Julian v R

• Jurisdiction: St Lucia
• Judge: Lewis, C.J.,Lewis, J.A.,Gordon, J.A.
• Judgment Date: 25 November 1969
• Neutral Citation: LC 1969 CA 4
• Docket Number: Criminal Appeal No. 2 of 1969
• Court: Court of Appeal (Saint Lucia)
• Date: 25 November 1969

West Indies Associated States Supreme Court. (Court of Appeal)

Lewis, C.J. Lewis, J.A., Gordon, J.A.

Criminal Appeal No. 2 of 1969

Julian

and

R.

Appearances:

V.A. Cooper for the appellant.

C. Compton, Crown Counsel, with G. DaBroe for the respondent.

Practice and procedure - Charge — Amendment

Criminal law - Appeal against conviction — Breaking and entering

Practice and procedure - Trial by jury

Facts: The appellant was convicted of unlawfully breaking and entering a dwelling house and of stealing $25 from the same house. The court disclosed no offence since it omitted to state the purpose for which the breaking took place and the count as framed was void. On the question whether the judge had exercised his discretion wrongly in granting an amendment.

The appellant was convicted on a charge of unlawfully breaking and entering a dwelling house and of stealing $25 from the same house. The court disclosed no offence since it omitted to state the purpose for which the breaking took place and the count as framed was void. The question was whether the court was correct in granting an amendment to the count especially in the circumstances where the appellant alleged that he had a lawful reason for entering.

The appellant was convicted on a charge of unlawfully breaking and entering a dwelling house and of stealing $25 from the same house. The issues were whether evidence prejudicial to the appellant was admitted by the trial judge and the trial judge neglected to direct the jury to disregard it and whether this amounted to a substantial miscarriage of justice in the circumstances –

Held: The judge should have refused leave to amend and should have directed an acquittal on that count.

The judge erred in exercising his discretion in favour of the Crown. The court ought to have given the appellant an opportunity to be heard before granting the application. The judge should have refused leave to amend and should have directed an acquitted on count 1. Appeal in respect of count 4 allowed.

A reasonable jury would have arrived at the same verdict. Appeal dismissed.

JUDGMENT OF THE COURT:

1 The appellant was indicted on two counts at the October Assizes held at Castries. The first count charged him with unlawful breaking and entering a dwelling house at Micoud, and on the second count he was charged with stealing $25.00 from the same house. The jury convicted him on both counts and the trial judge sentenced him to concurrent terms of 7 years and 3 years hard labor on the respective counts.

2 The appellant has appealed against these convictions.

3 The facts of the case may be briefly summarized. The case for the prosecution was that at about 6 p.m. on the 2 ^nd May 1969, Elmina Dickson left her home which she had previously secured and went to a shop where she met her husband Eric. They both returned home at about 8 p.m., and on her entering the house she saw a strange man in the house. She shouted out to her husband who was then in the yard. The intruder escaped through a back door, and was immediately chased by the husband, who ultimately caught and held him. The intruder turned out to be the appellant in this case. After requests by the appellant to compromise the matter, the appellant was brought back to the home. In the presence of police Sergeant Wilkinson who had been summoned, it was discovered that $25.00 which Elmina had in the house was missing, and that a latch which secured the back door had been broken and a part of it was on the floor in the vicinity of the door. A search of the appellant by Sergeant Wilkinson revealed that all the money which the appellant had on his person was $1.66.

4 The defence was that he was a friend of Elmina, that he was there on her invitation, and that he had not stolen any money from the house. The relationship between himself and Elmina had existed for some time before, but that she had denied knowledge of it because her husband who had found out had ill-treated her. She therefore had reason for denying his identity and framing the story against him.

5 During his summing up, the trial judge read to the jury the first count, which was as follows: “Johnson Julian on Friday the 2 ^nd of May this year between 6.30 p.m. and 8.00 p.m. did unlawfully break and enter the dwelling house of Elmina Dickson situate at Arse Gers in the quarter of Micoud contrary to section 247 of the Criminal Code of St. Lucia.”

6 He then pointed out to the jury that the count disclosed no offence of housebreaking, as it did not allege the purpose for which the entry was made. At that stage Crown. Counsel made an application to the court to amend the count by inserting between the words ‘Micoud’ and ‘contrary’ the words: “for the purpose of executing a felony therein, namely, stealing”.

7 Leave to do so was granted under the provisions of section 927 (3) of the Criminal Code and the judge continued to sum up. This court was struck by the fact that the judge's note did not state that the appellant was given an opportunity to be heard on the application before the amendment was allowed. We therefore enquired of learned counsel for the Crown, who also appeared in the court below, and were informed that the appellant had not been asked whether he had any objection to the amendment.

8 The appellant, who conducted his own defence in the court below, filed five grounds of appeal, but counsel who represented him in this court abandoned three of these grounds of appeal electing to rely on two grounds only:

• (a) that the admission of evidence in the course of the trial of previous convictions of the appellant had amounted to a miscarriage of justice, and

• (b) that the learned judge exercised his discretion wrongly in allowing an amendment to the Indictment of the words “for the purpose of executing a felony therein, namely, stealing” after his summing up had begun.

9 In support of this second ground of appeal which for convenience this court will deal with first, counsel for the appellant urged that having regard to the nature of the amendment and the...