Kellock J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN IN GEORGE TOWN, GRAND CAYMAN SCA #28 OF 2000 DERON LEWIS vs REGINA Reasons for Judgment delivered by THE HONOURABLE MR. JUSTICE KELLOCK on Thursday, April 10, 2003, at George Town, Grand Cayman. APPEARANCES: For the APPELLANT: MR. L. FREEMAN For the RESPONDENT: MR. A. ROBERTS 1 COURT COMMENCED ON THURSDAY, 2 APRIL 10TH 2003 AT 3:50 P.M. THE COURT: Deron Lewis appeals from his conviction and sentence on charges of violating the Misuse of Drugs Law (2000 revision). The offences are said to have been committed on April 3rd, 2000. After a trial which proceeded over several days, but with lengthy adjournments in between, Lewis was found guilty on July 10th, 2000 of two offences, and found not guilty of two other offences. Several grounds of appeal have been raised, but the argument before me was ultimately restricted to the circumstances which led the learned Magistrate to amend the charges upon the basis of which the trial had been conducted, and that was done pursuant to section 73 of the Criminal Procedure Code which, for our convenience I will refer to as the "CPC". The relevant charges read as follows (before amendment):
Deron Lewis on the 3rd day of April 1 2000 at George Town, Grand Cayman had in his 2 possession whether lawfully or not, with intent 3 that it be supplied, whether by himself or some 4 other person and whether in the Islands or 5 elsewhere, to another person a controlled drug 6 namely cocaine, being more than two ounces 7 namely, 2.446 kilograms. 8 2. Deron Lewis on the 3rd day of April, 9 2000 at South Church Street had in his 10 possession whether lawfully or not, with intent 11 that it be supplied, whether by himself or some 12 other person and whether in the islands or 13 elsewhere, to another person a controlled drug 14 namely cocaine, being more than two ounces to 15 wit 487 grams. 16 The two charges that were dismissed 17 alleged that Lewis had on the same date 18 (April 3 2000) imported more than two ounces of 19 cocaine. 20 Section 3(1) of the Misuse of Drugs Law 21 provides as follows: 22 "Whoever, without lawful excuse or without 23 being authorized in that behalf 24 (a) imports; 25 (b) exports; (c) produces; (d) stores; (e) sells, buys or otherwise deals in; (f) supplies; (g) distributes; (h) dispenses; (i) issues a prescription for; (j) administers; (k) possesses, constructively or otherwise; (l) consumes; or (m) has in his possession, whether lawfully or not, with intent that it be supplied whether by himself or some other person and whether in the Islands or elsewhere to another person in contravention of this subsection, (and I'll skip some language that is not important for this case) any controlled drug, or who attempts, assists or is concerned in any such matters is guilty of an offence." I note that for the purposes of a charge under section 3 (1) (k) possession includes constructive possession, but the word 1 "constructive" or "constructively" is conspicuously absent from section 3 (1) (m). 2 The evidence at the trial was completed on June 26, 2000 and counsels' submissions were then made on June 28th, 2000. 3 On July 10, 2000 the learned Magistrate read her Reasons for Judgement in open court. 4 She reviewed the evidence given by the police officers and defence witnesses, including the evidence given by Lewis. She accepted the Crown's evidence and rejected Lewis' version of critical events. 5 She found that on the day in question Officer McLaughlin of the Royal Cayman Islands Police force received a telephone call and discussed with the caller the purchase (by McLaughlin who was working undercover) of a quantity of cocaine. It seems that an agreement was reached between McLaughlin and the would-be seller and as a result McLaughlin went in an unmarked car to a parking lot in the vicinity of Smith Cove. He was accompanied in the car by another police officer. 6 The parking lot had by then been put under surveillance by additional police officers. 1 Shortly thereafter another vehicle, which 2 contained three members of the crew of the 3 cruise ship "Splendour of the Seas" arrived. 4 These three (which included Lewis) got out of 5 the car. Lewis approached McLaughlin and a 6 conversation between them ensued. Lewis said 7 he had the "stuff" and McLaughlin said he had 8 the cash. 9 Lewis then gave instructions to one Nelson 10 (another member of the crew) to get into 11 McLaughlin's vehicle, which Nelson proceeded to 12 do. Nelson handed a package to Officer Secord 13 who was in the vehicle with McLaughlin and 14 thereupon all three of the sailors were 15 arrested. 16 The content of the package was 17 subsequently analysed and found to be cocaine. 18 Later on the same day the arrested men were 19 taken to the cruise ship and a further quantity 20 of cocaine was found in a location pointed out 21 to the officers by Nelson. 22 Lewis was interviewed by the police and 23 his statements were written down by Officer 24 Tatum. 25 The foregoing recital of the facts is (SUMMARY COURT APPEAL - DERON LEWIS V R) taken from the learned Magistrate's judgment. At trial Lewis took the position that he had not made the statement so recorded and said that while he was interested in acquiring some ganja that day, he knew nothing about cocaine. According to the notes of evidence taken by the learned Magistrate, Lewis was tried together with the other members of the cruise ship crew, one Julian Ceaser and the aforesaid Nelson. The learned Magistrate found that there was no case against Ceaser to answer and he was accordingly discharged. The Magistrate's notes indicate that Nelson pleaded guilty to the charges against him and did not testify, although the notes indicate that the Crown had considered calling him as a prosecution witness. That may or may not be significant in the light of what I will have to say in due course. The magistrate found that it was Lewis who had spoken to McLaughlin on the telephone and that he was the person who had arranged the transaction in the parking lot. She also found that Lewis told McLaughlin in her telephone 1 conversation that he was in a position to 2 provide additional quantities of cocaine which 3 he, Lewis, could obtain -- I presume from the 4 ship. 5 In addition, she rejected Lewis' evidence, 6 preferring the evidence given by the police 7 officers. She went on to hold that the 8 evidence did not support a finding that Lewis 9 had possession of either the cocaine delivered 10 to Officer Secord or the cocaine recovered from 11 the vessel "Splendour of the Seas". She could 12 not therefore find Lewis guilty as charged. 