Attorney General Appellant v [1] Peter Hippolyte [2] Michael Augustin [3] Martinus Alexander Respondents

• Jurisdiction: St Lucia
• Judge: Baptiste JA,Justice of Appeal,Davidson Kelvin Baptiste,Gertel Thom,Paul Webster,Justice of Appeal [Ag.]
• Judgment Date: 04 April 2016
• Judgment citation (vLex): [2016] ECSC J0404-2
• Court: Court of Appeal (Saint Lucia)
• Date: 04 April 2016
• Docket Number: SLUHCVAP2015/0019

[2016] ECSC J0404-2

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

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

SLUHCVAP2015/0019

In the matter of an Appeal pursuant to CPR 62.

and

In the matter of section 441 of the Criminal Code of Saint Lucia Cap 3.01 of the Revised Laws of Saint Lucia.

and

In the matter of section 8 of the Constitution of Saint Lucia Cap 1.01 of the Revised Laws of Saint Lucia.

Between:

The Attorney General

Appellant

and

[1] Peter Hippolyte

[2] Michael Augustin

[3] Martinus Alexander

Respondents

Appearances:

Mr. Dwight Lay for the Appellant

Mr. Horace Fraser for the Respondents

Civil appeal — Section 441 of the Criminal Code of Saint Lucia — Whether section 441 of the Criminal Code is inconsistent with sections 8(1), 8(2) and 8(7) of the Constitution of Saint Lucia — Whether section 441 of the Criminal Code interferes with the requirement of reasonable doubt — Whether section 8(12) of the Constitution is applicable to section 441 of the Criminal Code

The respondents were charged, pursuant to section 441 of the Criminal Code of Saint Lucia, 1 with having in their possession a large quantity of foreign currency reasonably suspected to have been stolen or unlawfully obtained. The respondents (the claimants in the court below) filed an originating motion pursuant to section 16 of the Constitution of Saint Lucia 2 ("the Constitution") contending in essence that section 441 of the Criminal Code contravenes sections 8(1), 8(2) and 8(7) of the Constitution as it: (a) puts the onus on them to disprove that they did not know the money was stolen; (b) reverses the burden of proof and offends section 16 of the Constitution; and (c) is disproportional in all of the circumstances.

The appellant (the defendant in the court below) filed an affidavit in response stating, amongst other things, that section 441 of the Criminal Code is reasonably required for the purpose of apprehending and prosecuting criminals and that under section 441, the prosecution is first required to prove the elements of the offence and then afterwards an accused person had the option to offer proof, on a balance of probabilities, of facts which are rationally open to the accused to prove or disprove.

The learned trial judge found that: (a) the words 'who does not give an account to the satisfaction of the Court, as to how he or she came by it' in section 441(1) and the entirety of section 441(2) of the Criminal Code are unconstitutional, null and void; (b) that the appellant had the burden of proof to justify that sections 441(1) and 441(2) are reasonably required in a democratic society; (c) the requirement for an accused person to provide a satisfactory explanation to the court of his or her possession is an element of the offence which was created by section 441(1); and (d) section 441(1) reduces the burden on the prosecution to prove the ingredients of the offence such as possession and the facts from which reasonable suspicion of unlawful possession may be based. The learned trial judge therefore struck down

what he considered the offending words of section 441(1) and the whole of section 441(2).

The appellant, being dissatisfied with the judge's decision, appealed on a number of grounds. The appellant complains, inter alia, that the learned judge misdirected himself when he held that section 441 of the Criminal Code was unconstitutional, null and void, to the extent that it requires a person to give an account of how he or she came into possession of an item that is reasonably suspected to have been stolen or unlawfully obtained; and that the learned judge followed the decisions of the Privy Council in Attorney-General of Hong Kong v Lee Kwong-Kut; Attorney General of Hong Kong v Lo Chak-Man and another3 and Attorney General of Gambia v Momodou Jobe4 without taking sufficient account of the judicial guidance provided in, amongst other cases, Attorney General's Reference (No 1 of 2004). 5

Held: dismissing the appeal; and awarding costs to the respondents to be assessed if not agreed within 21 days, that:

• 1. Section 441 of the Criminal Code creates three elements: (1) the possession or conveying of the property by the defendant; (2) the reasonable suspicion that the property has been stolen or unlawfully obtained; and (3) the inability of the defendant to give a satisfactory account of how the property came into his possession. The third element is the most important ingredient of the offence. It places the onus on the defendant, in order to avoid a finding of guilt, to establish that he or she is able to give an explanation as to his or her innocent possession of the property. It reduces the burden on the prosecution to proving possession by the defendant and facts from which a reasonable suspicion can be inferred that the property was stolen or unlawfully obtained. It therefore contravenes the presumption of innocence in section 8(2)(a) of the Constitution of Saint Lucia. Accordingly, in this case, the learned trial judge was correct in making this finding.

