Philip Glennon Ebanks v. The Queen

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE SCA #：0020/2016 PHILIP GLENNON EBANKS V. THE QUEEN Appearances： Nicholas Dixey of Nelson & Co. for the Appellant Ms. Nicole Petit for the Crown/Respondent Before： Justice Michael Mettyear (Actg.) Oral Submissions Heard： 2nd and 9th September 2016 Delivery of Judgment： 27th September 2016 HEADNOTE Criminal Law -s.12(3) of the Drug Rehabilitation Court Law (2015) - Mode of Trial and Taking of Plea -. ```
```html 1 2 3 1. This is an appeal against conviction following the Appellant's plea of guilty to the 4 offence of burglary. The plea was recorded in front of the learned Magistrate 5 Foldats on the 17th December 2015. A sentence of 4 years' imprisonment was 6 imposed by him on the 30th May 2016. 7 2. The nub of the appeal is that both the mode of trial enquiry and the taking of the 8 plea were rendered void by operation of s.12(3) of the Drug Rehabilitation Court 9 Law (2015). If that argument is correct it would follow that the conviction and 10 sentence would also be void. 11 3. The facts of the offence are not material. 12 4. The appeal raises a purely technical point. I have not been asked to hear any 13 evidence, however, with Counsel's consent a memorandum has been sought and 14 received from Magistrate Foldats to which I will later refer. 15 5. Put simply the argument from Mr Dixey, for the Appellant, which he has advanced 16 with skill and enthusiasm, runs as follows: 17 a. The case started in the Summary Court; 18 b. The Appellant applied to enter the Drugs Court on the 17th November 2015; 25th Nov; the 19 The case wa to the Di rug SCA #0020/2016. Philip Glennon Ebanks v R Coram: Mettyear J. (Actg.) Date: 27th September 2016 20 Page 2 of 10 ```
```html 1 d. On the 26th November 2015 a transfer back to the Summary Court was mooted, because the Drug Court was told the Appellant was ineligible for that court. However, that did not happen because the Appellant's Counsel was asking the Crown to review the question of eligibility; 5 e. The mode of trial enquiry and the plea of guilty took place in the Drug Court on the 17th December 2015; 7 f. On the 14th January 2016 the Crown reaffirmed its position that the Appellant is ineligible, and he was transferred back to the Summary Court for hearing on the 29th February 2016. 10 6. Section 12(3) of the Drug Rehabilitation Law reads: 11 12 13 14 15 16 17 18 12 (3) If the Drug Court makes an order referring a person back to the regular sitting, the proceedings against the person are to be continued before the regular sitting at a time and place specified in the order, as if-(a) the person had not been referred to the Drug Court; and(b) the proceedings had merely been adjourned to the time and place specified in the order." 19 20 7. Mr. Dixey submits that the effect of s.12(3) is to turn back the clock so that the original referral the 25th November, was in fact an adjournment of the case to the regular sitting on the 29th February 2016. 25 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780</
At the heart of this appeal is the Appellant's submission that the case was transferred to the Drug Court and the Crown's contention that it never was. Mr Dixey has accepted that if the case was not transferred to the Drug Court the appeal cannot succeed. The Drug Court was established by the forerunner of the Drug Rehabilitation Court Law (2015 Revision). The procedure is regulated by the Drug Rehabilitation Regulations 2008 and the Drug Court Rules 2006. An eligible Defendant who is also deemed suitable may be dealt with in the Drug Court in a way very different to a Defendant in a regular Summary Court. The "Mission Statement" of the Drugs Court is: "To hold criminal offenders accountable to stop criminal activities related to the abuse of alcohol and drugs and to increase the likelihood of successful rehabilitation of offenders..." No doubt criminals are willing to join or apply to join the Drug Court for a variety of reasons - some creditable, others not. However, motivation is not of importance for present purposes. What is crucial is first eligibility and secondly suitability. In the present case it is eligibility that matters. Judgment. SCA #0020/2016. Philip Glennon Ebanks v R Coram: Mettyear J. (Actg.) Date: 27th September 2016 Page 4 of 10
