Martin v Attorney General of Antigua and Barbuda
| Jurisdiction | Antigua and Barbuda |
| Judge | Ferdinand, J. |
| Judgment Date | 01 July 2004 |
| Neutral Citation | AG 2004 HC 40 |
| Docket Number | ANUHCV 0485 of 2003 |
| Court | High Court (Antigua) |
| Date | 01 July 2004 |
High Court
Ferdinand, J.
ANUHCV 0485 of 2003
Vashist Maharaj and Georges Mendes-Blackman for the claimant.
Carla Brookes-Harris for the defendant.
Constitutional law - Fundamental rights and freedoms — Right to a fair hearing — Section 15(1) of the Constitution — Whether failure by prosecution to disclose statements recorded by the police violated the claimant's fundamental rights under the Constitution — Declaration that the prosecution's failure rendered the trial and conviction unfair and in violation of the minimum standard of a fair trial guaranteed by the Constitution — Retrial not ordered.
The claimant William Martin complains that his constitutional rights to the protection of the law have been infringed by the failure of the prosecution to disclose to him or his defence counsel before his trial the existence or content of a written statement recorded by the police from an eyewitness who did not testify at his trial.
On 12th December 1998 the claimant was arrested and charged with attempted murder of Ural Peters. This offence was allegedly committed on 8th December 1998, when the claimant took over the operation of his backhoe from his employee Alex Martin and drove it over certain lands occupied by 70-year old Urcil Peters, despite his objections, and in the process caused injury to the said Urcil Peters with the backhoe. Alex Martin appeared to have been unwilling to defy Mr. Peters' protests at any entry on to his land by the backhoe, which was being driven towards adjacent land owned by the claimant The prosecution contends that the claimant drove “furiously” and “aggressively toward Mr. Peters” after ordering Alex Martin off the backhoe “in an angry tirade”. The significance of this being the prosecution' s contentions will be apparent when the relevant evidence is examined in detail later in this judgment.
The claimant had purchased a parcel of land, which was adjacent to other land in the possession of Urcil Peters and his wife, when it was auctioned by a bank to whom it had been mortgaged by Mr. Peters' stepson. Mr. Peters' wife had transferred the said parcel of land to the stepson, who had later mortgaged it Mr. Peters recognised that the land purchased by the claimant was not accessible by the claimant other than over the adjacent land which Mr. and Mrs. Peters had retained. Mr. Peters had told the claimant on some earlier occasion that he the claimant “would have to negotiate” for access rights over the Peters' adjacent land. This was the background to the confrontation between the claimant and Ural Peters on 8th December 1998.
Counsel for the claimant submits that the prosecution was under a constitutionally-guaranteed duty to disclose the said eyewitness' statement which had been recorded by the police and that the failure so to do violated the claimants fundamental rights under the Constitution of Antigua and Barbuda. Specifically, it is contended that the prosecution's failure to disclose the existence and content of the eyewitness' statement given to the police violated the claimant' s constitutional rights to:–
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(1) a “fair hearing” as guaranteed by section 15(1) of the Constitution;
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(2) “be given adequate time and facilities for the preparation of his defence” as guaranteed by section 15(2)(c) of the Constitution; and
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(3) “be afforded facilities … to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution” as guaranteed by section 15(2)(e) of the Constitution.
There can be no doubt that in many respects the claimants criminal trial was fairly and properly conducted, as his appeal against sentence was dismissed by the Court of Appeal.
In these present proceedings in which the Courts constitutional protection jurisdiction is invoked, this Court must be mindful of the pronouncement by the Privy Council in Joseph v. The State of Dominica (1988) 36 W.I.R. 216 that the fact that a mistake is made in the course of a trial does not mean that the case has not received a fair hearing. Constitutional right violation does not arise from every error made in the course of a criminal trial and, ordinarily, the appellate process is the mechanism for ensuring redress of any such errors (see also Forbes v. The Attorney General of Trinidad & Tobago [2002] UKPC 21).
