Smellie CJ
IN OPEN COURT IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO: SCA: 62 OF 2000. RAYBE HYDES V. THE ATTORNEY GENERAL Appearances: Miss Jane A. Rowley for the Crown Mr. John Furniss for Raybe Hydes. RULING The appellant was convicted on his own plea of guilty to the charge of driving whilst intoxicated contrary to section 71(1)(b) of the Traffic Law. His plea was proffered after the commencement of his trial and after the evidence of the investigating officer had been given. The appellant had been found by the police in the driver's seat of his car which had collided with a wall. The wall was demolished, there was extensive damage to the vehicle and the appellant was in obvious pain. He complained of pain to his feet and ribs, he had trouble breathing and his breath smelled of alcohol. He was taken by ambulance to the hospital where later that night his blood sample was found to contain 139.4 milligram of alcohol in 100 millilitres of blood - 39.4 milligrams over the legal limit. Upon his change of plea, the appellant proffered to the learned magistrate the explanation that he had been drinking only non-alcoholic beers but medication he had been taking must have triggered a release of alcohol into his bloodstream. The investigating officer had stated in cross-examination that the appellant had proffered no such explanation to him on the night of the accident. It was urged on his behalf that the Learned Magistrate should exercise her discretion not to enter a conviction against him and discharge him unconditionally. The learned Magistrate had before her a report from a Dr. Addleson who had started treating the appellant only after the date of the incident. His report was to the effect that the appellant had been taking a drug for his medical condition as a non-insulin dependent diabetic; and that this drug could interfere with the absorption of drugs including alcohol. The report did not state whether the appellant had been taking that drug or one with similar side effects at the time of the accident. In any event, it is to be noted that the drug is not described as triggering or releasing alcohol into the bloodstream as claimed by the appellant. The learned Magistrate therefore, quite properly in my view, did not accept this contention as a basis upon which she could have exercised the discretion which it is said she had under the law. She stated: "It was my view that the blood alcohol (test) reading having been accepted, the mitigating circumstances as put forward were not such as to allow for exercise of the discretion in the defendant's favour." I find it difficult to accept the claim about the consumption of non-alcoholic beers. In addition, the report submitted (by Dr. Addelson) does not cover the period of the time of the accident and in fact referred to a period which was one year after the accident. Consequently, I was not assisted with the contention that medication exacerbated the blood alcohol level or reading". On those findings of facts there ought to be an end to this appeal as, for the reasons I have pointed out to Mr. Furniss, even if the provisions of Law are found to vest the discretion contended for in a case such as this, the learned Magistrate having arrived at those factual premises, would have had no basis for finding the sort of extenuating circumstances which the Law would require. Mr. Furniss contends nonetheless that the learned Magistrate misdirected herself on the Law and might have found differently had she taken the proper view of the Law. While I regard that treatment of the learned Magistrate's findings as misunderstanding her reasoning, there is some difficulty over the meaning of the provisions of the Law and Miss Rowley has expressed the view that the Learned Magistrate may have taken too narrow a view of the effect of the discretion vested by one particular provision; ie: Section 41 of the Penal Code. I am obliged therefore to consider the provisions of Law. They appear in Section 41 of the Penal Code and Sections 66 and 74 of the Criminal Procedure Code (C.P.C.) as read with Section 71 of the Traffic Law. These provisions of the Law follow: Section 41 of the Penal Code:
(1) Where in any trial before a court of summary jurisdiction the court thinks that the charge is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is inexpedient to inflict any punishment, the court may, without proceeding to conviction make an order dismissing the charge (2) An order made under subsection (1) shall, for the purpose of revesting or restoring stolen property and of enabling a court to make any order in that behalf, have the like effect as a conviction. (3) Where any charge is dismissed under subsection (1) the court may order the accused person to pay the whole or any part of the costs of and incidental to the prosecution. Sections 66 and 74 of the Criminal Procedure Code: 66 If the accused person admits the charge, his admission shall be recorded and the court shall convict him and pass upon or make an order against him unless, after hearing anything which may be said by or on behalf of the accused, whether in mitigation or otherwise, there shall appear to the court to be sufficient cause to the contrary. 74. 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 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: Provided that no such order of discharge shall be made in respect of any prosecution instituted under section 71 of the Traffic Law, 1991. Section 71 of the Traffic Law 71. (1) A person who drives or attempts to drive or who is supervising or attempting to supervise the learner driver of a vehicle or is in charge of a vehicle on a road when - (a) he is under the influence of drugs or alcohol to such an extent that his efficiency as a driver is impaired; or (b) he has consumed alcohol in such a quantity that the proportion thereof in his breath, blood or urine exceeds the prescribed limit, is guilty of an offence and liable on summary conviction on a first offence to a fine of one thousand dollars or to imprisonment for six months, and for a second or subsequent offence to a fine of two thousand dollars or to