Fidel O'Flaherty Appellant v Attorney General DPP The Chief of Police of Saint Christopher and Nevis Respondents [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | BISHOP, J.A.,Chief Justice |
| Judgment Date | 10 March 1986 |
| Judgment citation (vLex) | [1986] ECSC J0310-1 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Docket Number | CIVIL APPEAL NO. 3 of 1984 |
| Date | 10 March 1986 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Robotham—Chief Justice
The Honourable Mr. Justice Bishop
The Honourable Mr. Justice Moe
CIVIL APPEAL NO. 3 of 1984
Mr. L. Moore and with him Mr. F. Bryant and
Dr. H. Browne for the appellant.
Mr. T. Byron for the Attorney General
Mr. N. Butler for the Director of Public Prosecutions
Mr. H. Rawlins for the Chief of Police
On the 5th September 1982 Fidel O'Flaherty of Conaree Village held a public meeting in Basseterre at which there was a number of persons assembled. Two days later a warrant of arrest was issued by the Magistrate of District A upon information on oath given by a corporal of police attached to Basseterre Police Station, that the said Fidel O'Flaherty "on the 5th day of September 1982 at Basseterre in the parish of St. George in the Magisterial District A in the State of Saint Christopher-Nevis did unlawfully incite persons assembled at a public meeting to commit bodily injury contrary to common law".
The warrant of arrest commanded each and all of the peace officers of the State to bring Fidel O'Flaherty before the Court at Basseterre forthwith to answer the said information.
Fidel O'Flaherty learnt that the police were looking for him and on the 9th September he went to the Basseterre Police Station where he was apprehended on the strength of the warrant of arrest. He was taken before the learned Magistrate who granted him bail in the sun of $5,000.00, with two sureties, to appear before the said Court on the 13th September 1982.
On the 13th September 1982 O'Flaherty appeared and was advised by the learned Magistrate that he should not return to Court in respect of that alleged offence unless notified by the police to do so.
It is clear that the Magistrate had information on oath in which O'Flaherty was accused of committing an offence known to law, namely incitement. Additionally, O'Flaherty was made aware of the contents of the warrant of arrest; he admitted on oath that it was read to him and that he was given a copy of it.
In my view it must he clear that Fidel O'Flaherty addressed the gathering at the public meeting. Now, bearing in mind the date of the meeting, the date of the warrant and the date of his apprehension, the meeting and the topic on which he spoke must have been within his knowledge. Fidel O'Flaherty is a graduate of a recognised University and he text post graduate studies leading to a doctorate in sociology from the University of Warwick in England. It must be a reasonable inference, therefore, that he would have appreciated the words he chose to use in his speech and that he would have remembered for some time after the text, substantially though perhaps not verbatim, what he said to the assembled persons. If he did not, or if in any event he wished to know what were the specific words that formed the substance of the charge, it was open to him to ask for the particulars he required, when he appeared in Court on the 9th September 1982 or on the 13th September 1982. He did not text he was confronted with the charge at Court on these dates.
After Fidel O'Flaherty was released on bail nothing pertinent to thealleged offence took place until the 24th December 1983, or more than 15 months after his second appearance in Court to answer the information on oath as given to the learned Magistrate. On that date a Motion was filed (on behalf of Fidel O'Flaherty) in the High Court, alleging a bound of his constitutional right under section 10(1) of the Constitution of St. Christopher/Nevis 1983. It sought a declaration that the applicant's right to be afforded a fair hearing within a reasonable time of the criminal charge alleged against him in the warrant dated 7th September 1982, is being contravened.
On Christmas Day 1983, Fidel O'Flaherty was notified by the police that he should attend the Magistrate's Court at Cayon on the 28th December 1983, when the preliminary inquiry into the charge against him would be conducted. He did so; and he was also represented by counsel who appeared later in the High Court and who also argued his appeal before us. At the preliminary inquiry learned Counsel contended that the inquiry ought to await the outcome of the Motion. The Magistrate disagreed, and he conducted the inquiry in its entirety. O'Flaherty was committed to stand trial at the Assizes scheduled to begin in January 1984. He was allowed bail as before.
