Anthony Walcott Claimant v 1. Attorney General of Saint Lucia 2. DPP 3. WPC. 671 Lesporis Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Wilkinson, J |
| Judgment Date | 04 March 2010 |
| Judgment citation (vLex) | [2010] ECSC J0304-4 |
| Date | 04 March 2010 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV 2009/0972 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
CLAIM NO. SLUHCV 2009/0972
The Claimant by a fixed date claim form and statement of claim filed November 30th 2009, sought the following relief:
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(1) A declaration that rule 9.4(4) read together with rule 11.2 of the Criminal Procedure Rules 2008 are null, void and of no effect to the extent that it essentially destroys a defendant's right to a fair hearing through not being able to adequately cross-examine, or cross-examine at all, a witness accusing him of committing a crime.
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(2) That the said proceedings before the High Court referred to as a Sufficiency Hearing before Justice Kenneth Benjamin in case No.271 of 2009 WPC.Lesporis v. Anthony Walcott be stayed indefinitely until the inconsistency with the Constitution is rectified.
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(3) A declaration that Chapter 3 Part 5 of the Criminal Code 2004 is the procedure to be followed as the path to indictment, it having not been repealed for the purposes of Criminal Procedure Rules 2008.
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(4) Any other order that the Court deems just.
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(5) Costs
At the hearing of the suit the third prayer was abandoned as Counsel for the Claimant admitted to not being aware that Chapter 3 Part 5 of the Criminal Code 2004 (hereinafter "CC 2004") had been amended to accommodate the Criminal Procedure Rules 2008 (hereinafter " CPR 2008").
In his statement of claim, the Claimant states that on 4th February 2009, he was arrested and charged with having maimed Leona Edward (hereinafter "the Virtual Complainanf') on the 3rd February 2009, contrary to section 99(1) of the CC2004. He further states that upon the passage into law of CPR 2008, he is being processed pursuant to the said legislation which purports to replace inter alia Chapter 3 Part 5 of CC 2004 which dealt with preliminary inquiries and committal proceedings. That, in accordance with the CPR 2008 Part 9, he has appeared on 2 occasions before the High Court for what was described as a Sufficiency Hearing.
The Claimant also states that his counsel informed him that, prior to his first appearance on 19th June 2009, at the Sufficiency Hearing, his counsel had been served a copy of case file No.271/09. This he was told by counsel occurred after counsel had written to the Director of Public Prosecutions on 18th March 2009, requesting disclosure, and specifically of medical reports of the virtual complainant's examination at Martinique. That upon the matter coming on for Sufficiency Hearing on June 2009, the Crown informed the Court that disclosure was not complete, and as a result the said hearing was adjourned to 23rd October 2009. On 23rd October 2009, the Crown stated that it was prepared to proceed with the Sufficiency Hearing and that it would be relying on all of the statements served on the Claimant except the most recent statement of Dr. Harley Moseley III, whose report had only been served on the Claimant 2 or 3 days prior. Counsel for the Claimant at that juncture informed the Court that he required time to peruse the said report with an expert and the hearing was adjourned to 23rd November 2009.
The Claimant further stated that he had reason to believe that the Director of Public Prosecutions had access to a medical report from Martinique by virtue ofstatements made via television by the Chief Medical Officer, Dr. Josiah Rambally. The court did not sit on the 23rd November 2009, but did so on 30th November, 2009. The Claimant again complained on 30th November 2009, of not having received any medical report from Martinique on the virtual complainant. The Learned Judge in response to the complaint stated that the Crown was entitled to rely on anything they believed sufficient to commit the Claimant.
The Director of Public Prosecutions filed an affidavit on 8th January 2010, and it was described as being in response to the fixed date claim form. Therein she sought to give a brief account of the CPR 2008, and, in particular, the Sufficiency Hearing. She says that the Sufficiency Hearing is a novel concept and it has replaced the Preliminary Inquiry which was found to be a protracted, repetitive and unwieldy committal procedure. The Sufficiently Hearing is intended to streamline and abridge criminal committals. She deposes that neither the Crown nor the virtual complainant was, or is, in possession of a medical report from Martinique. Further, on 30th March 2009, she had written to Superintendent Joseph Eugene of the Royal Saint Lucia Police Force (hereinafter "the RSLPF") requesting his department's assistance in obtaining any additional medical reports relating to the virtual complainant. The Third-named Defendant in response to her inquiry informed her that the RSLPF had not todate been able to obtain any additional medical reports on the virtual complainant. She deposed that the Crown has been ready to proceed with the Sufficiency Hearing since 23rdOctober 2009, and that the continued delay has been brought about by the Claimant.
