David Brandt v The King

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Ward, JA
• Judgment Date: 27 November 2025
• Judgment citation (vLex): [2025] ECSC J1127-1
• Docket Number: MNIHCRAP2021/0004

Between:

David Brandt

Appellant

and

The King

Respondent

[2025] ECSC J1127-1

Before:

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mr. Reginald Armour Justice of Appeal [Ag.]

The Hon. Mde. Paula Gilford Justice of Appeal [Ag.]

MNIHCRAP2021/0004

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal Law — Constitutional Law — Search and Seizure — Protection of private life and property — Admissibility of Evidence — Section 9, Montserrat Constitution — Warrant authorising seizure of electronic devices but not expressly authorising search of digital content — Whether search of cellular phone contents was unlawful or unconstitutional — Balancing of constitutional rights and public interest in administering justice — Offences against the Penal Code — Sexual Exploitation of a person under the age of 18 (s 141(1)(a) and (d)) — Evidence — No case submission — Proof of age — Whether there was admissible evidence to prove that the virtual complainants were each under the age of 18 at the material time — Whether their own statements as to their age was sufficient — Whether judge erred in dismissing the no case submission — Procedure — Jury management — Whether the judge erred in permitting the jury to have copies of the transcripts of the video recorded interviews of the virtual complaints during the trial and in permitting the jury to retire with them without directing them as to the use that could be made of them — Whether fatal to the conviction — Jury directions — Corroboration — Whether the judge erred in failing to give a corroboration warning in relation to the evidence of S — Perverting the Course of Public Justice — Jury directions — whether the judge misdirected the jury on the particulars of the actus reus that were essential to prove the offence — Perverting the course of Justice — Principles of Sentencing — Manifestly excessive sentence — Whether sentence of 15 years manifestly excessive.

The appellant, an attorney-at-law and former Chief Minister of Montserrat, was convicted by a jury on seven counts of sexual exploitation of minors and one count of perverting the course of public justice, and sentenced to concurrent terms of imprisonment, including 15 years for perverting the course of justice. He appealed against his convictions on counts 1 – 7 and the sentence for perverting the course of justice.

The key grounds of appeal concerned: (i) the admissibility of WhatsApp messages retrieved from his cell phone which was seized under a search warrant that authorized searching his premises for electronic items, but did not specifically authorise the search of the phone's digital content; (ii) the decision of the judge to permit the jury to have copies of the transcripts of the video recorded interviews of the virtual complainants without any directions; (iii) the sufficiency of evidence going to proof of age of the virtual complainants; (iv) the failure of the judge to give a corroboration warning; (v) the alleged misdirection on the particulars of the actus reus necessary to establish the offence of perverting the course of justice per the indictment; and (vi) a challenge to the sentence of 15 years imprisonment for perverting the course of justice.

Held: allowing the appeal in part: quashing the convictions and sentences in relation to counts 3, 4 and 5; affirming the convictions and sentences in relation to counts 2, 6, and 7; and allowing the appeal against the sentence imposed for count 8 which is quashed and substituting a sentence of 4 years imprisonment.

