Urban St. Brice Claimant v Attorney General of Saint Lucia Defendant

• Jurisdiction: St Lucia
• Judge: Wilkinson, J.
• Judgment Date: 26 July 2012
• Judgment citation (vLex): [2012] ECSC J0726-1
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV 2011/0479
• Date: 26 July 2012

[2012] ECSC J0726-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SLUHCV 2011/0479

Between:

Urban St. Brice

Claimant

and

The Attorney General of Saint Lucia

Defendant

Appearances:

Mr. Martinus Francois for the Claimant

Mr. Dwight Lay for the Defendant.

Wilkinson, J.

1 The Claimant on May 6 ^th 2011, filed his originating motion and therein sought the following relief:

• 1. A declaration of a permanent stay of proceedings and/or that the charge against the Claimant be dismissed on the ground that in all the circumstances of this case, the Claimant will not be afforded a fair hearing within a reasonable time as guaranteed to him by virtue of section 8 (1) of the said Saint Lucia Constitution Order 1978.

• 2. Further or in the alternative a declaration of a permanent stay of proceedings and/or that the charge against the Claimant be dismissed on the ground that the matters complained of are contrary to section 8(2)(a) of the said Saint Lucia Constitution Order 1978 which guarantees to the Claimant the right to be presumed to be innocent until he is proved or has pleaded guilty.

• 3. Further or in the alternative a declaration of a permanent stay of proceedings and/or that the charge against the Claimant be dismissed on the ground that the matters complained of are contrary to section 5 of the said Saint Lucia Constitution Order 1978 which guarantees to the Claimant the right not to be subjected to torture or to inhuman or degrading punishment or other treatment.

• 4. Further or in the alternative a declaration of a permanent stay of proceedings and/or that the charge against the Claimant be dismissed on the ground that matters complained of are contrary to section 3(1) and (5) of the said Saint Lucia Constitution Order 1978.

• 5. A declaration that the matters complained of are oppressive, arbitrary and unconstitutional and the Claimant is entitled to damages, including compensatory, aggravated and exemplary damages to be assessed by this Honourable Court.

• 6. Any further or other order or direction as the Court may deem necessary or proper in order to vindicate the constitutional rights of the Claimant as enshrined and guaranteed to him by virtue of sections 2 – 15 of the said Saint Lucia Constitution Order 1978.

• 7. Costs.

2 Counsel thereafter in the originating motion followed the relief sought with: "THE GROUNDS OF THIS ORIGINATING MOTION ARE AS FOLLOWS: …" The originating motion was drawn up in the style of a notice of application. As the Court understands CPR 2000 rule 56.7 (1) and (2) the format should be by way of a fixed date claim — Form 3 but with the heading "Originating Motion". Nevertheless, several cases including that of the Court say that inaccuracies of this nature ought not to be a hindrance to the Claimant's case — see Hannigan v. Hannigan1 and Grenada Building and Loan Association v. Grenada Co-operative Bank Limited2

3 The matters set out as "grounds" in the originating motion were except for a few minor cosmetic changes identical in layout and content to the paragraphs in the Claimant's affidavit filed on even date in support of the originating motion. For this reason the Court will not cite at this juncture.

4 On a point of procedure, this Court has repeatedly stated that an affidavit is not the place for deponents to record legal argument or make any kind of submissions, it is only for stating facts. Counsel and Parties are once again referred to CPR 2000 Part 30 rule 30.3. Having regard to the provisions of the rule, the Court will ignore any matters in the affidavits which do not comply with the rule.

5 The Parties agreed between themselves that there would be no cross-examination of the evidence presented on the affidavits. There was no rebuttal affidavit from the Claimant to the matters deposed to in the Defendant's affidavit and which conflicted with some matters in his affidavit. Further Counsel for the Claimant during the trial said that the Claimant accepted all the facts as laid out in the affidavit for the Defendant. This notwithstanding, it's the Claimant's duty to set out all the facts on which he relies to support his case.

6 The issues:

1. Whether the Claimant ought to have exercised his common law rights before the trial Judge including the filing of appeals against any decision of that Court and having failed to do so his originating motion is an abuse of process.

2. Should the Court find that there has not been has an abuse of process whether the Claimant has deduced sufficient evidence to show, that the State delayed his trial, and as a result of that delay his stated constitutional rights have been contravened and or were likely to be contravened.

