Shamari Hodge Terrence Richardson Vaughn Brodie Claimants v Commissioner of Police Defendant [ECSC]

• Jurisdiction: Anguilla
• Judge: GEORGE-CREQUE J.
• Judgment Date: 18 February 2004
• Judgment citation (vLex): [2004] ECSC J0218-1
• Docket Number: CLAIM NO. AXAHCV/2003/0018
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 18 February 2004

[2004] ECSC J0218-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

AD 2004

CLAIM NO. AXAHCV/2003/0018

Between:

Shamari Hodge

Terrence Richardson

Vaughn Brodie

Claimants

and

Commissioner of Police

Defendant

Appearances:

Mr. Thomas Astaphan for 1 ^st and 2 ^nd Claimants

Mrs. Navine Fleming Kisob instructed by Messrs. Lake & Kentish for 3 ^rd Claimant.

Mrs. Chanelle Petty Barrrett for the Defendant.

GEORGE-CREQUE J.

1 The Claimants are charged with the offences of unlawfully and maliciously inflicting grievous bodily harm pursuant to section 204 of the Criminal Code 2000 ("the Code") in Complaints Nos. 345–347/2002 which came up before the Learned Magistrate on 20 ^th August, 2002. By virtue of the First Schedule of the Code unlawful grievous bodily harm, which had previously been an offence triable on indictment only, became an offence which is now triable summarily and also on indictment or what is now usually called an offence triable either way.

2 On 20 ^th August, 2002 when the Complaints first came before the Magistrate the prosecution indicated that the matters could proceed summarily. The matters were then adjourned to 19 ^th September for election and plea as one of the Defendants were hospitalized and counsel for the other was not available. On 19 ^th September, the prosecution then informed the Magistrate that they intended to proceed with the matters by way of indictment and invoked Section 46 of the Magistrate's Code of Procedure Act ("the Magistrate's Code"). Counsel for the Claimants informed the Magistrate that the Claimants had elected to be tried summarily and objected to the prosecution proceeding on indictment and asserted the Claimant's right to election and urged that Section 46 of the Magistrate's Code was in conflict or collided with Sections 3and 9 of the Fundamental Rights and Freedoms protected and enshrined in the Constitution of Anguilla ("The Constitution").

3 The Learned Magistrate, being of the view that the issues raised were of great constitutional dimensions and not frivolous or vexatious and at the request of Counsel for the Claimants, certified the following questions for determination by the High Court pursuant to Section 16(3) of The Constitution on December 03 ^rd 2002 :

• (1) Whether the power given to the Prosecution under Section 46 of the Magistrate's Code usurps the legislative power where said power is given and utilized without any standards and guidelines as to the circumstances under which said power may be invoked and if so:

• (2) Whether Section 46 of the Magistrate's Code is void for vagueness.

• (3) Whether Section 46 of the Magistrate's Code is void on its face because it gives the Prosecution unfettered power, and if not whether Section 46 is void as it applies to the facts and circumstances of this case.

• (4) Whether, after the Prosecution had indicated on 20 ^th August, 2002 its intention to proceed summarily and after the Court had adjourned the matter for election and plea under Sections 45, 47 and 50 of the Magistrate's Code, the prosecution may on the date of the adjourned hearing (19 ^th September, 2002) lawfully at that stage override the Court's decision and the Defendants' (Claimants') right of election by invoking Section 46 of the Magistrate's Code.

• (5) Whether on the facts and circumstances herein, the subject accused are entitled as a matter of law to the right to proceed to election and to be tried summarily.

• (6) Whether the power granted the prosecution under Section 46 without any standards or guidelines as to how, when or under what circumstances to invoke said power amounts to a usurpation of legislative power by a member of the Executive.

4 Further to directions for trial being given by the High Court on 15 ^th April and 20 ^th June 2003 written legal submissions containing the contentions on which the parties relied were filed and the matter came on for hearing on 18 ^th December, 2003. Counsel for all the parties agreed, as do I, that no affidavit or oral evidence was necessary and invited the Court to treat the written legal submissions as the full arguments to be advanced by the parties in support of their respective contentions and in due course deliver a decision on the questions raised for determination. This I now do.