```html 1 15. For a person like the Defendant, a prolific offender, facing the prospect of a 2 substantial prison sentence, it cannot have escaped him that, to be a participant in 3 the Drug Court, he would have to be both eligible and suitable for inclusion. If he 4 did not know this from other sources he had the benefit of highly capable and 5 knowledgeable Counsel, Miss Lee Halliday-Davis, looking after his interests 6 throughout this saga. 7 8 16. It is not necessary to look in detail at the criteria for eligibility or the process for 9 deciding if a person is eligible. It is sufficient to record that both sides agree that 10 the question of eligibility is decided by the Crown. If a person is ineligible he cannot 11 properly be transferred to the Drug Court. Here the Crown never declared the 12 Appellant eligible and therefore he could not legitimately be transferred to the Drug 13 Court. 14 15 17. Suitability comes after an eligible person is professionally assessed as a suitable 16 candidate. The Appellant's suitability was never assessed, because the process 17 never got that far. 18 19 18. Mr Dixey accepts that the Appellant should not have been transferred to the Drug 20 Court (because he was not eligible), but claims that in fact he was so transferred 21 and that this is demonstrated by the court files. 22 23 19. The defence case in favour of there having been a transfer to the Drug Court rests 24 sodocumentatirom the reg regular Summar Dr and the 25 lely on the on emanatory Court anc g fl the 2ug Court. 26 Judgment. SCA #0020/2016. Philip Glennon Ebanks v R Coram: Mettyear J. (Actg.) Date: 27th September 2016 Page 5 of 10 ```
```html 1 20. Each Court keeps a file concerning cases involving Defendants who come before 2 them. For ease of reference these have been designated as SCF for Summary Court 3 files and DRCF for Drug Court files. 4 5 21. Mr Dixey relies mainly on the note in the SCF dated the 25th November which 6 reads：“Def has applied to Drug Court. No response yet as to the def's suitability”. 7 8 22. It goes on to report that an appointment was made for the Appellant to attend the 9 Drug Court the next afternoon at 2p.m. The use of the word“suitability”was 10 unfortunate and confusing. The Magistrate must have meant eligibility. No question 11 of suitability had yet arisen. 12 13 23. Mr. Dixey claims further support for his proposition from the DRCF note for the 14 26th November which reads“Crown：not eligible，back to S.C.”These words are 15 crossed through，because，Mr Dixey claims and I accept，it must have been that the 16 Appellant's Counsel expressed the wish to contact the Crown and ask for a review 17 of their decision. This is the explanation for the entry immediately below the 18 crossing out“LH-D will write to Crown re：eligibility...”Mr Dixey claims that the 19 note confirms that the case was in the Drug Court，and that although consideration 20 was given to transferring it back to a regular sitting of the Summary Court，no 21 transfer was in fact made. 22 23 24. The next file entries are on the SCF and the DRCF dated the 17th December 2015. 24 25. “T-PG to DR early mean fen 26 pleaded guilty. Mr Dixey claimed that the“...to DRC”meant that the plea had been 27 tendered to the Drug Court. Judgment. SCA #0020/2016. Philip Glennon Ebanks v R Coram：Mettyear J. (Actg.) Date：27th September 2016 Page 6 of 10

