Mc Ewan v Commissioner of Police and Attorney General

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Leigertwood-Ocatve, J.
• Judgment Date: 09 March 2012
• Neutral Citation: MS 2012 HC 6
• Docket Number: MNIHCV 6 of 2005
• Date: 09 March 2012

High Court

Leigertwood-Ocatve, J.

MNIHCV 6 of 2005

Mc Ewan

and

Commissioner of Police and Attorney General

Appearances:

Mr. David Brandt for the claimant.

Ms. Shauna Griffith for the respondents.

Constitutional Law - Fundamental rights and freedoms — Right to fair trial within reasonable time — Whether failure to bring mater to trial was unconstitutional.

Introduction

1 On 18 ^th May 1995, Robert McEwan [“Mr. McEwan] was charged with intent to defraud the Inland Revenue Department by presenting a forged document. The matter had not been tried when he filed an Originating Motion on 23 ^rd February 2005 against the Commissioner and the Attorney General [“the Respondents”], alleging that the Crown had failed to bring the matter to trial and that his right to a fair trial within a reasonable time by an independent and impartial Court, as provided by Section 57[1] of the Constitution of Montserrat 1 [“the Constitution”], had been infringed.

2 Mr. McEwan has sought a declaration that his constitutional rights have been violated. Additionally, he has sought the dismissal or stay of the forgery charge, the dismissal or stay of the Learned Magistrate's order that the cash bond that he paid be forfeited and the vacation of the summons issued by the Learned Magistrate for his arrest.

3 The trial of this claim was an example of the use of the provisions of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000, which allows the Court to use technology to take evidence from witnesses who are unable to travel into the jurisdiction for the trial. Both Mr. McEwan and Senior Magistrate His Worship Clifton Warner [“the Senior Magistrate”] gave their evidence via video conference from the United States and the Turks and Caicos Islands respectively.

Significant events

4 In my view, it would be helpful if the significant events in this case are listed sequentially, as gleaned from the evidence of Mr. McEwan, his witness Mr. John Kelsick [“Mr. Kelsick”], who represented him at some stages of the proceedings and the Senior Magistrate Clifton Warner [“the Senior Magistrate”], who testified on behalf of the Respondents, as the custodian of all magisterial court records.

5 On 18 ^th May 1995, Mr. McEwan was charged with the intent to defraud, he forged a document to the Inland Revenue Department purporting to be signed by Eilleen Murrain, Manager RBC, contrary to Section 24[1] of the Penal Code.

6 On 24 ^th May 1995, Mr. McEwan appeared before the Learned Magistrate and was granted bail on his own recognizance in the sum of $30,000.00 cash bond payable by 25 ^th May 1995. He posted the bond as ordered.

7 The Magistrate subsequently granted permission to Mr. McEwan to travel out of Montserrat for medical treatment. McEwan returned to the island for a hearing of his case scheduled for 27 ^th July 1995, which did not come off because the Prosecution was not ready. On the Prosecution's application, the matter was adjourned to 29 ^th September 1995.

8 In August 1995, Mr. McEwan applied to the Magistrate to leave Montserrat once again for medical attention abroad. The application was granted and the recognizance was enlarged by the amount of $20,000.00 to $50,000.00. He paid the $20,000.00 cash bond on 14 ^th August 1995. The Recognizance, which was exhibited by the Senior Magistrate, indicates that Mr. McEwan was bound over on his own recognizance to appear before the Magistrate on 6 ^th October 1995.

9 When Mr. Mc Ewan left Montserrat in August 2005, he did not provide Mr. Kelsick with any details of his whereabouts neither did he provide him with any contact information. The Magistrate's Court record disclosed that there was no mailing address or other contact information for Mr. McEwan except through his lawyer, Mr. Kelsick.

10 Mr. McEwan deposed as to matters related to happenings in Montserrat in 1995 in this way:

“In 1995 during the height of the volcanic eruptions the then Governor Mr. Anthony Savage informed the residents of Montserrat that all those who did not feel safe on the island should leave and those abroad [and] did not feel safe should not return. I was afraid of the volcano.”

11 On 6 ^th October 1995, the matter was adjourned. Mr. McEwan did not appear.

12 Mr. McEwan's evidence is that 8 ^th December 1995 was the next date set down for the matter but he was not notified.

13 The Magistrate's court records show that matter was adjourned to 1 ^st February 1996, and adjourned sine die in Mr. McEwan's absence.

14 The matter was then called on 16 ^th February 1996 when Mr. Kelsick appeared for Mr. McEwan. Mr. McEwan himself did not appear, although a summons had been served on his solicitor for him to appear. Mr. Kelsick insisted in cross-examination that he had informed the court that Mr. McEwan was overseas due to illness but although he had received certain information he had firsthand knowledge that he was too ill to travel. The matter was adjourned to 22 ^nd February 1996.

15 Mr. Kelsick testified that he stopped representing Mr. McEwan some time after February 1996 because he had not heard from him and there was the question of his fees. He however recalled a conversation during that year with the then Attorney General, who told him that no further proceedings were being taken against Mr. McEwan. At the time he was still representing Mr. McEwan but he had not put any reliance on the statement. Mr. McEwan was positive that Mr. Kelsick had called him to tell him that his case was dismissed. Mr. Kelsick was far less convinced that this was the case, his recollection was that it was likely that he had spoken to Mr. McEwan's sister-in-law, who worked in his office, on the matter. Mr. McEwan's also placed the time Mr. Kelsick had called him “within one month after posting the $20,000.00”.

16 An undated entry in the court record shows that the matter was adjourned to 6 ^th June 1996 for forfeiture of the recognizance. Mr. McEwan stated that he had received no notice of that date.

17 Between 1997 and 2003, there is no indication that the matter came before the court at any time. Neither was there any indication that any enquiries were made about it.

18 On 9 ^th November 2004, Mr. Brandt wrote to the Senior Magistrate applying for the return of the cash bond paid by Mr. McEwan. On 15 ^th November 2004, he then wrote to the Hon. Attorney General asking her to intervene in the matter in her capacity as Minister of Justice.

19 On January 2005, in a letter to Mr. Brandt, which was copied to Mr. Kelsick, the Senior Magistrate informed him that he would bring the matter on the forfeiture list on 27 ^th January 2005. He included that he expected Mr. Brandt to inform Mr. McEwan of the position and to remind him if he did not appear at the hearing, it would proceed in his absence. Mr. Brandt replied on 26 ^th January 2005, setting out the reasons why in his opinion the cash bond should not be forfeited and asking the Senior Magistrate to disqualify himself from hearing the matter and alleging that he had made an extra judicial statement to the effect that Mr. McEwan could not get back the money.

20 On 27 ^th January 2005, the matter came up for hearing. Mr. McEwan...