The next step of importance was taken on the 4th January 1984. In affidavit sworn to by the Director of Public Prosecutions, was filed. It was a reply to the affidavit filed in support of the Motion Mo. 48 of 1983. Among other things, the Director of Public Prosecutions deposed as follows—
"5 that from July 1983 to 1st October 1983, there has been in St. Kitts only one Magistrate and an Additional Magistrate who was the Registrar of the Supreme Court and who did not take any preliminary inquiry.
6. that there is a backlog of indictable matters for which preliminary inquiries have not been heard.
7. that the delay complained of was entirely as a result of a backlog of indictable matters and was not directed personally at the applicant."
On the 6th January 1984 Fidel O'Flaherty filed another affidavit which he described as being supplemental to that in support of Motion 48 of 1983. It alleged that his right to be informed as soon as reasonably practicable in a language that he understood and in detail of the nature of the offence charged had been and was still being contravened. This was the first indication by O'Flaherty that he was complaining about or objecting to the information contained in the charge.
It can be stated without fear of contradiction that the charge was in a language that Fidel O'Flaherty knew, used, and understood; and at the hearing before Williams J. it was made clear that there was no quarrel with the language used in the warrant. The affidavit of O'Flaherty, text and filed on the 6th January 1984 showed, in paragraph 3, that he was really complaining that
"at no time have I been given any information as to the words and/or conduct complained of against me."
Clearly therefore up to that date O'Flaherty had no quarrel with the allegations insofar as they related to the date, place or occasion, as disclosed in the charge. His quarrel was with the lack of information concerning what it was that he said and did.
On the 10th January 1984, or 6 days after the supplemental affidavit was filed, another Notice of Motion was filed in which among the declaration sought was one that the charge given and read to the applicant is in contravention of his right to be informed in detail of the nature of the offence with which he was charged.
In this appeal two questions arise for answers; and they are dependent upon the interpretations given to section 10(1) and section 10 (2) (b) of the Constitution of St. Christopher-Nevis of 1983. The sections read as follows:—
"(1) If any person is charged with a criminal offence, then, unless the charge iswithdrawn 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—
………………….
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail of the nature of the offence charged.
InDIRECTOR OF PUBLIC PROSECUTIONS FOR JAMAICA v FEURTADO (1979) 30 W.I.R. 206, section 20(1) of the Jamaica Constitution, which text with section 10(1) above, called for consideration; and in the judgment of the Court (delivered by Kerr J.A.) the following proposition text by Fox J. in R. v SHIRLEY CHIN SEE (unreported suit M. 176/67) was text and adopted:—
"………the reasonable time contemplated by the provision related to the period between the date of arrest (not the date of commission of the offence) and the date of trial."
Thus the computation of "reasonable time" started at the date of arrest which, in the instant case, was 9th September 1982. I agree text that is the proper date; and as I mentioned earlier, more than 15 text elapsed before the preliminary inquiry was begun and completed. The first question to be answered is:
Was the case against the appellant afforded a fair hearing within a reasonable time of the 9th September 1982?
There was no issue on the independence or impartiality of the text which, it was undisputed, had been established by law.
The criminal offence with which the appellant is charged is incitement and the second question to be answered is:
Was the appellant informed as soon as reasonably practicable in detail of the nature of the offence charged?
Learned Counsel for the appellant analysed a number of cases text and determined before 1985, includingR v DERBY CROWN COURT ex parte BROOKS 1984 Cr. App. R 164, SANDIFORD v D.P.P. (1979) 28 W.I.R. 152 R v WEST LONDON STIPENDIARY MAGISTRATE ex parte ANDERSON 1984 Cr. App. R 143; and he referred to several aspects of the instant appeal, invite this Court to follow the approaches used in the cases he cited. The case of greatest significance was BELL v DIRECTOR OF PUBLIC PROSECUTIONS text and ANOTHER (1985) 2 All E.R. 590 on which learned Counsel for the respondents also relied. This was a case decided by the Judicial Committee of the Privy Council in April 1985 on appeal from Jamaica; and among the points considered was the interpretation of section 20(1) of the Constitution of Jamaica which provides, inter alia, that "whenever any person is charged with a criminal offence he shall, unless the text is withdrawn, be afforded a fair hearing within a reasonable time tex...
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