Glenville Isles v The Attorney General of St. Christopher and Nevis

• Jurisdiction: Saint Kitts and Nevis
• Judge: Pariagsingh J
• Judgment Date: 13 September 2023
• Neutral Citation: KN 2023 HC 24
• Court: High Court (Saint Kitts and Nevis)
• Year: 2023
• Docket Number: Claim No. SKBHCV2020/0197

In the matter of Sections 5(1)(c), 5(3)(b), 5(5) and 10(1) of the Constitution of St. Christopher and Nevis

and

In the matter of an application for declaratory and compensatory relief by Glenville Isle pursuant to Section 5(6), 18 (1) & (2).

Between:

Glenville Isles

Claimant

and

The Attorney General of St. Christopher and Nevis

Defendant

Before

the Honourable Mr. Justice Pariagsingh (Ag.)

Claim No. SKBHCV2020/0197

THE EASTERN CARIBBEAN SUPREME COURT:

IN THE HIGH COURT OF JUSTICE

Administrative Division

Appearances:

Eustace Nisbett for the Claimant; and

Rivi Lake instructed by Eshé Hendrickson – Johnson for the Defendant.

Claimant's originating motion for constitutional relief

1 Pariagsingh J (Ag.): — Before the Court is the Claimant's amended originating motion 1 seeking the following relief under various sections of the Constitution of Saint Christopher and Nevis (“the Constitution”):

• 1. A declaration that the arrest of the Claimant was arbitrary, unlawful and contravened Section 5(1) of the Constitution of Saint Christopher and Nevis;

• 2. A declaration that the continued detention of the Claimant beyond the legislative 72-hours before being brought before a court was unconstitutional contract to section 5(3)(b) of the Constitution of Saint Christopher and Nevis;

• 3. A declaration that the continued arrest and remand of the Claimant, without bail and without a trial from in or about 15 January 2011 until in or about December 2015 was a breach of his constitutional rights contrary to 5(5) of the Constitution of Saint Christopher and Nevis;

• 4. A declaration that the Claimant was not afforded a fair trial within a reasonable time and breached his constitutional rights contrary to section 10(1) of the Constitution of Saint Christopher and Nevis.

• 5. An order that the Claimant is entitled to vindicatory damages;

• 6. An order that the Claimant is entitled to exemplary damages;

• 7. Interest pursuant to section 27 of the Eastern Caribbean Supreme Court Act;

• 8. Interest pursuant to the Judgment Act;

• 9. Any such further relief as this Honourable Court deems just; and

• 10. Costs.

2 The evidence in this claim is contained in the following affidavits and witness statement:

• 1. Affidavit of Glenville Isles filed on October 22, 2020;

• 2. Affidavit of Nigel Caines filed on November 26, 2020;

• 3. Affidavit of Elvin Brown filed on December 15, 2020;

• 4. Affidavit of Crislohn Williams filed on March 02, 2021;

• 5. Affidavit of Glenville Isles filed on March 02, 2021;

• 6. Affidavit of Glenville Isles (second affidavit) filed on March 02, 2021;

• 7. Affidavit of Elvin Brown filed on June 10, 2021; and

• 8. Witness statement of Tashna Powell Williams filed on June 18, 2021.

Summary of evidence of the Claimant:

3 The Claimant is a farmer by trade. On December 27, 2010 at about 6:30 am he was arrested by officers of the Crown. He contends that he was told that he was wanted in connection with the attempted murder of Floretta Williams a person who he previously had a relationship with. The Claimant contends that he was taken to the JNF France Hospital so that Ms. Williams could identify him but when she was asked if he was the person who “did this” to her she replied “no”. He was then taken to the Basseterre Police Station where he remained detained until about 10:00 am on December 30, 2010 2 before he was released without charge.

4 About 2 weeks after his release, the Claimant was again arrested. He was then charged with offence of attempted murder. He contends that subsequent to him being charged he made repeated request for bail which were denied.

5 The Claimant was tried and found guilty of the offence charged. His conviction was subsequently quashed following a successful appeal and a retrial ordered. In 2017 following a retrial, the Claimant was acquitted.

6 The Claimant contends that he spent approximately 5 years on remand before being given an opportunity for bail.

7 He claims that prior to the charges he was a successful farmer. He contends that since his acquittal he has struggled in many ways and therefore seeks the relief claimed. The Claimant contends that the Crown by its servants and/or agents lacked the legislative authority to arrest him and as such contravened his constitutional rights.

