; or
(h) That illegal evidence was admitted by the Court and that there
is not sufficient legal evidence to sustain the decision after rejecting
such illegal evidence.
18
(i) That the decision is unreasonable or cannot be
supported having regard to the evidence or
(j) That the decision was erroneous in point of law; or
(k) That some other specific illegality, not hereinbefore
mentioned, and substantially affecting the merits of the
case was committed in the course of the proceedings in
the case; or
(l) That the judgment or sentence passed was based on a
wrong principle or was such that a Magistrate viewing the
circumstances reasonably could not properly have so
decided; or
(m) That the sentence imposed was unduly severe.
19
(3) …
(4) Where the reason for appeal is not guilty, no
particulars need to be stated.
Anguilla – same grounds as Antigua
Grenada - Section 9-11: Notice of reasons for appeal
may be served either at the same time of giving/serving
the notice of appeal or at some other time and maybe
embodied in the notice of appeal when such notice is in
writing or in a separate document. An appellant shall set
forth reasons for appeal the particular matter in which
he relies or complains.
20
Dominica Section 144 The appellant shall file notice of appeal within 14 days and
serve within twenty eight (28) days serve a memorandum of
reasons for the appeal ;
Sec 147; Where appellant is in custody –superintendent of prison
when requested shall render all reasonable assistance in
preparation of NOA and serve on magistrate and other parties
A judge may on application extend the time for such service for
any sufficient reason;
St. Kitts & Nevis- Section 166 – same as provisions for Antigua
21
St. Lucia Section 727 – The Appellant shall within twenty-one
(21) days after the decision of the Court, serve notice in writing
of the grounds of appeal; grounds may be served either at the
time of giving or serving the Notice of Appeal, or within twentyone (21) days of the decision of the Court, or embodied in the
written Notice of Appeal or in a separate document to him.
Where the Appellant is an inmate, a Correctional Officer shall
cause a written notice of the Grounds for Appeal if
communicated to him to be served.
22
Section 732 – Statutory grounds of appeal -Where no
specific grounds of appeal have been served, the
following general grounds of appeal shall be presumed
with respect to an appellant –
who is a Defendant- is not guilty of the offence; the
decision is not altogether supported by the evidence; the
punishment is excessive
who is a Complainant – that the defendant committed
the offence with which he is charged; the dismissal of
the complaint is not altogether supported by the
evidence; order made against him is not warranted by
the evidence
Tortola- same as Antigua
23
Service of Notice of Appeal
Section 171
Every Notice shall be in writing signed by the appellant, his or her
counsel or solicitor.
The Notice may be transmitted as a registered letter through the
post and shall be deemed to have been served at the time it would
have been delivered in the ordinary course of the post.
24
Role of the Magistrate in an Appeal
Recognizance
Section 172
The appellant shall within three (3) days after the day on
which he or she served notice of his or her notice of
intention to appeal, enter into a recognizance before a
Magistrate with or without sureties as the Magistrate may
direct conditioned to appear before the Court of Appeal
and to try the appeal and to abide the judgment of the
Court of Appeal and to pay such costs as may be
awarded by the said Court.
25
If the Magistrate thinks it expedient he or she may instead of
entering into recognizances give such other security by
payment of money into Court or otherwise as the Magistrate
deems sufficient.
Anguilla-Section 199 – same
Dominica -Section 145 The appellant shall enter into
recognizance within fourteen (14) days after the judgment
appealed against is pronounced before the Magistrate with or
without sureties
Magistrate thinks it expedient he or she may instead of
entering into recognizances give such other security by
deposit of money with the Magistrate or otherwise
26
The Magistrate shall without undue delay transmit to the
Registrar of the High Court all papers relating to the appeal.
When the State is the appellant it is sufficient for the officer acting
on behalf of the state to give notice in writing to the Magistrate
and to the other part without entering into a recognizance.
