Andre Penn Claimant v 1. The Director of Public Prosecutions of the Virgin Islands 2. The Attorney General Defendants
| Jurisdiction | British Virgin Islands |
| Judge | Ellis J |
| Judgment Date | 25 July 2013 |
| Judgment citation (vLex) | [2013] ECSC J0725-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. 166B OF 2013 |
| Date | 25 July 2013 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. 166B OF 2013
In the Matter of the Virgin Islands Constitution Order, 2007
and
In the Matter of an Application by Anddre Penn for Redress Pursuant to Section 31 of the Said Constitution Order for Contraventions of Secton 16 Thereof in Relaton to Him
Mr Courtenay McVay Griffiths QC. And Michael Faye QC and Mr. for the Claimant
Mr. Wayne Rajbansie, Mr. Valston Graham, and Angel Flax Solomon for the First Defendant
By Originating Motion filed on 14 th June 2013 the Claimant seeks redress under section 31 of the Virgin Islands Constitution Order (the Constitution) for contravention of his fundamental rights under section 16 (2) (a), (b), (c), (d) and (g) and section 16 (8) of the Constitution as well as under Article 6 of the European Convention of Human Rights.
The Claimant seeks the following relief:
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i. A declaration that his fundamental rights under section 16 (2) (a) of the Constitution to be presumed to be innocent until he is proven guilty according to law has been contravened and negated by the extensive, detailed and continuous coverage of his arrest, trial sentencing and appeal.
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ii. A declaration that his rights under section 16 (2) (b) of the Constitution to be informed promptly as prescribed by law and in detail of the nature of the offences charged have been contravened by the failure of the prosecution to follow the legal procedure for retrial ordered by the Court of Appeal.
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iii. A declaration that his rights under section 16 (2) (c) of the Constitution have been and are likely to be contravened.
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iv. A declaration that his rights under section 16 (2) (d) of the Constitution are likely to be contravened.
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v. A declaration that his rights under section 16 (2) (g) of the Constitution have been and are likely to be contravened by the extensive, detailed and continuous coverage of his arrest, trial sentencing and appeal thereby negating his fundamental right to trial by jury.
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vi. A declaration that in all the circumstances of Claimant's case, it is unconstitutional, oppressive and inconsistent with the interest of justice to retry him on 2 nd July 2013 or at all.
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vii. An order for compensation and costs under section 16 (8) of the Constitution in respect of his first trial and appeal given that his convictions were quashed by the Court of Appeal on 17 th January 2012.
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viii. Further and other relief as the Court deems fit.
The Originating Motion is supported by two affidavits of the Claimant. The first affidavit filed on 14 th June 2013, opens with the general factual and historic background of the matter. It then goes on to set out the evidence relied on by the Claimant in support of his claims for relief. In the Claimant's second affidavit filed on 18 th July 2013, he, inter alia deposes matters which would have occurred since the filing of his first affidavit.
Two affidavits in response have been filed on behalf of the Director of Public Prosecution. The first affidavit of Kendolph Bobb, Detective Constable of the Royal Virgin Island Police Force and the investigating officer in the criminal matter involving the Claimant was filed on 11 th July 2013. The second affidavit of Kendolph Bobb was filed on 19 th July 2013 and in it he responds to the second affidavit of Claimant filed on 18 th July 2013.
During the course of the hearing that Counsel for the Claimant indicated that he would also seek to rely on the provisions of section 16 (7) of the Constitution which provides that
Every person who has been convicted by a court of a criminal offence shall have the right —
(a) to receive free of charge a copy of his or her conviction record and any sentence imposed as a consequence thereof; and
(b) to appeal to a superior court against the conviction or the sentence or both as may be prescribed by law.
Counsel for the Claimant also indicated that the Claimant would no longer seek to pursue the claim for compensation and costs under section 16 (8) of the Constitution in respect of his first trial and appeal.
In addition to advancing oral arguments, both sides filed skeleton submissions together with authorities. Having reviewed the written submissions of both Defendants and having listened to the oral submissions of the Claimant as well as Counsel for the Defendants, the Court is satisfied for the reasons which are set out below that the Originating Motion and the evidence filed in support do not establish an infringement of his fundamental rights under section 16 of the Constitution.
It is settled law that a Claimant who seeks to claim breach of constitutional provisions must show on the face of the pleadings the nature of the alleged violation or contravention that is being asserted. 1 In order to succeed in his claim for relief under section 31 of the Constitution, the Claimant would therefore have to establish a violation or threat of violation of his rights under the relevant subsection of section 16 of the Constitution which provides that:
(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) Every person who is charged with a criminal offence shall —
(a) be presumed to be innocent until he or she is proved guilty according to law;
(b) be informed promptly, as prescribed by law, in a language that he or she understands and in detail, of the nature of the offence charged;
(c) be given adequate time and opportunity for the preparation of his or her defence;
(d) be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal practitioner of his or her own choice or where he or she is unable to afford to retain a legal practitioner and the interests of justice so require, by a legal practitioner at the public expense provided through an established public legal aid scheme as prescribed by law;
(e) be entitled to examine in person or by his or her legal practitioner the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the same conditions as those applying to witnesses called by the prosecution;
(f) be permitted to have without payment the assistance of an interpreter if he or she cannot understand or speak the language used at the trial of the charge; and
(g) when charged on indictment in the High Court, have the right to trial by jury, and except with that person's own consent the trial shall not take place in his or her absence, unless he or she so behaves in the court as to render the continuance of the proceedings in his or her presence impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence.
(8) When a person has, by a final decision of a court, been convicted of a criminal offence and, subsequently, the conviction has been quashed, or that person has been pardoned, on the ground that a newly-disclosed fact shows that there has been a miscarriage of justice, he or she shall be compensated out of public funds for any punishment that he or she has suffered as a result of the conviction unless it is proved that the non-disclosure in time of that fact was wholly or partly his or her fault.
The Claimant's pleadings must therefore not only allege but provide cogent evidence that the said constitutional provisions have been and are likely to be contravened in relation to him by the decisions, actions or inactions of the Defendants. Counsel for the Claimant sought to advance his under case six (6) main heads of challenge. These are considered in turn below:
The Claimant submitted that there are no provisions in the Territory governing retrials following a quashing of a conviction on appeal to a court of appeal. In the premises he contended that the criminal law, practice and procedure of the superior courts of England would apply. He relies on the statutory provisions of sections 7 and 8 of the United Kingdom Criminal Appeal Act 1968 as amended which provides as follows:
7 — Power to order retrial
(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.
(2) A person shall not under this section be ordered to be retried for any offence other than —
(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above;
(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or
(c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence.
8 — Supplementary provisions as to retrial
(1) A person who is to be retried for an offence in pursuance of an order under section 7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal, but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave.
(1A) Where a person has been ordered to be retried but may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order for retrial and to direct the court of trial to...
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