R v Webster

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Williams, J.
• Judgment Date: 28 November 1991
• Neutral Citation: AI 1991 HC 4
• Docket Number: Criminal Case No. 1 of 1991
• Date: 28 November 1991

High Court

Williams, J.

Criminal Case No. 1 of 1991

R.

and

Webster

Karl Hudson Phillips, Q.C. for the Accused, Courtney Abel with him.

Ian Chang for the Crown, Samuel Harrison with him.

Practice and procedure - Power of attorney — General to give directions to magistrate to squash case — Criminal Procedure Ordinance, Cap. 20, s. 15(2) — Magistrates Code of Proceeding Ordinance, Cap. 60, ss. 59, 60.

JUDGMENT:

1 The accused Didric Webster is indicted on a charge of manslaughter, contrary to Common Law. Before the charge was read to the accused, Counsel for the accused moved the Court in limine that the indictment be quashed on the ground that certain directions given by the learned Attorney General to the Stipendiary Magistrate which led to the committal of the accused was ultra vires and therefore the committal was a nullity.

2 Proceedings were commenced against the accused on an indictable information for murder, contrary to Common Law dated the 15th day of March, 1991 and a Preliminary Inquiry commenced on the 16th day of April, 1991 and on divers days thereafter, and on the 3rd day of May, 1991 at the close of the case for the prosecution Counsel for the accused submitted that the Crown had not made out a prima facie case for the accused to answer. The learned Magistrate agreed with the submission made by Counsel and discharged the accused.

3 In discharging the accused the learned Magistrate acted under the powers vested in her by section 58 of the Magistrate's Code of Procedure Act Chapter 46 which reads as follows:

• “58. When the examination of all the witnesses for the prosecution is completed, the Magistrate may either dismiss the charge and if the accused is in custody, make an Order for his release or he may call upon the accused for his defence as herein provided.”

4 Following upon the discharge of the accused by the learned Magistrate the Honourable Attorney General by letter dated the 6 ^th day of May, 1991 wrote to the learned Magistrate in the following terms:–

“Your Worship:

Preliminary Inquiry into a Charge of Murder-Commissioner of Police vs. D. Webster

I am informed that on Friday the 3 ^rd day of May, 1991 the accused person in the above-stated case was discharged. In exercise of the power vested in me by Law, I hereby require you, the Magistrate in the above-stated cause to send to me a copy of the depositions taken in the said cause.

Kurt DeFreitas

ATTORNEY GENERAL”

5 The learned Attorney General did not specify in his letter the specific law on which he relied but such power does exist under section 15(1) of the Criminal Procedure Act; Chapter 20, which reads as follows:

• “15. (1) In any case where the Magistrate discharges an accused, the Director of Public Prosecutions may require the Magistrate to send to him the depositions taken in the cause, or a copy thereof, and any other documents or things connected with the cause which he thinks fit.”

6 The learned Magistrate duly complied with the request of the learned Attorney General and by memorandum dated the 7 ^th day of May, 1991, stated thus:–

“Subj: Preliminary Inquiry into a Charge of Murder Commissioner of Police v. Didric Webster

With reference to your letter dated 6 ^th May, 1991 I enclose herewith a copy of the depositions taken at the abovementioned Preliminary Inquiry.

Ena J.C. Woodstock (Mrs.)

MAGISTRATE”

7 In response to the learned Magistrate's memo of 7 ^th May, 1991, the learned Attorney General on the 29 ^th May, 1991 wrote to the learned Magistrate as follows:

“Your Worship:

Preliminary Inquiry into a Charge of Murder Commissioner of Police v. D. Webster

Take notice that on the basis of the depositions submitted to me and on the evidence contained therein, I am of the opinion that the accused person in the above matter should have been committed for trial for the offence of manslaughter.

And further take notice that acting pursuant to the provisions of section 15(2) of the Criminal Procedure Ordinance, Cap. 20 of the Laws of Anguilla, I HEREBY remit to you, Magistrate in the cause, the depositions taken in the said cause and

I HEREBY direct that you re-open the Preliminary Inquiry and further inquire into the matter in manner prescribed by sections 59 and 60 of the Magistrate's Code of Procedure Ordinance, Cap. 46 of the Laws of Anguilla, and deal with the matter accordingly in relation to the offence of Manslaughter and commit the accused person for trial for that offence.

Kurt DeFreitas

ATTORNEY GENERAL”

8 Section 15(2) of the Criminal Procedure Act reads as follows:

• “15.(2) If, after the receipt of those documents and things the Director of Public Prosecutions is of the opinion that the accused person should have been committed for trial, the Director of Public Prosecutions may, if he thinks fit, remit them to the Magistrate, with directions to deal with matter accordingly and with any other directions he thinks proper.”

9 It is with the purported direction of the learned Attorney General to the learned Magistrate to commit the accused for trial for the offence of manslaughter to which Counsel for the accused takes objection.

10 Mr. Hudson Phillips for the accused submitted that it would appear that the letter of the learned Attorney General to the learned Magistrate dated the 29 ^th May, 1991 takes the following position:

• (6) That he is of the opinion that the accused should have been committed for trial for the offence of manslaughter.

• (7) He remits the depositions to the Magistrate.

• (8) He directs the Magistrate to re-open the Preliminary Inquiry and deal with matter pursuant to the Provisions of sections 59 and 60 of the Magistrate's Code of Procedure, Chapter 46 and

• (9) He directs the Magistrate to deal with the matter accordingly which could only mean a direction to commit for the offence of manslaughter.

11 By section 59 of the Magistrate's Code of Procedure if the Magistrate shall dismiss the charge the Magistrate is required to give the necessary caution and after such caution take down in writing anything said by the accused.

12 By section 60 of the said Code the accused or his Counsel or Solicitor may then show cause why the Magistrate should not commit him for trial and may call witnesses if any in his defence.

13 It is only after the above procedure has been complied with that the Magistrate can commit the accused for trial under section 61 of the said Code. Section 61 reads as follows:

• “61. When the accused has been heard and his witnesses (if any) examined, the Magistrate shall either dismiss the charge and if the accused be in custody make an order for his release, or shall commit him for trial before the Circuit Court which shall next be held after such committal as aforesaid in the Circuit in which the offence charged has been committed…….”

14 Counsel submitted that in effect the directions of the Honourable Attorney General is that the Magistrate re-open the case give the required warning to the accused that the accused call witnesses if any, that he purports to deprive the Magistrate of her undoubted function and obligation to hear witnesses, assess their evidence and discharge the accused after hearing his witnesses. That the Magistrate even though she calls upon an accused person may still dismiss.

15 Counsel further argued that the learned Attorney General could not properly have been of the opinion that the accused should have been committed for trial because such an opinion can only be properly made after all the evidence for the Prosecution have been heard, the caution is administered and the witness if any for the accused person is heard; and at the stage at which the Honourable Attorney General purported to give the direction, he could not have been of that opinion.

16 Counsel relied heavily on the case of R. v. Hussain (1965) 8 W.I.R. p.65 in support of his arguments.

17 Mr. Chang for the Crown submitted that the Committal Order of the Magistrate was validly made under section 61 supra, of the Magistrate's Code of Procedure. That under that section the Magistrate is...