The Claimant in his affidavit in response filed 19th January 2010 deposed:
"2. That despite the vague denial that there was a medical report from Martinique in paragraph 14 of the DPP's Affidavit, I have very strong evidence that not only is there a medical report from Martinique but that it is of a strongly exculpatory nature based on the following:
a. Dr. Moseley's reference to the Virtual Complainant's Leona Edward's stay in a Martinique Hospital.
b. I was served with Civil Claim SLUHCV2009/0998 filed on behalf of said Leona Edward a copy of which is hereto attached whereupon Miss Edward speaks of being attended to by medical professionals in Martinique (at paragraph 7 of the Statement of Claim, ….).
c. That sometime in 2009 I received a package at my office with no name or address which said package was delivered to my office with what appeared to be medical findings after examination of Leona Edward in Martinique addressed to the then Chief Medical Officer Doctor Rambally of St. Lucia (a copy of which is attached hereto and marked AW2).
3. That the only way I can prove this to be authentic is if the DPP disclosed on me the medical as being a legitimate and authentic document received from Doctor Rambally or in possession of the present Chief Medical Officer of St. Lucia.
4. That upon instructions from my lawyer Mr. Foster and based on the fact that neither myself nor my lawyer can request information about a patient at a foreign hospital I called Dr. Rambally on the telephone yesterday the 18th January 2010. I asked him whether he was in possession of a medical report from Martinique for Leona Edward and he informed me and I verily believed that this is in the possession of the present Chief Medical Officer, Dr. Frederick. I further asked whether any police had made enquiries of him of said report and he replied in the negative."
As I understand counsel for the Claimant, his submissions are that the Claimant's constitutional right at section 8(1) of the Constitution to a fair hearing. is being separately, and conjunctively, infringed because (a) the CPR 2008 and in particular rule 9.3, rule 9.4, and rule 11.2 do not provide for full and timeous disclosure at committal proceedings, (b) the Director of Public Prosecutions is covertly assisted by the legislation in not providing full and timeous disclosure since she need only provide so much as is necessary to make a prima facie case at the Sufficiency Hearing to get a committal, and further she could actually waituntil the day of trial to disclose material, including exculpatory material, (c) while there is the ability of the Claimant to cross-examine, he can only do so at the discretion of the judge, and for whom there are no criteria, and or considerations set out upon which he must base the exercise of his discretion, and (d) there exists the possibility that a witness statement could be used at the Sufficiency Hearing to influence the determination of whether a prima facie case has been made out, and thereafter, the witness could disappear and her witness statement, nevertheless could be used at the trial.
Before proceeding to deal with the issue of infringement of the Claimant's right under section 8(1) of the Constitution, there is need to address a number of evidential procedural issues.
I refer to paragraph 4 of the Claimant's affidavit wherein he sought to relate a conversation between a Dr. Rambally and himself. The statement is only to be allowed if it is in compliance with the Civil Procedure Rules 2000 Part 30.3 (1), or Part 30.3(2). Part 30.3.provides:
"30.3(1) The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his or her own knowledge.
(2) An affidavit may contain statements of information and belief
(a) if any of these Rules so allows; and
(b) if the affidavit is for use in an application for summary judgment under Part 15 or any procedural or interlocutory application, provided that the affidavits indicate
(i) which of the statements in it are made from the deponent's own knowledge and which are matters of information or belief; and
(ii) the source of any matters of information and belief.
(3) The court may order that any scandalous, irrelevant or other oppressive matter be struck out of any affidavit."
Nothing in the Claimant's affidavit has led me, firstly, to believe that he is able to prove the facts from his own knowledge, and secondly, that the statement can be accepted pursuant to Part 30.3(2) since the hearing before the Court is not an application for summary judgment, or a procedural or interlocutory application. I will, therefore pay no further regard to that statement.
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