Preliminary Issue – Cross-examination in constitutional proceedings

8 At the commencement of the trial, Counsel for the Claimant signalled his intention to cross examine some of the deponents of the affidavits filed on behalf of the Defendant. I enquired whether permission was sought or granted for cross examination of any deponents. Counsel for the Claimant referred the Court to a previous order made at the PTR which mandated that all witnesses be present at the trial for cross examination.

9 The parties were provided with the decision in the case of Marcia Ayres – Caesar v Judicial and Legal Services Commission 3 which judgment was upheld by the Board of the Judicial Committee on appeal in Privy Council Appeal No: JCPC—0091/2019. 4 The matter was stood down to allow both parties to consider this authority and watch the recoded decision of Board delivered by Lady Hale in keeping with the rules of natural justice before addressing whether the Claimant was entitled to cross examine all deponents on their affidavits or whether permission had to be sought and granted for cross examination. When the matter

was recalled, counsel for the Claimant, correctly in my view, accepted that he was not entitled to cross examine all deponents on their affidavit as a matter of course and made an oral application for permission to cross examine two deponents on certain paragraphs which was granted

10 The decision in Ayres-Caesar is binding on this Court. Jamadar JA (as he then was) in delivering the decision of the Court of Appeal of Trinidad and Tobago (upheld by the Board) stated at paragraph 46 that:

‘[46] The trial judge's statement of the relevant legal principles was not altogether wrong, (See AG v Dumas [2017] UKPC 12, at para 15, citing with approval, Bobb v Manning [2006] UKPC 22, and State of Rajasthan v Union of India AIR [ 1977 SC 1361, per Bhagwati J) except that he seemed to consider that this was a pure judicial review matter. Clearly it is also a constitutional review matter. He was however right in the general opinion that in judicial review, cross-examination is exceptional, it may be permitted if there are disputes on central and crucial factual issues, and if it is necessary to assist in resolving them. This is indeed so for both administrative and constitutional review. It is ordinarily so because in public law matters the primary facts are often not in dispute, or only in dispute on peripheral aspects. In part this is also because, public authorities are frank, forthright and transparent in their decision-making processes (as they are always expected to be), and so the factual underpinnings which inform the bases for challenges are often not really in material dispute.’

11 In my respectful view, the Claimant is not entitled as of right to cross examine witnesses at the trial of an administrative without having first obtained permission. Permission is obtained in the usual course by filing an application, identifying the paragraphs which permission is sought to cross examine on and satisfying the Court that there is a dispute on a central (not peripheral) fact that is a critical factual issue necessary to be resolved for the resolution of the claim.

12 In resolving this preliminary issue in the trial, the Claimant was granted permission to cross examine Nigel Caines on paragraphs 5 and 10; and Elvin Brown on paragraph 9 of their affidavits filed on December 15, 2020.

Issues for consideration

13 The issues arising on this originating motion are:

• 1. Whether the arrest of the claimant was arbitrary, unlawful and contravened section 5(1) of the Constitution?

• 2. Whether the detention of the claimant beyond the 72-hours before being brought before a court was unconstitutional contract to section 5(3)(b) of the Constitution?

• 3. Whether the continued arrest and remand of the claimant without bail and without trial from on or about January 15, 2011 to December 2015 was in breach of his constitutional right protected by section 5(5) of the Constitution?

• 4. Whether the claimant was afforded a fair trial within a reasonable time in keeping with section 10(1) of the Constitution?

• 5. Whether the claimant is entitled to relief on any of his claims?

14 It is convenient to address issues 1 and 2 together as they address the lawfulness of the claimant's arrest and detention.

Issues 1 & 2 – The Arrests and Detention

15 From claimant's evidence and the submissions made on his behalf, it is clear that he seeks to challenge two incidents of purported arrest. The first was on December 27, 2010, and the second was 2 weeks after, on a date in January 2011.

16 I will deal with each incident separately.

The December 27, 2010 Incident and Subsequent Detention

17 The claimant alleges that he was arrested on December 27, 2010 and invites the court to conclude that his arrest was unlawful for three reasons. The first is that he was arrested by a member of the Royal Saint Christopher and Nevis Defence Force (“the Defence Force”) who did not have the legal authority to arrest him. The second is that the police did not have reasonable and probable cause to arrest him. The third is that the claimant was arrested and detained for 75 hours which is more than the period permitted by law. The defendant however asserts that no arrest was carried about by a member of the Defence Force and that the claimant voluntarily accompanied them to the hospital. Furthermore, the defendant contends that the claimant was arrested on the basis of reasonable suspicion.

18 The court is required to determine first whether the incident on December 17,...