Attorney General of Saint Lucia Appellant v Lorne D.C. Theophilus Respondent [Ecsc]

• Jurisdiction: St Lucia
• Judge: RAWLINS, J.A.,Justice of Appeal,Chief Justice [Ag.],Hugh A. Rawlins,Brian Alleyne, SC,Denys Barrow, SC
• Judgment Date: 20 March 2006
• Judgment citation (vLex): [2006] ECSC J0320-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CIVIL APPEAL NO.13 OF 2005
• Date: 20 March 2006

[2006] ECSC J0320-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal

CIVIL APPEAL NO.13 OF 2005

Between:

ATTORNEY GENERAL OF SAINT LUCIA

Appellant

and

LORNE D.C. THEOPHILUS

Respondent

Appearances:

Mr. Anthony Astaphan, SC, with him Mrs. Georgis Taylor-Alexander and Mr. Renee Williams for the Appellant

Mr. Bryan Stephens for the Respondent

RAWLINS, J.A.

1 The jurisdiction of the High Court to review legislation for constitutionality has been long established. In St. Lucia, this jurisdiction is implicit from the Supreme Law Clause;1 section 40, which circumscribes the sovereign law-making power of the Legislature within the ambit of the provisions of the Constitution; section 41 which stipulates the manner in which the Legislature may amend the Constitution, and sections 16 and 105, which confer jurisdiction on the High Court to entertain applications for constitutional redress.

2 The manner in which the High Court is enjoined to exercise its power to review legislation was succinctly summarized by this Court inAttorney General v Lawrence in the following words:2

"In determining the question of constitutionality of a statute, what the court is concerned with is the competence of the legislature to make it, and not the wisdom or motives. The court has to examine its provisions in the light of the relevant provisions of the Constitution. The presumption is always in favour of constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles."

This appeal

3 The present appeal is from a decision in which a High Court judge held that section 593(4)(a) of the Criminal Code of St. Lucia, No. 9 of 2004, is inconsistent with section 3(4)) of the Constitution of St. Lucia. The judge also held that although section 593(4)(b) and section 593(5) of the said Code were not expressly challenged, these sub-sections were also affected and could not sensibly be severed from section 593(4)(a). He therefore struck down the whole of section 593(4) as well as section 593(5) of the 2004 Criminal Code as unconstitutional, null, void and of no effect.

4 The main issue for determination on this appeal is whether sections 593(4)(a), of the 2004 Criminal Code is inconsistent with section 3(4) or, for that matter, with any other provision of Chapter 1 of the Constitution of St. Lucia. If the answer is in the affirmative, a further question that then arises would be whether the section could be saved by bringing it into conformity with the Constitution by the application of the presumption of constitutionality. If section 593(4)(a) cannot be thus saved, the question that would arise is whether the learned judge was correct when he held that sections 593(4)(b) and 593(5) of the 2004 Criminal Code cannot be successfully severed from section 593(4)(a) and should also be struck down First, however, a brief background to the case.

Background

5 The Legislature of St. Lucia passed the 2004 Criminal Code on 17^th February 2004. The Bill received the assent of the Governor General on 30^th April 2004, and it came into effect on 1^st January 2005.

6 A complaint was lodged against the respondent, Mr. Theophilus, which alleged that he committed the offence of rape. Rape is an indictable offence under section 123(1)(a) of the 2004 Criminal Code. It is punishable by imprisonment for life.

7 On 1^st February 2005, Mr. Theophilus filed a Motion, by way of fixed date claim form. He asked the Court to declare that section 593(4) of the 2004 Criminal Code was inconsistent with various sections of the Constitution of St. Lucia, and was therefore unconstitutional, void and of no effect. A warrant was issued for his arrest on 4^th February 2005. The magistrate before whom he appeared on that day refused to grant him bail on the ground that section 593(4) of the 2004 Criminal Code precluded her from granting bail. He applied for bail to the High Court. The judge granted him bail pending the determination of his Motion.

8 On 28^th February 2005, the judge determined, as a preliminary issue that subsections (a) and (b) of section 593(4) of the 2004 Criminal Code are to be read disjunctively rather than conjunctively. He held that read thus, the subsections purported to preclude the court from granting bail to persons who are charged with the offences specified in section 593(4)(a) as well as to persons who are convicted and sentenced to death or to imprisonment and who have given notice of their intention to appeal. The Motion was then heard and determined, and this appeal brought.

9 The charge against Mr. Theophilus was subsequently withdrawn. In relation to him, therefore, this appeal is merely academic. However, the issue, which arises, remains one of great public importance. It is still necessary for the citizenry, aswell as for the organs of the State to know, with certainty, whether the impugned provisions are consistent with the Constitution or whether they are unconstitutional and therefore of no effect. The reproduction at this juncture of the relevant provisions, which are the focal point of the present case, would put the analysis, findings and decision of this Court into helpful context.

The relevant provisions

10 Learned Counsel for Mr. Theophilus sought, in the main, to impugn section 593(4) of the 2004 Criminal Code for inconsistency with sections 1(a), 3 and 8(2)(a) of the Constitution. They all fall under Chapter I of the Constitution, which is under the rubric "Protection of Fundamental Rights and Freedoms".

11 Section 1(a) provides:

• "(1) Whereas every person in St. Lucia is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—

  • (a) life, liberty, security of the person, equality before the law and the protection of the law;…

  the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms of any person does not prejudice the rights and freedoms of others or the public interest.

12 In section 3 of the Constitution, so far as relevant for the purpose of the present case, provides as follows:

"(3) Any person who is arrested or detained—

• (a) for the purpose of bringing him before a court in execution of the order of a court; or

• (b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under any law and who is not released, shall be brought before a courtwithout undue delay and in any case not later than seventy-two hours after such arrest or detention.

(4) Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connection with those proceedings or that offence save upon the order of a court.

(5) If any person arrested or detained as mentioned in subsection (3)(b) of this section is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial, and such conditions may include bail so long as it is not excessive."

13 Section 8(2)(a) of the Constitution enacts what is classically referred to as the presumption of innocence. It provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.

14 The relevant legislative provisions, which the judge impugned, section 593( 4) and 593(5) of the 2004 Criminal Code, provide:

"(4) Subject to subsection (5), a person—

• (a) who is charged with murder, treason, rape or any offence under the Firearms Act, No. 9 of 2003 or the Drugs (Prevention of Misuse) Act, No. 22 of 1988 punishable on indictment by imprisonment of not less than five years;

• (b) who has been convicted and sentenced to death or imprisonment in respect of any offences referred to in paragraph (a) and who has given notice of intention to appeal against his or her conviction;

shall not be granted bail."

"(5) Where the appeal in respect of a person referred to in subsection (4)(b) is not heard within a period of six months from the date of his or her conviction he or she may apply to the Court of Appeal for bail pending the determination of his or her appeal."

15 Against this background, the question whether the learned judge erred when he held that section 593(4)(a) of the 2004 Criminal Code is inconsistent with section 3(4) of the Constitution will now be considered.

Inconsistency with section 3(4)

16 The submissions, which Counsel for the parties made, and the reasoning of the judge will first be set out.

Submissions

17 Mr. Stephens, learned Counsel for Mr. Theophilus, contended that under section 3(4) of the Constitution, a person who is charged with a criminal offence could only be held in custody "upon the order of a court". He insisted that section 593(4) of the 2004 Criminal Code was inconsistent with section 3(4) because, in effect, section 593(4) totally prohibits bail for the specified offences, including rape. Counsel said that this permits a person to be held in custody without an order...