Daniel v Mason (No. 2)
| Jurisdiction | St Lucia |
| Judge | Wills, J. |
| Judgment Date | 19 August 1958 |
| Neutral Citation | LC 1958 HC 6 |
| Court | High Court (Saint Lucia) |
| Date | 19 August 1958 |
| Docket Number | No. 6 of 1958 |
Supreme Court of the Windward Islands and Leeward Islands. High Court (Appellate Jurisdiction)
Wills, J.
No. 6 of 1958
H.J. Francois and H. Giraudy for appellant.
Hon. A.M. Lewis, Q.C., and K. Monplaisir for respondent.
Criminal law - Appeal against conviction — Slander
Facts: The issues were whether the evidence was sufficient to support a conviction and whether an application to amend should have been granted.
Held: The Notice of Reasons for Appeal contained no ground affecting the merits of the case and the record did not disclose any manifest miscarriage of justice. Appeal dismissed.
The appellant appeared before Mr. Hercules, the Acting Magistrate of the 1 st District Court, to answer a complaint laid by the respondent. The complaint was as follows: — “The Complainant states that the defendant before an election for the First Electoral District, to wit, on Monday, 19th May, 1958, at a public meeting held at the corner of Victoria and Coral Streets in Castries and within the First Judicial District of this Colony did for the purpose of affecting the return of the complainant who was a candidate at the said election did make false statement in relation to the personal character of the complainant, to wit: “Mason has robbed from the living and the dead … …. He was entrusted with £5,000 of the West Indies Federal Labour Party which amount was given by the British Labour Party. He misused the money and that is why he was sacked as Secretary of the West Indies Federal Labour or other words to the like effect”.”
In the complaint before the magistrate, the words ‘of fact’ were omitted after the words “false statement”.
The magistrate convicted the appellant who brings this appeal.
The Notice of Reasons for Appeal contained five (5) grounds of appeal, but, at the hearing, counsel appearing for the appellant abandoned grounds 1, 2, and 3 and relied on grounds 4 and 5 which read as follows: –
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(4) There was no proper evidence before the learned magistrate of the holding of an election,
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(5) The conviction is bad on its face and that it does not disclose that the learned magistrate found the statements to have been:
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(a) False statements of fact,
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(b) Made with the purpose of effecting a return of the defendant as a candidate”.
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The appeal therefore does not touch on the merits of the case but is confined to certain questions of law.
Re ground 4: No proper evidence of the holding of an election.
It was submitted by counsel that the proper evidence of the holding of an election is the production of the certificate of the Returning Officer endorsed on the Writ of Election, and that provision is made under Section 56 of Ordinance No. 13 of 1951 for the production of election documents upon the order of the judge.
Now, it is admitted that the certificate of the Returning Officer on the Writ of Election is one of the ways of proving an election, but it is by no means the only method of proof.
‘Phipson on Evidence’ (8th Edition) at pages 43, 44 and 45 puts it this way:
“The maxim that ‘the best evidence must be given of which the nature of the case permits’ has often been regarded as expressing the great fundamental principle upon which the law of evidence depends. Although, however, it played a conspicuous part in the early history of the subject, the maxim at the present day affords but little practical guidance.”
“But the chief illustration of the ‘Best evidence’ maxim has always been found in the rule which demands that the contents of a document must, in the absence of legal excuse, be proved by primary, and not by secondary or substitutional evidence. This rule, however, which is merely a survival of the ancient doctrine of ‘profert’,] requiring the physical production of the instrument pleaded, existed long before the best evidence principle was formulated; though it has, in fact, gone through a reaction not very dissimilar to that experienced by the best evidence idea”.
“In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be matter for comment or affect the weight of that which is produced. All admissible evidence is in general equally receivable.”
The issue of the Writ of Election may be considered the first formal step towards the election of a member to the Legislative Council but, for the purposes of Section 71 (3) of Ordinance No. 13 of 1951 as amended by Ordinance No. 32 of 1956 an election is considered to begin at an earlier date.
