Walter et Al v the Director of Public Prosecution et Al

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J
• Judgment Date: 31 July 1978
• Neutral Citation: AG 1978 HC 30
• Docket Number: 45 of 1978
• Date: 31 July 1978

High Court

Bishop, J.

45 of 1978

Walter et al

and

the Director of Public Prosecution et al

Sydney Christian for the appellants.

Cosmos Phillips, Q.C. Attorney General with S. Charles for the respondents.

Constitutional law - Criminal proceedings instituted against appellants in respect of which applicants were committed to stand trial at a preliminary enquiry for conspiracy — Whether applicants' right under s.8 of the Constitution to be assessed at a proper inquiry and assessment directed by the court had been violated.

Bishop, J

1 This Court was moved by counsel on behalf of the applicants, George Walter and Sydney Prince, on the 10 ^th July, 1978, for the following:

• “(a) An Order that the rights of the applicants under section 8 of the Constitution of Antigua have been and are being infringed in criminal proceedings which were instituted against the applicants and in respect of which the applicants were committed to stand trial at the September 1978 Assizes at a preliminary inquiry for the offence of conspiracy in that between 1 ^st January 1975 and 21 ^st March 1975 the applicants did conspire together and with other persons unknown to defraud the Government of the State of Antigua of revenue, namely duty, by falsely representing that a quantity of steel frames and building accessories imported into the state of Antigua were imported for government use only contrary to Common Law;

• (2) An order that the said proceedings be quashed or discontinued and a further order that there be no further prosecution of any kind upon the evidence led at the said preliminary inquiry or any other evidence to the same force and effect;

• (3) Further or in the alternative a declaration that the proceedings are unconstitutional and without legal force or effect:

• (4) Compensation and/or damages including punitive or aggravated damages for the contravention of the rights of the applicants under section 8 of the Constitution to be assessed at a proper inquiry and assessment directed by the Court;

• (5) All further writs, orders and directions as may be necessary to enforce the rights of the applicants under section 8 of the Constitution of Antigua and to bring the said criminal proceedings to any other pro-arising out of the said preliminary inquiry to an end;

• (6) Costs.”

2 The grounds in support of the motion were set out in the following words:

• “1. The applicants have been and are being denied a fair hearing within the meaning of section 8 of the Constitution of Antigua because all the material evidence having been or being adduced at the said preliminary inquiry and capable of supporting the charge is barred or rendered inadmissible by virtue of the provisions of section 14 of the Commissions of Inquiry Act, Cap. 305.

• 2. The applicants have been denied the protection of section 1 of the Constitution and which Section 8 of the said Constitution is designed to enforce by the use against them in the said criminal proceedings of inadmissible evidence on all material aspects of the case.

• 3. The applicants have suffered severe inconvenience, loss and damage in defending a prosecution which is wholly unfounded in law at a hearing which is being conducted in isolation of the statutory protection afforded the applicants by section 14 of the Commissions of Inquiry Act Chapter 305 and which in the premises is an abuse of the judicial process.

• 4. The applicants were entitled at the close of the preliminary inquiry to have the charge dismissed on the ground that it was supported in all respects by evidence which was rendered by statute wholly inadmissible and that in consequence no case had been made against the applicants.”

3 There was a fifth ground set out but learned counsel for the applicants indicated that he would not be arguing that ground because it was unnecessary to do so, I do not propose to embark upon a search for argument in its favour: as, nothing was urged upon me to merit considering that ground, I say no more about it.

4 Two affidavits in support of the motion were filed; and except for two paragraphs, the remaining twelve paragraphs in each affidavit were identical.

5 I wish to observe that the final sentence in paragraph 11 of each of the affidavits of George Walter and Sydney Prince states:

6 “A copy of this Order granting conditional leave to appeal to Her Majesty in Council in that appeal is hereto annexed……”

7 A number of cases which have come before me reveals that compliance with the Rules of Supreme Court poses great difficulty. Rule 11 of Order 41 of the Rules of Supreme Court 1970 is headed “Document to be used in conjunction with affidavit to be exhibited to it.” and it reads:

• “(1) Any document to be used in conjunction with an affidavit must be exhibited and not annexed to the affidavit.

• (2) Any exhibit to an affidavit must be identified by a certificate of the person before whom the affidavit is sworn.

• (3) The certificate must be entitled in the same manner as the affidavit…..”

8 The thing which ought not to be done has been done and the thing which ought to be done has not been done. A document has been annexed to the affidavit and there has been no identification as required by paragraph (2). It is for the solicitor filing the affidavits to see that he dopes not file a document which does not conform with the provisions. I fail to see that there can be any sufficient explanation for what appears to be a persistent disregard for Order 41 which really poses no difficulty to understand or to implement.

9 An affidavit was filed on behalf of the respondents. It was sworn to by Millicent Percival and it concerned the Commission of Inquiry referred to in the affidavits of the applicants.

10 When hearing of the matter commenced, learned counsel for the applicants asked that paragraph (a) of the relief ought be amended to read “declaration” instead of “order”. This application to amend was granted.

11 In dealing with the motion, Mr. Christian referred to paragraphs 2, 4, 6, 7 and 8 of each of the affidavits of the applicants and he pointed out that the allegations in the last mentioned paragraph had not been disputed or challenged. He also said, when dealing with paragraph 8, the deposition of the witnesses who testified at the trial were not available though I have no evidence before me to explain their unavailability. Learned counsel explained that the depositions were not exhibited with the affidavit because, as he put it, “they were not yet ready”. Why they were not yet ready was not explained.

12 Mr. Christian dealt with the motion under three heads. First, he urged that the pertinent question was: What is the true meaning of section 14 of Cap 305 and how does it effect the applicants and the criminal charges laid against them? He invited me to find “inspite of the judgment of the Court of Appeal” (in Civil Appeal No. 10 of 1977) “that section 14 in its plain and unambiguous language, without any interpolation of words, means that where witnesses have given evidence before the Commission of Inquiry their statements, whether oral or written, cannot be admitted in evidence in any subsequent proceedings, civil or criminal”. According to learned counsel, section 14 had been considered some five times previously, and only the word “statement therein had caused any dispute. He contended that as here was no indication that it should be restricted in its meaning to a documentary statement, it should be given its ordinary meaning which included oral and written statements. Mr. Christian referred to the meaning as set out in Volume 5 of the 2 ^nd edition of Words & Phrases Legally Defined. He also analysed the judgments of Peterkin, J.A., and Davis, C.J. at pages 7 and 9 respectively of a cyclostyled copy of the judgment in Civil Appeal No. 10 of 1977 (Antigua) Halstead v. The Commissioner Of Police & Victor Browne.

13 Secondly, Mr. Christian considered the question: Ought the provisions of section 15 of the Antigua Constitution to have been invoked? He answered this question by urging that “the only curtailment of the use of section 15 must be found in section 15 itself”. He asked me to differ from Peterkin J.A. in the following passage of his judgment in Civil Appeal No. 10 of 1977:

“In my opinion the procedure by motion under section 15 of the Constitution does not contemplate encroachment by the Judges on functions entrusted by the law to others unless it be to correct decisions of law which are apparent on the face o the record. It may be invoked for instance to secure compliance with the rules of natural justice. In my view it cannot be resorted to unless the errors are errors of substance which are evident without prolonged legal argument. Such is not the case here. In relation to preliminary inquiries, if it were otherwise, it would permit every accused person appearing before a Magistrate to challenge every ruling against him, as to the admissibility of evidence on the ground...