Burgess and Hope v Gillett

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Inniss, C.J.
• Judgment Date: 30 November 1970
• Neutral Citation: BZ 1970 CA 7
• Docket Number: Criminal Appeal
• Date: 30 November 1970

Court of Appeal

Inniss, C.J.

Criminal Appeal

Burgess and Hope

and

Gillett

Mrs Hadie Goldson for the Appellants.

The Director of Public Prosecutions, Mr Albert Staine, for the Respondent.

Criminal law - Appeal against conviction — Extortion

Criminal Extortion - Elements of offence

Facts: The Appellants were Public Officers — Ground of Appeal a finding of facts. Principles on which Supreme Court acts examined at length

Facts: The question for determination was whether it was an element of the offence with reference to s. 315 and s. 341 of the Criminal Code that the payer should believe he would be convicted

Held: Appeal to Supreme Court from an inferior court is not a re-trial — Question for court was whether case against appellant was proved with that certainty which was necessary to justify a conviction. Finding that there was evidence on which, if he accepted it, the Magistrate could find beyond reasonable doubt that each appellant was guilty as charged. Appeals dismissed.

Held: There was no such requirement that the payer should believe he would be convicted. The mere demand of money, if the other elements of the offence were also proved, was sufficient for the purposes of the crime of extortion under s. 315 of the Criminal Code. Appeals dismissed. Conviction and sentence affirmed.

1 Before the Chief Justice

2 This is an appeal against a decision of the Court of Summary Jurisdiction for the Belize Judicial District whereby the Defendants/Appellants Roy Burgess and Allan Hope were convicted of the offence that they on the 23rd March, 1967, being Public Officers, namely Police Constables, extorted from Reginald Gray in the course of their duties as public officers, the sum of $70 British Honduras Currency contrary to section 315 of the Criminal Code.

3 The appeal is brought on a single ground, namely, that the decision could not be supported having regard to the evidence.

4 In the argument no reference was made either to the question which arises for consideration of this Court on a ground of appeal such as this or to the principles on which this Court should act on an appeal of this nature; and it appeared that the matters had not been adverted to. Both matters were considered by this Court in the Appeal Matilde Zetina v. Nelson McKoy in which judgment was given on 31st October, 1969. In the circumstances it might be well to consider a little more closely the question of the principles on which this Court should act in an appeal of this nature.

5 Appeals to this Court from an Inferior Court are governed by governed by part VIII of Supreme Court of Ordinance (Ch. 5 of the Laws of this Country) and the Rules set out in Order LXXIII of the Supreme Court Rules. It is true that certain of the provisions of Part VIII of Ch. 5 are reminiscent of English legislation governing appeals from courts of summary jurisdiction to a court of general or quarter sessions. For example S. 133 bears a resemblance to S.I. of the Quarter Sessions Act, 1849, (see 11 Halsbury's Statutes of England 1st Edn.) p. 293), and ss.134 and 135 to S.S. 3 and 4 of the above-mentioned Act. There are, however, provisions in Part VIII which in my view indicate clearly that an appeal under that Part was to be of a different kind from appeals to quarter sessions contemplated by the Summary Jurisdiction Acts of the United Kingdom. Thus, S. 130 of Ch. 5 limits the grounds on which an appeal may be brought whereas no limit was placed on the grounds on which an appeal might be brought to quarter sessions. Indeed s. 31(2.) of the Summary Jurisdiction Act, 1879, which dealt with the matter, described them as “general” (see also Paley on Summary Convictions (9th Edn.) at p. 690 and the Form at p. 1123 ibid). Again s. 138 of Ch. 5 empowers this Court, in any case in which it considers it necessary, to direct that a case may be re-heard before it “on some day to be fixed in that behalf, and any person may be called as a witness, whether he gave evidence before the Inferior Court or not”. In my opinion this provision indicates very clearly that the ordinary run of appeal before this Court is not to be a re-trial. Appeals before Quarter Sessions, of course, were re-trials; and the matter was explained in the judgments in Reg. v. Justices of Surrey and Bell (1892) 2 Q.B. 719. In that case on an appeal against a summary conviction the only ground stated in the notice of appeal was that the punishment inflicted was excessive. The respondents did not appear at the hearing; and upon the appellant duly proving his notices of appeal, the Court of quarter sessions quashed the conviction. It was held that they had taken the proper course.