13 She held instead that the appropriate charge 14 against Lewis was in both cases "that of being 15 concerned in the possession of cocaine with 16 intent to supply". The learned Magistrate then 17 concluded her judgment as follows: 18 "I find Mr. Lewis not guilty of 19 both charges of importation of 20 cocaine. The charge of being 21 concerned in the possession of 22 cocaine with intent to supply is 23 substituted for each charge of 24 possession of cocaine with 25 intent to supply pursuant to 1 section 73 of the Criminal 2 Procedure Code and the required 3 procedure following said 4 subsection will be followed." 5 The learned Magistrate's notes indicate 6 that she then amended the two charges in issue 7 on this appeal and Lewis was arraigned on those 8 amended charges. 9 He pleaded not guilty and was then advised 10 that he had a right pursuant to section 73 of 11 the CPC to have witnesses recalled. The 12 learned Magistrate then adjourned court at 13 12:20 p.m. on July 10th until 2:20 p.m. 14 It seems clear from this account that the 15 defence had no opportunity whatever to address 16 the court on the question of whether or not the 17 amendments made by the Magistrate should or 18 should not be made. They were not, of course, 19 amendments proposed by the Crown, they were 20 amendments made by the court ex proprio motu. 21 When court resumed, counsel for Lewis 22 advised the court that his client wished to 23 call Nelson to testify. However, the notes of 24 the trial also indicate that Lewis' counsel 25 advised the court that on his reading of the law, "that situation is not provided for". At that point the learned Magistrate ruled that section 73 of the CPC did not allow Lewis to call fresh evidence from a new witness and the application to call Nelson was therefore refused. Counsel for Lewis then advised the court that Lewis did not seek to call any other witness. After hearing submissions, the learned Magistrate sentenced Nelson to eleven years on one charge and seven years concurrent on another charge indicating that the first mentioned sentence reflected Nelson's cooperation with the police. Lewis was sentenced to thirteen years in respect of the charge involving 2.446 kilograms of cocaine and nine years concurrent with respect to the charge involving 487 grams. (I gather that the former quantity was the amount found on the ship). The grounds of appeal. Mr. Freeman originally put forward at least three grounds for the appeal from Lewis' convictions. During the argument before me, the third ground was withdrawn so I need to deal only with the first 1 two. 2 Ground one is that the learned Magistrate 3 erred in law in substituting the words "was 4 concerned in the" for the words "had in his" so 5 that as amended Lewis was charged with being 6 concerned in the possession of cocaine 2.446 7 kilograms in one charge, and 487 grams in the 8 other. I note that the latter charge seems to 9 also have been amended by adding the quantity 10 of cocaine, but no issue was taken with that 11 amendment. 12 Ground two is that the charges were 13 amended too late in the proceedings and that 14 this necessarily caused prejudice or injustice 15 to Lewis, and that the learned Magistrate 16 failed to exercise her discretion to adjourn 17 the trial. 18 As I stated earlier, the learned 19 Magistrate's written judgment, which she read, 20 concluded by finding Lewis not guilty of both 21 charges of importing cocaine. She then 22 substituted for each possession charge a charge 23 of being concerned in the possession of cocaine 24 with intent to supply, and stated that the 25 procedure dictated by section 73 of the CPC 1 would be followed. 2 The notes of trial indicate that the 3 substituted charges were then put to Lewis and 4 he entered pleas of not guilty to both. 5 It was at this point that Lewis was 6 advised of his right to have witnesses recalled 7 under section 73 of the CPC. The court did not 8 seek any submissions from the defence as to 9 whether or not the charges should be amended. 10 At the time defence submissions were made the 11 amendments were a "fait accompli". 12 In his submissions, counsel for Lewis 13 seems to have suggested -- and these are the 14 submissions he put before the Magistrate 15 adjourned to consider her judgment -- that the 16 evidence established a case of being concerned 17 in the possession rather than being in the 18 actual possession. It seems to me that that 19 submission was directed to persuading the court 20 to acquit Lewis of the charges he was facing. 21 It was not put as an invitation to amend the 22 charges. However, no submissions were made to 23 me on that point. 24 It is necessary now to set out section 73 25 of the CPC in its entirety. (SUMMARY COURT APPEAL - DERON LEWIS V R) Section 73 (1) Where, at any stage of a trial it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration or addition of a charge, as the court thinks necessary to meet the circumstances of the case: Provided that where a charge is altered, added or substituted as aforesaid, the court shall thereupon call upon the accused person to plead to the altered or new charge. Provided further that in such case the accused person shall be entitled, if he so wishes, to have the witnesses (or any of them) recalled to give evidence afresh or to be further cross-examined by the defence, and, in such last mentioned event, the prosecution shall 1 have the right to re-examine any 2 such witness on matters arising 3 out of such further 4 cross-examination. 