R v Anthony

• Jurisdiction: Antigua and Barbuda
• Judge: Joseph-Olivetti, J.
• Judgment Date: 03 December 2003
• Neutral Citation: AG 2003 HC 56
• Docket Number: ANUHCR 0030 of 2003
• Court: High Court (Antigua)
• Date: 03 December 2003

High Court

Joseph-Olivetti, J.

ANUHCR 0030 of 2003

R.

and

Anthony

Appearances:

Jason Martin for the defendant.

Wendell Robinson for the Crown.

Criminal practice and procedure - Quashing of indictment — Defendant charged with offence of wounding with intent to murder contrary to section 13 of the Offences against the Persons Act, Cap. 300 — Preliminary injury was held at the magistrate's court — No case submission made — Learned magistrate upheld no case submission and committed defendant to stand trial on charge of wounding with intent to do grievous bodily harm even though this charge was not laid before the magistrate — Whether the indictment was defective by reason of non-compliance with section 58 of the Magistrates' Code of Procedure Act, Cap. 255 — Judgment that the committal on which the indictment was based was bad and the indictment could not stand.

Joseph-Olivetti, J.

1 This is an application by defendant, Barrymore Anthony made by motion, to quash the indictment filed by the Learned Director of Public Prosecutions (“the DPP”). In a way it can be regarded as part two of an application having regard to my ruling dated 8th October 2003 (the First Ruling). The First Ruling did not deal with the substantive issues raised as the Court held that the procedure employed to apply to the Court was defective. The procedure has now been corrected and the application renewed.

2 The grounds of the application are set out in paragraph 13 of the defendant's affidavit in support and are;

• (a) The purported indictment is defective by reason of non-compliance with sections 55 and or 58 of the Magistrates' Code of Procedure Act, Cap. 255 (Cap. 255) in that there was no lawful preliminary inquiry within the meaning of section 14 of the Criminal Procedure Act, Cap. 117 (Cap. 117);

• (b) Further or alternatively that the alleged offence of wounding with intent to murder is not disclosed in the depositions and the learned magistrate had in the light of this refused to commit for this offence.

3 The defendant deposes, inter alia, that he was charged with the offence of wounding with intent to murder contrary to section 13 of the Offences against the Persons Act, Cap. 300. A preliminary inquiry into the matter was held at the St. John's Magistrate's Court. At the end of the prosecution's case a no case submission specifically with reference to the mens rea required for the offence was made. The learned magistrate upheld the no case submission but nevertheless committed the defendant to stand trial on a charge of wounding with intent to do grievous bodily harm. This charge was never laid before the Magistrate.

4 The defendant deposed further that on 7th August 2003 the Learned Director of Public Prosecutions (the DPP) indicted him for the offences of:

• (1) Wounding with intent to murder and

• (2) Wounding with intent to cause grievous bodily harm.

5 The defendant relied upon the arguments advanced in his first application, which is set out in paragraphs 3 to 5 of the First Ruling and to additional written submissions. Essentially his counsel argued that the magistrate, being a creature of statute, had no statutory or any inherent authority to commit the defendant for any offence other than the offence charged and that in committing the defendant for an offence different from that charged the magistrate acted in excess of her jurisdiction.

6 Additionally, he submitted that the indictment preferred by the DPP is not in accordance with section 14 of Cap. 117 and therefore without authority in that the preliminary inquiry upon which it is based was a nullity. Further, that the indictment contains a count for an offence for which the defendant was not committed and for which the committal documents do not disclose a case to answer.

7 The facts were not controverted. The prosecution's submissions on the substantive issues are as set out at paragraphs 7 to 11 of the First Ruling and in additional written submissions. The Crown argued that the magistrate was holding a paper committal and therefore misled herself when she entertained the no case submission and further erred by upholding the submission since there was prima facie evidence upon which the defendant could have been committed for trial for wounding with intent to murder as intent is a question of fact for the jury. Further, it was argued that on a proper construction of section 58 of Cap. 255 the learned magistrate had power to commit for any indictable offence disclosed on the evidence and that the committal for wounding with intent to do grievous bodily harm was a proper committal.

8 Section 2(2) of the United Kingdom Administration of Justice (Miscellaneous Provisions) Act, 1993 (the AJMP Act) was prayed in aid. The Prosecution argued that this section contains a proviso which allows for the substitution of a count or the addition of a count on the indictment provided evidence is disclosed in the deposition to support that count. It was not shown by what means this provision was incorporated in the laws of Antigua and Barbuda.

9 First, the law governing when a motion to quash an indictment can be brought. A motion to quash can be brought in any of three circumstances;

• (a) Where the indictment is bad on its face; (b) Where the indictment (or a count thereof) has been preferred otherwise than in accordance with the provisions of the AJMP Act. (In Antigua this would be Cap. 255) and Cap. 117);

• (c) Where the indictment contains a count for an offence in respect of which the accused was not...