Ray Morgan v The King (Jamaica)

Where an appellant has a meritorious appeal but grounds were not filed in time because of official error, the proviso to section 296(1) of the Judicature (Resident Magistrates) Act confers a wide discretion to hear and determine the appeal. The court must balance good cause against countervailing considerations such as finality.

A sentence appeal is not automatically academic because the sentence has been served. The court must examine the practical benefits of an appeal, including its relevance to constitutional redress and the appellant’s criminal record. Official failure to produce the record cannot count against an appellant who was blameless and acted reasonably. Public interest and systemic failures are relevant considerations.

The appellant was convicted of four offences in the Resident Magistrate’s Court and received consecutive sentences totalling 12 years. He gave a valid verbal notice of appeal against conviction and sentence. Although he completed and handed his grounds of appeal to prison authorities within time, they were sent to the Registrar of the Court of Appeal instead of the Clerk of the Courts. The appeal was therefore treated as abandoned under section 296(1) of the Judicature (Resident Magistrates) Act.

The Court of Appeal of Jamaica refused to exercise the statutory proviso, considering the sentence appeal academic because the sentence had been served and because the trial record was unavailable: [2021] JMCA App 15. The central issue before the Board was whether that discretion had been wrongly exercised.

The Board allowed the appeal to the extent that the Court of Appeal was required to hear and determine the appellant’s appeal against sentence. The matter was remitted to that court.

1. Section 296(1) of the Judicature (Resident Magistrates) Act confers a wide discretion. The Court of Appeal must balance good cause against countervailing considerations, including finality. A meritorious appeal is capable of constituting good cause.
2. The Court of Appeal correctly found merit in the sentence appeal. Relevant matters included the absence of any apparent deduction for time spent on remand, the unexplained consecutive sentences, the imposition of the maximum sentence on each count, and the absence of any explanation of the totality principle.
3. The conclusion that the appeal was academic because the sentence had been served was erroneous. In Moss v The Queen [2013] UKPC 32; [2013] 1 WLR 3884, the observation that an appeal may be academic after the sentence has been served was obiter and was subject to careful consideration of the individual facts. The present appellant could obtain practical benefits through constitutional redress and by correcting the implications of the sentences on his criminal record.
4. The absence of the trial record, caused by failures of the justice system for which the appellant was not responsible, could not operate against him. The Court of Appeal also had to consider the wider public interest in addressing administrative failures, the period of delay, and the extent of the appellant’s default.
5. Exercising the discretion afresh, the Board found a serious miscarriage of justice and held that the proviso should have been applied. The Court of Appeal was better placed to determine sentence and to address future administrative practice. Attempts to obtain the record must not delay the appeal; if it remains unavailable, the appeal must proceed on circumstances most favourable to the appellant.

• Privy Council — allowed the appeal to the extent that the Court of Appeal must hear and determine the appeal against sentence under Judicature (Resident Magistrates) Act section 296(1): [2023] UKPC 25.
• Court of Appeal of Jamaica — refused to exercise the proviso and declined to hear the sentence appeal, treating it as abandoned and academic: [2021] JMCA App 15.
• Resident Magistrate’s Court — convicted the appellant and imposed consecutive sentences totalling 12 years on 7 February 2011.