Herbert Ferguson v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn |
| Judgment Date | 24 January 2001 |
| Neutral Citation | [2001] UKPC 3 |
| Court | Privy Council |
| Docket Number | Appeal No. 11 of 2000 |
| Date | 24 January 2001 |
[2001] UKPC 3
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Clyde
Lord Hutton
Lord Hobhouse of Woodborough
Privy Council
[Delivered by Lord Steyn]
On 4th May 1979 the appellant shot and killed Michael Pino in San Fernando, Trinidad. The deceased was one of a group of four men who tried to enter a discotheque but were refused entry. Their way was barred by the owner of the discotheque and two security guards, one of whom was the appellant. There was a heated argument. The accounts of the eye-witnesses as to what then happened differed. It is, however, common ground that the appellant drew his gun and shot Michael Pino at close range. Pino died in hospital the next day. On 21st May 1979 inquest proceedings began. On 7th June 1979, at the conclusion of the proceedings, the Coroner ruled that sufficient evidence existed to support a charge of murder against the appellant. The appellant was so charged and remanded in custody. On 8th June 1979 a preliminary enquiry into the charge against the appellant commenced before a magistrate. On 2nd August 1979, after hearing evidence and submissions, the magistrate committed the appellant to stand trial for the murder of Michael Pino. On 11th June 1981 the trial opened. On 23rd June 1981 the appellant was acquitted by the jury.
On 11th August 1982 the appellant filed a constitutional motion in which he alleged that both at the inquest and at the preliminary enquiry his rights under the Constitution of Trinidad and Tobago (enacted by Act No. 4 of 1976) were violated. In his motion the appellant relied on many provisions of the Constitution. But only sections 4, 5 and 14 are relevant. Section 4 so far as it is material provides:-
"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall to continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:-
(a) the right of the individual to … liberty … and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to … the protection of the law."
Section 5(2) so far as it is relevant reads as follows:-
"… Parliament may not - …
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right –…
(ii) to a fair and public hearing by an independent and impartial tribunal
…
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms."
The motion was filed pursuant to section 14 of the Constitution. The relevant subsections of that section provide as follows:-
"(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
"(2) The High Court shall have original jurisdiction -
(a) to hear and determine any application made by any person in pursuance of subsection (1), and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled."
The motion sought the following relief:-
"(a) a declaration that the arrest, detention and prosecution by the state of the said applicant for the charge of murder of Michael Pino is unconstitutional illegal void and of no effect.
(b) A declaration that the imprisonment of the applicant from 7th June, 1979 to the 23rd June, 1981, is unconstitutional, illegal void and of no effect.
(c) An order that monetary compensation be awarded to the applicant for the said unconstitutional and illegal imprisonment as mentioned above.
(d) All such orders, writs and directions as may be necessary or appropriate to secure redress by the applicant for a contravention of the human and fundamental freedom guaranteed to him by the constitution of Trinidad and Tobago."
The accompanying affidavit of the appellant explained that at the inquest only three eye-witnesses were called, namely Rampersad Ramdath, Rupert Taylor and Rajnath Rampersad. But, although the police had taken statements from other witnesses, namely Joy Charles, Ralph Martin, Reynold Brewster and Mohammed Khan, they were not called to give evidence nor were their statements disclosed to the appellant. The affidavit alleged that, except for Reynold Brewster, these witnesses supported the appellant's contention that he had acted in self-defence. The affidavit further asserted that at the preliminary enquiry the prosecution failed to call Rampersad Ramdath, Joy Charles, Reynold Brewster and Mohammed Khan. Moreover, the affidavit alleged that the prosecution "failed to make available the statements given by these witnesses to defence Counsel and/or failed to make available the above persons mentioned to defence Counsel as potential witnesses when their evidence was vital in conducting a proper enquiry." The affidavit stated that Ralph Martin had been called at the preliminary enquiry but pointed out that his statement to the police, which was inconsistent with his oral evidence, was not disclosed. The appellant alleged that "As a result of the omissions both at the inquest and enquiry I was committed to stand trial at the San Fernando Assizes and was remanded in custody."
The affidavit exhibited the statements, which had not been disclosed to the defence at the preliminary enquiry, as well as a record of the evidence of witnesses called and submissions made at the preliminary enquiry.
