Supreme Court
Action No. 21 of 1984
22nd March, 1984
Moe, C.J.

Mr. N. Dujon, for the Applicant.
Mr. G. Gandhi, Director of Public Prosecutions, for the Respondent.

Judicial Review - Decision of Magistrate - Applicant seeking certiorari to quash decision of magistrate and mandamus to compel magistrate to enter a not guilty verdict in respect of criminal proceedings concerning Applicant which were heard by magistrate - Magistrate withdrawing criminal charge against Applicant on application of prosecutor to withdraw the charge - Applicant contending magistrate should have entered a verdict of not guilty - Whether Applicant should have utilised the alternative remedy of appeal first - Apparent error on the face of record - Court using its discretion to quash the decision and direct magistrate to enter the correct verdict even though Applicant had slept on his rights by not appealing against the decision.

J U D G M E N T

By these proceedings Counsel for the Applicant moves for an Order of certiorari to bring up and quash a decision of the magistrate for the Corozal Judicial District and for an order of mandamus commanding the magistrate to enter a verdict of not guilty in the matter concerned.

The matter for consideration arose in this way. The Applicant was charged before the magistrate with intentionally and unlawfully causing grievous harm to one Manuel Chan contrary to section 77 of the Criminal Code. On the 14th December, 1983 the magistrate commenced hearing. The Applicant pleaded not guilty. The prosecution presented the first witness Manuel Chan who was sworn in and commenced his evidence. After while, the prosecuting sergeant applied to the Court to withdraw the charge. Counsel for the Applicant submitted that there was no case for the Applicant to answer and a verdict of not guilty should be entered. The magistrate rejected the submission of Counsel and recorded that the case was withdrawn and the Defendant discharged. The Applicant gave a verbal notice of the appeal, but took no further steps until the 4th January, 1984 when he lodged a written withdrawal of his appeal. He then took steps to move for these orders under consideration.

Both Counsel are agreed that the magistrate was wrong in law to record a withdrawal of the charge against the accused rather than entering a verdict of not guilty. His determination to so record was a matter from which the Applicant was entitled to appeal. While Counsel for the Applicant now seeks to have the error corrected by way of the orders moved for, Counsel for the Respondent submits that the remedies sought are not the proper ones. He contends firstly that there being provision for appeal from the magistrate's decision, certiorari should not be issued until the appeal procedure has been pursued. He relied on the following authorities:-

Q.v. Battle Justices , Ex Parte Shephard & Another 1983 Criminal Law Review 550;
R v. Cheshire JJ's 108 L.T. 374.

Secondly, that there being the alternative remedy of appeal from the magistrate's decision, the order for mandamus ought to be refused.

The Applicant did not pursue his remedy by way of appeal but it is clear that the Applicant is now out of time as far as pursuing an appeal is concerned. There is a provision for applying for special leave to appeal if the Applicant was unavoidably prevented from appealing in the manner and within the time provided. The circumstances set out above show that the Applicant could hardly persuade the Court that he was unavoidably prevented from appealing in the normal way, so as to get special leave to appeal.

The question then is whether this court in the particular circumstances can not correct an error which is clearly there. The two cases referred to above do not support the view that certiorari should not be issued in these circumstances. In R v. Cheshire JJ's (supra) two rules nisi were granted one for certiorari and one for mandamus. But it was held as to certiorari, as the order made by the Inferior Tribunal was good on the face of it there was no ground for granting the Writ. As to mandamus, the court could not interfere by mandamus as at the most, the decision was an erroneous decision on matters within the jurisdiction of the Inferior Tribunal. In R. v. Battle Justices (supra), the Applicants pleaded guilty before the justices to a number of charges of burglary. Each was sentenced to two years probation and 60 hours community service. In addition a compensation order of £214.10 was imposed on each to be paid at the rate of £1 per week. They appealed to the Crown Court against the compensation order and when the judge pointed out he had power to review the whole sentence they asked for and was granted leave to withdraw their appeal. They then applied to the Queen's Bench Division Court for an order for certiorari quashing the compensation order on the main ground that it was oppressive and unrealistic. In refusing the application, the Court held that since there already existed a statutory framework for the hearing of appeals against sentence from the Magistrate's Courts to the Crown Court it would not be proper for the Divisional Court to exercise its discretion to entertain the application where the existing procedure had not been exhausted.

In both cases referred to, error did not appear on the face of the order. Certiorari exists to correct error of law where revealed on the face of an order or decision, or irregularity or absence of or excess of jurisdiction where shown. In this case, there is before the Court an order which is on the face of it clearly wrong in law. It seems to me it would be placing the Applicant in an intolerable position if he does not have the error corrected. At this stage he can hardly use the appeal procedure as indicated above. I am firmly of the opinion that an error such as this which appears so clearly on the face of the record can be corrected by certiorari. The order must be quashed.

On the application for certiorari the Court cannot substitute a verdict of its own and there is need to have the correct verdict entered. In my view the most convenient and effective way in the circumstances of achieving this is to issue an order of mandamus directing the magistrate to record a finding of not guilty on the charge.

Orders to issue accordingly.

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