Section145(2): A defendant who, being committed to prison on a
Magistrate’s conviction or Order, who has given notice of appeal
and is unable to find the necessary surety or sureties or give such
other security may prosecute his appeal without entering into a
recognizance provide he remains in custody pending the hearing
of the appeal. In such case the Magistrate shall, by warrant direct
the appellant be detained in custody accordingly, and shall in the
warrant intimate to the officer in charge of Prison Discipline that
the notice of appeal has been given.
27
The appellant in such a case be detained in custody
and may be taken without any fresh order or
warrant in the custody of a constable to the Court
to attend the hearing of his appeal.
The Magistrate shall, when the appellant is
detained in custody, transmit to the Registrar
without undue delay a copy of the proceedings in
which judgment has been appealed against.
an appellant may at any time before his appeal is
heard enter into a recognizance or give such other
security and thereupon he shall be liberated unless
he is custody in respect of any other charge or
matter.
28
Grenada- Section 5-7 ;
The appellant shall also, within 14 days after the judgment
appealed against is pronounced enter into recognizance
before the magistrate with or without sureties in the
discretion of the Magistrate, conditioned for the due
prosecution of the appeal ; may instead give such other
security by deposit of money with the Magistrate or otherwise
as the Magistrate deems sufficient.
Where the Crown is the appellant, it shall be sufficient to give
notice in writing to the Magistrate and to other party without
entering into recognizance; if the crown fails to prosecute the
appeal to a final determination, the other party shall be
entitled to recover his/her costs of appeal from the Crown on
production of a taxed bill of costs signed by the Registrar.
29
A defendant who, on being committed to prison on a
Magistrate’s conviction or order, who gives notice of
appeal and is unable to find the necessary surety(ies)
may prosecute his appeal without entering into
recognizance; provided he remains in custody pending
the hearing of the appeal.
In such a case the Magistrate shall by warrant direct the
appellant to be detained in custody and shall intimate to
the Commissioner of Prisons that notice has been given
of appeal.
The appellant shall in such a case be detained in custody
and may be taken without fresh any order or warrant in
custody by a constable to the Court to attend the
hearing of his appeal.
30
The Magistrate shall, when the appellant is detained in
custody, transmit to the Registrar within 3 days of the
judgment a copy of the proceedings in which the
judgment has been appealed against.
The court shall hear and determine with all possible
dispatch any appeal in which the appellant is detained
in custody.
Notwithstanding, an appellant may at any time before
the appeal is heard, enter into a recognizance or give
such security and thereupon may be released unless
he/she is in custody in respect of any other
charge/matter.
31
St. Kitts & Nevis - Section 168 - The appellant shall within
three (3) days after the day on which he or she served
notice of his or her notice of intention to appeal, enter into
a recognizance before a Magistrate with or without
sureties or by payment of money into court or other
means; such other security
instead of entering into
recognizances.
St Lucia -Section 733 - (1) after service of notice of appeal,
and within fifteen (15) days after the decision of the Court,
enter into a recognizance, with one sufficient surety, to the
satisfaction of the Magistrate, for the due prosecution of
the appeal and for abiding by the result of the appeal,
including the payment of all costs of the appeal.
32
(2) The Appellant may instead of entering into a recognizance,
lodge with the Clerk of Court, the amount awarded by the
decision as well as the amount of the costs, together with the
sum of $500 to abide the costs of the appeal or the amount of
costs of the appeal only as the case may be, and in addition shall
pay to the Clerk of Court all fees in respect of the appeal, if any.
(3) If in custody, he may be released from custody on the order
of the Magistrate if he/she complies with the requirements of
this section.
(4) A person aggrieved by the decision of the Magistrate
pursuant to Section 3 (para. 3) may appeal to a judge of the High
Court in Chambers who may confirm, reverse or vary the decision
of the Magistrate.
33
The Magistrate may dispense with the requirements of such
recognizance, deposit or fees. Person prosecuting or defending
or appearing as a public officer or in the public interest shall not
be bound or required to enter into any recognizance or make a
deposit or pay any fees.
