Rashid A. Pigott Appellant v The Queen Respondent

• Jurisdiction: Antigua and Barbuda
• Judge: Thom JA,Justice of Appeal,Gertel Thom,Davidson Kelvin Baptiste,Paul Webster, QC,Justice of Appeal [Ag.]
• Judgment Date: 13 April 2015
• Judgment citation (vLex): [2015] ECSC J0413-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCRAP2009/0009
• Date: 13 April 2015

[2015] ECSC J0413-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal [Ag.]

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

ANUHCRAP2009/0009

Between:

Rashid A. Pigott

Appellant

and

The Queen

Respondent

Appeal against conviction and sentence — Building breaking and larceny — Record of appeal received by appellant over 4 years after notice of appeal filed — Appeal heard only after appellant had completely served custodial sentence — Whether delay inordinate — Whether appellant's constitutional right to a fair hearing within a reasonable time as guaranteed by s. 15(1) of Antigua and Barbuda Constitution Order 1981 breached — If appellant's constitutional right was breached, whether quashing conviction is appropriate remedy — Whether wrong in law and as a matter of procedure to raise in Court of Appeal for first time as ground of appeal that constitutional right breached — Whether issue ought to have first been raised in High Court in accordance with s. 18(1) of Constitution

The appellant was convicted of the offence of building breaking and larceny on 11^th June 2009. On 26^th June 2009, he was sentenced to 5 years imprisonment. On 1^st July 2009, he filed a notice of appeal against both his conviction and sentence and on 3^rd July 2014, he was granted leave to enlarge his grounds of appeal. The additional 2 grounds of appeal filed could be summarised as: the appellant's constitutional right to a fair hearing within a reasonable time as guaranteed by section 15(1) of the Antigua and Barbuda Constitution Order 1981 ("the Constitution") was breached by the State failing to ensure that his appeal against his conviction and sentence was heard within a reasonable time and before he had finished serving his sentence.

At the hearing of the appeal, the appellant, during the course of his submissions, indicated to the Court that he did not wish to pursue his original grounds of appeal but rather, wished to rely solely on the constitutional ground of appeal. In support of this ground, the appellant contended that having been convicted on 11^th June 2009 and sentenced on 26^th June 2009, he had filed his appeal in a timely manner, on 1^st July 2009. However, due to inordinate delay by the administrative officials, preparation of the record of appeal was not completed until sometime in October 2013. The appellant received a copy of the record more than 1 year after he had completed serving his term of imprisonment. The appellant further contended that he did not in any way contribute to the delay in the hearing of the appeal. The relief sought by the appellant was that his conviction be quashed.

The prosecution argued that there was no breach of the appellant's constitutional right, and that the 3 calendar years which the appellant spent in prison was a relatively short time for preparation of the record of appeal to be completed, having regard to the circumstances in Antigua and Barbuda where there is a backlog of pending appeals. The prosecution further submitted that the appellant was wrong in law and as a matter of procedure, to raise in the Court of Appeal, for the first time as a ground of appeal, that his constitutional right to a fair hearing within a reasonable time had been breached. The appellant ought to have raised this issue in the High Court in accordance with section 18(1) of the Constitution.

Held: dismissing the appeal against conviction and sentence, affirming the appellant's conviction and sentence, and making a declaration that the inordinate delay in the preparation of the record of appeal constituted an infringement of the appellant's constitutional right to a fair trial within a reasonable time as guaranteed by section 15(1) of the Constitution of Antigua and Barbuda, that:

• 1. Section 18 of the Constitution of Antigua and Barbuda does not make it mandatory for a person contending that his/her constitutional rights have been infringed to seek redress in a separate action before the High Court. The right to seek redress under section 18 in the High Court is without prejudice to any other action that is lawfully available to an aggrieved person. It is an alternative remedy. Where there is inordinate delay in the trial of an accused person, the issue of infringement of his/her constitutional right to a fair hearing within a reasonable time guaranteed under section 15(1) of the Constitution may be raised at the criminal trial. Similarly, where there is inordinate delay between conviction and the hearing of the appeal it may be raised in the Court of Appeal as a ground of appeal against both conviction and sentence.

