Clarence Lee Appellant v The Commissioner of Police Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: REDHEAD, J.A.,Justice of Appeal,Albert Redhead,Brian Alleyne,Michael Gordon, QC,Justice of Appeal [Ag.]
• Judgment Date: 29 March 2004
• Judgment citation (vLex): [2004] ECSC J0329-3
• Docket Number: MAGISTERIAL CRIMINAL APPEAL NO. 1 OF 2003
• Date: 29 March 2004

[2004] ECSC J0329-3

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Brian Alleyne Justice of Appeal

The Hon. Mr. Michael Gordon, QC Justice of Appeal [ag.]

MAGISTERIAL CRIMINAL APPEAL NO. 1 OF 2003

Between:

Clarence Lee

Appellant

and

The Commissioner Of Police

Respondent

Appearances:

Mr. Jean Kelsick for the Appellant

Mrs. Esco Henry-Greer, Attorney General for the Respondent

REDHEAD, J.A.

1 This appellant was arrested on 4 ^th October, 2002 by Sergeant Cabey for the offence of possession of illegal drugs. On 7th October, 2002 he was brought before the Magistrate to answer the said charge.

2 The record reveals that the prosecution was not ready to proceed as the drug had to be sent to Antigua for testing. A request for an adjournment was granted to the prosecution.

3 The defendant appeared in person and elected for summary trial. The defendant was admitted to bail in the sum of $800.00 with one surety. The case was adjourned to 14 ^th October, 2002 at 9.00 a.m. for trial.

4 On 14 ^th October, 2002 when the matter was called the defence was not ready and a request for an adjournment was made by the defendant which was granted.

5 It appears from the record that Mr. Kelsick was noted on the record as appearing for the appellant as the record reads "no appearance by Counsel Mr. Jean Kelsick. Matter is adjourned to 9.00 am on 22 ^nd October, 2002. Bail to continue as before until trial"

6 On 22 ^nd October when the case was called the record reveals that the prosecution was not ready to proceed as the drugs were not tested. The defendant and his lawyer Mr. Kelsick were present.

7 The prosecution requested an adjournment which was granted to 18 ^th November, 2002 at 9.00 a.m. Bail was to continue until trial.

8 When on the 18 ^th November, 2002 the matter was called the prosecution was ready to proceed. The defendant was present. The record reads:

"Mr. Jean Kelsick is absent. Out of the island. Order matter is adjourned to 9.00 a.m. 2 ^nd December, 2002 for trial to start. Bail to continue as before until trial."

9 On 2 ^nd December, 2002 the case was called as scheduled the defendant was present but Mr. Kelsick was absent. The learned Magistrate commenced and completed the hearing on that day. The appellant was found guilty and fined $3,500.00 to be paid in one (1) month in default six (6) months in prison.

10 The appellant now appeals to this Court. Four grounds of appeal are filed on behalf of the appellant

1

My constitutional rights per section 57 of the Montserrat Constitution Order 1989, to be legally represented at the hearing, to be given adequate time to prepare my defence and to obtain the attendance of my own witness witnesses was violated. 2. That having explained to the Magistrate that I had not enough time to secure the attendance of the several witnesses I intended to call, he should have granted an adjournment. 3. That the Magistrate erred in stating and holding that because my Counsel Mr. Jean Kelsick habitually comes to Court late he was entitled to proceed with hearing the case in his absence, it being wrong for the Magistrate to punish me for any perceived neglect on my Counsel's part and to deprive me of an opportunity to engage other Counsel if necessary. 4. That the amount of fine imposed is excessive and higher than fines imposed in comparable cases and that the time given to pay is unreasonable"

11 The Learned Magistrate in his reasons for decision said, among other things, that when the matter was called at 9.20 a.m. on 2 ^nd December, 2002 the appellant was present but his lawyer was not. The appellant was allowed to use the Court office telephone to communicate with his lawyer.

12 The lawyer then spoke to the Court Clerk informing her, that he (the lawyer) was not dressed to come to Court, he had not had a list of cases from the Court, and he needed to call witnesses.

13 I refer to S 57 (2) of the Montserrat Constitution.

"Every person who is charged with a criminal offence —

• a. —

• b. —

• c. —

• d. Shall be permitted to defend himself before the Court in person or, at his own expense, by a legal representative of his own choice, or where so provided by any law, by a legal representative at the public expense"

14 Mr. Kelsick learned Counsel for the appellant argued in his skeleton arguments that the word "permitted" in the above quoted sub section should be given a wide and flexible interpretation in keeping with the principle that constitutional provisions protecting fundamental rights and freedoms should be interpreted generously and purposively.

15 In support of this argument Mr. Kelsick relied on Thornhill v Attorney General of Trinidad and Tobago1; Attorney General of the Gambia v Momodou Jobe2, and Robinson v The Queen3.

16 Mr. Kelsick also argued that, 'it also imposes a negative obligation in (sic) the Court to ensure that such permission is not denied'.

17 Mr. Kelsick contended that the learned Magistrate failed to appreciate this.

18 In light of what transpired, it is not true to say that appellant was not permitted to defend himself by a legal representative of his own choice. To put it another way it cannot be said that the appellant was denied the opportunity to have a legal...