Cheryl Thompson v The Queen

• Jurisdiction: Antigua and Barbuda
• Judge: Baptiste JA
• Judgment Date: 09 March 2022
• Neutral Citation: AG 2022 CA 1
• Docket Number: ANUHCRAP2021/0003
• Court: Court of Appeal (Antigua and Barbuda)
• Year: 2022

Between:

Cheryl Thompson

Appellant

and

The Queen

Respondent

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mde. Margaret Price-Findlay Justice of Appeal [Ag.]

ANUHCRAP2021/0003

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Appeal from order made in criminal cause or matter — Appeal as of right — Whether appeal lay as of right — Section 121(a) of the Constitution of Antigua and Barbuda — Right to appeal where question concerning the interpretation of the Constitution arises — Whether any question properly arose as to the interpretation of section 15(1) of the Constitution — Section 121(b) of Constitution — Right to appeal in cases concerning exercise of High Court's jurisdiction conferred by section 18 of the Constitution — Whether judge's order was a final decision given in the exercise of High Court's jurisdiction conferred by section 18 of the Constitution — Rule 62.1(3) of the Civil Procedure Rules 2000 — Test to determine whether an order or judgment is final or interlocutory — Application Test — Leave to appeal — Whether leave to appeal should be granted — Section 31(2)(a) of the Eastern Caribbean Supreme Court Act — Bar on appeals from orders made in criminal cause or matter

Cheryl Thompson (“the appellant”) faced an eleven-count indictment for offences contrary to the Trafficking in Persons (Prevention) Act, 2010 as amended. Prior to this, a magistrate had committed her to stand trial, having found that the prosecution had made out a prima facie case. The appellant pleaded not guilty, and her counsel raised preliminary objections seeking to quash the indictment and stay the prosecution. Her counsel alleged a violation of her right to a fair hearing pursuant to section 15(1) of the Constitution of Antigua and Barbuda (“Constitution”), an abuse of process and that the prosecution failed to make out a prima facie case. Smith J, after hearing counsel for the appellant dismissed the motion to stay the prosecution and to quash the indictment. Smith J also ordered the matter to remain on the court's calendar with a trial date to be set. Dissatisfied with the order of the learned judge, the appellant sought to appeal.

Counsel for the appellant argued that the Court of Appeal had jurisdiction to hear the questions arising on the appeal. He asserted that an appeal lay as of right pursuant to section 121(a) of the Constitution since it was an appeal from a final decision in a criminal proceeding on questions as to the interpretation of the Constitution. The constitutional provision subject to interpretation, as alleged by counsel for the appellant, was section 15(1), the right to a fair hearing, which counsel also alleged had been breached. Counsel further argued that the appeal lay as of right as per section 121(b) of the Constitution since it was an appeal from a final decision given in exercise of the High Court's jurisdiction conferred by section 18 of the Constitution. Alternatively, counsel argued that if the appeal did not lie as of right, the Court of Appeal should grant leave to appeal.

Held: dismissing the appeal and the application for leave to appeal, that:

• 1. The question whether a case has received a fair hearing within the meaning of section 15(1) of the Constitution is not a question of interpretation of that enactment. It is a question of the application of these words to the facts of the particular case. Despite counsel's argument that the appellant's right to a fair hearing was violated, this did not warrant leave pursuant to section 121(a) of the Constitution. Whilst the application of section 15(1) of the Constitution may have been in issue, on the facts, no question arose as to the interpretation of that section. Consequently, no appeal lay as of right pursuant to section 121(a).

  Eric Frater v The Queen [1981] 1 WLR 1468 applied; Eric Joseph v The State [1988] UKPC 20 applied.

• 2. For an appeal to lie as of right pursuant to section 121(b) of the Constitution, there must have been a final decision given in exercise of the jurisdiction conferred on the High Court by section 18 of the Constitution. To determine whether a decision is final, the applicable test is the application test, and the court will examine the application pursuant to which the order was made. If the decision made would be determinative of the issues that arise on the claim, whichever way the application could have been decided, then the decision would be a final one. On the facts, the questions at issue in the proceedings before the High Court included, inter alia, whether the decision of the magistrate to commit was lawful, whether the magistrate wrongly admitted evidence and whether the appellant's constitutional rights were breached. Applying the application test, the judge's decision was not a final once since it would not have determined the matter in litigation for whichever side the decision had been given. Consequently, no appeal lay as of right pursuant to section 121(b) of the Constitution.