¶ [25] This is not accepted by the Crown or supported by the location of the entries. It was the confusion as to what these entries meant which caused the parties to agree to seek an account from the Magistrate.

¶ [26] On the 14th January 2016 the DRCF records, "Crown-not eligible back to SC" and notes other matters that do not touch on the issues raised by this appeal. This is the last entry for this case on the DRCF.

¶ [27] It is common ground that no further hearing took place in which the question of election or plea is mentioned. As Mr. Dixey said at paragraph 10 of his written submissions: ``` "...all the parties and the Summary Court are proceeding on the basis that the election and plea on the 17th December 2016(sic) remain valid".

¶ [28] I agree with this. The question is: Were they right to do so.

¶ [29] Although I agree with Mr. Dixey that the file notes taken at face value lend some support for his submissions, there are also powerful reasons to think that the submissions are mistaken. The case throughout benefited from continuity of tribunal and defence Counsel. The Crown were also represented throughout. Magistrate Foldats is very experienced with the workings of Drug Court. ``` ```html 26 ``` ```latex \begin{equation} \text{Judgment. SCA \#0020/2016. Philip Glennon Ebanks v R Coram: Mettyear J. (Actg.) Date: 27th September 2016} \end{equation} ``` ```markdown Page 7 of 10 ```
```html 1 30. All must have realised that, unless eligible, the Appellant could not enter the Drug 2 Court programme. The question of eligibility is mentioned more than once in the 3 file notes and must have been at the forefront of everyone’s mind. That the Court 4 would deliberately ignore the requirement of eligibility is nonsensical. There would 5 be no point. 6 7 31. If Mr. Dixey’s submissions are correct the only other possibility is that the Court, 8 Crown Counsel and defence Counsel negligently overlooked the eligibility 9 requirement and allowed an inappropriate transfer to the Drug Court. One cannot 10 simply dismiss this. Judges make mistakes and so do lawyers, but in the 11 circumstances of this case, it seems unlikely. So the question arises as to how, if at 12 all, is it possible to reconcile that which seems manifestly unlikely, with the courts’ 13 files. Here the Memorandum of Magistrate Foldats comes into play. 14 15 16 32. The Magistrate refers to the “dual jurisdiction” of the Drug Court sitting as both a 17 Summary Court and a Drug Court. He also refers to the requirement that: 18 “Proceedings before the drug Court are to be conducted...with as little 19 formality and technicality and as much expedition, as the requirement of the 20 Law, the regulations, the rules and the proper consideration of the matters 21 before the Drug Court permit”. 22 23 33. I unhesitatingly accept the submission of Mr. Dixey that if the Court has conducted 24 itself so as to improperly deprive the Appellant, try to certify the 25 the Appellant, try to certify the 26 the Appellant, try to certify the Judgment. SCA #0020/2016. Philip Glennon Ebanks v R Coram: Mettyear J. (Actg.) Date: 27th September 2016 Page 8 of 10 ```
```html 1 34. More importantly the Memorandum deals with the procedure adopted in cases like 2 the present. It states: 3 4 In practice, there are two main routes that an accused may take to enter the 5 Drug Court：a) a guilty plea is entered in a regular sitting of the summary 6 court followed by a referral to a Drug Court sitting or，b) a matter is adjourned 7 without plea from a regular sitting of the summary court to a Drug Court 8 session where a guilty plea is then entered. Regardless of which route is taken， 9 the accused is initially viewed as an applicant only and is not viewed as a Drug 10 Court participant unless and until he has been found eligible and a provisional 11 treatment order made pursuant to s 8(9) of the Rules. 12 For administrative convenience，a Drug Court folder is created for all 13 applicants. Consequently，there are two folders in relation to an applicant-a 14 purple coloured Drug Court folder and a manila coloured folder for the 15 original summary court criminal charges. Magistrates endorse the file folders 16 with a brief summary of what occurred on any given court appearance. 17 Endorsements are made on both folders in respect of a single court appearance 18 where applications are pending or a case has concluded. In the case of a 19 successful application to enter the Drug Court，no further endorsements are 20 made on the regular summary court file (until the case is concluded) because 21 the applicant is viewed as a Drug Court participant. 22 In the appellant's case，the two folders were logged as C # 6623/2015 and DRC 23 # 53/2015. The folder for C # 6623/2015 catalogues the appellant's 24 appearances in the regular summary court. The folder for DRC # 53/2015 25 catalogues the appellant's appearances in Drug Court. 26 The crucial endorsements relate to the appellant's court appearance on 17 27 December 2015. Both of the appellant's folders were endorsed although there 28 may have been only one court appearance. The endorsement on C # 6623/2015 29 indicates that the appellant was put to his election and plea in the summary 30 court. He elected to be tried summarily and he entered a guilty plea； his case 31 was then referred to the Drug Court (no stay of proceedings was sought or 32 entered in the regular summary court pursuant to s 4 (3) of the Law). The 33 endorsement on DRC # 53/2015 for the same date indicates that the Crown 34 would review the defendant's application to the Drug Court. 35 36 37 35. Mr. Dixey does not accept the contents of the Memorandum and stated that parts of 38 it are illogical. However，I accept the submission of Miss Petit that it truly reflects 40 the procedure accurate 39 41 ```
```html 1 36. I can see nothing wrong with the Summary Court allowing Applicants, who they no doubt hope will be accepted as eligible, appearing before the Drug Court, pending a decision, as a sensible and pragmatic means of expediting proceedings. It involves a Defendant appearing before the Drug Court, but not being transferred to it. 5 37. In my view nothing in this case happened that caused the Summary Court not to have jurisdiction to accept the Appellant's election of summary trial or his plea of guilty. Further, I find, that the Appellant pleaded guilty before a regular sitting of the Summary Court and that he was never a participant in the Drug Court. 10 11 12 38. In view of those findings this appeal fails and is dismissed. 13 14 39. Had my decision been different on the above issue, other interesting questions would have required consideration, but they do not now arise. 16 17 18 19 Dated this the 27th September 2016 20 Michael Metty 21 Actf the Grand