5 (2) Variance between a charge 6 and the evidence adduced in 7 support of it with respect to 8 the day upon which the alleged 9 offence was committed is not 10 ordinarily material and the 11 charge need not be amended for 12 such variance if it is proved 13 that the proceedings were in 14 fact instituted within the time, 15 if any, limited by law for the 16 institution thereof and the 17 actual date is not material on 18 any other ground. 19 (3) Where an alteration, 20 addition, or substitution of a 21 charge is made under subsection 22 (1) or there is a variance 23 between the evidence and the 24 charge as described in 25 subsection (2), the court shall, 1 if it is of the opinion that the 2 accused has been thereby misled 3 or deceived or may be prejudiced 4 in the conduct of his defence, 5 adjourn the trial for such 6 period as may be reasonably 7 necessary in the interest of 8 justice." 9 Let me just say that section 73 seems to 10 contemplate an amendment where at any stage of 11 the trial it appears to the court that the 12 charge is defective either in substance or in 13 form. 14 The proviso to section 73 requires that 15 the charge as altered be put to the accused 16 person who is to be asked to plead to the 17 altered charge. And, the proviso indicates 18 that the accused person shall be entitled, if 19 he wishes to have witnesses recalled, to give 20 evidence afresh or to be further 21 cross-examined. It does not mention who the 22 legislator thought would be recalling the 23 evidence or examining the witnesses. It simply 24 says that the accused can ask to have the 25 witnesses recalled. (SUMMARY COURT APPEAL - DERON LEWIS V R) 1 Subsection (3) of section 73 provides that 2 if the court is of the opinion that the accused 3 has been misled or deceived or may be 4 prejudiced in the conduct of his defence, 5 adjourn the trial for such period as may be 6 reasonably necessary in the interests of 7 justice. 8 I note that while section 73 (1) purports 9 to contemplate an amendment to a charge at any 10 stage of the trial, the provisions concerning 11 the recalling of witnesses and the provisions 12 of subsection (3) concerning the accused being 13 misled or deceived or prejudiced in the conduct 14 of his defence seems to contemplate that 15 amendments to charges will not be made after 16 the completion of the Crown's case. 17 It seems to me that section 73 (1), in 18 referring to the recalling of witnesses, does 19 not contemplate the situation where the accused 20 has already defended the case and is met, as 21 Mr. Lewis was in this case, with the ruling 22 that he could not call a witness who had not 23 already been called. That, in my opinion, only 24 works if the amendment is made prior to the 25 close of the Crown's case. 1 Similarly, subsection 73 (3) in my 2 judgment speaks in futuro when it addresses the 3 problem of the accused being prejudiced in the 4 conduct of his defence. Those words are not 5 apt to describe the situation in which the 6 defence has already been conducted. 7 As there seems to be a paucity of 8 authority with respect to amending charges in 9 this jurisdiction, Mr. Freeman directed my 10 attention to cases decided under the provisions 11 of the English Indictments Act of 1915 which 12 seem to be very similar, if not identical, to 13 the provisions of section 116 of the CPC which 14 govern the practice to be followed in this 15 court in criminal trials based on indictment. 16 That legislation contemplates that 17 amendments may be made to an indictment at any 18 stage of the trial provided that such can be 19 made without injustice. And that is in part in 20 essence what section 73 provides for. 21 The question immediately arises as to 22 whether, how, and by whom injustice, potential 23 injustice or probable injustice is to be 24 demonstrated, or whether injustice may be 25 presumed. I will return to this point in due (SUMMARY COURT APPEAL - DERON LEWIS V R) 1 course. 2 The Court's jurisdiction to amend is 3 expressed in the same language in both section 4 5 of the English act and section 116 subsection 5 (1) of the CPC. Under these statutes, if it 6 appears to the court that an indictment is 7 defective, the indictment shall be amended 8 "unless, having regard to the merits of the 9 case the required amendments cannot be made 10 without injustice". In contrast, section 73 11 (1) provides that amendments "may" not "shall" 12 be made. 13 As I've said, I was referred to a number 14 of English decisions, including 15 Rex v West et al -- (1948), 1 All England 16 Reports 718, Regina v Gregory 1972, 2 All 17 England Reports 861. R v Johal and Ram 1992, 2 18 All England Reports 448 and R v Martins 1961 19 two All England Reports 747. 20 In R v Gregory the defendant had been 21 charged with receiving stolen goods, (in that 22 case a starter motor) for a motor vehicle 23 alleged to belong to one Wicke, the 24 defendant's sometime employer. At the end of 25 the evidence; that is, all of the evidence, the court amended the charge to delete the name "Wickes" so that the charge would allege instead that the starter motor was the property of a person or persons unknown. The Court of Appeal quashed the conviction on the basis that the defendant had been substantially prejudiced by the amendment. The court thought that mounting a defence to possession of goods of undetermined ownership was a significantly different task than defending against a charge of possessing property stolen from one specified named individual. In Rex v West the Court of Criminal Appeal made it clear that before amending an indictment of its own motion, the court should have invited the parties, and in particular the defence, to express their views. It seems that the Court of Appeal's opinion in Rex v West represents the law as it was under the English Act of 1915 -- and I assume that is applicable to section 116 of the CPC. In R v Johal, Ashworth J. said at page 452: "This court shares the view expressed in some of the earlier cases that the amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely it is that injustice will be caused, and in every case in which amendment is sought it is essential to consider with great care whether the accused person will be prejudiced thereby". The required careful consideration must, in my opinion, include any submissions counsel care to make, but in this case no opportunity to make those submissions was provided. It seems that the authorities I have just referred to were not taken into account by counsel or by the court in this case. Based upon these authorities, I have reached the conclusion that at least in the case of indictments the court should seek input from counsel before making amendments. I also conclude that whether or not an amendment will cause injustice is a matter the court must consider carefully in the light of counsel's submissions. I should say that no reason occurs to me to support the proposition that a person charged in the Summary Court, especially with offences that carry the heavy sentences that Mr. Lewis was charged with should be afforded anything less in terms of the law's protection. I would also conclude from the authorities that it is the likelihood, rather than the probability of injustice which must be examined and considered and, accordingly, doubtful cases must be resolved in favour of the accused. The Court's decision as to whether or not to amend an indictment or charge must take into account all the circumstances including the desirability of adjournments, and the need to call or recall witnesses to testify. It is not difficult to imagine cases in which in order to avoid injustice, amendments will have to be refused. The foregoing, of course, relates to amendments to indictments and not to the amendment of charges pursuant to section 73 of the CPC, but as I have said, I cannot see any reason for affording those persons who are accused in the Summary Court with fewer or lesser rights. There is only one reported Cayman Islands decision concerning the amendment of charges which was referred to in argument, and that is R v Merren, reported as RL Merren and CB Merren v R, 2000 Cayman Islands Law Reports 234, a decision of Mr. Justice Sanderson. In that case Mr. Justice Sanderson reached the conclusion that the charges against the defendant ought to have, but had not been amended. He said at page 240 that the court had invited the Crown to consider whether an amendment should be sought, but the Crown had advised that no amendment was necessary because as Miss Clarke put it "the actual wording is immaterial so long as the spirit of the charge is readily understood and the essential ingredients are proved". Mr. Justice Sanderson then said: "The result is the court did not hear any submissions from the appellant's counsel as to the prejudice they might suffer should the court grant an amendment, although it would probably have been a difficult task to persuade the court that prejudice would occur. Because of the suggested amendment, no such amendment was sought either on appeal or at trial." I would say that Mr. Justice Sanderson's observations in that case were obiter and from the authorities I have been referred to I would not think that there is much support for the proposition that the onus is on the accused to establish prejudice but rather the onus is on the Crown to refute it, and I will come to the authorities in that respect momentarily. The first point to be determined in this case is whether or not the court should consult the parties before amending a charge under section 73, and I am firmly of the view that the court is obliged so to do. The second point is the need to address the prejudice issue in this case. As I have said, as is apparent, section 73(1) of the CPC is couched, in part in language, very similar to that found in section 5 of the 1915 English Indictments Act and section 116 of the CPC. But section 73(1) after providing for amendments to charges stops before the words found in those sections following the word "unless" so that the question of injustice is not mentioned in section 73(1). The two provisos requiring the accused to plead to the amended charge and explicitly entitling the accused to have witnesses recalled seem to assume that prejudice is likely but it can be remedied by affording the defence the opportunity to recall witnesses. But section 73(1) also clearly contemplates that if amendments are made, it will be before the defence has adduced its evidence, and certainly before the completion of the evidence for the reasons I have already given. Section 73(1), as I have said, does not speak of prejudice that is left to section 73(3). That subsection bears repeating: "Where an alteration, addition or substitution of a charge is 1 made under subsection (1) or 2 there is a variance between the 3 evidence and the charge as 4 described in subsection (2), the 5 court shall, if it is of the 6 opinion that the accused has 7 been thereby misled or deceived 8 or may be prejudiced in the 9 conduct of his defence, adjourn 10 the trial for such period as may 11 be reasonably necessary in the 12 interest of justice." 13 Section 73 (3) does not state what purposes 14 an adjournment is intended to serve, and does 15 not explicitly allow the defendant to call 16 fresh evidence. Section 73 taken as a whole 17 contemplates only the recall of witnesses who 18 have already testified. 19 If I am wrong, and section 73 does 20 contemplate amendments to the charges after the 21 completion of all the evidence, including the 22 evidence that the defence has chosen to adduce 23 in response to the charge it has been facing, 24 then there is no obvious reason why the defence 25 rights are to be limited to recalling evidence 1 adduced in a different context. It seems to me 2 that the interpretation one is driven to by 3 reading section 73 as a whole is that 4 amendments other than highly technical 5 amendments of form not substance are not 6 contemplated after the close of the Crown's 7 case. If that is not right, then it would be 8 my opinion that section 73 requires the court 9 to refuse an amendment, if the remedies for 10 potential prejudice, which are limited by 11 section 73(1) and 73(3) appear to be 12 inadequate. On that interpretation the court 13 would be bound to hear from counsel before 14 amending the charge, and this obligation would 15 be essential if the amendment was to be made 16 after the completion of the Crown's case. 17 It seems to me that in all criminal cases, 18 there is an overriding principle to be applied, 19 and that is the right of all accused persons to 20 make full answer and defence. 