Daniel Mussington Gervin Gumbs Appellants v Attorney General of Anguilla Respondent

• Jurisdiction: Anguilla
• Judge: Singh JA,Satrohan Singh,Justice of Appeal,Sir Dennis Byron,Chief Justice,Albert Redhead
• Judgment Date: 11 November 2002
• Judgment citation (vLex): [2002] ECSC J1111-3
• Docket Number: CIVIL APPEAL NO.4 OF 2001
• Date: 11 November 2002
• Court: Court of Appeal (Anguilla)

[2002] ECSC J1111-3

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

CIVIL APPEAL NO.4 OF 2001

Between:

Daniel Mussington

Gervin Gumbs

Appellants

and

The Attorney General of Anguilla

Respondent

Singh JA

1 Before1876, a person charged with a criminal offence, was not a competent witness for the defence. The law then, did not permit such a person to testify on oath. He had the option then, either to stay silent or make an unsworn statement which could not be tested by cross-examination.

2 In1876, the Evidence Act, by S6, made a person charged with a criminal offence a competent but not a compellable witness. S 6 [g] preserved such a person's Common Law option to make a statement without being sworn.

3 If he made such a statement, whilst the prosecution byS 6 (b) was not permitted to comment on the accused's failure to testify in his own defence, judges were not prohibited from commenting on such failure. English law had always recognized the right of the deciders of fact in a criminal trial to draw inferences from the failure of the defendant to exercise his option to give evidence and thereby submit himself to cross-examination.

4 This option of the accused to make a statement without being sworn, remained with Anguilla. In1967, Anguilla became a Constitutional Society and in 1982 procured its own Constitution.

5 In 2000, S 31 (1) of the Criminal Procedure Act, [The Act] abolished the option afforded an accused to make a statement without being sworn. That left such an accused with the right of defence either to stay silent or give evidence on oath which permitted cross-examination by the prosecution, questions from the judge and questions from the jury.

THE CASE:

6 The appellants herein, Daniel Mussington and Gervin Gumbs were called upon to stand trial at the June 2001 Assizes of Anguilla for the offences ofCausing Death by Dangerous Driving and Assault Occasioning Actual Bodily Harm, respectively.

7 Before the trial commenced, the appellants, by motion, activated the jurisdiction of the Constitutional Court of Anguilla pursuantSs 1, 9 and 16 of the Anguilla Constitution 1982 [The Constitution], for a declaration that the aforementioned statutory provision "violated the appellant's fundamental right to the Protection of the law and to a fair hearing by an independent and impartial court established by law and guaranteed and enshrined by SS1, 9 & 16 of the Constitution and was therefore unconstitutional null and void and of no effect."

8 The matter came up for hearing beforeHariprashad-Charles J, upon a summons to strike filed by the respondent, on the ground that because of the decision of the Privy Council in HAW TUA TUA v Public Prosecutor [1981] 3 WLR, 395, the appellant's motion was "doomed to failure and ought to be stuck out as an abuse of the process of the Court and/or was otherwise frivolous and vexatious." HAW TUA TUA, was a decision on the identical issue where the Privy Council upheld the Constitutional validity of a similar abolishing legislation in Singapore. S195 (1) of the Criminal Code of Singapore was that legislation and it is similar to S31 (1) of the Act. It reads thus:

"In any criminal proceedings, except an inquiry preliminary to committal for trial, the accused shall not be entitled to make a statement without being sworn or affirmed, and accordingly, if he gives evidence, he shall do so on oath or affirmation and be liable to cross-examination."

9 Charles J, on October 10, 2001, determined the substantive motion on the preliminary objection and struck out the reliefs claimed, as being "an abuse of the process of the Court and/or was otherwise frivolous and/or vexatious." The learned judge was of the view that "the proceedings were doomed to failure." In coming to that conclusion, whilst the judge felt herself bound by HAW TUA TUA, she still investigated the issue as it related to Anguilla.

10 The appellants are obviously dissatisfied and have appealed. The nub of the appeal is the constitutional validity ofS 31 (1) of Act. I now address that issue.

S 31 (1) OF THE ACT: ITS CONSTITUTIONALITY

11 The submission of the appellants was that the abolition of the option to make an unsworn statement from the dock [1] undermined an accused's presumption of innocence. (2) imposed a burden of proof on them in circumstances where none existed and (3) compelled them to give evidence at their trial in violation of their fundamental rights as contained inSs 1 and 9 of the Constitution. To put it more succinctly, it interfered with the appellants' fundamental right under S9 of the Constitution to a fair hearing.

12 According to learned Counsel for the appellants, upon the advent of the Constitutional instruments applicable to Anguilla, this Common Law option of an accused as preserved by the1876 statute "acquired constitutional value and formed part of the provision to secure the protection of law clause embodied in S9 of the Constitution." Mr. Astaphan referred to this procedure as a "fundamental rule of justice which was imported into the constitution as a fundamental right."

13 S9 (1) (5), and [10] of the Constitution respectively provide:

"(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty:

Provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this subsection to the extent that the law in question imposes upon any person charged as aforesaid the burden of proving particular facts.

(10) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

14 A logical starting point for a consideration of this issue would be the legal position of an accused person in the 19^th century. Before 1876, he suffered from the disadvantage of not being a competent witness in his own cause. He had the option to remain silent in his defence, or make an unsworn statement from the dock. If he opted for the former, the jury were deprived of hearing his side of the story. If he opted for the latter, because the truthfulness or otherwise of that statement could not be tested by way of cross examination, a jury was not assisted in their deliberations as to its veracity or otherwise. Additionally, the accused was disadvantaged by the trial judge quite properly directing the jury, that because the statement was not made on oath and not tested by cross-examination, it was not evidence like that of other witnesses in the case, that it was material which formed part of the overall picture of the case, and therefore they must decide what weight they should put on it, bearing in mind its inquisitorial deficiency. In other words, it was merely persuasive as opposed to being evidential.

15 It is my view that thispre 1876 position, had the effect of not affording an accused person a fair trial. There was imbalance, and that prompted the legislature by the Evidence Act of 1876, to enhance the status of an accused person to that of a competent witness in his own cause, whilst at the same time preserving his option to make a statement without being sworn.

16 The next element to be considered in this progression of events, is whether whenS9 of the Constitution was crafted, this common law cum statutory procedural option of an accused to make an unsworn statement, was included as one of the elements of "fair hearing" as contemplated therein.

17 I do not accept the submission of Counsel for the appellant that the abolition of the unsworn statement "may in at least some cases, essentially amount to a shift of the burden of proof of guilt from the prosecution to the accused by making it inexorable that in order to disprove the prosecution's case, the accused is obliged to take the witness stand and give sworn testimony and be subject to cross-examination."

18 In making this submission, learned counsel seemed to be imposing a compulsive burden on an accused to prove the prosecution wrong, when, because of the presumption of innocence, there existed no such burden.

19 I share the view of the Privy Council inHAW TAU TAU, and hold that S31 (1) of the Act created no genuine compulsion on an accused to give evidence on oath. It might have created a strong inducement...