Section 71 (3) reads: — “any person who, before or during any election …..”
By Section 2 of Ordinance No. 13 of 1951, the term “election” means an election of a member or members to serve on the Legislative Council.
The term “election” is therefore referrable to and includes a general election as well as a bye-election and it is a question of fact, which must be determined by the court, when an election begins in such a way as to make the parties concerned responsible for the breaches of the Legislative Council (Elections) Ordinance, 1951. The test is whether the contest is reasonably imminent-–
(See) Kennington Case [1886] 4 O'M & H 93.
(See) Elgin & Narin Case [1895] 5 O'M & H.
The record discloses that the magistrate had before him documentary evidence and oral evidence of the complainant, the witness F. Yorke who was the Returning Officer, and the witness Mondesir, also the evidence of the appellant.
The evidence given by the aforementioned witnesses was admissible and was unchallenged on the question of an election. There was therefore ample evidence before the magistrate of the holding of an election.
This ground of appeal fails.
Counsel next argued ground 5.
This ground was not without its difficulties and the argument advanced by counsel was varied, interesting and plausible.
The substantial argument advanced by counsel may be crystallised thus: –
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(1) The complaint is defective, inasmuch as the words “of fact” are omitted after the words “false statement.”
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(2) The magistrate states in his reasons of decision “that the defendant-appellant was guilty of the complaint as charged.”
It follows that the conviction is defective and should be quashed.
In course of the argument on this ground, counsel in the case made frequent reference to and severely criticised the reasons for decision submitted by the magistrate.
The court was even invited to disregard in total the ‘magistrate's reasons’ as the matter contained therein was not helpful.
It is to be regretted that the magistrate expressed himself in a manner, which tended to create confusion and to becloud the real point at issue.
Upon reading the reasons for decision and such portion, which referred to this ground in particular, the magistrate begins thus: “The defendant — appellant contends that ‘my’ conviction is bad on its face. (Reason No. 5) “.
It is therefore evident that the magistrate wrote the ‘reasons for decision’ after receipt of the appellant's notice of reasons for appeal and, instead of recording the ‘reasons for decision’ in simple and concise language, the magistrate made the error of setting down lengthy argument. This was wrong and by no means an approved procedure. It is hoped that there will be no such recurrence.
Howbeit, while disagreeing with much of what is said in the ‘Magistrate's Reasons”, this Court is dealing with the appeal in accordance with the rule that an appeal is from a decision and not from the reasons.
Counsel for the appellant stressed that for a complaint to be sufficient in law Section 1042 of the must be observed.
The Section reads: — “The description of any offence in the words of the Statute creating the offence, or in similar words, with a specification, so far as may be practicable, of the time and place, when and where the offence was committed, and a reference to the Section of the Ordinance or Statute creating the offence shall be sufficient in law ”.
Counsel contended that the words ‘of fact’ were essential and any omission in the complaint or conviction must prove fatal.
It becomes necessary to examine the relevant Section.
The complaint laid against the appellant is founded on Section 71 (3) of the Legislative Council (Elections) Ordinance No. 13 of 1951, as amended by Ordinance No. 32 of 1956.
The Section reads: “Any person who, before or during any election, for purpose of affecting the return of any candidate at such election, make or publishes any false statement of fact in relation to the personal character or conduct of any candidate shall be guilty of an illegal practice ….”
This Section is taken in part from Section 6 subsection 4 of the Representation of the People Act, 1949, 12, 13 and 14, Geo. 6, C. 68, which consolidated and substantially replaced the Representation of the People Act, 1948, 7 & 8, Geo. 5 c. 64 and almost all of the Representation of the People Act, 1948, 11 & 12, Geo. 6, c. 6 5.
Section 6 subsection 4 of the English Act reads: — “It is an illegal practice if, before or during an election, any person for the purpose of affecting the return of any candidate at the election makes or publishes any false statement of...
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