Andre Penn Applicant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: Baptiste JA,Justice of Appeal,Davidson Kelvin Baptiste,Louise Esther Blenman,Mario Michel
• Judgment Date: 29 September 2014
• Judgment citation (vLex): [2014] ECSC J0929-4
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCRAP2013/0006
• Date: 29 September 2014

[2014] ECSC J0929-4

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

BVIHCRAP2013/0006

Between:

Andre Penn

Applicant

and

The Queen

Respondent

Appearances:

Mr. Jerome Lynch, QC, with him Ms. Lauren Sadler Best and Mr. Jack Husbands for the Applicant

Mr. Wayne L. Rajbansie for the Respondent

Eversley Thompson v The Queen [1998] UKPC 6 followed.

Application to set aside order — Whether the Criminal Appeal Act 1968 (UK) forms part of the law of the Virgin Islands — Whether order for retrial ought to be set aside — Unlawful sexual intercourse — Indecent assault

The applicant was convicted in March 2011 after a jury found him guilty of having committed various sexual offences against a female minor. On 17 ^th January 2012, the applicant's appeal against conviction was allowed by the appeal court; the conviction was quashed, the sentence was set aside and a retrial was ordered. A fresh indictment was filed ten days after the order for retrial. At the February 2012 assize, the applicant, who was unrepresented, sought an adjournment for counsel to file an application for a stay of proceedings on the ground of pre-trial publicity. That application was filed in March 2012 and was heard and dismissed in July 2012. The applicant was arraigned on 8 ^th July 2013.

The applicant, on 5 ^th July 2013, filed a "notice of appeal" which was later amended on 23 ^rd December 2013 and titled "amended notice of application". In both documents, the applicant sought to have the Court of Appeal's retrial order set aside and an order that a verdict of acquittal be entered in respect of him on the basis that the prosecution failed to indict and arraign him within two months of the Court of Appeal's order for a retrial. The applicant grounded his application on section 8 of the Criminal Appeal Act 1968 (UK) which he alleged is applicable in the Virgin Islands by virtue of section 48 of the Criminal Procedure Act.

Held: dismissing the application, that:

• 1. In the Virgin Islands, the procedure following a retrial ordered by the Court of Appeal is provided for in the Supreme Court Act and the Criminal Procedure Act. The Court of Appeal having ordered a retrial, the jurisdiction of the High Court is engaged. The High Court's jurisdiction is to be exercised in accordance with the Criminal Procedure Act and any other law in force in the Territory. Therefore, it would be impermissible to import into the laws of the Virgin Islands, the Criminal Appeal Act 1968 (UK) with its provision for a two month period of arraignment after the order for a retrial, and the consequences which flow from non-compliance. Such an importation is not sanctioned by section 48 of the Criminal Procedure Act. The Court therefore lacks jurisdiction to entertain the application.

• 2. Where there is a local statute or statutory regulation relating to a particular subject matter and there is an English statute or statutory regulation made pursuant to statute relating to the same subject matter, the English statute would be inapplicable to that particular subject matter.

Baptiste JA

1 This is an unusual matter. It is not an appeal. It is an application made pursuant to an English statute — the Criminal Appeal Act 1968 (UK) as amended by the Criminal Justice Act 1988 (UK). The applicant, Andre Penn, invites this Court to make an order to set aside its order of retrial and enter a verdict of acquittal. The applicant complains that the prosecution failed to indict and arraign him within two months of the Court of Appeal's order for a retrial. He is thus entitled to apply to the Court of Appeal for the orders he seeks, pursuant to section 8 of the Criminal Appeal Act 1968 (UK). The applicant, however, faces a hurdle. He has to show that the Criminal Appeal Act 1968 (UK), forms part of the law of the Virgin Islands. He says that it does. In that regard he prays in aid section 48 of the Criminal Procedure Act. 1

2 The Director of Public Prosecutions urges the Court to dismiss the application for want of jurisdiction. He argues that the Court of Appeal derives jurisdiction from the West Indies Associated States Supreme Court (Virgin Islands) Act (" Supreme Court Act") 2 and attempts to move the Court must be made pursuant to that Act. The applicant has not alluded to any provision of the Supreme Court Act that allows his approach to the Court. The Director of Public Prosecutions also dismisses the application as frivolous, vexatious and an abuse of process. He also contends that the context of section 48 is important. It is not a global section. It is restrictive. It has to be looked at in the context of Part VI of the Criminal Procedure Act.

