David Brandt v Director of Public Prosecutions

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Webster JA
• Judgment Date: 29 November 2018
• Neutral Citation: MS 2018 CA 4
• Docket Number: MNIHCVAP2018/0003
• Date: 29 November 2018

Between:

David Brandt

Appellant

and

Director of Public Prosecutions

Respondent

Before:

The Hon. Dame Janice Pereira, DBE Chief Justice

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

The Hon. Mr. Terrence Williams Justice of Appeal [Ag.]

MNIHCVAP2018/0003

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil Appeal - Statutory Construction — Interpretation of section 141 of the Penal Code — Whether construction of section 141 of the Penal Code is suitable for resolution by a judge of the High Court during a sufficiency hearing — Whether learned judge should have found that the proper place for the appellant to seek redress for alleged defects of criminal charges is in the High Court by a constitutional motion

Appearances:

Dr. David Dorsett for the Appellant

Ms. Anesta Weekes, QC for the Respondent

ORAL JUDGMENT

1 Webster JA [AG.]: This is an appeal against the judgment of the learned trial judge dated 10 ^th January 2018 dismissing the Appellant's application for an interim order staying the prosecution of criminal charges against him pending the final determination of his claim said to be for relief under the Montserrat Constitution Order 2010 (“the Constitution”). 1

Background

2 The Appellant stands charged with five charges of sexual exploitation, with particulars given, four of them contrary to paragraph (a) of section 141(1) of the Penal Code, 2 and one contrary to paragraph (d) of section 141(1) of the Penal Code. The Appellant complained that the charges on their face are defective and bad in law, both in form and substance, and that the prosecution of the charges contravenes his constitutional right to protection of the law and a fair trial. When the matter first came before the Chief Magistrate, the Appellant applied to dismiss the charges on account of the alleged deficiencies. The Chief Magistrate dismissed the application and sent the matter to the High Court for a sufficiency hearing as provided for under the Criminal Procedure Code. 3 The Appellant appealed against the Chief Magistrate's decision. The Court of Appeal dismissed the appeal finding that the application to dismiss the charges, as well as the claim for constitutional relief, were premature.

3 The Appellant then applied to the High Court under section 20 of the Constitution for orders that his rights to protection of the law and a fair hearing are being contravened by the continued prosecution of the charges against him. The Director of Public Prosecutions opposed the application. The learned judge dismissed the application for interim relief, as well as the substantive claim which sought essentially the same relief on a permanent basis.

4 The appellant appealed against the judge's decision. The notice of appeal lists the following five grounds of appeal:

• (i) The judge erred in law in giving summary judgment and summarily dismissing a proceeding for constitutional redress under the Constitution contrary to rule 15.3 of the Civil Procedure Rules 2000 (“CPR”).

• (ii) The judge erred in law on a matter of statutory construction in finding that sexual exploitation is not limited to the acts enumerated in section 141 of the Penal Code.

• (iii) The judge erred in law on a matter of statutory construction by holding that having sexual intercourse with someone is not outside of section 141 of the Penal Code.

• (iv) The judge erred in law on a matter of statutory construction by failing to properly apply the rule that penal statutes are to be strictly construed by failing to properly apprehend the Appellant's argument on how the rule of strict construction was to be applied in the context of section 141 of the Penal Code.

• (v) The judge should have found that the proper place for the Appellant to seek redress for the alleged breaches of the Constitution is the High Court under section 20 of the Constitution.

I will deal with ground 5 first as it is in the nature of a threshold issue, and then grounds 2, 3 and 4 together as they relate to the interpretation of the section 141 of the Penal Code, and finally ground 1.