5 In my view questions (1), (3), (6) and to a certain extent question 2 can be dealt with together as it raises issues regarding the doctrine of the separation of powers and that of certainty in construing Section 46 within the context of sections 45,and 47 to 50 of the Magistrate's Code and Sections 3 and 9 of The Constitution. Sections 45 to 50 of the Magistrate's Code states as follows:

"45. (1) This section applies where an adult is charged with—

(2) Subject to section 46, the Magistrate may on application by the prosecutor, the accused or of its own motion consider whether an offence that is triable either way ought to be tried summarily.

(3) Before so considering, the Magistrate shall cause the charge to be written down, it if has not already been done, and read to the accused.

(4) If—

(5) After explaining to the accused as provided by subsection (4), the Magistrate shall ask him whether he consents to be tried summarily or wishes to be tried by a jury, and—

Application to try offence on indictment

• (a) An offence set out in the Schedule; or

• (b) an offence that is expressed in the provision creating the offence as triable summarily or on indictment;

  (referred to in this Act as an offence "triable either way").

• (a) the prosecutor makes application and the accused does not object to being tried summarily;

• (b) the accused makes application and the prosecutor agrees to summary trial of the accused; or

• (c) the Magistrate moves and the prosecutor agrees and the person charged does not object to being tried summarily;

  the Magistrate shall in ordinary language explain to the accused—

• (d) the meaning of the offence being dealt with summarily;

• (e) that he can consent to be tried summarily or, if he wishes, to be tried by a jury; and

• (f) that, is he is tried summarily and is convicted by the Court, he may be committed for sentence to the High Court under section 48, if the Magistrate, on obtaining information about his character and antecedents, is of the opinion that they are such that greater punishment should be inflicted than the Magistrate has power to inflict for the offence.

• (a) if he consents to be tried summarily, shall proceed to summary trial of the accused; or

• (b) if he does not consent, shall proceed to inquire into the complaint as examining Magistrate.

46 If the prosecutor indicates that an offence triable either way is to be tried on indictment, section 45 and sections 47 to 50 do not apply and the Magistrate shall proceed to inquire into the complaint as examining Magistrate.

When offence dealt with summarily

47 Subject to section 48, an adult convicted of an offence triable either way—

Committal for sentence on summary trial of offence triable either way

• (a) under the Schedule that is dealt with summarily under section 45(5)(a) is liable on summary conviction to imprisonment for a term of 2 years or to a fine of $2,000; and

• (c) referred to in section 45(1 )(b) that is dealt with summarily under section 45(5)(a) is liable to the punishment expressly provided on summary conviction for that offence in the provision creating the offence.

48 Where on the summary trial of an offence triable either way, an adult is convicted of the offence, and, if on obtaining information about this character and antecedents the Magistrate is of the opinion that they are such that greater punishment should be inflicted for the offence than the Court has power to inflict, the Magistrate may in accordance with section 49 commit him in custody or on bail to the High Court to be sentenced or otherwise dealt with in accordance with section 50.

Powers on committal by Court in respect of other offences

49 Where the Court commits a person in custody or on bail to the High Court under section 48 to be sentenced or otherwise dealt with in respect of an offence triable either way, the Court may also commit him in custody or on bail, as the case may require, to the High Court to be dealt with in respect of any other offence of which the Court has convicted him.

Powers of High Court on committal

50 Where an offender is committed by the Court to be sentenced or otherwise dealt with under section 48, the High Court shall inquire into the circumstances of the case and shall have power to deal with him—

• (a) in the case of the offence triable either way, in any manner in which it could deal with him if he had just been convicted of the offence on indictment before the High Court; and

• (b) in the case of any other offence of which the Court has convicted him and committed him under section 49, in any manner in which he could be dealt with by law, but in no event shall the High Court exceed the jurisdiction of the Magistrate in respect of such offence."

6 The Claimants contend that Section 46 being in such broad and sweeping terms gives an unfettered power and absolute discretion to the Prosecutor and as such is inconsistent with and therefore repugnant to the provisions of Section 45 which provides for an accused's consent to be tried summarily in cases of offences triable either way and as such collides with Sections 3 and 9 of The Constitution. Section 3 of The Constitution protects against deprivation of one's personal liberty and Section 9 provides for a person charged with a criminal offence to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

Is the ultimate right of election as to mode of trial the accused's?

7 It is to be noted that Section 45(2) of the Magistrate's Code which gives the magistrate power to consider(my emphasis) whether an...