Rowan Pennington-Benton Instructed by Charles Russell Speechlys LLP (London) for the Respondent.
This appeal is a challenge to the judgment of the Court of Appeal of Jamaica which held that it would not hear and determine the appeal of Ray Morgan (“the appellant”) against the consecutive sentences imposed on him on 7 February 2011 in the Resident Magistrate’s Court, amounting in total to 12 years’ imprisonment.
On the same day that the appellant was convicted and sentenced, he gave a valid verbal notice of appeal against both conviction and sentence in accordance with section 296(1) of the Judicature (Resident Magistrates) Act (“the Resident Magistrates Act”). Thereafter, and within 21 days after the date of the judgment, he was obliged to file grounds of appeal with the Clerk of the Courts, who is an officer of the Resident Magistrate’s Court. The appellant failed to file grounds of appeal in relation to his appeal against conviction. However, due to an administrative error by the prison authorities, and despite the appellant personally doing everything reasonably possible, his grounds of appeal against sentence were not filed with the Clerk of the Courts. Rather, the grounds were sent in error by the prison authorities to the Registrar of the Court of Appeal. Accordingly, they were not filed with the Clerk of the Courts with the consequence, pursuant to section 296(1) of the Resident Magistrates Act, that the appellant was deemed to have abandoned his appeal against sentence.
The appellant, who made several requests over many years for his appeal against sentence to be heard, was first informed of this administrative error in 2017. However, he was not then informed that because his grounds of appeal against sentence had not been filed with the Clerk of the Courts, under section 296(1) of the Resident Magistrates Act, he was deemed to have abandoned the appeal. Furthermore, he was not then informed that under the proviso to section 296(1) (“the proviso”), the Court of Appeal may, in any case for good cause shown, hear and determine the appeal notwithstanding that the grounds of appeal were not filed within the prescribed time of 21 days.
By 7 June 2021, the date upon which his appeal eventually came before the Court of Appeal, the appellant had been released from custody having served the sentences of imprisonment. Moreover, given the time that had then passed, efforts to obtain the record of the proceedings in the Resident Magistrate’s Court had proven unsuccessful.
The Court of Appeal (Brooks P, Straw and Edwards JJA), in its judgment dated 21 June 2021 ( JMCA App 15), held that by virtue of section 296(1) of the Resident Magistrates Act, the appellant was deemed to have abandoned the appeal as the grounds of appeal had not been filed with the Clerk of the Courts within 21 days. The Court of Appeal determined that it should not exercise its discretion, under the proviso, to hear and determine the appeal notwithstanding that the grounds of appeal were not filed within 21 days, in essence for two reasons. First, the Court of Appeal considered that the appeal against sentence was “an academic exercise” given that the appellant “essentially, has already served those sentences”. Second, that “[it] would not be in the interests of the administration of justice, bearing the time that has passed since his case was determined in the court below, to attempt to unearth [the record] from that court …”.
On 13 October 2021, the Court of Appeal refused the appellant’s application for leave to appeal to Her Majesty in Council. The appellant then sought special leave to appeal, on the basis, amongst others, that the Court of Appeal erred in its approach to the exercise of discretion under the proviso. On 14 December 2022, His Majesty, on the advice of His Privy Council, granted the appellant permission to appeal in so far as the appeal related to the sentences imposed on the appellant.