3 Before examining the relevant statutory regime and the submissions in more detail, I pause to synopsise the background facts. The applicant was convicted on 2 ^nd March 2011 on a twelve count indictment concerning various sexual offences committed against a female minor. The applicant appealed his conviction and sentence. The appeal found favour with the Court of Appeal to the extent that on 17 ^th January 2012 the Court quashed the conviction, set aside the sentence and ordered a retrial. A fresh indictment, containing twelve counts was filed on 27 ^th January 2012, ten days after the order of retrial. The case was first relisted for hearing before the Assize of February 2012. The assize opened on 7 ^th February. The applicant, who was unrepresented, sought an adjournment for counsel to file an application for a stay of proceedings on the ground of pre-trial publicity. The application was filed on 30 ^th March 2012. The submissions were heard and the application was dismissed in July 2012. The trial is yet to get off the ground, largely due to a multiplicity of challenges the applicant has mounted before the High Court and the Court of Appeal in respect of his retrial. The applicant was arraigned on 8 ^th July 2013.

4 By "Notice of Appeal" filed on 5 ^th July 2013, the applicant appealed to this Court for the following orders: (1) an order to set aside its order of retrial; and (2) an order that a verdict of acquittal be entered in respect of him. No doubt recognising that he could not properly appeal to the Court of Appeal, the applicant filed an "amended notice of application" dated 23 ^rd December 2013, inviting this Court to set aside its order of retrial made on 17 ^th January 2012 and enter a verdict of acquittal.

5 Mr. Lynch, QC, the applicant's counsel, articulates the position that the Criminal Procedure Act is silent on the practice and procedure in cases where the Court of Appeal has ordered a retrial and no rules of practice and procedure are prescribed under any other law in the Virgin Islands. Queens Counsel points to section 37(4)(iii)(a) and (b) of the Supreme Court Act (which deals with reading of depositions, and transcripts of witnesses who are not available) and contends that the legislature considered and prescribed what is to happen with respect to the reading of depositions at a retrial, but did not address the question of arraignment or other matters in a retrial.

6 Mr. Lynch, QC posits that the current law and practice in England is that a defendant must be arraigned within two months of the Court of Appeal's order for a retrial. There being no published guidance in the Virgin Islands for retrials and in accordance with section 48 of the Criminal Procedure Act, the law and practice of the Superior Courts of England applies. This, in Queen Counsel's view, paves the way for the engagement and application of the Criminal Appeal Act 1968 (UK) (as amended), section 8 of which grants an applicant the right to apply to the Court of Appeal to set aside the order for retrial and for a direction that the Court of Appeal enter a verdict of acquittal once a retrial has been ordered by the Court of Appeal and the accused has not been arraigned within the period of two months after the order of retrial.

7 Mr. Lynch, QC argues that once the prescribed period for arraignment had passed, the High Court has no jurisdiction to commence and or continue a retrial of the applicant, in the absence of further directions from the Court of Appeal on the application of the prosecution. Noting that no such application has been made by the prosecution, Mr. Lynch, QC submits that the retrial which commenced on 8 ^th July 2013, without the leave of the Court of Appeal, contravenes the law, practice and procedure; and is unjust, oppressive and a nullity.

8 In the submissions filed on behalf of the applicant, several cases were referred to as to the approach of the Court regarding the applicability of United Kingdom law in the Virgin Islands. For example in Forbes (Gregory) v R3— a case involving drug trafficking and possession of cocaine — an issue arising before the Court of Appeal was whether the documentary evidence was admissible under the Criminal Justice Act 1988 (UK). The Court held that a copy of the flight manifest, the ticket voucher with baggage tag attached and the baggage tag from the suitcase were admissible under sections 24 and 27 of the Criminal Justice Act 1998 (UK) having been duly incorporated into the law of the Virgin Islands by section 12 of the Evidence Act. Section 48 was not mentioned. In William Penn v R4 Edwards JA referred to section 48 of the Criminal Procedure Act and affirmed the rectitude of the trial judge's decision to follow the English common law guidelines declared by the English court in R v Buckley5 in the absence of any known case law in England demonstrating any implementation of a new non-numerical standard in England.

9 The Privy Council decision in Eversley Thompson v The Queen6 was also relied on. The main issue in Thompson was whether sections 76 an...