6 It having been submitted, on the strength of Reg. v Middlesex J.J 2 Q.B.D. 516, that the appeal to the court of Quarter Sessions was a re-hearing, Lord Coleridge C.J. said at p. 721 “In Dickenson's Guide to the Quarter Sessions, 6th ed. p. 642, I find the practice stated thus “When the appeal is brought regularly before the sessions…………and is not adjourned, the leading Counsel for the respondent, as the party sustaining the order or other act complained of, opens his case on the merits, and adduces evidence in support of it, without being confined to that produced before the magistrates below.” In the present case the respondent wanted to sustain the punishment inflicted by the magistrates, which was questioned by the notice of appeal. That being so the court of quarter sessions followed the common practice; they required the respondent to show that the punishment was properly inflicted.”

7 In the same case Cave J. at p.722 said-

“Here the appellant appealed against the judgment, not against the verdict. He appeared at quarter sessions and proved his notices of appeal in the usual way, so as to place himself properly before the Court. What was to happen next? In appeals to the High Court the evidence given in the Court below is always before the Court to which the appeal is brought. The appellant, therefore, is called upon to begin, and to show that the evidence does not justify the verdict which has been given, or that the Court below had gone wrong in point of law. But in appeals to quarter sessions the evidence in the Court below is not before the quarter sessions. They have no right to depend upon the mere words of the judgment. It is the very thing appealed against. The respondent must begin and must prove the matters complained of. The Court must decide upon the evidence brought before them on the appeal. There is nothing except that evidence to show that any committed”.

8 The position at quarter sessions is summarised in Paley on Summary Convictions (9th Edn.) at p. 703-

“If the appellant alone appears, then upon proof of compliance with the preliminary formalities as to notices recognizances and the like, he will be entitled to ask that the appeal be allowed in his favour; since, after that proof is given, the onus is upon the respondent to establish a case in support of the conviction of order, failing which it becomes the duty of the appellate tribunal to give effect to the appeal ( R v. Purdey (1864) 5 B&S 909 reported in 122 E.R. 1069). The respondent should therefore in all cases appear either personally or by Counsel. The necessity of this is illustrated by the decision in R v. Surrey J.J and Bell (1892) 2 Q.B. 719, where notwithstanding that the only ground of appeal was excessive punishment, it was held that the conviction was rightly quashed in the absence of the respondent to support it, there being no evidence before the Court upon which it could decide what punishment was right, and it being impossible to leave the conviction without some judgment thereon”.

9 This is all very different from the procedure on an appeal from an Inferior Court to this Court.

10 Order LXXIIIr.8 of the Supreme Court Rules provides for the transmission to the Registrar of the record which is described as including the notes of evidence taken in the cause and the adjudication the formal conviction or order ……………. all documentary exhibits and all other documents connected with the cause, including the magistrate's statement of his reasons for the decision, so that the whole matter is before this Court.

11 Further Rule 14 of the same order provides “If on the day of hearing and at every adjournment of the case the appellant appears, the Court shall proceed to the hearing and the determination of the cause:

12 Provided that where any respondent is in default of appearance at the time fixed for the hearing of an appeal, the Court shall not proceed to hear the appeal as against him unless and until it is satisfied by affidavit or otherwise that the provisions of Rules 2, 3, and 5 of this Order have been observed.”

13 There is no provision that if the respondent does not appear the appellant is entitled to judgment on proof of compliance with the preliminary requirements. Even in that case the Court is to hear the appeal.

14 The practice in this court on the hearing of an appeal from an Inferior Court is that appellant begins, and, if the Respondent contests the matter, is entitled to reply.

15 In my opinion it is plain that an appeal to this Court from an Inferior Court is not a re-trial, unless this Court has directed that the case be re-heard before it. It is a proceeding in the High Court of this country, which has before it the evidence given in the Inferior Court and indeed the whole record. The appellant is called upon to begin; and in my view, as indicated by Cave J. in Reg. v Justices of Surrey and Bell (supra) it is for the appellant to show, or one or other of the permitted grounds of appeal, that the decision of the Inferior Court was wrong and ought to be set aside.

16 In this case the sole ground of appeal is that the decision could not be supported having regard to the evidence. In its judgment in Matilde Zetina v P.C. 536...