Mettyear J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE SCA #: 0020/2016 PHILIP GLENNON EBANKS V. THE QUEEN Appearances: Nicholas Dixey of Nelson & Co. for the Appellant Ms. Nicole Petit for the Crown/Respondent Before: Justice Michael Mettyear (Actg.) Oral Submissions Heard: 2nd and 9th September 2016 Delivery of Judgment: 27th September 2016 HEADNOTE Criminal Law – s.12(3) of the Drug Rehabilitation Court Law (2015) – Mode of Trial and Taking of Plea - . JUDGMENT
This is an appeal against conviction following the Appellant’s plea of guilty to the offence of burglary. The plea was recorded in front of the learned Magistrate Foldats on the 17th December 2015. A sentence of 4 years’ imprisonment was imposed by him on the 30th May 2016.
The nub of the appeal is that both the mode of trial enquiry and the taking of the plea were rendered void by operation of s.12(3) of the Drug Rehabilitation Court Law (2015). If that argument is correct it would follow that the conviction and sentence would also be void.
The facts of the offence are not material.
The appeal raises a purely technical point. I have not been asked to hear any evidence, however, with Counsel’s consent a memorandum has been sought and received from Magistrate Foldats to which I will later refer.
Put simply the argument from Mr Dixey, for the Appellant, which he has advanced with skill and enthusiasm, runs as follows: a. The case started in the Summary Court; b. The Appellant applied to enter the Drugs Court on the 17th November 2015; c. The case was transferred to the Drug Court on the 25th November 2015; d. On the 26th November 2015 a transfer back to the Summary Court was mooted, because the Drug Court was told the Appellant was ineligible for that court. However, that did not happen because the Appellant’s Counsel was asking the Crown to review the question of eligibility; e. The mode of trial enquiry and the plea of guilty took place in the Drug Court on the 17th December 2015; f. On the 14th January 2016 the Crown reaffirmed its position that the Appellant is ineligible, and he was transferred back to the Summary Court for hearing on the 29th February 2016.
Section 12(3) of the Drug Rehabilitation Law reads: "12 (3) If the Drug Court makes an order referring a person back to the regular sitting, the proceedings against the person are to be continued before the regular sitting at a time and place specified in the order, as if- (a) the person had not been referred to the Drug Court; and (b) the proceedings had merely been adjourned to the time and place specified in the order."
Mr. Dixey submits that the effect of s.12(3) is to turn back the clock so that the original referral the 25th November, was in fact an adjournment of the case to the regular sitting on the 29th February 2016.
The Crown do not accept this submission. In particular they submit that the case was not transferred to the Drug Court and that the plea was tendered in a regular sitting of the Summary Court.
At the heart of this appeal is the Appellant's submission that the case was transferred to the Drug Court and the Crown’s contention that it never was.
Mr Dixey has accepted that if the case was not transferred to the Drug Court the appeal cannot succeed.
The Drug Court was established by the forerunner of the Drug Rehabilitation Court Law (2015 Revision). The procedure is regulated by the Drug Rehabilitation Regulations 2008 and the Drug Court Rules 2006.
An eligible Defendant who is also deemed suitable may be dealt with in the Drug Court in a way very different to a Defendant in a regular Summary Court. The “Mission Statement” of the Drugs Court is: “To hold criminal offenders accountable to stop criminal activities related to the abuse of alcohol and drugs and to increase the likelihood of successful rehabilitation of offenders…”
No doubt criminals are willing to join or apply to join the Drug Court for a variety of reasons - some creditable, others not. However, motivation is not of importance for present purposes. What is crucial is first eligibility and secondly suitability.
In the present case it is eligibility that matters.
For a person like the Defendant, a prolific offender, facing the prospect of a substantial prison sentence, it cannot have escaped him that, to be a participant in the Drug Court, he would have to be both eligible and suitable for inclusion. If he did not know this from other sources he had the benefit of highly capable and knowledgeable Counsel, Miss Lee Halliday-Davis, looking after his interests throughout this saga.
It is not necessary to look in detail at the criteria for eligibility or the process for deciding if a person is eligible. It is sufficient to record that both sides agree that the question of eligibility is decided by the Crown. If a person is ineligible he cannot properly be transferred to the Drug Court. Here the Crown never declared the Appellant eligible and therefore he could not legitimately be transferred to the Drug Court.
Suitability comes after an eligible person is professionally assessed as a suitable candidate. The Appellant’s suitability was never assessed, because the process never got that far.
Mr Dixey accepts that the Appellant should not have been transferred to the Drug Court (because he was not eligible), but claims that in fact he was so transferred and that this is demonstrated by the court files.
The defence case in favour of there having been a transfer to the Drug Court rests solely on the documentation emanating from the regular Summary Court and the Drug Court.
Each Court keeps a file concerning cases involving Defendants who come before them. For ease of reference these have been designated as SCF for Summary Court files and DRCF for Drug Court files.
Mr Dixey relies mainly on the note in the SCF dated the 25th November which reads: "Def has applied to Drug Court. No response yet as to the def's suitability".
It goes on to report that an appointment was made for the Appellant to attend the Drug Court the next afternoon at 2 p.m. The use of the word "suitability" was unfortunate and confusing. The Magistrate must have meant eligibility. No question of suitability had yet arisen.
Mr. Dixey claims further support for his proposition from the DRCF note for the 26th November which reads "Crown: not eligible, back to S.C." These words are crossed through, because, Mr Dixey claims and I accept, it must have been that the Appellant’s Counsel expressed the wish to contact the Crown and ask for a review of their decision. This is the explanation for the entry immediately below the crossing out "LH-D will write to Crown re:eligibility..." Mr Dixey claims that the note confirms that the case was in the Drug Court, and that although consideration was given to transferring it back to a regular sitting of the Summary Court, no transfer was in fact made.
