Francois v Attorney General

• Jurisdiction: St Lucia
• Court: High Court (Saint Lucia)
• Judge: Barrow, J.
• Judgment Date: 24 May 2001
• Neutral Citation: LC 2001 HC 16
• Docket Number: 69 of 2001
• Date: 24 May 2001

High Court

Barrow, J. (Ag.)

69 of 2001

Francois

and

Attorney General

Appearances

The applicant in person.

Ms Louise Blenman, Solicitor General with Ms Agnes Actie and Ms Gillian Jules for the respondent.

Constitutional law - Fundamental rights and freedoms — Whether contravened — Applicant sought declarations to the effect that an ex parte protection order made against him under sec. 4 of the Domestic Violence (Summary Proceedings) Act No. 7 of 1995 was unconstitutional — Whether granting of order contravened applicant's right to fair hearing and freedom of speech — Whether order made pursuant to sec. 4 of Act — Finding that order was ultra vices Act but declarations sought by applicant refused — No order as to costs.

1 Introductory:

2 Barrow, J. (AG.): The applicant seeks a number of declarations to the effect that an ex parte Interim Protection Order made against him dated 12th January 2001 under section 4 of the Domestic Violence (Summary Proceedings) Act No. 7 of 1995 (“the Act”) is unconstitutional. The right to a fair hearing and the right to freedom of speech and expression are the specific constitutional rights that the applicant invokes.

3 In relation to his right to a fair hearing the applicant seeks a declaration that the granting of the order contravened his right to a fair hearing guaranteed by s.8 of The Saint Lucia Constitution Order 1978 (“the Constitution”) including the right not to be denied the procedural safeguard of the opportunity to be heard before the making of an order which was determinant of the applicant's constitutional rights. The applicant also seeks a declaration that s.4(3) of the Act, which permits the making of an ex parte order, is unconstitutional in that it is inconsistent with s.8 of the Constitution because the provision for an ex parte order is inconsistent with the procedural safeguards of a fair hearing guaranteed to all persons, in particular the right to be given an opportunity to be heard before a protection order, which is determinant of constitutional rights, can be made.

4 In relation to his right to freedom of speech and expression the applicant seeks a declaration that the granting of the order contravened this right guaranteed to all persons by s.10(1) of the Constitution and that it was not reasonably necessary for one of the purposes set out in s.10(2)(a), (b) or (c) and/or it was not reasonably justifiable in a democratic society. The applicant also seeks a declaration that s.4 of the Act is unconstitutional in that it is inconsistent with s.10 of the Constitution and is not reasonably required for one of the purposes set out in s.10(2)(a), (b) or (c) and/or is not reasonably required in a democratic society.

Preliminary

5 Before the hearing of the amended Motion a number of preliminary orders were made in this suit. On the 19th February the applicant's claim for damages “of $250,000.00” was struck out as an abuse of the process of the court since, as the applicant well knew, the quantification of general damages was exclusively a matter for the determination of the court. On that occasion directions were given for the filing of further affidavits and the delivery of skeleton arguments. On the 7th March paragraphs 2 to 13, 19, and 21 to 25 of the applicant's affidavit in support were struck out as irrelevant. On the 27th March, the day of the hearing, an application to join another person as applicant was refused for the reason that the Protection Order on which that person sought to ground his application had been made almost two years before and raised no common issues of either fact or law with those which arose on the applicant's case. At that juncture it was also ordered that the first named respondent to this application, the Magistrate, be dismissed as a party since he was not being sued in his personal capacity but as an agent of the state and the Attorney General alone is the proper respondent to such a suit. And finally, an application was granted to add a claim for a fifth declaration: that the applicant is entitled to redress under section 16(1) of the Constitution. The hearing then proceeded of the amended Motion which the applicant had filed on the 14th March.

Factual background

6 The applicant is a barrister-at-law and represented himself in these proceedings. On 12th January 2001 he was served with an ex parte order, obtained by his wife, Annette Francois, in the following terms:

“WHEREAS the ex parte Application of Annette Francois of Bois d'Orange, against Martinus Francois of Bois d'Orange for a Protection Order was determined by the court on the 9th of January, 2001.

