The Queen v Andre Penn
| Jurisdiction | British Virgin Islands |
| Judge | Ramdhani J. |
| Judgment Date | 18 February 2015 |
| Neutral Citation | VG 2015 HC 4,[2015] ECSC J0218-2 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHCR 2009/0031 |
| Date | 18 February 2015 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
BVIHCR 2009/0031
Mr. Wayne Rajbhansie, The Director of Public Prosecutions, Mr. Valston Graham, Senior Crown Counsel, Ms. Leslie-Ann Faulkner, Senior Crown Counsel for the Crown
Mr. Jerome Lynch Q.C. for Mr. Andre Penn(only appearing and presenting submissions in relation to three issues dealt with in this decision)
The defendant, Mr. Andre Penn, was charged on an indictment containing twelve counts of various sexual offences including unlawful sexual intercourse and buggery allegedly committed against a minor between the years 2006 and 2008. On a trial of the charges on this indictment, he was convicted on the 12 th of March 2011. He appealed his conviction and on the 17 th January 2012, the Court of Appeal overturned his conviction and ordered a retrial. The retrial was then fixed to commence on a number of occasions before the BVI High Court. Since the Court of Appeal hearing, however, the defendant has raised a number of jurisdictional arguments that he contended went to the core of whether he should ever be retried. On the basis of these arguments he filed a number of applications and proceedings, one of which involved even an excursion to the Court of Appeal to permanently stay the retrial. He was only successful in securing a number of adjournments even though some of the court proceedings were still pending and yet to be determined. This case was case managed on the 11 th September 2014 and on the 7th October 2014. He did not raise any other issues at this stage and the court then fixed the matter for trial on Monday the 3 rd November 2014.
On the afternoon of Friday the 31 st October 2014, the defendant filed two applications and on the morning of the trial, acting on his own behalf, asked the court to consider both applications. The court acceded to his request and sent away the entire array comprising 105 persons who had been summoned to attend pending the outcome of the applications.
The first application was for a stay of the trial on the basis that several proceedings were pending before the high court including a constitutional claim and that he was likely to succeed in these other proceedings rendering a trial unnecessary; it would not be appropriate he contended for the trial to proceed in these circumstances. Among the arguments raised in those proceedings, was an argument that he had unsuccessfully taken before one high court judge and the Court of Appeal, that the procedural conscription of section 8 of the Criminal Appeal 1968 Act (UK) applied to the BVI and that the procedure adopted following the order of retrial of the Court of Appeal was in breach of section 8 and this meant that the court had no jurisdiction to proceed with the trial. Another point raised in those proceedings was that section 27 of the Jury Act CAP 36 which gave the Crown an unfettered right to standby any number of jurors selected to be part of the jury was unconstitutional as being contrary to the fair trial provision of the BVI Constitution. He also requested that the Crown should provide disclosure of the social security records of a school teacher who is a witness in this trial to prove that the complainant was not being truthful about being taught certain topics in class during a certain period.
On the second application, he sought the recusal of Senior Crown Counsel Mr. Valston Graham. On this application he contended that Mr. Graham was familiar, on a personal level, with the family members of the virtual complainant and this presented a conflict of interest as Mr. Valston could use this to the Crown's advantage and to his disadvantage. He also contended on this application having regard to this particular allegation, there would be at the very least a perception that there could not be a fair trial of the charges on the indictment.
During the considerations of these applications, the defendant sought to stay the trial on an issue that was totally unconnected to his applications. Some time during the morning of the 3 rd November 2014, he informed the court that three of the potential jurors attending the court as part of the array on various days were connected to his first trial. It was confirmed that two of these persons had actually been members of the jury on the first trial and the third person was the sister of someone who was also a juror on the first trial. The defendant asked the court to discharge the entire array. Immediately on this discovery, the court removed these three persons from the array and conducted an enquiry to discover whether any had spoken to any of the other members in the array of the first trial.
The court dismissed both applications, and having already discharged the three jurors following the enquiry, ordered that the trial proceed on the 24 th November 2014. The court advised the defendant to use this time to ensure that his attorney, Learned Queen's Counsel Mr. Jerome Lynch be present at the trial if he intended to be represented.
On the 24 th November 2014, the day fixed for the trial, Learned Queen's Counsel did attend but he too sought a stay of the trial and asked the court to reconsider its ruling on several of the matters. He first asked the court to reconsider the court's ruling on Crown's right of unlimited standby, urging the court to grant a temporary stay to allow the constitutional court to consider that matter. He also requested that having regard to the three jurors in the array who were connected to the first trial and were excused after the enquiry, the trial should be adjourned to January 2015 when a new array would be summoned.
Held:
1. In considering to permanently stay a criminal trial, 'it is well established that a court has power to stay proceedings in two categories of cases, namely (i) where it will be impossible to give the accused a fair trial and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category, if the court concludes that the accused cannot receive a fair trial, it will stay the proceedings without more. No question of balancing competing interests arises. The law in relation to the second category is well settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.' On an application for temporary stays, generally the court has to consider whether there is any substantial reason to adjourn the trial. Where the temporary stay is being sought on the basis that certain events would cause prejudice to the impending trial, the test that a court should employ is whether there would be a substantial risk that the trial would be seriously prejudiced. If the application for a temporary stay is premised on the outcome of other proceedings pending before the court, which may result on the permanent stay of the trial, the court is entitled to consider whether there is any merit in those applications and whether those applications have real chances of success. In deciding whether to grant temporary stays, the conduct of the defendant as well as the effective use of the court's time and resources are among those matters which a court should have regard to. Where a temporary stay is granted it will only be for such minimum period as would be sufficient to abate the prejudice or to allow for the resolution of that event which grounded the stay.
Applied: Andre Penn v The Director of Public Prosecutions Criminal Appeal No. 7 of 2007 approving of R v Maxwell [2010] UKSC 48 and R v Latiff [1996] 1 WLR 104— Per Baptiste J.A. at paragraph 3. Considered: Attorney General v Birmingham Post and Mail Ltd [1999] E.M.L.R. 39 Divisional Court
2. Section 48 of the Criminal Procedure Code cannot be construed to incorporate sections 7 and 8 of the Criminal Appeal Act 1968 of the UK, as that would an overly wide and absurd interpretation of that section. Therefore, an argument that the prosecution had breached section 8 of the 1968 Act, and should not be allowed to proceed with the trial unless they secured the leave of the Court of Appeal was an argument without merit. An argument that the defendant's arraignment in the presence of the array meant he could not be tried by a jury selected from that array was equally without merit, as such an event cannot have the effect that he can no longer be tried by anyone from that array. Therefore, with the exception of the constitutional motion filed raising the constitutionality of section 27 of the Jury Act, none of the proceedings filed or contemplated nor the points raised had any likelihood of succeeding.
3. 'At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.' There is also a duty imposed on the prosecution to disclose to the defence all relevant material in the possession of the prosecution if such material is likely to assist the defendant at his trial. If the defendant requests material which he considers to be relevant to his defence and which is held by the prosecution as part of the case which has not been disclosed, then the prosecution is required to disclose such material unless they seek and obtain the permission of the court to withhold the material. There is no general duty imposed on the prosecution to carry out an investigation on behalf of the defendant to source and secure material which the defendant believes is relevant to his defence. If such material is in the...
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