In response there was an affidavit from a barrister who had appeared for the prosecution at the preliminary enquiry which stated that he handed over copies of the relevant statements to the defence on 11th June 1981, i.e. the first day of the trial.
This was the state of the evidence and the shape of the case when it came before courts in Trinidad.
The decision of Lucky J.
In November 1995, after an astonishing delay of thirteen years from the filing of the motion, the matter came before Lucky J. for hearing. The judge gave judgment. His conclusion was that there was no duty to call the named witnesses or to disclose their statements at either the inquest proceedings or the preliminary enquiry. He held that there was no breach of the provisions of sections 4 or 5 of the Constitution. He dismissed the motion.
The decision of the Court of Appeal
The detailed and carefully reasoned judgment of the Court of Appeal was given by de la Bastide C.J. with whom Hamel-Smith J.A. and Jones J.A. agreed. The Court of Appeal held that at the inquest proceedings the Coroner was not obliged to call the witnesses or to disclose their statements. The Court of Appeal further concluded that there was also no obligation on the prosecution to call the four witnesses at the preliminary enquiry. But the Court of Appeal held that material which the prosecution is under a duty to disclose in an indictable case should be disclosed at or before the preliminary enquiry.
The Chief Justice explained this ruling and applied it to the present case in the following terms:-
"Fairness … which is said to be the key to the rules of disclosure, would seem to require that material which the prosecution is under a duty to disclose, should be disclosed in indictable cases at or before the preliminary inquiry (providing of course that it is available to the prosecution at that time). Even if it means breaking new ground, I would hold that that represents the common law position. Breach of that duty, however, does not automatically entitle an accused person to a remedy, whether by way of having a conviction quashed or under section 14 of the Constitution. In order to justify the granting of such relief the person complaining must prove that he has suffered prejudice. This he may do either by showing, that but for the non-disclosure he would not have been committed at all or that he would have been committed for a bailable instead of a non-bailable offence, typically manslaughter instead of murder, or that the failure to disclose at that early stage impaired in some significant way his chances of an acquittal at a subsequent trial at which he was convicted.
"Applying these principles to the facts of the present case, it seems to me that the prosecution was in breach of their common law duty of disclosure in failing to disclose all four statements to the defence at the preliminary inquiry. For the reasons, however, which I have already fully explained I consider that if they had been disclosed at that time, such disclosure would not have affected the outcome of the inquiry. In other words, there was no real prospect that armed with those statements, the defence could have avoided the making of the committal order which the magistrate did make, that is, for trial on the charge of murder. Accordingly, I hold that the appellant suffered no prejudice in the instant case and is not entitled to any remedy."
In a further observation on to the subject of disclosure the Chief Justice added:-
"I would qualify the duty to disclose at the preliminary inquiry stage by...
To continue reading
Request your trial
-
Shervon Peters v The Commissioner of Police
...in such circumstances.’ It should be noted that on appeal to the Privy Council, ( Ferguson v Attorney General of Trinidad and Tobago - [2001] UKPC 3) the Board agreed with the Chief Justice although the common law duty of timeous and fair disclosure ensures fairness to the accused, there i......
-
Francis and Quimby v The Queen
...right to a fair hearing. The JCPC rejected the contention that it did – see per Lord Steyn in Ferguson (Herbert) v. Attorney-General (2001) 58 W.I.R. 446 at para. [14]. 24 In Linton Berry v. R. (1992) 41 W.I.R. 244, the JCPC discussed the common law of disclosure as it applied in Jamaica. T......
-
Burris v The State
...charge of murder. Accordingly, I hold that the appellant suffered no prejudice in the instant case and is not entitled to any remedy. ((2001) 58 WIR 446 at 451 - 452)' 60 In respect of this issue the trial judge told the jury: “Now, pausing there, you would determine whether Charmaine Sebas......
-
Ferguson and Galbaransingh v Attorney General and Mc Nicholls (Chief Magistrate)
...[1985] A.C. 937 - Lewis and Ors. v. The Attorney General of Jamaica [2000] 3 W.L.R. 1785 - Herbert Ferguson v. Attorney General (2001) 58 W.I.R. 446 - Pinder v. R [2002] U.K.P.C. 46 - http://www.privycouncil.org.uk/ - DPP v. Mollision [2003] 2 A.C. 411 - Matthew v. The State (Trinidad and T......