Mussington et Al v Attorney General

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Hariprashad-Charles, J.
• Judgment Date: 12 October 2001
• Neutral Citation: AI 2001 HC 7
• Docket Number: Miscellaneous Suits nos. 0044 and 0045 of 2001
• Date: 12 October 2001

High Court

Hariprashad-Charles, J.

Miscellaneous Suits nos. 0044 and 0045 of 2001

Mussington et al

and

Attorney General

Appearances:

Mr. Elson Gaskin for the applicant, Danny Mussington.

Ms. Josephine Gumbs-Connor for the applicant, Gervin Gumbs. With them are Ms. Bernice Lake, Q.C. and Mr. Thomas Astaphan.

The respondent, Attorney-General in person. With him is Mr. Stanley Reid. Senior Crown Counsel.

Constitutional law - Fundamental rights and freedoms — Whether contravened — Applicant indicted for offence of causing death by dangerous driving and 2nd applicant for assault occasioning actual bodily harm — Sought declaration that sec. 27 of Jury Act, Cap. 39 and sec. 31(1) of Criminal Procedure Act, 2000 violated their fundamental rights to a fair hearing and to protection of the law — Whether removal of the right to make an unsworn statement from the dock undermined the presumption of innocence and compelled applicants to give evidence of trial in violation of their rights — Haw Tau Tau v. Public Prosecutor [1981] 3 W.L.R. 395 considered — Respondent sought to have action struck out as an abuse of process of court — Judgment for respondent — No order for costs.

Hariprashad-Charles, J.

1 There is no doubt that the judgment in this matter would have far-reaching implications not only in Anguilla but regionally and perhaps internationally. This is predominantly so because some countries have already enacted legislation that abolished the accused's right to remain in the dock and make an unsworn statement while others are contemplating doing so. Legal Practitioners as well as interested persons including the applicants are thus awaiting the judgment with great interest.

2 The crucial issue in this case concerns the amendment to the Criminal Procedure Act 2000 and more particularly, section 31 which reads as follows: “…in any criminal proceedings the accused shall not be entitled to make a statement without being sworn, and accordingly, if he gives evidence, he shall do so on oath and be liable to cross-examination…”

3 Essentially, the amending provision abolishes an accused's right to remain in the dock and make an unsworn statement whereby he could not be examined or cross-examined or be questioned.

THE BACKGROUND FACTS

4 The applicants have been committed to stand trial at the Criminal Assizes in Anguilla. The applicant. Daniel Mussington was indicted for the offence of causing death by dangerous driving and the applicant, Gervin Gumbs for the offence of assault occasioning actual bodily harm.

5 At the June 2001 Criminal Assizes, both applicants, through their respective counsel indicated that they proposed to challenge, inter olio, the constitutional validity of section 31 of the Criminal Procedure Act 2000 which came into effect in October 2000.

6 The parties and the court agreed that as a matter of convenience it was preferable for the challenges to be raised as preliminary points rather than midway within a criminal trial with an empanelled jury. It is a rather unusual course but that being the background, this matter stands before the court referentially.

7 Each applicant fled a Notice of Originating Motion (which was subsequently amended) pursuant to sections 1, 9 and 16 of The Anguilla Constitution; section 27 of the Jury Act, Cap. 39 of the Laws of Anguilla and section 31 of the Criminal Procedure Act 2000 seeking Inter olio the following:

• (1) A Declaration that section 27(a) and (b) of the Jury Act Cap-39 of the Laws of Anguilla violates the applicant's constitutional right to the Protection of the Law and to a Fair Hearing by an independent and impartial court established by law as guaranteed and enshrined by sections 1, 9 and 16 of the Anguilla Constitution 1982 and is therefore unconstitutional null and void and of no effect.

• (2) A Declaration that the provision of section 31(1) of the Criminal Procedure Act 2000 violates the applicant's fundamental right to the Protection of the Law and to a Fair Nearing by an independent and impartial court established by law as guaranteed and enshrined by sections 1, 9 and 16 of the Anguilla Constitution 1982 and is therefore unconstitutional null and void and of no effect

8 The motions were consolidated and a hearing date was fixed. Shortly thereafter, the respondent filed a Summons to strike out the relief claimed at paragraph 2 in the Amended Notice of Originating Motion under the Inherent jurisdiction of the court.

9 The respondent Attorney-General submitted that because of the decision of the Privy Council in Haw Tua Tua v. Public Prosecutor [1981] 3 W.L.R. 395, the relief claimed at paragraph 2 of the applicant's respective Amended Notice of Motion is doomed to failure end ought to struck out as an abuse of the process of the court and/or are otherwise frivolous and for are vexatious.

10 In an affidavit in opposition to strike out on 9th day of July 2001, the applicants challenged the procedure adopted in bringing the Summons before the Court. They contended that the point raised in the Summons is a point in limine. The respondent conceded that the point raised by the Summons to strike out could have been raised in limine but argued that he has the first option of applying for a strike out. He relied on the authority of Attorney General for Grenada v. Grenada Electricity Services Ltd (1965) 9 W.I.R. 209. At page 215, Field, C.J. had this to say:

“The second submission of Mr. St. Bernard to the effect that the Union should not have been made a party to these present proceedings was difficult to follow. I pointed out to him that the proper course for the Union to have adopted was to have made an application to strike them out from the Statement of Claim, or alternatively, the next course open was to have made an objection in limine.”

11 The respondent submitted, and correctly so, that there is no procedural or legal requirement to wait until the date fixed for hearing to raise a point in limine when the same issue could properly be ventilated by a Summons to strike out.

12 This issue was not canvassed at the date of the hearing of this Summons to strike out. I therefore conclude that the applicants have conceded that the Summons before the court was properly made.

13 The respondent submitted that the court has an inherent jurisdiction to stay or dismiss actions and to strike out pleadings which are vexatious or frivolous, or an abuse of the process of the court. Trite law it is, I do not propose to specifically address this principle since it was not pursued by the applicants.

14 The gravamen of the applicants' case is in relation to the removal of the entitlement of the accused persons to make unsworn statements from the dock since the enactment of the Criminal Procedure Code 2000. They argued that prior to the passage of the legislation, an accused person standing trial on indictment before a judge and jury in Anguilla, had the option, when called upon for a defence to exercise one of three rights namely:

• (i) The right to go into the witness box and to give evidence under oath and to be examined and cross-examined by counsel for the accused, the Crown and be questioned by the judge and jury.

• (ii) The right to remain silent and say nothing.

• (iii) The right to remain in the dock and make an unsworn statement in which case no one could ask questions.

15 The applicants maintained that the abolition of the said right to remain in the dock and make an unsworn statement has the three-fold effect of:

• (i) undermining their presumption of innocence.

• (ii) imposing a burden of proof upon them in circumstances where none exists and

• (iii) compelling them to give evidence at their trial in violation of their fundamental rights as contained in sections 1 and 9 of the Constitution of Anguilla 1982.

16 The respondent accepts that the amending legislation purports to abolish the right of the accused to remain in the dock and make an unsworn statement but refutes any arguments that the purported abolition is in violation of their fundamental rights as contained sections 1 and 9 of the Constitution. It is the submission of the respondent that the identical issue came up for consideration before the Privy Council in the case of Haw Tua Tua in relation to amendments to the Criminal Procedure Code in Singapore. Of the amending provisions, Section 195(1) provides as follows: “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…”

17 I readily accept that the amending provisions to tie Criminal Procedure Code of Singapore and Anguilla are identical in relation to the removal of the entitlement of the accused to make unsworn statements from the dock.

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