The legal violation alleged by the claimant in this case is not of the type which was raised in Joseph's case, and from the evidence adduced it appears that, through no fault of the claimant, the issue raised was not susceptible to redress by the trial judge or by the Court of Appeal as it only came to light subsequent to those hearings. Both “the trial judge and in their turn the Court of Appeal were ignorant of the contents and of the very existence” of the witness statement which is the focus of these proceedings (to quote from the Privy Council's judgment in Berry v. R, (1992) 41 W.I.R. 244). There is no evidence that the witness statement in issue ever came to the claimant's attention prior to the decision of the Court of Appeal dismissing the claimant's appeal against the fine of $15,000.00 imposed upon him and which was paid.
In R v. Stinchcombe (1992) LRC (Crim) 68, 72 the Supreme Court of Canada said:
“…the law with respect to the duty of the Crown to disclose is not settled….
… Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from trial and the parties were prepared to address issues on the basis of complete information of the case to be met Surprisingly, in criminal cases in which the liberty of the subject is usually at stake, this aspect of the adversary system has lingered on.”
In 1993 the Privy Council, speaking of section 20 of the Jamaican Constitution which is in virtually identical terms to section 15 of the Constitution of Antigua and Barbuda, stated in Franklyn and Vincent v. R (1993) 42 W.I.R. 262 at 267d:– “In section 20 are the requirements of the Constitution which are designed to ensure that when a person is charged with a criminal offence he is provided with proper protection by the law.”
In the same case the Court opined at (1993) 42 W.I.R. 267j - 268a:–
“These provisions of section 20 do no more than codify in writing the requirements of the common law which ensure that an accused person receives a fair trial. They would therefore be part of the law of Jamaica even in the absence of the Constitution. They do not contain any specific requirement as to what is to be provided to a defendant before trial and a determination of whether the Constitution has been contravened by the non-provision of statements of witnesses who are to be called by the prosecution before a trial depends upon an assessment of the facts of a particular case as against these general standards of fairness prescribed by the Constitution.”
The Privy Council itself has since reconsidered its perspective of fundamental constitutional rights being merely a reflection of common law rights. As it emphatically pronounced in Gairy v. The Attorney General of Grenada [2001] UKPC 30:
“By Chapter 1 and section 106 of their constitution the people of Grenada established a new constitutional order. The constitution has primacy (subject to its provisions) over all other laws which, so far as inconsistent with its provisions, must yield to it To read down its provisions so that they accord with pre-existing rules or principles is to subvert its purpose. Historic common law doctrines restricting the liability of the crown or its amenability to suit cannot stand in the way of effective protection of fundamental rights guaranteed by the constitution.
It was however argued for the Attorney General in Jaundoo that the constitution conferred no greater rights on the subject against the executive than had previously been enjoyed. This reflected the approach of the Board to a number of constitutions which it considered at this period: it was assumed that the rights specified in the constitutions were already secured to the people and that the object of embodying them in the constitution was to restrain future enactments which might derogate from them.”
The recognition that the prosecution's duty of disclosure is a dimension of the rights guaranteed by section 15 of the Antigua and Barbuda Constitution affords greater protection than the common law because the right cannot be derogated from by ordinary legislation and as a fundamental constitutional right it has also become amenable to the extensive enforcement and remedial armoury available pursuant to section 18 of the Constitution.
“[H]uman rights guaranteed in the constitution of Antigua and Barbuda are intended to be a major influence on the practical administration of the law.” per Lord Cooke in Observer Publications Ltd v. Matthew, The Commissioner Police and The Attorney General of Antigua and Barbuda [2001] UKPC 11. Prosecuting authorities at all levels must be ever mindful of this principle when exercising the important public duty with which they are entrusted by the law.
The law and practice relating to prosecution disclosure in a Caribbean jurisdiction was reviewed by the Privy Council in Berry v. R (1992) 41 W.I.R. 244...
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