It is now therefore ordered that an Interim Protection Order under Section 4 of the Domestic Violence (Summary Proceedings) Act is this day granted to Annette Francois, until 17th January, 2001 prohibiting the respondent Martinus Francois from:

• (1) harassing or assaulting the applicant, Annette Francois;

• (2) interfering with the applicant Annette Francois, in any way likely to cause her annoyance or offence

  You are hereby summoned to appear at the above-mentioned court on the 17th day of January 2001 at 9:00 am in the forenoon to answer the complaint. If you do not appear in person at the hearing of the application, the court may:

  • (a) deal with the application in your absence; or

  • (b) issue a Warrant for your arrest to be brought before the court.

    Dated this 12th day of January 2001.

    Sgd. Magistrate, Family Court.”

7 The order was accompanied by the form prescribed by the Act, filled out by or on behalf of the wife, applying for a protection order/interim protection order against her husband. The wife specified details of the conduct of which she complained as follows: “Use of foul language and insults constantly. Last night, the respondent yelled at me and shoved me. He also held my wrists and shoulders and threw me on the bed. He is also emotionally abusive towards me.”

8 The magistrate provided notes of the evidence that he took from the wife at the ex parte hearing that he held on 9th January. The wife testified that there was a disagreement, that she went to use a neighbour's telephone, that she asked the neighbour to accompany her back to her home as she was frightened, that she was unsure whether the husband would allow her back into the house and thought she might need to seek shelter at the neighbour because the husband, on a previous occasion when she had looked for outside help, had said he would throw her out of the house. The wife testified that she reached her front door and sent off the person who accompanied her because she thought she would be alright. The wife then testified that the husband came and pushed her into the house and bolted the door; she tried to get out to seek help as she felt unsafe but he held her by the throat and pushed her some distance into the main bedroom while shouting at the top of his voice. She stated that she went to the door and tried to leave and the husband held her by the arms and forced her back into the bedroom and pushed her on the bed. She testified that she fell heavily on the wooden frame and hurt her shoulder and pelvis and that she was still suffering from pain and had not seen a doctor and that both her wrists were still painful from where the husband had held her. She described how all the while the husband was yelling at her at the top of his voice saying she was a wicked, evil bitch and how the husband would not listen to her attempts at reasoning but strutted “like a deranged animal”. The wife also testified as to a past incident of violence by the husband towards a third party. She testified how she fled the house the following morning and ended by saying that “I am absolutely frightened of the respondent as I see him as a violent person. I ask the court to grant me a protection order.”

9 The magistrate deposed that having heard the evidence of the wife and witnessed her demeanour, he concluded that her “personal safety was at risk and that she would have been caused undue hardship or serious injury if an interim protection order based on the ex parte application was not granted to her as a matter of emergency”.

10 On the date on which the inter partes hearing was scheduled the wife withdrew the application.

The relevant section of the Domestic Violence Act.

11 The impugned section of the Act enables magistrates to do precisely what the magistrate did in this case. Section 4 of the Domestic Violence (Summary Proceedings) Act, 1995 reads as follows:

• 4.(1) Application may be made to the court in accordance with Form 1 of the schedule for a protection order prohibiting the respondent –

  • (a) from entering or remaining in the household residence of a specified person;

  • (b) from entering or remaining in a specified area where the household residence of a specified person is located;

  • (c) from entering the place of work or education of a specified person;

  • (d) from entering or remaining in any place where a specified person happens to be; or

  • (e) from molesting a specified person by –

    • (i) watching or besetting the specified person's household residence, place of work or education;

    • (ii) following or waylaying the specified person in any place; or

    • (iii) making persistent telephone calls to a specified person;

    • (iv) using abusive language or behaving towards a specified person in any other manner which is of such nature and degree as to cause annoyance to, or result in ill-treatment of the specified person.

• (2) On hearing an application under subsection (1) the court may make a protection order if it is satisfied that –

  • (a) the respondent has used or threatened to use, violence against, or caused physical, mental or emotional injury to a specified person and is likely to do so again; or

  • (b) having regard to all the circumstances, the order is necessary for the protection of a specified person;

    and the...