Attorney General of St. Christopher and Nevis DPP The Superintendent of Prisons Appellants v David Lawrence Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: SINGH J.A.,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD,ALBERT MATTHEW
• Judgment Date: 12 May 1997
• Judgment citation (vLex): [1997] ECSC J0512-1
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: CIVIL APPEAL NO. 1 OF 1997
• Date: 12 May 1997

[1997] ECSC J0512-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Albert Matthew Justice of Appeal (Ag.)

CIVIL APPEAL NO. 1 OF 1997

Between:

The Attorney General of St. Christopher and Nevis

The Director of Public Prosecutions

The Superintendent of Prisons

Appellants

and

David Lawrence

Respondent

Appearances:

Mr. Delano Bart, Attorney General, Mr. Dennis Merchant with him for the appellants

Dr. Henry Stogumba Browne, Mr. Thomas Astaphan with him for the respondent

Criminal Practice & Procedure —Murder charge —Respondent to be on trial for the third consecutive time on the same indictment —Twice before the jury had disagreed —Whether said indictment should be quashed on ground that respondent had a statutory right not to be put on trial for a third time on the same indictment —Whether there is a prescribed procedure to govern such situations in that Federation —Whether there in fact is a lacuna in the law —Whether it was correct that S.53, Criminal Procedure Act contemplated the application of the practice of the prosecution in England in such a case —Section 65 of the constitution as applied to the facts of the case —The relationship of sections 36 & 37 of the Jury Act to each other and the correct interpretation to be placed on those sections. Appeal allowed. Preliminary Objection —Whether the court has jurisdiction in its civil capacity to hear and decide the matter —Supreme Court Act S.31—Clifford & O'Sullivan (1921) H.L. cited —Amand v Secretary of State for Home Affairs (1943) H.L., Glasford et. al. v Commissioner of Police unrep. St. Kitts C.A. applied —Whether the decision is appealable in the Court's criminal jurisdiction —Whether the Constitution could be called in aid here. Appeal dismissed for want of jurisdiction.

SINGH J.A

1 In 1995, the Respondent David Lawrence went on trial on indictment before the High Court for the Murder of Superintendent of Police Jude Matthew. The jury at that trial disagreed and were discharged by the Judge. In December, 1996 the respondent went on trial again on the name indictment. The jury disagreed for the second time and they were again discharged. In February, 1g97, the respondent forthe third time came up for trial on the said indictment Just before that trial actually commenced, Dr. Henry Browne, of Counsel for the respondent, submitted to that Court that the indictment which was tiled since 1995 should be quashed because the respondent had a statutory right not to be put on trial for a third time on the same indictment.

2 This oral submission having been made, Mr. Hamilton, Q.C. for the Crown, according to the trial Judge, "complained that the submission should have been made only after the filing of a summons and the presentation of an affidavit". The Judge then invited Counsel for the respondent "to file a Summons with a supporting affidavit". This according toSmith J "was to allow what would be a novel point to be better set out and more properly identified".

3 The respondent then filed a "Notice of Originating Motion" said to have been made under Order 8R3 of the Rules of the Supreme Count It was directed to the civil jurisdiction of the High Court. It named the Attorney General and Superintendent of Prisons of this Federation as the respondents. In his judgment, the Judge expressed the view that the respondent misunderstood what the Court had permitted him to do and that the introduction of the named respondents was ill-advised. Smith J thought that because of Clause 6 of the Supreme Court (Constitutional Redress —Saint Christopher and Nevis) Rules 1968, it would have been proper if the constitutional matters raised by the respondent had been continued in the criminal case rather than to introduce new parties. However, the Judge proceeded with the hearing of the Motion and on March, 13, 1997 made the following findings:

"1. There is no express provision in the laws of Saint Christopher and Nevis to regulate the trial of an accused person who is for the third time up before another jury but has been in trials with a jury on two previous occasions on the same charge and the jury on both of those occasions disagreed.

2. There is however the general provision in section 37 of the Jury Act where an accused person may be tried with a new jury duly empaneled and sworn at the same or next Circuit Court where his previous trial has proven abortive.

3. Section 53 of the Criminal Procedure Act provides that where there is no express

provision in the Criminal Procedure Act or any other law all matters of procedure shall be regulated by the law of England and the practice of the Superior Courts of criminal law in England.