The Claimant's evidence:-

7 The Claimant deposed that he has been detained at the Bordelais Correctional Facility from November 6 ^th 2002, for the alleged murder of Dwain Andrews and that he has been tried five times on the same charge and is now awaiting a sixth trial which was fixed to commence on May 11 ^th 2011.

8 The first trial commenced on November 10 ^th 2005, and ended in a mistrial when the Claimant's Counsel brought to the Court's attention that a member of the jury was speaking to the police while the trial was already in progress. A mistrial was declared and retrial ordered.

9 The second trial commenced on February 17 ^th 2006. A juror, Ms. Ellen Saltibus, who sat on the first trial was allowed to sit on the second trial. Counsel for the Claimant objected to this but the Court overruled the objection. At the end of closing arguments and before the trial Judge had summed up the case, the Claimant was sent back to the Bordelais Correctional Facility for nine (9) days. During this time the jurors were not sequested. Upon being brought back to court the Claimant was convicted of the charge and sentenced.

10 The Claimant appealed his conviction and sentence. The appeal was heard on June 18 ^th 2007, and the decision was delivered on November 3 ^rd 2007 3. The conviction was overturned by the Court of Appeal and it was left to the discretion of the Director of Public Prosecutions whether to re-try or discharge the Claimant. A decision was made by the Director of Public Prosecutions to re-try the Claimant and a date for the third trial was fixed almost one year later.

11 The third trial commenced on October 14 ^th 2008. During the trial the Claimant was informed that the Star Newspaper and the Voice Newspaper published matters about the trial in their weekend editions before the verdict was reached and as result of these publications a mistrial was ordered by the Court. At that time, the Judge said to the Claimant: "To my knowledge, I cannot recall anyone who has been tried so many times on the same matter, and I would do some research on it." A retrial was ordered.

12 The fourth trial commenced on November 7 ^th 2009, however, before it could get on the way Counsel for the Claimant made an application that the case be dismissed because of its "injustice" to the Claimant. The application was denied and thereupon Counsel asked to be removed from the case but this too was denied. Just before the selection of the jurors, Counsel for the Claimant asked for an adjournment to the following day for the reason that he was "ill-disposed". The Court denied the request. It was observed that one of the jurors who had sat on one of the previous panels was a member of the present panel, Counsel informed the Court. The Court questioned the juror about the allegation against him, he denied the allegation. When Counsel went through the notes of the previous trials, he discovered that the juror in question was the foreman at the first trial. After the panel of the jurors was settled a witness was called by the Crown. Counsel for the Claimant did not cross-examine the witness and he did not show up at the trial the next day but sent a medical report. Once again a mistrial was ordered.

13 The Claimant deposed that he has been through four (4) trials and one (1) appeal which amounted in effect to five trials; that in terms of jurors this was equivalent to sixty-four (64) jurors, with twelve (12) jurors sitting per trial and two on stand-by. The sixth trial which was set to begin on May 11 ^th 2011, brought the total to seventy-eight (78) jurors altogether, over a period of eight (8) years and six (6) months and during all this time he was on remand without bail.

The Defendant's evidence:-

14 The evidence for the Defendant was received on affidavit deposed to by the Director of Public Prosecutions.

15 The Director of Public Prosecutions deposed that on October 22 ^nd 2002, Mr. Dwain Andrew was shot and killed at Bois D'Orange in the Quarter of Gros Islet. On November 13 ^th 2002, the Claimant was charged with the murder of Mr. Andrew. On March 21 ^st 2005, the Claimant was committed to stand trial for the offence of murder and was indicted for murder by indictment dated March 21 ^st 2005.

16 On November 9 ^th 2005, the Claimant's trial commenced before Justice Albert Redhead. After the second day the Claimant's Counsel at the time, Mr. Marcus Foster stated to the court that a police officer had given two (2) of the jurors a ride to court and on this basis the Claimant applied for a mistrial. A mistrial was declared and a retrial was ordered. The case was adjourned to January 24 ^th 2006.

17 On January 24 ^th 2006, when the matter came on for trial Mr. Foster was not available and the case was adjourned to February 6 ^th 2006. When the matter came on for hearing on February 6 ^th 2006, it was fixed on February 20 ^th 2006, for trial. At the conclusion of the trial the Claimant was convicted for the murder of Mr. Dwain Andrew and his sentencing hearing was fixed for March 17 ^th 2006. At March 17 ^th 2006, the pre-sentencing report having not been received by the Court, the sentencing hearing was adjourned to April 7 ^th 2006,...