  Jacpot Ltd. v Gambling Regulatory Authority [2018] UKPC 16 applied; Rule 62.1(3) of the Civil Procedure Rules 2000 applied; Othniel R Sylvester v Satrohan Singh [1995] ECSCJ No. 2 followed; Oliver McDonna v Benjamin Wilson Richardson AXAHCVAP2005/0003 (delivered 29th June 2007, unreported) followed.

• 3. Counsel for the appellant contended that section 31(2)(a) of the Eastern Caribbean Supreme Court Act contravened section 121 of the Constitution. However section 31(2)(a) conforms with the Constitution by virtue of paragraph 2 of Schedule 2 to the Antigua and Barbuda Constitutional Order 1981. Consequently, section 31(2)(a) operates as a jurisdictional bar in circumstances where an appellant fails to satisfy the requirements of section 121 of the Constitution. On the facts, the appellant failed to meet the requirements for leave as of right as per section 121 of the Constitution. Therefore, the judge's order, having been made in a criminal cause or matter, is caught by the prohibition contained in section 31(2)(a). Consequently, no leave to appeal can be granted as no appeal lies.

  Section 31(2)(a) of the Eastern Caribbean Supreme Court Act Cap. 23, Revised Laws of Antigua and Barbuda 1992 applied.

Appearances:

Mr. Fitzmore Harris for the Appellant

Ms. Rilys Adams for the Respondent

Baptiste JA

1 An eleven-count indictment was preferred against Cheryl Thompson (“the appellant”) for offences contrary to the Trafficking in Persons (Prevention) Act, 2010 1 as amended. Prior to this, a magistrate had committed her to stand trial at the High Court having found that the prosecution had made out a prima facie case. The matter came up before Smith J. Upon the appellant's plea of not guilty, her counsel, Mr. Harris, indicated that he was raising preliminary objections. A date was set for the hearing of the objections.

2 Mr. Harris sought to quash the indictment and stay the prosecution, alleging (i) a violation of the appellant's constitutional right to a fair hearing pursuant to section 15(1) of the Constitution of Antigua and Barbuda 2 (“ Constitution”), (ii) an abuse of process and (iii) that the prosecution failed to make out a prima facie case which would warrant committal to stand trial at the High Court. After hearing submissions on the matter, Smith J ordered that:

• (1) Ms. Thompson's motion to stay prosecution is denied.

• (2) Ms. Thompson's motion to quash the indictment on the grounds that it would be a contravention of her right pursuant to section 15(1) of the Constitution to stand trial in the High Court is denied.

• (3) The matter will remain on the court's calendar with a trial date to be fixed upon the resumption of trials.

3 Mr. Harris contends that the learned judge erred in making the order and seeks leave to appeal. He also asserts that an appeal lies as of right pursuant to section 121 of the Constitution, as it is an appeal from (a) a final decision in a criminal proceeding on questions as to the interpretation of the Constitution and (b) it is an appeal from a final decision given in exercise of the jurisdiction conferred on the High Court by section 18 of the Constitution (which relates to the enforcement of fundamental rights and freedoms). Mr. Harris submits that there is nothing in section 121 of the Constitution, Part 62 of the Civil Procedure Rules 2000 (“ CPR”), or the Eastern Caribbean Supreme Court Act 3 (“ Supreme Court Act”) which prevents this Court from exercising its jurisdiction to hear the questions that would arise under the appeal. Alternatively, if this Court considers that the appeal does not lie as of right and that permission is required to appeal as per rule 62.2 of the CPR, this Court should grant leave to appeal.

Appeal as of right – Section 121(a) of the Constitution

4 In light of counsel's submissions with respect to an appeal as of right, it is prudent to commence with section 121 of the Constitution. Section 121 provides that, subject to the provisions of section 44 thereof, an appeal shall lie as of right from the decision of the High Court to the Court of Appeal in the following cases:

• (a) final decisions in any civil or criminal proceedings on questions as to the interpretation of the Constitution;

• (b) final decisions given in exercise of the jurisdiction conferred on the High Court by section 18 of the Constitution; and

• (c) such other cases as may be prescribed by Parliament.

5 The base issue in section 121(a) concerns whether any question properly arose as to the interpretation of the Constitution. Mr. Harris contends that the right to a fair hearing contained in section 15(1) has been breached. Section 15(1) states:

“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...