Brandt v Director of Public Prosecutions

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Webster, JA,Gertel Thom,Justice of Appeal,John Carrington, QC
• Judgment Date: 06 November 2017
• Neutral Citation: MS 2017 CA 3
• Docket Number: MNIMCRAP2017/0001
• Date: 06 November 2017

Between:

David Brandt

Appellant

and

Director of Public Prosecutions

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

MNIMCRAP2017/0001

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal - Montserrat Criminal Procedure Code — Jurisdiction of magistrates under section 67 of the Criminal Procedure Code — Initial hearing into indictable offences — Whether the magistrate erred in finding that he had no jurisdiction to examine validity of charges — Magistrates Act Cap 2.02 — Montserrat Penal Code — The Constitution of Montserrat — Breach of constitutional rights — Whether the Magistrate Court has jurisdiction to grant constitutional relief — Jurisdiction of the Court of Appeal on breaches of the Constitution

The appellant, David Brandt, was charged under the Penal Code of Montserrat with the offences of sexual intercourse with a girl under the age of 16 years contrary to section 122(1), conspiracy with persons unknown to have unlawful sexual intercourse with a girl under the age of 16 years, sexual exploitation of persons under the age of 18 years contrary to section 141(1)(a) and conduct for the purposes of sexual exploitation of a girl under the age of 18 years contrary to section 141(1)(d).

At the initial hearing before the learned Chief Magistrate the appellant applied to have the charges dismissed. The appellant argued that the charges were defective and bad in law both in substance and form. The application was made under section 67(3) of the Criminal Procedure Code and the Chief Magistrate denied the application on the ground that the court had no jurisdiction to dismiss the charges. The appellant appealed on the ground that the Chief Magistrate erred in finding that he did not have power to determine the validity of the charges at an initial hearing. The appellant also argued that his constitutional right to a fair hearing had been infringed.

Held: dismissing the appeal; affirming the decision of the learned Chief Magistrate; and remitting the case to the High Court, that:

• 1. The magistrate does not have the power to dismiss charges against a defendant at an initial hearing. Neither section 22 of the Magistrate's Act nor section 67(3) of the Criminal Procedure Code affords a magistrate such power. In relation to initial hearings, the magistrate's powers are limited to the matters listed in section 67(3) of the Criminal Procedure Code.

  Section 22 of the Magistrate's Act, Cap. 2.02, Revised Laws of Montserrat 2013 applied; Section 67 of the Criminal Procedure Code, Cap. 4.01, Revised Laws of Montserrat 2013 applied.

• 2. The Magistrate's Court does not have jurisdiction to grant constitutional relief under section 7 of the Constitution of Montserrat. Any redress for alleged breaches of the Constitution must be sought in the High Court.

• 3. The Court of Appeal does not have original jurisdiction to hear applications for breaches of the Constitution. The Court can only address breaches of the Constitution on appeal from the High Court.

  Hunte and Khan v The State of Trinidad and Tobago (2015) UKPC 33 applied.

Appearances:

Dr. David Dorsett and Mr. Karl Markham for the Appellant

Ms. Anesta Weeks, QC and Ms. Dee Connolly for the Respondent

1 Webster, JA [AG.]: The appellant, David Brandt, was charged with the following:

• (a) unlawful sexual intercourse with a girl under the age of 16 years contrary to section 122 (1) of the Penal Code; 1

• (b) conspiracy with persons unknown to have unlawful sexual intercourse with a girl under the age of 16 years;

• (c) four charges involving conduct for the purpose of sexual exploitation of persons under the age of 18 years contrary to section 141(1)(a) of the Penal Code; and

• (d) one charge of conduct for the purpose of sexual exploitation of a girl under the age of 18 years contrary to section 141(1)(d) of the Penal Code.