The next file entries are on the SCF and the DRCF dated the 17th December 2015. The DRCF notes, in effect, that the Crown’s review was continuing. The SCF states "EST-PG to DRC". This clearly means that the defendant elected summary trial and pleaded guilty. Mr Dixey claimed that the "...to DRC" meant that the plea had been tendered to the Drug Court.
This is not accepted by the Crown or supported by the location of the entries. It was the confusion as to what these entries meant which caused the parties to agree to seek an account from the Magistrate.
On the 14th January 2016 the DRCF records, "Crown-not eligible back to SC" and notes other matters that do not touch on the issues raised by this appeal. This is the last entry for this case on the DRCF.
It is common ground that no further hearing took place in which the question of election or plea is mentioned. As Mr. Dixey said at paragraph 10 of his written submissions: "...all the parties and the Summary Court are proceeding on the basis that the election and plea on the 17th December 2016(sic) remain valid".
I agree with this. The question is: Were they right to do so.
Although I agree with Mr. Dixey that the file notes taken at face value lend some support for his submissions, there are also powerful reasons to think that the submissions are mistaken. The case throughout benefited from continuity of tribunal and defence Counsel. The Crown were also represented throughout. Magistrate Foldats is very experienced with the workings of Drug Court.
All must have realised that, unless eligible, the Appellant could not enter the Drug Court programme. The question of eligibility is mentioned more than once in the file notes and must have been at the forefront of everyone’s mind. That the Court would deliberately ignore the requirement of eligibility is nonsensical. There would be no point.
If Mr. Dixey’s submissions are correct the only other possibility is that the Court, Crown Counsel and defence Counsel negligently overlooked the eligibility requirement and allowed an inappropriate transfer to the Drug Court. One cannot simply dismiss this. Judges make mistakes and so do lawyers, but in the circumstances of this case, it seems unlikely. So the question arises as to how, if at all, is it possible to reconcile that which seems manifestly unlikely, with the courts’ files. Here the Memorandum of Magistrate Foldats comes into play.
The Magistrate refers to the “dual jurisdiction” of the Drug Court sitting as both a Summary Court and a Drug Court. He also refers to the requirement that: “Proceedings before the drug Court are to be conducted...with as little formality and technicality and as much expedition, as the requirement of the Law, the regulations, the rules and the proper consideration of the matters before the Drug Court permit”.
I unhesitatingly accept the submission of Mr. Dixey that if the Court has conducted itself inappropriately so as to deprive the Summary Court of jurisdiction to convict and sentence the Appellant, these provisions cannot rectify the situation.
More importantly the Memorandum deals with the procedure adopted in cases like the present. It states: "In practice, there are two main routes that an accused may take to enter the Drug Court: a) a guilty plea is entered in a regular sitting of the summary court followed by a referral to a Drug Court sitting or, b) a matter is adjourned without plea from a regular sitting of the summary court to a Drug Court session where a guilty plea is then entered. Regardless of which route is taken, the accused is initially viewed as an applicant only and is not viewed as a Drug Court participant unless and until he has been found eligible and a provisional treatment order made pursuant to s 8(9) of the Rules. For administrative convenience, a Drug Court folder is created for all applicants. Consequently, there are two folders in relation to an applicant – a purple coloured "Drug Court" folder and a manila coloured folder for the original summary court criminal charges. Magistrates endorse the file folders with a brief summary of what occurred on any given court appearance. Endorsements are made on both folders in respect of a single court appearance where applications are pending or a case has concluded. In the case of a successful application to enter the Drug Court, no further endorsements are made on the "regular" summary court file (until the case is concluded) because the applicant is viewed as a Drug Court participant. In the appellant’s case, the two folders were logged as C # 6623/2015 and DRC # 53/2015. The folder for C # 6623/2015 catalogues the appellant’s appearances in the "regular" summary court. The folder for DRC # 53/2015 catalogues the appellant’s appearances in Drug Court. The crucial endorsements relate to the appellant’s court appearance on 17 December 2015. Both of the appellant’s folders were endorsed although there may have been only one court appearance. The endorsement on C # 6623/2015 indicates that the appellant was put to his election and plea in the summary court. He elected to be tried summarily and he entered a guilty plea; his case was then referred to the Drug Court (no stay of proceedings was sought or entered in the regular summary court pursuant to s 4 (3) of the Law). The endorsement on DRC # 53/2015 for the same date indicates that the Crown would review the defendant’s application to the Drug Court."
Mr. Dixey does not accept the contents of the Memorandum and stated that parts of it are illogical. However, I accept the submission of Miss Petit that it truly reflects the procedure adopted and accurately explains the file notes that might otherwise seem to support the Defence submissions.
I can see nothing wrong with the Summary Court allowing Applicants, who they no doubt hope will be accepted as eligible, appearing before the Drug Court, pending a decision, as a sensible and pragmatic means of expediting proceedings. It involves a Defendant appearing before the Drug Court, but not being transferred to it.
In my view nothing in this case happened that caused the Summary Court not to have jurisdiction to accept the Appellant’s election of summary trial or his plea of guilty. Further, I find, that the Appellant pleaded guilty before a regular sitting of the Summary Court and that he was never a participant in the Drug Court.
In view of those findings this appeal fails and is dismissed.
Had my decision been different on the above issue, other interesting questions would have required consideration, but they do not now arise. Dated this the 27th September 2016 Mr. Justice Michael Mettyear (Actg.) Acting Judge of the Grand Court