• 1. While acknowledging the principle derived from R v Vu that electronic devices are fundamentally different from traditional receptacles and that a specific warrant to search digital content is generally a constitutional requirement under Section 9 of the Montserrat Constitution, the evidence of the WhatsApp messages was nonetheless admissible notwithstanding that the search warrant did not specifically authorise the search of the phone's digital content. There are several compelling reasons to conclude that admitting the WhatsApp data into evidence did not compromise the fairness of the appellant's trial. At the application for the search warrants, the Chief Magistrate was presented with WhatsApp communications between the appellant and other individuals, which revealed plans involving the provision of underaged girls for sexual exploitation. This information provided sufficient grounds for the Chief Magistrate to reasonably infer that the search warrant was sought to access electronic data on the appellant's devices, allowing her to assess the privacy implications prior to issuing the warrant. It would be inappropriate to assume she failed to do so. Secondly, unchallenged evidence indicates that, in 2015, there was no established practice or expectation in Montserrat requiring explicit authorisation to search digital data within electronic devices. Consequently, DCP Thompson, along with others involved, legitimately believed that a warrant specifically permitting entry and the search for electronic devices also covered searches of data stored on those devices. Under these circumstances, it cannot be asserted that the evidence was collected recklessly or in blatant disregard of the appellant's constitutional rights. Thirdly, there is neither evidence nor allegation suggesting that more data than was necessary for the investigation of the alleged offence was extracted. Fourth, the evidence was highly material and directly relevant to the Crown's case, serving as its primary foundation and enabling a proper adjudication on the merits. The appellant has not disputed authorship of the WhatsApp messages. Therefore, considering the gravity of the charges, the public interest in resolving the case based on its merits outweighs, though does not diminish, the significance of the appellant's privacy interests.

  R v Vu 2013 SCC 60 applied.

• 2. Transcripts of an ABE interview should be provided to the jury only after thorough consideration involving consultation between the judge and counsel, and only when there is a strong justification—such as challenges in following video evidence or compromised audio clarity. If transcripts are made available to the jury, the judge must promptly instruct the jury to concentrate on the video presentation, underscoring the importance of observing the witness's demeanour. Except in highly exceptional situations, transcripts should be collected from the jury once the ABE video evidence in chief has concluded. Should it be considered necessary for the jury to retain transcripts during cross-examination, this matter must be addressed comprehensively in advance—preferably prior to the commencement of evidence in chief—and the reason for retention clearly conveyed to the jury. Any transcripts retained during cross-examination should be retrieved immediately upon the completion of the witness's testimony; as a general rule, the jury should not retain access to these materials thereafter. In circumstances where it is thought appropriate for the jury to retain the transcripts after the conclusion of the witness's evidence, there should be substantive discussion between the bench and bar, with explicit and cogent reasons recorded by the judge in a formal ruling. Ordinarily, the jury should not retire with the transcripts except in rare cases. An example is where it is specifically requested by the defence and the judge is satisfied that compelling reasons exist. In such instances, the judge must explain the purpose of providing the transcripts to the jury during the summing-up, emphasising their limited scope—namely, to facilitate comprehension of the witness's evidence in chief or pursuant to a defence request. Furthermore, the judge must present a comprehensive summary of both the cross-examination and re-examination phases, ensuring the jury appreciates all facets of the testimony and avoids undue reliance on the evidence in chief alone.

  R v Popescu [2010] EWCA Crim 1230 considered.

• 3. It is apparent from the summation that the judge made use of the transcripts for the very limited purpose of reminding the jury of certain details of the evidence in chief of the virtual complainants, particularly those parts of the evidence in chief that went towards establishing the elements of each offence. It is not apparent why the jury would have thought that they could use the transcripts for any other purpose but to remind themselves of pertinent details of the evidence in chief. There were 7 counts on the indictment involving different virtual complainants, who engaged sexually with the appellant in different ways over divers periods. The jury had the task of considering each count separately and satisfying themselves that each element of each offence was made out. The references to the transcripts were intended to assist them in that task. Popsecu recognises this as a proper purpose for which the jury may retain possession of the transcript after retirement. Furthermore, the risk that the jury would place disproportionate reliance on the transcripts and ignore the whole of the evidence, especially cross-examination, was considerably attenuated when the judge specifically directed the jury on the importance of cross examination in a criminal trial. Furthermore, the judge referred to the cross-examination of the witnesses and reminded the jury of what the appellant's defence was throughout the summation. The appellant does not complain that the judge did not sum up the case in a balanced way or did not adequately and fairly put the defence to the jury. While it is true that the judge did not specifically tell the jury why they were permitted to have the transcripts and the use to which they could put them, in light of the circumstances surrounding the jury having possession of them without objection by the appellant, who obviously wanted them to have the transcripts,...