21 Assuming for the purposes of illustration 22 only, that the defendant in the case at bar 23 could not make full answer and defence to the 24 amended charges, unless he could rely on the 25 evidence to be given by Nelson, and that 1 section 73 prohibited him from calling Nelson, 2 there would, in these circumstances, be a 3 miscarriage of justice, and a miscarriage of 4 justice mandated by the provisions of section 5 73 of the CPC. I have great difficulty coming 6 to that conclusion. It therefore seems to me 7 that the better view is that while section 8 73(1) authorizes the court to amend charges, 9 its language is permissive; that is to say, 10 "the court may" make amendments but the court 11 may also decline to amend the charge and must 12 direct its mind to that issue. Unfortunately, 13 it does not appear that the learned Magistrate 14 directed her mind to these considerations in 15 this case. 16 It is important to point out that neither 17 section 5 of the 1915 U.K. Indictments Act, nor 18 section 116 of the CPC explicitly requires the 19 court to consult the parties before making 20 amendments to indictments; nevertheless, the 21 law requires that to be done. There is no 22 apparent reason why amendments to charges under 23 section 73 should not be subject to exactly the 24 same requirement. 25 I come now to the question of prejudice, (SUMMARY COURT APPEAL - DERON LEWIS V R) given the lateness of the amendments in this case, and I will first refer to the judgment of the Lord Chief Justice in R v Hughes, 1927, 20 Criminal Appeal Reports page 4. In that case, the accused was charged with falsely pretending to be a person in a position to hire managers of public houses and he represented to those persons that he could so appoint them and, as a result, obtained sums of money from them. The following appears in the Lord Chief Justice's judgment at page 7. "The matter having proceeded to the end of the case for the prosecution upon the footing of the false pretences as stated in the indictment, namely, 'By falsely pretending that he would appoint' ... an application for amendment was made, and at that stage of the case the learned judge thought it right to amend every one of those counts relating to false pretences by re-stating each of them in this way: 'By falsely pretending that he, the said Robert Hughes, was in a position to appoint' - in other words, clearly substituting a representation of an alleged existing fact for words which in themselves were consistent with the making or the offering of a mere promise about the future." I pause here to say that that amendment does not appear on the face of it to be dramatic, (and it was argued in this case that the amendment was not dramatic.) The Chief Justice continued at page 9 as follows, referring to a provision of the 1915 Indictments Act: "That subsection makes it abundantly clear that those words 'at any stage of the trial' are sufficiently wide to permit amendment at a time when it is no longer possible for the grand jury in fact to find the indictment in the amended form. But regard must be had to the remaining words of subsection (1) of this section 'unless, having regard to the merits of the case, the required amendments cannot be made without injustice.' In the opinion of the Court, that subsection is dealing with what it speaks of, namely, a case where an indictment is defective. The function of the subsection is to enable the Court, in order that justice may be done, to remedy a defect in the indictment. That is a wholly different matter from revising and altering the substance of what is charged. As this indictment was copied and passed, it alleged the false pretence which was no false pretence at all. The evidence that was given was largely consistent with the view that a representation of that kind, and not of another kind, was made, and in our opinion it would be a bad precedent in the circumstances of such a case as this to permit the re-writing of the false pretence at the conclusion of the case for the prosecution so as to introduce into the indictment for the first time the fundamental ingredient of a representation of an alleged existing fact. It was not correcting a defect in the indictment, it was altering its substance and it was altering its substance in circumstances in which, as it appears to us, the defendant was prejudiced by the alteration. In those circumstances we have come to the conclusion that the verdict of guilty on all of counts of this indictment that have to do with false pretences fails and to that extent the 1 convictions must be quashed." 2 The court went to say at page 9: 3 "What might have happened if 4 another course had been taken is 5 not useful to speculate, and 6 indeed it may well be that upon 7 the moral merits of this case 8 there is little to be said on 9 the part of the appellant. But 10 we are satisfied that it would 11 be a dangerous precedent if this 12 amendment, being what it is, and 13 made when it was, should be 14 upheld. We have therefore come, 15 not without reluctance, to the 16 conclusion that his appeal 17 succeeds, and that this 18 conviction must be quashed." 19 I observe, firstly, that the amendment in 20 that case was made before the defendant was 21 called upon to adduce evidence in defence, and 22 that the alteration was not dramatic; that is, 23 the alteration of the charge was not dramatic. 