  Attorney-General of Hong Kong v Lee Kwong-Kut ; Attorney-General of Kong v Lo Chak-Man and another [1993] AC 951 applied.

• 2. A provision such as section 8(2)(a) of the Constitution of Saint Lucia which embodies the presumption of innocence, has to be given a generous and purposive construction. Section 8(12)(a) of the Constitution which imposes upon a person charged with an offence, the burden of proving particular facts, should not be construed in a manner which emasculates the provision of the presumption of innocence embodied in section 8(2)(a) of the Constitution. Further, section 8(12)(a) of the Constitution is not intended to apply to the

  essential ingredient of an offence. In the circumstances of this case, the learned judge was right in concluding that section 8(12)(a) would not be applicable to section 441 of the Criminal Code and correctly held that section 441(1) of the Criminal Code contravened the presumption of innocence embodied in section 8(2)(a) of the Constitution. Consequently, in the present case, the judge quite properly severed the offending part of section 441(1) and to the extent that the offending part of section 441(1) was inextricably linked to section 441(2), he was also correct in striking down section 441(2) in its entirety.

  Attorney-General of Hong Kong v Lee Kwong-Kut ; Attorney-General of Kong v Lo Chak-Man and another [1993] AC 951 applied; The Attorney General of The Gambia v Momodou Jobe [1984] AC 689 at p. 100 applied; Beezadhur v The Independent Commission against Corruption and another [2014] UKPC 27 distinguished.

Baptiste JA

1 Section 441 of the Criminal Code of Saint Lucia 6 bears the burden of this appeal. It provides (in so far as is applicable):

" 441. UNLAWFUL POSSESSION OF PROPERTY SUSPECTED TO HAVE BEEN STOLEN

• (1) A person who has in his or her possession or conveys in any manner anything which is reasonably suspected to have been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the Court, as to how he or she came by it is liable on summary conviction to imprisonment for 2 years.

• (2) Where a person charged with an offence under subsection (1) refuses or is unable to satisfy the Court that his or her possession of the thing is lawful it shall be deemed to be prima facie evidence of his or her guilt and the Court may convict him or her accordingly.

• …"

2 The main issue is whether section 441 of the Criminal Code is inconsistent with sections 8(1), 8(2) and 8(7) of the Constitution of Saint Lucia ("the

Constitution"). 7 This issue arises consequent upon Belle J holding that certain parts of section 441(1) and the whole of section 441(2) of the Criminal Code are unconstitutional, null and void. The issue of section 441 was brought to the fore as a result of the respondents having been charged, pursuant to that section, with having in their possession a large quantity of foreign currency (US$252,755.00 and €99,440.00) reasonably suspected to have been stolen or unlawfully obtained. The currency was seized when the police conducted a search of a motor car which the respondents were in.

3 The matter came up before the learned judge in the form of an originating motion, pursuant to section 16 of the Constitution, with the respondents (the claimants in the court below) basically contending that section 441 contravenes sections 8(1), 8(2) and 8(7) of the Constitution as it, inter alia, (a) puts the onus on them to disprove that they did not know the money was stolen, (b) reverses the burden of proof and offends section 16 of the Constitution and (c) is disproportional in all of the circumstances.

4 The appellant (the defendant in the court below) filed an affidavit in response stating, inter alia, that (a) section 441 of the Criminal Code is reasonably required for the purpose of apprehending and prosecuting criminals and (b) under section 441 the prosecution is first required to prove the elements of the offence and then afterwards an accused person has the option to offer proof, on a balance of probabilities, of facts which are rationally open to the accused to prove or disprove. The respondents filed no reply to the appellant's affidavit.

5 Belle J found that:

• (a) the words 'who does not give an account to the satisfaction of the Court, as to how he or she came by it' in section 441(1) and the whole

  of section 441(2) of the Criminal Code are unconstitutional, null and void; 8

• (b) the appellant had the burden of proof to justify that sections 441(1) and (2) of the Criminal Code are reasonably required in a democratic society; 9

• (c) the requirement for an accused person to provide a satisfactory explanation to the court of his or her possession is an element of the offence, which is...