Sexius v Attorney General of Saint Lucia
| Jurisdiction | UK Non-devolved |
| Judge | Sir Ronald Weatherup |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] UKPC 26 |
| Date | 31 July 2017 |
| Docket Number | Privy Council Appeal No 0004 of 2016 |
| Court | Privy Council |
Trinity Term [2017] UKPC 26
From the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia)
Lord Mance
Lord Kerr
Lord Hughes
Lord Hodge
Sir Ronald Weatherup (NI)
Privy Council Appeal No 0004 of 2016
Appellant
David Dorsett Ph.D
Andie George
Kabir Bhalla
(Instructed by Axiom Stone Solicitors)
Respondent
Tom Poole
(Instructed by Charles Russell Speechlys LLP)
Criminal Practice and Procedure - Whether the provisions of the Saint Lucia Criminal Code 2004 and Criminal Procedure Rules 2008, concerning the requirements for a Defence Statement in advance of a criminal trial were consistent with the Constitution of St Lucia and the right to a fair trial
Heard on 16 May 2017
The issue in this appeal is whether the provisions of the St Lucia Criminal Code 2004 and Criminal Procedure Rules 2008, concerning the requirements for a Defence Statement in advance of a criminal trial, are consistent with the Constitution of St Lucia and the right to a fair trial.
The appellant was arrested and charged with attempted murder on 28 May 2009. Case management hearings were conducted in February, April and September 2010. During the case management hearing on 12 April 2010 Benjamin J, acting pursuant to section 909 of the St Lucia Criminal Code, ordered the appellant to file a Defence Statement and serve it on the office of the Director of Public Prosecutions. The appellant did not comply with the court's order.
On 20 September 2010, during a further case management hearing, Benjamin J again ordered that the appellant should file a Defence Statement and serve it on the office of the Director of Public Prosecutions. Benjamin J also stated that, should the appellant fail to file and serve a Defence Statement, adverse inferences may be drawn by the court in accordance with section 912(1) of the Criminal Code.
On 8 October 2010 the appellant filed a Constitutional Motion challenging the constitutionality of sections 909 and 912 of the Criminal Code, being the sections concerned with the service of a Defence Statement and the comments that may be made and the adverse inferences that may be drawn by reason of a failure to comply. The parties filed affidavits and agreed prior to trial that there would be no cross-examination and that the suit could proceed on legal submissions on the effect of the relevant sections of the Constitution, the Criminal Code and the Criminal Procedure Rules.
The High Court of Justice in St Lucia upheld the appellant's application and declared the provisions relating to the filing of Defence Statements to be incompatible with the Constitution. The Court of Appeal allowed the appeal of the Attorney General of St Lucia and held the provisions to be compatible with the Constitution. The appellant now appeals the decision of the Court of Appeal.
The Constitution of St Lucia was introduced in 1979. Chapter 1 concerns the protection of fundamental rights and freedoms and section 1 provides:
“Whereas every person in Saint Lucia is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his or her 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;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for his or her family life, his or her personal privacy, the privacy of his or her home and other property and from deprivation of property without compensation,
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 by any person does not prejudice the rights and freedoms of others or the public interest.”
Section 1(a) above includes “the protection of the law”. Section 8 of Chapter 1 contains provisions to secure the protection of the law —
“(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) Every person who is charged with a criminal offence —
(a) shall be presumed to be innocent until he or she is proved or has pleaded guilty;
…
(7) A person who is tried for a criminal offence shall not be compelled to give evidence at the trial.”
Section 41 provides for the alteration of the Constitution by a Bill being passed by the legislature by weighted majority.
Section 120 states that —
“This Constitution is the supreme law of St Lucia and, subject to the provisions of section 41, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”
Section 584 concerns the bringing of an arrested person before a court and provides that if the person arrested is to be questioned, he or she should be informed of the right to remain silent, without such silence being a consideration in the determination of guilt or innocence.
Section 908 provides for disclosure by the prosecution.
Section 909 is headed “Voluntary Disclosure by accused” and provides:
“(1) Subject to any guidelines as the Director of Public Prosecutions may from time to time issue, at the trial of an accused for an offence, the accused shall, where the prosecutor has complied with section 908 give a defence statement to the prosecutor; and to the court.
(2) For the purposes of this section a defence statement is a written statement —
(a) setting out in general terms the nature of the accused's defence;
(b) indicating the matters on which he or she takes issue with the prosecution; and
(c) setting out in the case of each such matter, the reasons why he or she takes issue with the prosecution.
(3) If the defence statement discloses a special defence the accused must give particulars of the defence in the statement, including —
(a) the name and address of any witness the accused believes is able to give evidence in support of the special defence if the name and address are known to the accused when the statement is given;
(b) any information in the accused's possession which might be of material assistance in finding any such witness, if his or her name and address are not given.
(4) The defence shall make a defence statement as soon as is practicable after the prosecution complies or purports to comply with section 908 or section 913 as the case may be.”
Section 912 concerns defaults in disclosure by an accused and provides:
“(1) Where the defence —
(a) fails to give a defence under section 908;
(b) gives a defence after undue delay following the disclosure by the prosecution;
(c) sets out inconsistent defences in a defence statement given under section 909;
(d) at his or her trial, puts forward a defence which is different from any defence set out in a defence statement given under section 909;
(e) at his or her trial, adduces evidence in support of a special defence without having given particulars of the defence in a statement given under section 909;
(f) at his or her trial, calls a witness in support of a special defence without having complied with section 903(3);
the court or, with the leave of the court, any other party, may make such comment as appears appropriate or the court or jury may draw such inferences as appear proper in deciding whether the accused committed the offence concerned.
(2) A person shall not be convicted of an offence solely on an inference drawn under subsection (1).”
Section 11 concerns case management conferences and at 11.1(3) provides:
“At the case management conference, the judge shall make an order scheduling further events in the case including —
…
(c) the date by which the defendant must give the defence statements required by law.”
Section 11.3 provides for disclosure by the defence —
“(1) Where the defendant intends to plead and give evidence of a special defence, he or she shall give notice of such defence to the court and to the prosecutor by the date fixed in the scheduling order and shall make available to the prosecutor, on the date set by the court, any information which might be of material assistance, including —
(a) the name and address of any witness the defendant believes is able to give evidence in support of the special defence if the name and address are known to the defendant when the statement is given;
(b) any information in the defendant's possession which might be of material assistance in finding any such witness, if his or her name and address are not given.
(2) Where the defendant intends to plead an alibi, he or she shall give notice of such defence to the court and to the prosecutor by the date fixed in the scheduling order and shall make available to the prosecutor, on the date set by the court, information as to the particulars of time and place and of the witnesses by whom he or she proposes to prove the alibi.”
Since 2008 Preliminary Inquiries and Committal Proceedings in St Lucia have been replaced by Initial Hearings and Sufficiency Hearings. In the case of an indictable offence a Magistrate conducts the Initial Hearing and makes a Scheduling Order fixing dates for the Sufficiency Hearing and the...
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