St. Vincent – Section 216 – The appellant shall within seven (7)
days after the day on which he served notice of his notice of
intention to appeal, enter into a recognizance before a
Magistrate conditioned to prosecute the appeal to judgment of
the court and to pay such costs as may be awarded.
34
The appellant may instead of entering into recognizances give
such other security by deposit of money with the magistrate’s
court or otherwise as the Magistrate deems sufficient.
If the complainant is acting on behalf of the Crown, DPP,
Commissioner of Police or public officer acting in his official
capacity shall not be required to be bound by any recognizance
or to give any security.
35
Tortola Section 160 – Recognizance- The appellant shall within
three (3) days after the day on which he served notice of his
notice of intention to appeal, enter into a recognizance before
the Magistrate with or without sureties as the Magistrate may
direct,; may instead of entering into recognizances give such
other security by payment of money into Court or otherwise as
the Magistrate deems sufficient.
36
Error or defect in recognizance ;Section 177
Where any recognizance(s) have been entered before any
Magistrate for the purpose of complying with such condition of
appeal shall appear to the Court of Appeal to have been
insufficiently entered into or to be otherwise defective or
invalid, it shall be lawful for the court of appeal, if it thinks fit, to
permit the substitution of a new and sufficient recognizance(s)
to be entered into before the Court of Appeal in place of such
insufficient, defective or invalid recognizance(s) as the Court of
Appeal shall appear to be just and reasonable.
37
Montserrat - Section 167 - appellant shall within (3) days after
serving notice of intention to appeal enter into a recognizance
before a Magistrate with or without a surety as the Magistrate
may direct, conditioned to prosecute the appeal and to pay such
costs as ,may be awarded; appellant may instead of entering a
recognizance’s give such other security by deposit of money
with the Magistrates Court or otherwise as the Magistrate
deems sufficient; provided that if the Complainant is acting on
behalf of the Crown, the DPP, Commissioner of Police or any
department of the Government or is a public officer acting in his
official capacity he shall not be required to be bound by the
recognizance or to give any security.
38
Where any recognizance entered into appears to the Court of
Appeal to be insufficient or defective or invalid, the Court of
Appeal may permit the substitution of a new and sufficient
recognizance for that entered into before the Magistrate and for
that purpose may allow such time and impose such.
Magistrate’s Court Act Sec.112 (3)
39
NOTE
It has been said that Magistrates sometimes request exorbitant
sums for recognizance. In MCRAP 1 of 2009 (Antigua) Lester
Charles etal v The Commissioner of Police, the Court of Appeal on
the issue of recognizance; Per Baptiste JA
40
BAIL – Antigua Section 173 - where the appellant is in custody the
Magistrate before whom he appears to enter into a recognizance shall
on his doing or on giving such other security release him from custody;
Anguilla - Section 201- same as Antigua
Grenada - Section 6 : If the appellant is in custody, he/she may be
released on the order of the Magistrate Provided that nothing shall
prevent the Magistrate from granting a stay of execution at the time of
judgment on such terms as he/she thinks proper.
Montserrat –
Section 169 - Criminal Procedure Code ;
Where the appellant is in custody, a judge, or the
Magistrate’s court may, if the circumstances of the case he or
it thinks fit, order that he be released on bail with or without
sureties, pending the determination of the appeal; provided
if the appeal is abandoned or withdrawn or is
dismissed, any such order for bail shall be cancelled.
41
When the appellant is released on bail or the sentence is
suspended pending the appeal, any time during which he is at
large after being so released or during which the sentence has
been suspended shall be excluded in computing the term of
any sentence to which he is subject.
Provided that in the case of an appellant whose sentence is
suspended but who is not released from custody the Court
hearing the appeal, may order that the time s spent in
custody or any part thereof, awaiting the hearing of the
appeal, any be included in computing the terms of the
sentence.