2 At the initial hearing of the charges on 30 ^th January 2017 before the learned Chief Magistrate, the appellant applied under section 67(3) of the Criminal Procedure Code2 for the dismissal of the charges against him on the ground that ex facie they were defective and bad in law both in substance and in form. The Chief Magistrate refused the application on the ground that he had no jurisdiction to dismiss the charges against the appellant and issued a scheduling order for the appellant to appear before the High Court for a sufficiency hearing. The appellant appealed against the decision of the Chief Magistrate on the ground that the Chief Magistrate erred in finding that he had no jurisdiction to examine the validity of the charges at the initial hearing and sought an order that the charges against him were defective and should be struck out.

3 Just before the hearing of the appeal the respondent withdrew the charges of unlawful sexual intercourse and conspiracy ((a) and (b) in paragraph 1 above) leaving the five charges of sexual exploitation, four of them contrary to sub-section (a) of section 141(1) of the Penal Code and one contrary to sub-section (d) of section 141(1). This appeal concerns the five charges under section 141 of the Penal Code and the interpretation of the statutory provisions in Montserrat relating to the committal of persons for trial on indictment.

4 The issues that arise on this appeal are:

• i. The extent of the jurisdiction of the Magistrate's Court when considering an application brought by a defendant under section 67(3)(f) of the Criminal Procedure Code to dismiss the charges against him.

• ii. Whether there was a breach of the appellant's constitutional rights arising from the decision of the Chief Magistrate to decline jurisdiction to examine the validity of the charges against the appellant at the initial hearing.

Issue 1 — The extent of the magistrate's jurisdiction under section 67(3)(f) to dismiss charges

5 The trial of persons in Montserrat charged with indictable offences commences with an initial hearing before a magistrate followed by a sufficiency hearing before a judge of the High Court. At the sufficiency hearing the judge reviews the evidence and decides, if it discloses a prima facie case, that an indictable offence has been committed by the defendant. If the judge finds that there is sufficient evidence the case proceeds to trial on indictment. Prior to the introduction of this system the trial of indictable offences in Montserrat was commenced by a preliminary inquiry before a magistrate. At the conclusion of the inquiry the magistrate decided if the evidence was sufficient to commit the defendant for trial in the High Court. It is immediately apparent that the Magistrate's Court now has a significantly reduced role in deciding whether the defendant should be tried for the offence charged. Subject to section 67 of the Criminal Procedure Code his or her role is now limited to sending the case to the High Court for a judge to decide if the defendant should be committed for trial.

6 The new procedure for trying indictable offences is contained in the Criminal Procedure Code. The steps in the procedure are set out section 61(1) of the Code as follows:-

“61(1) Criminal proceedings in respect of offences to be tried on indictment shall include: –

• (a) an Initial Hearing before a magistrate;

• (b) a Sufficiency Hearing before the judge;

• (c) Indictment

• (d) Arraignment; and

• (e) Trial”

This appeal is primarily concerned with the first stage: the Initial Hearing.

7 Section 62 of the Code deals with case management hearings and sections 63 to 65 cover pre-trial disclosure. These sections are not directly relevant to this appeal.

8 The procedure going forward from case management and disclosure for indictable offences is contained in Part 12 of the Criminal Procedure Code headed “Indictable offences: sending cases from the Magistrate's Court to the High Court”. The procedure for the Initial Hearing and the magistrate's powers at the hearing are set out in section 67 and it is helpful to set out this section in full —

“(1) The Initial Hearing shall commence on the return date of the summons or warrant or when the accused first appears before the magistrate after having been arrested without warrant and shall continue on the date to which the magistrate adjourns the Hearing from time to time.

(2) If the defendant has not been granted bail, the Initial Hearing shall take place within seventy two hours of arrest.

(3) At the Initial Hearing the magistrate shall:-

• (a) verify the defendant's identity and contact information;

• (b) record the name and contact information for the defendant's counsel if the defendant is represented by counsel and record counsel's appearance;

• (c) read the charges to the defendant or cause the charge to be read to the defendant in a language that he or she understands;

• (d) explain to the defendant the rights set out in section 68;

• ...