imprisonment for twelve months. In any event whoever is convicted of an offence under this subsection is disqualified from holding or obtaining a drivers licence for twelve months or such longer period as the Court, in its discretion, may order and the particulars of the offence shall be endorsed on his driver's record. (2) Whoever drives or attempts to drive or is in charge of a vehicle on a road When - (a) he is under the influence of drugs or alcohol to such an extent that his efficiency as a driver is impaired ; or (b) he has consumed alcohol in such a quantity that the proportion thereof in his breath, blood or urine exceeds the prescribed limit, and thereby causes the death of another person, is guilty of an offence and liable on conviction on indictment to imprisonment for ten years and shall be disqualified from holding or obtaining a drivers licence for twelve months or such longer period as the Court may order and the particulars of the offence shall be endorsed on his drivers record. It will be immediately apparent that there are essential differences between Section 41 of the Penal Code and Section 66 of the C.P.C on the one hand and section 74 of the C.P.C on the other. The first is that the former allow the Summary court to dismiss the charges without proceeding to enter a conviction even where it considers the charge to be proved; (per s. 41) or a guilty plea has been entered (per S. 66); where the circumstances described respectively in the sections exist. Section 74 of the C.P.C. on the other hand gives a wider array of options by describing the general plenitude of the Court's powers for dealing with the charge against an accused, including that of not entering a conviction although it finds the charge proved. The second distinction - the crucial one here - is that by virtue of the proviso to Section 74 - the power and discretion in it to order the discharge of an accused person although the charge is proved; - the very power and discretion to which Section 41 of the Penal Code is confined - is precluded under Section 71 of the Traffic Law. This latter is the section under which the charge in this case is brought. Thus, there is an apparent conundrum as between Sections 41 of the Penal Code (Section 66 of the C.P.C in cases of guilty pleas) and Section 74 of the C.P.C.. This is a conundrum which the Learned Magistrate recognised in her judgment where she expressly refused to exercise a discretion under Section 41 of the Penal Code as invited by Mr. Furniss (even if she had one) because of the inconsistency that would create with S.74 of the C.P.C in this case. I consider that the Learned Magistrate was correct in her reservations expressed about the existence of that discretion where an offence under Section 71 of the Traffic Law is concerned. Section 71 speaks of a mandatory term of disqualification for the offences of driving whilst disqualified. As Miss Rowley has submitted, that is an essential aspect of the policy of deterrence which underpins the legislation. The construct to Section 41 of the Penal Code for which Mr. Furniss contends would amount to an abrogation of that policy. Section 74 of the C.P.C. which must be taken as being in pari materia with Sections 41 of the Penal Code; expressly recognises and defers to the policy underlying the Traffic Law. Statutes which are in pari materia "are to be taken as forming one system, and as interpreting and enforcing each other": Palmer's Case (1785) 1 Burr 445 at 447. And, as was said in Ex.p. Copeland (1852) 22 LJ Bank 17 at p.21 per Bruce Knight LJ (citing Lord Mansfield in Palmer's case supra): "Where there are different statutes in pari materia, though made at different times --- they shall be taken and construed together as one system and as explanatory of each other". As a matter of the exercise of her discretion, if she had one, I do not see that the Learned Magistrate could be faulted for not exercising it in favour of the appellant in this case where the result would be that she would in doing so construe the legal provisions as if there is an inconsistency between Section 41 of the Penal Code and Section 74 of the C.P.C. My view is that by reference to the provisions in themselves taken in pari materia, section 41 should not be construed as giving a discretion in relation to an offence of driving whilst disqualified in light of the proviso to section 74 of the C.P.C. Section 71 of the Traffic Law provides a mandatory provision which would be rendered nugatory by the exercise of the discretion contended for. The case of Regina v Briggs Grand Court Appeal # SCA 20 of 1998 was brought to my attention - a case in which it seems Section 41 of the Penal Code was relied upon by the Summary Court for the exercise of a discretion not to enter a conviction for the proven offence of refusing to provide a breath sample. This was an offence under section 72 (8) of the Traffic Law for which a similar mandatory minimum period of disqualification is prescribed. The decision of the Summary Court was upheld on appeal by Murphy J. in this court, but no reasons are expressed and it appears, in particular, that the provisions of section 74 of the C.P.C. were not brought to the attention of the Court in Briggs' case. Although the proviso to Section 74 of the C.P.C. does not mention section 72(8) Traffic Law offences of refusing, the proviso it may well have been regarded, had it been cited, as an important and influential factor in the exercise of the discretion which the Learned Magistrate in that case exercised. I say this notwithstanding that the factual circumstances in Briggs' case, unlike these here, were clearly presenting of factors which a Court in its discretion could well regard as extenuating. In any event I should make it clear that I do not regard Briggs' case as precedent for the proposition contended for by Mr. Furniss in this case. I do note, in conclusion however, that the legislative provisions as they stand present a conundrum which may best be resolved by legislative amendment. For all the foregoing reasons the appeal is dismissed. Anthony Smellie CHIEF JUSTICE DATED THIS THE 17th APRIL 2000.