4. The practice of the Superior Courts in England in the event of a second jury disagreeing on the trial of a person who was previously before the court and the jury then also disagreeing is that the prosecution formally otters no evidence before a third jury.

5. The term "shall be regulated by the practice of the Superior Courts of criminal law in England" in section 53 of the Criminal Procedure Act means that the practice of the Superior Courts in England will regulate by statute the matters of procedure in the relevant circumstances in the courts in St Christopher and Nevis.

6. The practice of the Superior Courts of criminal law in England in the event of thesecond jury disagreeing in a trial would therefore regulate the procedure here in St. Christopher and Nevis, there being no express provision in the law here.

7. The practice in the Superior Courts of criminal law in England will not in St. Christopher and Nevis be merely a discretionary practice as may appear to be the case in England but will be the procedure statutorily provided for the disposition of criminal cases in the position of the jury disagreeing a second time and the accused is for a third time before the Court on the same indictment.

8. The applicant David Lawrence is an accused person who has been tried upon an indictment by a second jury which disagreed as did the jury in his first trial and is now to go before a jury a third time on the same indictment".

4 The Judge then declared that in relation to the Orders sought by the respondent, "the procedure to be followed for the trial of an accused person before a third jury is what obtains in the Superior Courts of Criminal law in England." The Judge then accepted as that procedure what is set out in the 36^th Edition of Archbold Criminal Pleadings Evidence and Practice at Paragraph 590:

"If a jury cannot agree upon a verdict, the prisoner may be, and generally is, tried upon the indictment by a second jury; in the event of the second jury disagreeing, it is a common practice for the prosecution formally to offer no evidence before a third jury, who will then be directed by the judge to find a verdict of "not guilty"."

5 The Crown has appealed from this order of the Judge.

THE APPEAL

6 The issues in the appeal are two fold as I see them.

• 1. Is there a prescribed procedure in this Federation to regulate the trial of an accused person on an indictment for a third time after two disagreements by a jury.

• 2. Is the practice of the prosecution in England to offer no evidence at the third trial, a matter of procedure as contemplated by section 53 of the Criminal Procedure Act.

1. THE PRESCRIBED PROCEDURE:

7 The procedure to be adopted by a Court trying an accused person on an indictment at any trial is governed by the provisions of the Criminal Procedure Act, Chapter 20 and the Jury Act, Chapter 38 of the Laws of this Federation. By this procedure, the indictment is presented by the Director of Public Prosecutions. If a none prosequi is entered, the Director of Public Prosecutions so informs the Court and the Accused is discharged. It the Director of Public Prosecutions formally offers no evidence before the jury, the judge directs the jury to find a verdict of "not guilty" and the Accused is discharged. If the indictment is to be proceeded with, the accused is arraigned and his trial proceeds in accordance with the steps laid out in the aforesaid Acts and established case law. This as I understand it is the prescribed procedure for trials on indictment and the same prevails whether it is the first, or any subsequent trialIt there is any lacuna in these provisions then section 53 of the Criminal Procedure Act tells the judge how to proceed. This section reads:

"All other matters of procedure, not herein nor in any other Act expressly provided for, shall be regulated, as to the admission thereof, by the law of England, and the practice of the Superior Courts of criminal law in England".

8 It has been strenuously argued by Dr. Browne that there is no provision in the aforementioned laws for a third or subsequent trial, that there is a lacuna in the law and that we should seek the aid of Section 53. In support of his submission, reamed counsel referred to the provisions of section 54 of the Criminal Procedure Act which provides:

"54. When any trial of an indictment for any felony or misdemeanour is had before a second jury, the Crown and the defendant, respectively, shall be entitled to the same challenges as they were entitled to With respect to the first jury."

9 Counsel submitted that because this section speaks of a trial before a second jury and that no where else in the Act is mention made of a trial before a third jury, that the Act makes no provision for such a trial. I cannot agree with this submission. In my view, the purpose of this section is merely to establish or clarity the rules as to jury challenges after a first aborted trial. In this context, I would prefer to give the words "second jury" a purposive rather than a literal interpretation and interpret same to mean a jury at any subsequent trial.

10 Dr. Browne then made reference to...