Ground 5 —Relief under the Constitution

5 Dr. David Dorsett appeared for the Appellant. He submitted that where a person is charged with criminal offences, the issue of the defectiveness of the charges, which I will deal with when I consider grounds 2, 3 and 4, should be dealt with as early as possible. He relied on the decision of the Court of Appeal of England and Wales in R v Gleeson 4 to the effect that counsel for the defendant in a criminal trial should not delay in bringing issues of fact and law to the attention of the court. Further, the continued prosecution of the Appellant on defective charges is manifestly unfair and in breach of his constitutional right to protection of the law and a fair trial. The proper

place for the Appellant to seek immediate redress is therefore by a constitutional motion in the High Court which is what the Appellant has done

6 Ms. Annesta Weeks, QC who appeared for the Respondent submitted that it is wrong for the Appellant to seek redress for the alleged defects of the charges by a constitutional motion. The proper avenue for the Appellant to seek redress is at the sufficiency hearing where a judge of the High Court will rule on the sufficiency of the charges. She reminded this Court that in its previous judgment in November 2017 it had ordered that the case be sent to the High Court “… for a sufficiency hearing as soon as possible.” 5

7 The issue of the proper procedure to be followed was debated in the lower court and the learned judge dealt with it in the oral judgment that he delivered, the transcript of which is in the record of appeal. At page 16 of the transcript he found that -

“So in this particular case I think that it is well argued that this application could have been dealt with at the summary hearing. You could have raised the same points with regard to any alleged abuse of process and it would have been heard in the similar fashion by the Court. All the references to the construction of legislation etc could all have been raised at a sufficiency hearing.”

The judge then referred to the passing of the Penal Code and the Criminal Procedure Code in Montserrat and continued -

“…one has to take cognizance of the reason for this kind of effort and clearly part of it is to give every opportunity to the parties to thrash out matters like this without having to take the matters to a separate court to be argued as a Constitutional issue. So I think the Sharma and Brown-Antoine matter clearly deals with that.”

8 The judge's reference to “Sharma and Brown-Antoine” is of course to the decision of the Privy Council in Sharma v Brown-Antoine and Others 6 where the Board had to deal with a challenge by way of judicial review by the former Chief Justice of Trinidad and Tobago to a decision of the Deputy Director of Public Prosecutions to bring criminal

proceedings against the Chief Justice. The Board found that the decision to prosecute should properly be raised in the course of the criminal proceedings and that it was not a case where judicial review proceedings should be allowed. The decision of the Board on this issue is summed up in the joint opinion of Baroness Hale, Lord Carswell and Lord Mance at paragraph 31 -

“The possibility of a challenge to the prosecutorial decision, and the apparent inevitability of full investigation in the course of any criminal proceedings into the background to the decision to prosecute, are in our view features central to the resolution of the present appeal. They could properly be raised in the criminal proceedings, either in the course of an application to stay those proceedings on the ground of abuse of process or in any substantive trial. Like Lord Bingham and Lord Walker, we are not persuaded that the Chief Justice's complaint could not properly be resolved within the criminal process. It is clear that the criminal courts would have the power to restrain the further pursuit of any criminal proceedings against the Chief Justice if he could on the balance of probabilities show that their pursuit constitutes an abuse of the process of the court”.

9 The issue in the Sharma case involved a factual investigation into the decision of the Deputy Director of Public Prosecutions to bring criminal proceedings against the former Chief Justice and yet their Lordships had no difficulty in finding that it could be resolved in the criminal proceedings. The appeal before this Court is a matter of interpretation of legislation to wit, provisions of the Penal Code, and is a fortiori more suited to resolution in the sufficiency proceedings.

10 This Court must guard against the use of constitutional motions to derail or delay proceedings in the Civil and Criminal Divisions of the High Court. I find that this appeal, and the application before Belle J, involved in essence, the singular issue of the construction to be given to section 141 of the Penal Code, which is a matter eminently suitable for resolution by a judge of the High Court in the sufficiency hearing. It is wholly inappropriate for this Court, or the High Court in its constitutional jurisdiction, to be made to tread upon the criminal jurisdiction of the High Court in the manner undertaken by the Appellant. The procedure used by the Appellant to bring this matter to the High Court as a constitutional claim is entirely wrong and improper....