24 In R v Cross and Channon 1971 55 Criminal 25 Appeal Reports page 540, Mr. Justice Waller had 1 before him charges against a Mr. Channon and a 2 Mr. Cross. Mr. Justice Waller said at page 3 541: 4 "The applicant Channon, who was 5 a member of the Stock Exchange, 6 was separately convicted on six 7 counts of fraudulent conversion 8 and Channon and the applicant 9 Cross, who was a solicitor, were 10 both convicted of the offence of 11 fraudulent conversion by 12 trustees." 13 He then (at page 542) refers to count 7, 14 which related to both applicants and indicates 15 that they were charged as trustees of the Blake 16 Trust and they were charged with converting 17 part of the Trust estate, namely £16,289 to 18 their own use and benefit. 19 He comes then to the case of Cross at page 20 543 and states as follows: 21 "In the case of Cross, however, 22 different considerations arise. 23 He was a co-trustee with the 24 applicant Channon, and the 25 nature of the case against him was that he was a party to the breach of trust and to the fraudulent conversion of the money. The prosecution sought to say that because of his behaviour in 1967 and in 1968 when he was not answering enquiries in relation to the Trust affairs with great promptitude... he was party to the issue of share certificates in AJC in the name of the trustees and there were other instances which it is unnecessary to go into in detail -- The case for the prosecution was that because of that behaviour it would be open to the jury to draw the inference that he, Cross, although he did not receive one penny benefit from the money, was concerned in the actual conversion of the money fraudulently in 1966." At page 544, Mr. Justice Waller said: "After the jury had convicted, the learned judge interrupted Mr. Marriage, who was mitigating on behalf of the defendant Cross, to say: 'I take the jury's verdict, and certainly my own view of the matter is that he did not know that the conversion was actually going on; he knew of it after it happened.' So it was quite clear that the learned judge thought that it was very difficult for the jury to be satisfied that Cross knew the money was being dishonestly used. Although there had been no cross-examination in the course of the case to support a case under section 4 of the Criminal Law Act 1867, the learned judge interrupted Mr. Havers when he 1 was making his final speech to 2 the jury to say that he thought 3 that the case was really covered 4 by section 4 of the Criminal Law 5 Act. We have been told that 6 that was a complete surprise to 7 Mr. Havers." 8 ("Mr. Havers" was Michael Havers QC, later 9 Lord Chancellor.) 10 Section 4 of the Criminal Law Act provided 11 as follows: 12 "Where a person has committed an 13 arrestable offence, any other 14 person who, knowing or believing 15 him to be guilty of the offence, 16 or of some other arrestable 17 offence does, without lawful 18 authority or reasonable excuse, 19 any act with intent to impede 20 his apprehension or prosecution 21 shall be guilty of an offence. 22 2) If on the trial of an 23 indictment for an arrestable 24 offence the jury are satisfied 25 that the offence charged (or some other offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it, they may find him guilty of any offence under section 1 above of which they are satisfied that he is guilty in relation to the offence charged." That was the section that the judge in the Cross and Channon case thought the jury should properly have substituted for the conviction they registered which the learned judge thought had been improperly registered. Mr. Justice Waller then continues at page 545 as follows: "When one regards the case as a whole, in our view, there are four difficulties in the approach of the learned Common Serjeant. 1. The judge clearly thought that the offence under count seven as charged was not proved, but the verdict showed apparently that it was, and, in our view it is clearly wrong that there should be that kind of confusion about a verdict in a case such as this. The count charged specific knowledge by the applicant in relation to a fraudulent conversion by trustees, whereas the judge was apparently allowing the jury to return a verdict of guilty on that count although he intended that it should be a verdict of guilty of an offence by virtue of section 4(2) (of the Criminal Law Act). 2) In our view, it is most undesirable and wrong for the issue of section 4 to be raised after the evidence is closed. If the prosecution foresee that a charge under section 4 may be the proper way in which to deal with the facts, there should be a specific count on the indictment charging it. But if in the course of the case, by reason of the evidence that is given in the case, the nature of the case for the prosecution changes, where, for example, the defendant gives evidence which would exculpate him from the offence charged but would provide a case covered by section 4 and, therefore, a verdict could be brought in by section 4 (2), there would obviously be no objection to the prosecution raising the question of an offence under section 4. But that matter should be raised before the evidence has been completed so that the defence may have an opportunity to deal with it. When it is raised in the course of counsel's speech, the defence has had no proper opportunity of dealing with it. Where section 4 is to be considered as a possible verdict, if it is foreseen in advance that an offence under section 4 would be an appropriate charge, it should be specifically charged. If this is not foreseen in advance, but emerges in the course of the case, then the defendant should be told before the evidence is closed of the possibility of a verdict under section 4 and he should be offered the opportunity of an adjournment, if he so wishes, in order to enable him to meet that particular charge." In the result, Mr. Justice Waller said at page 547: "Accordingly, therefore, we are of the opinion that this verdict is both unsafe and unsatisfactory... Accordingly, this Court will 1 grant leave to appeal, will 2 treat his hearing as the hearing 3 of the appeal and will quash the 4 conviction." 