Kenneth Ronald Wyre v The Attorney General of Antigua and Barbuda

• Jurisdiction: Antigua and Barbuda
• Judge: Actie, J
• Judgment Date: 09 January 2020
• Neutral Citation: AG 2020 HC 1
• Date: 09 January 2020
• Docket Number: CLAIM NO. ANUHCV2019/0306
• Court: High Court (Antigua)

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV2019/0306

CLAIM NO. ANUHCV2019/0386

In the matter of the Antigua and Barbuda Constitution Order 1981 Cap. 23

and

In the Matter of an Application by Kenneth Ronald Wyre alleging a breach of his rights under section 15 of the Antigua and Barbuda Constitution Order 1981 Cap 23. and for redress pursuant to section 18 of the Antigua and Barbuda Constitution Order 1981 Cap. 23

Between:

Kenneth Ronald Wyre

Claimant

and

The Attorney General of Antigua and Barbuda

Defendant

Consolidated with

In the matter of the Antigua and Barbuda Constitution Order 1981 Cap. 23

and

In the Matter of an Application by Rowan Bailey alleging a breach of his rights under section 15 of the Antigua and Barbuda Constitution Order 1981 Cap 23. and for redress pursuant to section 18 of the Antigua and Barbuda Constitution Order 1981 Cap. 23

Between:

Rowan Bailey

Claimant

and

The Attorney General of Antigua and Barbuda

Defendant

Appearances:

Hugh Marshall for the claimants

Carla Brooks-Harris with Alicia Aska for the defendant

Actie, J

1 The claimants, Kenneth Ronald Wyre and Rowan Bailey respectfully, filed originating motions alleging infringement of their fundamental rights for a fair trial within a reasonable time and not to be subject to inhumane or degrading punishment or treatment as guaranteed under Sections 15(1)) and 7 of the Antigua and Barbuda Constitution Order 1981, CAP. 23, respectively.

2 The claimants' applications, filed on 30 ^th May 2019 and 17 ^th July 2019 respectively, were consolidated as they seek similar reliefs in the following terms:

• 1. A declaration that their right to a fair hearing within a reasonable time under section 15 (1) of the Antigua and Barbuda Constitution Order 1981 Cap.23 has been breached.

• 2. A declaration that their rights not to be subject to inhumane or degrading punishment or treatment as guaranteed by section 7 of the Antigua and Barbuda Constitution Order 1981 Cap. 23 has been infringed.

• 3. An order that the proceedings in relation to their sentencing be stayed pending the determination of this suit.

• 4. An order that they be released from custody either unconditionally or on bail.

• 5. An order of restitution for the return of property taken from them under freeze orders obtained on 25 ^th August 2010 and 25 ^th July 2017 respectively.

• 6. Damages for breach of their constitutional rights.

• 7. Costs.

Background

3 On or about 21 ^st August 2010, the claimants were arrested by officers from the Office of National Drug Control and Money Laundering Control Policy [ONDCP]. They were charged with (1) possession of cocaine (2) being concerned in the supply of cocaine (3) possession of cocaine with intent to supply (4) possession of cocaine with intent to transfer and (5) drug trafficking under the Misuse of Drugs Acts CAP 283. The claimants were arraigned sometime in January 2012 and indicted on 12 ^th January 2015, some three years after the arraignment. The claimants appeared in court on 13 ^th January 2015 and pleaded not guilty to the charges.

4 Freeze orders were obtained on 25 ^th August 2010 and on 25 ^th July 2017 in relation to real and other property in the name of Kenneth Wyre and Rowan Bailey, respectively.

5 The claimants were subsequently tried on three of the five charges namely: (1) possession of a controlled drug/cocaine (2) possession with intent to supply and (3) drug trafficking. The claimants' trial took place on 23 ^rd February 2019, eight years and six months after their initial arrest and charge. They were convicted on 7 ^th March 2019. The originating motions were filed on 30 ^th May 2019 and 17 ^th July 2019, respectively.

6 By order dated 9 ^th July 2019, the High Court Judge in the Criminal Division stayed the sentencing proceedings pending the determination of the present applications. The claimants were granted bail on 19 ^th July 2019.

7 The remaining issues to be decided on the originating motions have been reduced to (i) whether there was an infringement of the claimants' rights to a fair trial within a reasonable time and not to be subject to inhumane or degrading punishment or treatment (ii) whether there should be restitution/return of property taken under freeze orders and (iii) Damages (iv) Costs.

Was the claimants' right to a fair trial within a reasonable time infringed?