  Chokolingo v Attorney-General (1980) 32 WIR 354 considered; Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No. 2) (1978) 30 WIR 310 considered; Alfred Flowers v The Queen [2000] UKPC 41 applied; Melanie Tapper v Director of Public Prosecutions [2012] UKPC 26 applied; Hassen Eid-En Rummun v The State of Mauritius [2013] UKPC 6 applied.

• 2. In determining whether there has been an inordinate delay in affording a person charged with or convicted of a criminal offence a fair hearing (such as would constitute an infringement of section 15(1) of the Constitution), the factors to be considered are: (i) the complexity of the case; (ii) the conduct of the accused/appellant; and (iii) the conduct of the administrative and judicial authorities. The present case was not unduly complex, and the delay in the hearing of the appeal was due solely to the record of appeal not being prepared in a timely manner, which had nothing to do with the appellant. The administrative and judicial authorities were solely responsible for the preparation of the record of appeal, and no explanation was provided for the delay in its preparation. In the circumstances, the delay of over 4 years to prepare the record of appeal was inordinate, and was sufficient to constitute an infringement of the appellant's rights under section 15(1) of the Constitution.

  Prakash Boolell v The State [2006] UKPC 46 applied; Joseph Stewart Celine v The State of Mauritius [2012] UKPC 32 applied.

• 3. The appellant having abandoned his original grounds of appeal against his conviction and sentence, no issue arose concerning the fairness of the trial or the safety of his conviction. It would not be appropriate to set aside the appellant's conviction absent these issues and solely on the basis that there was inordinate delay between the period of the conviction and the hearing of the appeal. Further, it would not be appropriate to make an order for monetary compensation where a conviction is affirmed. Accordingly, the most appropriate order would be a declaration that the appellant's constitutional right to a fair trial within a reasonable time guaranteed by section 15(1) of the Constitution has been infringed.

  Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72 applied; Haroon Rashid Elaheebocus v The State of Mauritius [2009] UKPC 7 applied; Prakash Boolell v The State [2006] UKPC 46 applied; Gangasing Aubeeluck v The State of Mauritius [2010] UKPC 13 applied.

1 Thom JA[AG]: The appellant, Rashid Pigott, was, on 11^th June 2009, convicted of the offence of building breaking and larceny. A sentencing hearing was held on 26^th June 2009 and he was sentenced to 5 years imprisonment. On 1^st July 2009, he filed a notice of appeal against both his conviction and sentence. On the date of the hearing of this appeal, the appellant had already completed serving the 5 year term of imprisonment. He was released from prison on 6^th October 2012.

Thom JA

2 At the trial, the case for the prosecution was that between 24^th and 26^th December 2005, the business premises of Leeward Islands Hurricane Protection ("LIHP") was broken into and several tools and electronic equipment were stolen. On 3^rd May 2006, while employees of LIHP were working in the village of Willikies, one of the employees saw a young man, Mr. Beunel Luke, with what appeared to be an electric saw that was stolen from LIHP. The matter was reported to the police. The saw was identified by the owner of LIHP, Mr. Terry, as his property.

3 Mr. Luke produced a receipt which showed that he had purchased the saw from the appellant. A search was conducted of the appellant's business place and his vehicle and several items the property of LIHP were found. The police also recovered at the appellant's business place the duplicate of the receipt of the saw sold to Mr. Luke. Both receipts were admitted as exhibits. Several of the other stolen items were found at the appellant's parents' home at Fitches Creek. Many of the items were purchased by Mr. Terry from Canada. The items were not available in Antigua and Barbuda. The prosecution relied on the doctrine of recent possession to prove its case.

4 The appellant gave sworn testimony and called two witnesses. He denied that he committed any offence. He admitted selling a saw to Mr. Luke but claimed that he had purchased the saw from a customer. Further, the items taken from his business place and his truck were items that he had purchased to resell. The items taken from his parents' home belonged to his parents. He claimed had never seen the majority of the items which the prosecution exhibited. He knew nothing about them. They were not the items taken from his business place, his truck or his parents' home.

5 The appellant appealed his conviction on several grounds. These grounds have been succinctly summarised by the learned Director of Public Prosecutions ("DPP") and I adopt his summary. They are as follows:

• (1) The appellant was tried and convicted on an invalid indictment which he was given short notice of and this was prejudicial to him.

• (2) The learned trial judge erred when he allowed the prosecution to adduce inadmissible evidence...