(iii)An appellant whose sentence is suspended but who is not
admitted to bail shall during the period in custody during
such suspension be treated in the same manner as a prisoner
awaiting trial.
42
St. Vincent & The Grenadines- Section 218 – where
appellant is in custody, a judge or the magistrate’s court
may, if in the circumstances of the case thinks fit, order
that he be released on bail, with or without sureties
pending the determination of the appeal; Provided that
if the appeal is abandoned, withdrawn or dismissed, any
such order for bail shall forthwith.
Where the appellant is released on bail or the sentence
is suspended but who is not released from custody, the
court of appeal, in its discretion, may order that the
time so spent in custody, or any part thereof, awaiting
the hearing of the appeal, may be included in
computing the terms of the sentence.
43
An appellant whose sentence is suspended but
who is not admitted to bail shall during the
period in custody during the suspension be
treated in the same manner as a prisoner
awaiting trial.
44
St. Kitts & Nevis -Section 169 (amended no 25 of 2009(26-112009)
Where the appellant is in custody the Magistrate before whom he
appears to enter into a recognizance may upon application being
made by or on behalf of such person and if the Magistrate thinks
fit, having regard to the following;
the character of the person;
the nature and seriousness of the offence for which such person
was convicted;
45
the likelihood of such person absconding or committing the same
or a like offence if he is released from custody;
such other exceptional circumstances which appear to the court
to be relevant;
order such person be released from custody with or without a
surety or sureties until after such time as the appeal is
determined, abandoned or withdrawn.
Notwithstanding the provisions of subsection (1) a person shall
only be entitled to bail pending appeal, where the sentence
which was imposed upon the person does not exceed 6 months
46
Bail
Tortola - Section 161 – Where the appellant is in
custody the Magistrate before whom he appears to
enter into a recognizance shall on his so doing or on
giving such other security as aforesaid, release him
from custody.
47
Appeals by Special Case
Appeals to the Court of Appeal may also be by way of case
stated
The magistrate may in his/her discretion or
on the application of either party or
Their solicitor
The DPP
May state a case on any point of law arising in the case for the
opinion of the court of appeal
48
The appellant makes application to a magistrate to state a case on
an issue of law within the same timeline as an appeal by way of
motion;
The provisions of relating section recognizance & appellant to go at
large (bail) apply.
If on application being duly made to a magistrate to state a case
the Magistrate declines to do so, the appellant may apply to the
High Court or to any judge of that court for an order requiring the
case to be stated.
49
Duty of Magistrate as to a Special Case
The Magistrate upon receiving an application or notice or on his
or her own motion decides to state a case for the opinion of the
Court of Appeal shall draw up the special case,
(a) concisely setting forth such facts and documents (if any) as
may be necessary to enable the Court of Appeal to decide the
question raised in the case and
(b) shall forthwith transmit the same together with a certified
copy of the conviction order or judgment appealed from and all
documents alluded to in the special case to the Registrar of the
High Court.
50
Enforcement of Judgment
After the pronouncement of the judgment of the Court of Appeal,
the Magistrate of the court from which the appeal came shall
have the same jurisdiction and power to enforce any decision
which has been affirmed, modified or amended by the Court of
Appeal or any judgment pronounced by the Court of Appeal, in
the same manner all as if the decision or judgment had been
pronounced by himself or herself.
Provided that in any case where an order of imprisonment of a
person is affirmed on appeal, the court of appeal may, if it
considers it expedient to do so, forthwith commit the person to
prison in pursuance and in execution of the order.
51
The imprisonment of the person (if it has not
previously commenced ) shall be reckoned to
begin from the day on which he or she is
arrested to be taken to the prison wherein he or
she has been ordered to be imprisoned:
If the person has been released from custody,
on giving security, he or she shall be imprisoned
for such further period as, with the time during
which he or she has been already imprisoned, is
equal to the period for which he or she was
ordered to be imprisoned as aforesaid.
52
THE END
Discussions
53