5 In R v Radley 1973, 58 Criminal Appeal 6 Reports at page 394, the Lord Chief Justice 7 referred to R v Martin and R v Smith and 8 continued at the bottom of page 401 as follows: 9 "From those two passages, I 10 derive two conclusions, first of 11 all, that the indictment may be 12 defective if it fails to allege 13 an offence disclosed by the 14 depositions, or alternatively it 15 alleges an offence not disclosed 16 by the depositions, and 17 furthermore from the words used 18 by Humphreys J. (in R v Smith) I 19 take the point that, in view of 20 the fact that justice lies at 21 the back of all these 22 considerations and that no 23 amendment is to be made if it 24 cannot be made without 25 injustice, one ought to give a fairly liberal meaning to the language of section 5. That is not being done in this Court for the first time. The tendency in the last ten years has been to relax the technicalities of criminal pleading, bearing in mind that injustice to the defendant from any proposed amendment must be refuted. With those matters in mind, I cite MARTIN'S case as a good example of the width of meaning of 'defective' in section 5. But the case is of interest on the second point as well, because obiter the Court considered the question of an amendment being made after arraignment, and on page 206 and 228 of the respective reports, Lord Parker C.J. said: 'After arraignment it is doubtful whether a new count can be added at all, as the defendant will not have pleaded to it nor, if the trial has started, have been put in charge of the jury on it; and if it were made, injustice, as the case of Errington and Hughes show, would almost certainly be caused.1 The Court's reluctance to allow, at a late stage in the trial, an amendment which alleges a new offence is also illustrated in Harden 1962, 46 Criminal Appeal Reports at page 90.2 And then there is the judgment of the Court of Criminal Appeal in R v Collison in 1980, 71 Criminal Appeal Reports at page 249.3 In this case, Mr. Justice Thompson read the judgment for the court and referred to the judgment of Mr. Justice Ashworth in Johal and Ram which I have referred to earlier, and he also refers to R v Radley and indicates that Lord Widgery, C.J. said the following, and I am quoting from page 254: "Now it is accepted... That it was a good indictment in the sense that there was no defect in regard to form, but the fact that the indictment was not liable to be quashed on that ground does not mean that it is not defective, because 'defective' in the context of section 5 has got a very much wider meaning." A little later the learned Chief Justice said this at page 401 to 402: "... the indictment may be defective if it fails to allege an offence disclosed by the depositions... and furthermore from the words used by Humphreys J. I take the point that in view the fact that justice lies at the back of all these considerations and that no amendment is to be made if it cannot be made without injustice, one ought to give a fairly liberal meaning to the language of section 5. That is not being done in this Court for the first time. The tendency in the last ten years has been to relax the technicalities of criminal pleading, bearing in mind that injustice to the defendant from any proposed amendment must be refuted." That suggests to me that in the case at bar, not only was the learned Magistrate required to consult counsel before making the amendment, but because the amendment was made at such a late stage, it was up to the Crown to convince the court that the conviction could be safely registered on the amended charges without prejudice. Lastly, I will refer to a recent judgment R v Piggott and Litwin 1999 EWCA Crim 755, decision of 18th March 1999. Again it is the Court of Appeal Criminal Division. The judgment of the court was delivered by Lord Justice Waller. He says at page 9: "Finally we were referred to R v O'Connor 1997 Criminal Law Reports 516. In that case the 1 appellant was managing agent of 2 a company which owned a fishing 3 vessel which foundered at sea in 4 February/March 1991 with the 5 loss of all six members of the 6 crew. The original indictment 7 contained six counts alleging 8 manslaughter in identical terms 9 save that each related to a 10 different member of the crew. 11 The particulars of each offence 12 alleged that the appellant had 13 caused the death of each crew 14 member by allowing the vessel to 15 go to sea in an unseaworthy 16 condition and with no or no 17 adequate life saving equipment. 18 On the 27th day of the trial, 19 and after a submission of no 20 case to answer by the defence, 21 count 7 was added by amendment 22 which alleged that the appellant 23 unlawfully killed a person 24 unknown, a member of the crew, 25 by failing to take reasonable care of their safety. The appellant was subsequently convicted of manslaughter on that count alone. The Court of Appeal held that the effect of the amendment was unfair because the factual basis of the Crown's case on causation changed very significantly and confronted the appellant with a different and more difficult case. The appellant was deprived of the opportunity to mount the defence he would have mounted had the Crown's case been put in this way from the beginning; that it was for the Crown to decide how to put its case and it could not rely on the court granting it leave to chop and change as the trial progressed; that the defence were entitled to confine their attention to the case against the appellant as framed and were not entitled, let alone obliged, to fashion their defence to meet charges which the Crown might later choose to prefer and that the Crown having resisted the need to amend until the bitter end, there was nothing in the conduct of their case which could have led the defence to regard the amendments as their preferred course and accordingly the conviction was unsafe. The review of the above authorities demonstrates that the courts have in more recent years construed the power to amend more liberally. Even however if 'defective' has been given a more liberal reading, certain matters