8 Section 15 (1) of the Antigua and Barbuda Constitution, (1981) Cap. 23 [“the Constitution”] provides:

“ 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.”

9 Section 15 (1) of the Constitution imposes three elements namely: (1) an accused charged must be afforded a fair hearing; (2) that hearing must take place within a reasonable time; and (3) the hearing must be by an independent and impartial court established by law. The applicants' applications rest on the 2 ^nd limb, namely, that the hearing was not heard within a reasonable time.

10 The Courts have developed guidelines in determining reasonableness of timelines for the disposal of matters for the fair hearing provision of the Constitution 1. In the Court of Appeal decision in Rashid A. Pigott v The Queen 2, Thom JA, adopting the guidelines set by the Privy Council states:

“In determining whether there was inordinate delay such as would constitute an infringement of section 15(1), the legal authorities such as Boolell v The State and Joseph Stewart Celine v The State of Mauritius, have identified the following as factors to be considered being, (i) the complexity of the case, (ii) the conduct of the appellant and (iii) the conduct of the administrative and judicial authorities”.

Complexity of the case

11 The complexity of the case may concern questions of fact as well as legal issues. The nature of the facts, number of accused persons and witnesses, joinder of the case to other cases and intervention of other persons can determine the complexity of the case.

12 The claimants' trial lasted eight (8) days whereby three witnesses testified on behalf of the Crown. The case, although brought against the two co-defendants, was not complex with voluminous amounts of evidence.

13 It is necessary to set out the proceedings and the conduct of the parties in some detail.

Conduct of the applicants

14 The extent to which the claimants are responsible for certain periods of delay is a necessary consideration. It is the claimants' duty to show diligence in carrying out the relevant procedural steps, to avail themselves for the proceedings and to refrain from using delaying tactics.

15 It is the evidence that several adjournments were due to the absence of the claimants' legal practitioner and Mr. Rowan Bailey, one of the co-accused.

• i. Three adjournments were made on behalf of Mr. Rowan Bailey to enable him to participate in a competition to row across the Atlantic Ocean. The first adjournment was during the period of July 2015 to February 2016. Mrs. Shannon Jones-Gittens, Crown Counsel, states that the DPP was ready to proceed with the trial, however Mr. Bailey bail conditions were varied to allow him to travel to participate in the Talisker Whiskey Atlantic Challenge.

• ii. The trial came on for hearing on 22 ^nd September 2015. Counsel for Mr. Bailey requested and was granted an adjournment to the January 2016 Assizes.

• iii. The matter was again adjourned in January 2016 to April 2016 Assizes and further adjourned to July 2016.

• iv. Mrs. Jones-Gittens said that the trial date of 18 ^th July 2016 had to be adjourned as the Assizes were set to close on 20 ^th July 2016, which would not have been sufficient time to complete the trial.

• v. The trial was set for 10 ^th April 2018 but was again adjourned as the legal practitioner for Mr. Wyre's was absent due to his involvement in a matter in the civil court.

• vi. The trial set for 23 ^rd April 2018 was adjourned to 12 ^th November 2018 as a result of a note sent to the court by the legal practitioner for Mr. Wyre informing that he was in Barbados.

• vii. There was a further adjournment to 3 ^rd December 2018 at which time Mr. Bailey made the 2 ^nd request to travel to participate in the swim competition. There was not any objection to the adjournment by the Crown as two of the prosecution's witnesses were out of the jurisdiction.

• viii. The final request for adjournment to enable Mr. Bailey's travel was made and granted on 11 ^th February 2019.

Conduct of the administrative and judicial authorities

16 A special duty is set upon the court to ensure that all those who play a role in the proceedings do their utmost to avoid any unnecessary delay.

17 It is the evidence that two major trials (a fraud and a murder trial) in the period between 2010 and 2011 before the single judge in the criminal division contributed to the significant backlog and delay during that period.

• i. Between 2012 and 2015, the High Court was plagued with disruptions due to bomb threats, sewage problems, water issues, as well as poor air quality which affected the health of the court staff which further contributed to the delays. Several re-trials and murder trials had to be conducted between 2010 and 2015.

• ii. Mrs. Jones-Gittens in her affidavit states that prior to 2014, there was only one Criminal Court functioning in Antigua which created a significant backlog of criminal cases until a second judge was added in 2014.

• iii. The creation of the Sexual Offences Court in November 2014 caused a further delay as there was a prevalence of these cases in society with approximately 31 matters listed and given priority by the court.

• iv. It is the evidence that the claimants' matter was not brought before the court at the commencement of the September 2016, January 2017, April 2017 or January 2018 Assizes.

• v. The trial...