Marc Lespoir v The Republic (SCA 9 of 1989) [1989] SCCA 17 (26 October 1989)

\ Criminal Appeal No. 9 of 1989 Hrs Twomey f.or the appellant Hr Derjacques for the respondent JUDGHENT --~------------------- OF THE COURT: Ou 23rd Harch 1989, the appellant p leadedgui 1ty befom the Chief Justice to a charge of assaulting a judge on account of an act done by him in the execution of a duty imposed on him by law. The Chief Justice convicted the appellant on his plea and imposed a sentence of 3 years imprisonment. In her plea of mitigation before sentence was passed, c oun se I for the appellant asked particularly that any sentence imposed be made concurrent with a sentence of years for rape which had been impo~d by the ". judge who had been the victim of the assault. In his remarks on sentence the Chief Justice is recorded as.stating :- "If everyone behaved like you did, then the Administ- ration of the Law will become much more difficult. I therefore sentence you to three (3) years imprison- ment on Count 1. We do not generally make sentence concurrent with other sentence (sic) unless th~ occur.r.ed at the same time and this offence o~\ assault did not occpr at the same time as the offence of rape" , - 2 - Remarks ~hen follow on Coun~ 2 on which the Chief Justice imposed no sentence and he then concinued - "The sentence of 3 years impriso~n~ will from (sic) the date of today and the time that' you spent in custody awaiting this case will be taken into consideration." On that day the Chief Justice signed a warrant of commit\ \ ment stating that the appellant had been sentenced to 3 years imprisonment. In typescript on the warrant appears the words "Sentence to start as from 23rd Karch 1989". In his own handwriting the Chief Justice added - "but time spent in custody awaiting trial for this offence to be taken into consideration". On 16th Hay 1989, the only national daily newspaper, the 'Seychelles Nation' carried an account of the appel- lant's plea of guilty and his sentencing. The final paragraph stated that ,the Chief Justice had explained that Courts did not generally make a sentence concurrent with another unless they occurred at the same time. It concluded with the comment that the appellant's sentence of three years would be consecutive to the sentence of 7 years. This comment appears to have come to the notice of the appellant who was understandably perturbed. Steps were taken which led to a motion by counsel on his behalf before the Chief Justice. The motion asked "that the Honourable Chief Justice clarify the sentence passed on the accused on 23rd Karch to .a . Nationa1. newspaper 1989 in the light 16th Kay, on of· conments made 1989" - 3 - In his ruling the Chief Justice quoted the excerpts from his remarks on sentencing and the parts of the commitment warrant already set out above. He then stated :- "It is an established rule that two sentences awarded in two separate trials are to run consecutivety unless there is a direction that they should 'be,,~,",~· The omission in the judgment to direct that the sentences should be consecutive could not be taken as an indication that they should run concurrently becausejthe court had clearly explained in response to an express response from the prisoner the rule of procedure why the sentence passed could not be made concurrent with the sentence he was then serving". The Chief Justice then stated that the sentence of years was to run consecutive to the sentence the prisoner was then serving. He amended the warrant of commitment to give"effect to his order. The phrases from the warrant of 23rd March already cited above no longer appeared and in their stead appeared the words - "The Court has on the 20th July clarU ied the said sentence and stated that it shall raa consecu.tively". From this order the appellant has app~~le. in effect that the Chief Jutsice ".5 when he made the order of 20ta jsly it should be set aside. In our view it: ~ppeal:'S - 4 - a positive statement as to the date from which the sentence should start viz. 23rd Karch 1989. While it is the case that the stenographer's note omits a word between the words "will" and "from", it is plain that the missing word must be the word "run" or some synonym of it. Section of the Penal Code Cap provides in p a r t z "Where' a person after conviction for an offence is convicted of another offence, either be~ore sentence is passed upon him under the first conviction or before the expiration of that sentence any sentenc~ passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the Court directs that it shall be executed concurrently with the former sentence or any part thereof! Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of the payment a fine shall be executed concurrently with a former sentence under sentence 28(iii)(a) of this Code or any part thereof." The Chief Justice did have the power to make the sentences in this case concurrent, even though sentences would not normally be made concurrent when imposed at different times for offences not committed at the same time. The fact that the Chief Justice had· stated the rule would not be inconsistent with his having exercised his discretion in imposing a concurrent sentence. The Chief Justice must have based his justification on his comment that there had been an omission to state tha t the sentences were concurrent. As has been noted there was more than an omission. - 5 - Hrs Twomey drew attention to a number of cases in order to establish the stage at which a court becomes Reference need be made only to !!!~~~~ At issue there was the power of magistrates to allow a defendant to change a "guilty" plea to one of "not guilty" after the magistrates had convicted him on hlils,plea and remanded him for sentence to allow inquirie s to be made. At page 499 he discusses the case of Rex v. Norfolk Justices Prosecuti~ns -----------------------------------------------------~- justices [1950] the order Director by the 2 K. B. Public where Parte made of Ex committing a defendant to quarter sessions for sentence was held to be a nullity. The case was remitted to them to be dealt with. He concludes :- "The Attorney General submitted that as the cOlIIBital was a nullity the proceedings before the justices had not concluded and they were therefore not functi officio. Counsel for the accused, on the other hand, argued that the cases could noe be sent back for sentence as the justices had given judgment and were functi officio. The Divisional Court unanimously decided that they were not functi officio. Lord Goddard, after summarising what a judgment means, summarised his conclusion then at page 569 :- 'there must have been something which res ,,\"- end to the case; there must be a final adjudication and there has been no final adjudication in the present case. Therefore in my opinion the justices were not functi officio." By parity of reasoning when the matter has been conclusively finalised out, the order perfected), the Court becomes functus". - 6 - Wi, I understand Kr Derjacques to accept this approach. He contends that in this case there was an ambiguity. This ambiguity needed clarification. The power clarify remained and for that purpose the court to in this case was not functus. In our view there was no ambiguity. The sentence had been clearly expressed on 23rd Karc and the warrant of commitment confirmed that clear statement. The Couri.: 'was, accordingly, functus and had no jurisdict.:.t>w to effect what was a varfation on 20th July 1989. Our attention was Procedure Code. drawn T'M. S 'f. Jte to section 294 of the Criminal empowers the Court at "any time [to] amend any defect in substance or in form in order or warrant". The fact is th~ there was no defect any \: \ either in substance or form in the warrant of 23rd Karch 1989. It set out the sentence passed by the Chief Justice as it was recorded and one would have expected as he had expressed it, since he signed both t.he record of the proceedings and the warrant. It may well have been that his intention was otherwise, but the record is Ln our view far t.oo plain to permit a later variation to e f f e c t; that intention. He was by then functus officio. The appea I must accordingly be allowed. The warrant of 20th July is quashed. The warrant of 23rd Karch is valid and correctly record the period • .:1 ••.. oW ..•. - 7 - during which the appellant is 'to be detained in custody on the conviction therein set out. •• ....................... A. HUSTAFA (!!~!!~!!!l '.,' / ~LA .•. ,' ...... ~..' ...~.. v.:./. ... ----------------~~---- (:!!!!.!!f~_~!_ !!!~!~l i.:!!!!!f~_~!_ !!!~!!!l jA.; ~!!!!-!~!!--~~~__!!1_~!_2£!!!!!_!2!~~ \ \