strike us in relation to the authorities. In no case where an amendment was being sought or allowed once the Crown case was completed was there any suggestion that one consequence could be the discharge of the jury and a retrial. The concentration in all the authorities has been on whether the trial itself can be continued without injustice. O'Connor furthermore supports the view that the Crown should not be allowed to chop and change in the way that it puts its case and hope that leave to amend will be given if it has got it wrong." In conclusion at page 12 the court said: "In the circumstances we are of the view that to allow amendments at the stage where they were allowed in this case after a trial lasting some ten days and which could only be proceeded with by ordering a retrial which would traverse the same ground as the first trial but on counts which the appellants were entitled to 1 think had been withdrawn, did 2 cause an injustice to the 3 defendants. In those 4 circumstances we are of the view 5 that the amendments to the 6 indictment should not have been 7 allowed." 8 As I have said in the circumstances of 9 this case I am firmly of the opinion that the 10 learned Magistrate ought to have provided 11 counsel for both parties with the opportunity 12 to make submissions as to whether the charges 13 against Lewis should or should not have been 14 amended, and as to the consequences of such 15 amendments, if made, before making the 16 amendments that were made. And in my judgment, 17 those amendments should not have been made 18 unless the court could safely conclude that no 19 injustice would ensue. 20 In this case, I do not know what evidence 21 Nelson would have given had Lewis been able to 22 call him. 23 The notes of the evidence record that a 24 statement taken from him was handed up to the 25 Magistrate after she had found Lewis guilty. (SUMMARY COURT APPEAL - DERON LEWIS V R) The Crown apparently advised the court that the statement implicates both accused. I have not looked at that statement. It was not evidence at the trial as to guilt or innocence before the learned Magistrate and I do not consider it as properly before me. As I have said, Nelson did not testify. His statement was not put into evidence, and it is not before me. It may be likely or unlikely that Nelson's evidence would have assisted Lewis in his defence. I do not know, and I am not prepared to speculate. Section 74 of the CPC comes immediately after section 73 and provides as follows: "The court, having heard both the prosecutor and the accused person and their witnesses, shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him, at its discretion, or may with or without recording a conviction, if it is of the opinion that it is not expedient to inflict any punishment notwithstanding that it finds the charge against the accused is proved, make an order discharging the accused absolutely or conditionally." Now, the trial in this case reached that point. The court had heard the prosecutor and the accused person and their witnesses. In my judgment, the only course open to the judge in the circumstances was to convict and pass sentence or acquit. Again, that reinforces in my mind the construction to be placed on section 73 concerning the time at which amendments to charges may be made. So, it seems to me there is an alternative ground for interfering with the judgment in the court below in this case. It is possible to conclude that the amendment was made without jurisdiction. In all the circumstances, and bearing in mind the provisions of section 179 of the CPC, I am not prepared to conclude that no substantial miscarriage of justice has resulted. I think it important to repeat once again the famous words from the famous case of Rex and Manchester justices which I will paraphrase. "Not only is it important that justice be done, but is important that justice be manifestly seen to be done." Consequently, I will allow the appeal. I hasten, however, to add that the learned Magistrate dealt with the amendment in strict accordance with the literal provisions of section 73 (1) of the CPC. It does not appear that the authorities cited to me were brought to her attention, and the record shows that she listened attentively to the evidence and reviewed it carefully in her judgment. In the circumstances, the decision of the learned Magistrate must be reversed, and the charges dismissed, and the appellant is discharged from custody. ADDENDUM THE COURT: The above judgment was delivered in open court on April 10, 2003. I should have mentioned that earlier that day I heard counsel's submissions on several issues which I thought required some further elaboration. I took those submissions into account and should have said so. In particular I asked for counsels' assistance as to whether or not the Summary Court was clothed with jurisdiction to give an alternative verdict such as is contemplated by section 4 of the English Criminal Law Act 1967. I was advised that such was not the case. That means of course that counsel for an accused person need not defend against any offence other than the offence charged. That is significant for the determination of this case. Counsel for Lewis was entitled to concentrate on whether or not the Crown's evidence established that Lewis had physical possession of cocaine and he had no need to cross examine the prosecution witnesses in order to meet an entirely different case i.e., being concerned in the possession of 1 cocaine. Accordingly Mr. Roberts' submission 2 (made during the argument of April 10 2003) to 3 the effect that the evidence adduced by the 4 Crown established the case for a conviction of 5 being concerned in did not address the 6 important issue of the fairness of the trial. cocaine. Accordingly Mr. Roberts' submission (made during the argument of April 10 2003) to the effect that the evidence adduced by the Crown established the case for a conviction of being concerned in did not address the important issue of the fairness of the trial. THE HONOURABLE MR. JUSTICE KELLOCK