Carlton Bedminister Careem Bedminister Claimants v DPP Attorney General Defendants [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Harris J |
| Judgment Date | 07 May 2008 |
| Judgment citation (vLex) | [2008] ECSC J0507-5 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV 2007/0423 |
| Date | 07 May 2008 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV 2007/0423
In the matter of an Application for an Administrative Order
And
In the matter of an Application Pursuant to Section 18 of the Antigua and Barbuda Constitution Order 1981
This is a claim for certain Administrative Orders pursuant to Part 56.7 of the Civil Procedure Rules 2000 ( CPR 2000). The applicants apply for the criminal charges laid against them on the 21st October 2005 and the 30th day of January, 2007 to be "quashed stayed or otherwise set aside for reason of the contravention of the applicants fundamental human rights as provided for by section 15 of the Constitutional Orders of Antigua and Barbuda in that the Respondent has unduly delayed in the prosecution of the aforesaid offences against the Applicants."
The applicants apply further, for a stay of proceeding pending the hearing of this application; that they be compensated for the contravention of their rights; and that the several criminal charges laid against the applicants be dismissed.
The applicants filed a joint affidavit in support of their fixed date claim form together with various exhibits.
At this time, the Director of Public Prosecutions was the lone named Defendant and filed an affidavit in reply and a Supplemental Affidavit thereto (25/1/08). An affidavit by Adlai Smith in reply, was also filed in February 2008 (Feb 4/08).
The Attorney General was joined as a party in this matter by Court Order of 18th January, 2008.
By order of the Court, directions were given in the matter including that the affidavits were to be treated as evidence in chief.
On the 9th day of October 2007 at the hearing counsel for the applicants indicated to the Presiding Magistrate his intention to make a no case submission in relation to the charge before that court. The court directed that he make his submission in writing. The submission was subsequently considered and determined on the 12th November, 2008.
On the 12th day of November, 2007 by way of a paper committal the two applicants were committed to stand Trial in the January 2008 Criminal Assizes where they were subsequently tried convicted and sentenced.
At the High Court civil trial on the 21st day of April, 2008, Counsel for the Claimant rested his case on the filed affidavits and written submissions. Both counsel for the 1st and 2nd Defendants respectively relied on their Affidavits filed in the matter together with their filed written submissions. The court called upon counsel for brief oral submissions.
Some two (2) years and four (4) months had elapsed between the commission of the offence and trial. The present application is now being considered after the trial, conviction and sentence of the claimants herein.
The only claim left to be considered now is for an order that the Claimants be "given compensation for the contravention of their rights under the constitution" (see fixed date claim form) the other issues now moot.
Before I can consider the remaining claim of the applicants for compensation for breach of their rights under the constitution, it must be established that there has been a breach of those rights in the first place. The applicants claim that their right to a trial within a reasonable time under S.15 of the Constitution of Antigua and Barbuda has been breached.
I set out the relevant subsection of the constitution here for convenience:
"S.15 (1) If any person is charged with a criminal offence then, unless the charge is withdrawn, he shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
In support of the case for the Claimants and that of the two defendants, several authorities have been submitted to the court in the written submissions. At trial the following cases were referred to in argument;Bell v Director of Public Prosecution and Another (1980) 32 WIR 3171, Flowers (Alfred) v R [2000] 1 W.L.R. 23962, Nazereus Andrew v The Attorney General3, HM Advocate and Another v R [2003] 2 W.L.R. 317.4
It is not in dispute that some two (2) years and four (4) months has elapsed between the commission of the offence and Trial of the applicants.
Counsel for the Claimants submits that the 2 years 4 months is an undue delay and that further, the applicants need not prove prejudice by this delay in order to establish their right to a remedy.
Counsel submits further that undue delay is a separate consideration than; whether the applicants were afforded a fair hearing.
The starting point in determining whether there has been an undue delay and if so what remedy applies is, as I see it, with the four (4) factors adopted by Lord Templeman in the Privy Council case ofBell v DPP [1985] A.C. 9371.
Thefirstfactor to be considered is the length of the delay. The length of the delay considered improper is peculiar to the circumstances of the particular case. The Bell case goes further and says that "unless there is some delay which is presumptively prejudicial there is no necessity for enquiring into the other factors that go into the balance. The matter ends right there. For this reason2 and those given below this is the fate of the claimants claim in the case at bar.
Counsel for the applicants relying on and accepting the estimation of Olivetti J. in the case of Dwayne Samuel, Jamal Browne,Timothy Henry v Director of Public Prosecutions that in 2004 in Antigua and Barbuda the period of two (2) years is the average time it would take for a case to come to trial from the commission of the offence, argued that the 2 years and 4 months that the case, the subject of these proceedings took, exceeded the average period and the applicants are entitled to a remedy. The learned Director of Public Prosecutions and Counsel for the Attorney General in effect submit that the 2 years 4 months is within the reasonable time contemplated by the constitution, and in any event is
sufficiently proximate to the two year 'average' period referred to by Olivetti J. The Defendants submit that the two year trial period referred to is not fixed and varies depending on the circumstances1 of each case and in this case, the 2yrs. 4mnths period does not amount to an undue delay.Thesecond factor to be considered (in determining undue delay) is that of; the "reasons given by the prosecution to justify the delay". I take this 'delay' to refer to the passage of time beyond the time that in a normal course of things, a matter would come to trial. In this case counsel for the applicant in his oral submissions before the court accepted that such delay was the 4 months over and above the 'average' time of two (2) years that he submits it takes to bring a criminal matter to trial from the commission of the offence.
Whatever that delay might be calculated to be, the Defendants argue that there is firstly, no undue delay in this case and secondly, that in any event there were good reasons for the passage of time which included the Presiding Magistrate being out of state, for good reason, for a period of time in 2006–2007. Further, submit the Defendants, the High Court of Justice in Antigua and Barbuda delivered a Judgment in February 2007 declaring that the legislation creating the "Paper Committal Procedure", a procedure which was utilized in the subject case, was unconstitutional. The decision from the Court of Appeal overruling that decision of the High Court was not heard and delivered until the Court of Appeal's usual itinerant sitting in Antigua and Barbuda four (4) months later, in July of that year. Thereafter submits the D.P.P, the matter moved ahead apace, until October 9th 2007 when counsel for the applicants indicated to the Presiding Magistrate that he intended to make a submission before the said magistrate with a view to staying the proceedings, thereby delaying the matter. The evidence is that the Magistrate directed that the submissions of both the Defendant/Claimant and the prosecution be reduced to writing and submitted to the Court. The Claimant's/Defendant's application was determined at the next adjournment date in November 2007, when the claimants/Defendants were committed by the Magistrate to stand trial at the very next criminal assizes commencing January 2008.
Thethird factor to be considered is the responsibility of the accused for asserting his rights. The Defendants argue that the applicants did not assert their claim of 'delay' before the Magistrates Court prior to Oct-Nov of 2007 and did not take the point at their trial at the assizes in 2008. In this case counsel for the claimants no doubt took the view that taking such a point was pointless, it already being before this Court as a constitutional matter.
Thefourth factor is that of prejudice to the accused. In this case the applicants at paragraph 7 and 22 of their joint affidavit in support of their Fixed Date Claim, say that the "…inordinate delay has lead to a fading away of memories as to the facts pertaining to the incidents leading to and on the day in question…" No details of the loss of memory have been provided, difficult as this may be to provide, nor other evidence of any prejudice.
The Board in theBell case acknowledged the inevitability of delays and accepted the submission in that case, that the courts "must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be...
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