Supreme Court
Action No. 228 of 1981
4th September, 1981
Moe, J.

Mrs. Lois Young Barrow for the Applicants
Mr. Glenford Quallo for the Respondent

Application for certiorari to quash decision of Magistrate ordering each appellant to deposit cash as security for prosecuting appeal - Order 78 Rule 3(3) and (4) - Meaning of O78 R3(3) and (4) - Cash security not to be ordered without consent of appellant.

J U D G M E N T

The applicants in this matter were on the 13th day of April 1981 convicted by a magistrate for the Belize Judicial District of the offence of possession of dangerous drugs contrary to section 5 (b) of the Dangerous Drug Ordinance CAP 85 and were each fined $10,000.00 respectively. The applicants gave verbal notice of appeal against sentence. That appeal not having been perfected an application for leave to appeal out of time was granted by the Supreme Court and on the 11th June, 1981 a fresh notice of appeal was given. The magistrate then ordered that the applicants each deposit the sum of $10,000.00 cash as security for prosecuting the appeal.

The applicants by these proceedings now seek an order of certiorari to remove the order of the magistrate into this Court for the purpose of its being quashed. They seek this relief on two grounds: -

Order 73 Rule (3) of the Supreme Court Rules provides as follows: "The appellant shall within 21 days after the pronouncement of the decision give security before the Inferior Court in such amount as shall be required for the payment of any costs awarded against him by the Court and for the due and faithful performance of the judgment or order of the Court".

Order 73 Rule (4) provides as follows: - "The security shall be by deposit of money with the Clerk, or by a recognizance in Form 2 entered into by the appellant, with or without a surety or sureties to the satisfaction of the magistrate". There is a proviso which need not be referred to.

By virtue of Rule 3 (3) the magistrate clearly has jurisdiction to determine the amount to be given as security. However under sub-rule (4), the security which is determined and required under sub-rule (3) is to be by deposit of money or by a recognizance with or without security. The rule thus provides an alternative way in which the security may be given. For the applicants it was submitted that under sub-rule (4), it is the appellant who elects the alternative; that is, the magistrate determines the amount, X dollars, and the appellant gives it as he elects, either by depositing the amount in cash or if he so wishes entering into a recognizance in the sum of the required security. It was contended on behalf of the respondent firstly that it is the magistrate who determines whether the security shall be by deposit of cash or by recognizance. Secondly, even if an appellant has the choice of giving it by recognizance, the magistrate still takes the recognizance to his satisfaction and can thereby arrive at a situation where the appellant must deposit cash.

It may very well be that a magistrate may act in the manner indicated by counsel for the respondent but I would observe that even the manner of taking a recognizance is subject to scrutiny. The determination of the amount of security required and the taking of a recognizance in relation thereto are both powers of the magistrate which must be exercised judicially.

In determining the issue whether the magistrate's order was contrary to the requirements of the relevant rules, the question arises whether the magistrate's requirement of $10,000.00 cash deposit from each appellant was a judicial exercise of his power under the rules. The contention of the appellants that the requirement of a cash deposit in the sum of $10,000.00 amounted to a denial of the appellant's right to appeal has merit. The insistence on a cash deposit appears to have placed an unnecessary obstacle in the way of the appellants and accordingly I do not regard the requirement as a judicial exercise of the magistrate's powers of the rules. I have taken some guidance from the principle inherent in the judgment of Lord Hewart LCJ in R. v. Toynbee Hall Juvenile Court JJ, Ex parte Josheph (1939) 3 AER 16. There he said at page 19 "It could not be right for Justices to remand an offender in custody for the real, though unavowed purpose of punishing him by that act of remanding, and it would clearly be undefensible to make use of a judicial "discretion" for the purpose of detaining in prison an offender charged with an offence which a punishment by imprisonment could not lawfully be ordered." I am of the opinion that it is not a proper use of judicial discretion to require of an appellant security in a manner which in effect precludes the appeal.

I am fortified in my view by the decision of Lord Widgery C.J. in R v. Harrow Justice, ex parte Morris (1972) 3 AER 494. At page 496 he said "There is further support in modern statutory language for the view that a payment of a lump sum is not something which can normally be required, - in s. 37 of the Criminal Justice Act 1948, sub-section (2) of which dealing with the recognizance entered into on the occasion of an appeal provides: "A recognizance entered into for the purposes of the last foregoing subsection shall be in such reasonable sum as the Court thinks necessary to fix, and the Court may require the recognizance to be entered into with or without sureties and may, in lieu of requiring a person to enter a recognizance, consent to his giving other security." That subsection contemplates that security in the sense of a deposit may be appropriate but only with the consent of the accused and the Court. It appears not to be in any sense a normal or regular provision which should be imposed adversely to the wishes of the accused himself."

While Section 37 (2) (supra) refers to recognizance first and then the alternative of giving other security whereas Order 73 Rule 3 (4) of our Rules refers to deposit of money first and then the alternative of entering into a recognizance, I think that the observations of the Chief Justice are applicable to both provisions and hold that Order 73 Rule 3 (4) is not to be applied adversely to the wishes of an appellant. In the instant case, the provisions of the Rule were clearly imposed adversely to the wishes of each appellant.

In the circumstances I hold that the order of the magistrate that there must be a cash deposit as security was not in keeping with the provision of Order 73 Rule 3 (4).

I therefore order certiorari to issue.

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