Lucas v Mallalieu-Webbe et Al; Murray v Mallalieu-Webbe et Al; Carty v Mallalieu-Webbe et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: Baptiste, J.
• Judgment Date: 22 January 2003
• Neutral Citation: KN 2003 HC 1
• Docket Number: SKBHCV 0150 of 2002; SKBHCV 0151 of 2002; SKBHCV 0152 of 2002
• Court: High Court (Saint Kitts and Nevis)
• Date: 22 January 2003

High Court

Baptiste, J.

SKBHCV 0150 of 2002; SKBHCV 0151 of 2002; SKBHCV 0152 of 2002

Lucas

and

Mallalieu-Webbe et al

Murray

and

Mallalieu-Webbe et al

Carty

and

Mallalieu-Webbe et al

Appearances:

Mr. A. Johnson and Ms. P. Dublin for Hasheem Lucas.

Mr. Veira and Mr. Taylor for Jeffrey Murray and Warren Carty.

The Hon. Delano Bart, Attorney General and Ms. V. Benjamin for the respondents.

Constitutional Law - Separation of powers — Director to Public Prosecutions had invoked ss 15 and 16 of the Criminal Procedure Act after the magistrate discharged the accused and directed the magistrate to order the committal of the accused — Whether DPP's decision was sustainable — Magistrate's Code of Procedure Act, Cap. 46 ss. 57 and 58 — References to Office of Magistrate in the St. Kitts—Nevis Constitution — Whether the DPP's direction to the magistrate for committal was usurpation of the judicial function of the magistrate.

Judicial Review - Magistrate's order committing applicants to prison after discharging them at preliminary inquiry — Committal not in breach of Magistrate's Code of Procedure Act.

Practice and Procedure - Magistrates order committing applicants to prison after they had been discharged at a preliminary hearing — Whether the magistrate had exhausted her jurisdiction to deal with the offence an was functus officio — Magistrates only functus officio if no directions are given consequent on and subsequent to the discharge.

Baptiste, J.

1 These claims which have been consolidated, arise from the same factual situation and raise the same legal issues. The remedies sought are also the same.

BACKGROUND

2 The claimants were among five persons who were jointly charged with the murder of Elvis Powell and a preliminary inquiry was conducted in respect thereof. The Prosecution closed its case on April 26, 2002 and submissions were made. The learned Senior Magistrate then read to the accused the statutory caution. The accused all said they had nothing to say. Counsel for the accused indicated a desire to call witnesses and the court was adjourned to a later date. These witnesses who were called on June 28, 2002 and July 15, 2002 gave evidence and were cross-examined. At the end of the cross-examination the accused were discharged by the learned magistrate. At this point the learned Director of Public Prosecutions announced that he was invoking sections 15 and 16 of the Criminal Procedure Act. Submissions were made by the Director of Public Prosecutions and counsel for the accused on the issue. The Director of Public Prosecutions then prepared and forwarded a hand written direction to the magistrate that she should order a committal of the accused. The magistrate proceeded to order their committal. That was on 19th July, 2002. The accused, however, walked out of the court, upon which the magistrate ordered their arrest. One was arrested the same day and the other two were arrested on the following day 20th July, 2002. On Monday 22nd July 2002 the accused appeared before the magistrate and were instructed on their rights to give alibi evidence and were taken back to Her Majesty's Prison.

ORDERS SOUGHT

3 Being aggrieved by the decision of the magistrate and the Director of Public Prosecutions, the claimants have approached the court for the following:

• 1. An order of certiorari to quash an Order of the First respondent, on the 19th day of July 2002 committing them to stand trial for murder, as directed by the Second respondent in writing on the said 19th July, 2002.

• 2. An order that the committal by the learned Senior magistrate on the 19th and 22nd July was unlawful.

• 3. An order that their arrest on 20th July, 2002 by the police and their continued detention by the Superintendent of Prison is unlawful and without due process and they should be immediately released.

• 4. An order that the committal on the 19th and 22nd July, 2002 is in breach of their constitutional and fundamental rights provided under chapter 11 section 3 (a) and 5—(I) k of the Saint Christopher and Nevis Constitution Order 1983.

• 5. An order that the magistrate was functus officio.

• 6. An order that sections 15 and 16 of the Criminal Procedure Act Chapter 20 of the Laws of Saint Christopher and Nevis in so far as it purports to grant power to the Director of Public Prosecutions a member of the Executive Branch of Government to quash a judicial decision of a Magistrate and to insert his own decision is contrary to the constitution of Saint Christopher and Nevis.

• 7. Damages for unlawful arrest and detention.

• 8. Exemplary damages.

APPLICANTS SUBMISSIONS

4 The submissions of the claimants can be considered under three heads: (1) The separation of powers doctrine. (2) Functus officio and (3) Non-compliance with envisions of the Criminal Procedure Act Chapter 20 and the Magistrates Code of Procedure Act, Cap 46.

FUNCTUS OFFICIO

5 I will first consider the submissions based on functus officio. Mr. Veira and Mr. Johnson intended that once the applicants had been discharged, the learned Senior magistrate had exhausted her jurisdiction to deal with the offences and was functus officio. The learned magistrate's further order of 19th or 22nd July 2002 was made without jurisdiction and/is of no effect. The applicants rely on the cases of Beswick v. R (1987) 36 W.I.R. 318; Cummings v. The State (1995) 49 W.I.R. 406; Paynter v. Lewis (1965) 8 W.I.R. 318.

In Paynter v. Lewis (1965) 8 W.I.R. 318 at 320 Wooding C.J. said: “Once a magistrate has accepted a plea of guilty or has adjudicated and found a defendant guilty or not guilty, he is functus officio as regards the commission or non commission of the offence and accordingly he has no power to alter the conviction or acquittal.”

Wooding CJ continued at page 321:

“Accordingly, we hold that it is immaterial whether conviction has resulted from a plea of guilty or from an adjudication after trial or whether a conviction or acquittal has been formally entered or not, or whether a conviction has or has not been followed by the imposition of a sentence or the making of an order: once there has been a conviction or acquittal …the guillotine falls and the court which has made that adjudication is functus officio.”

6 The Honourable Delano Bart, Attorney General submitted that the cases cited by the applicants were not on point as they dealt with convictions and not with preliminary inquiries or committal proceedings. Further, sections 15 and 16 of the Criminal Procedure Act Chapter 20 would prevent the magistrate from becoming functus officio.

7 I agree that the principle stated in Paynter v. Lewis was in reference to a trial. Is there any difference when the matter is not a trial but is a preliminary inquiry? The question is, when is a magistrate functus? A magistrate is functus when he has discharged all his judicial functions in a case. (See R v. Camberwell Green Magistrate's Court, ex p Brown (1983) 4 FLR 767) “The concept of functus officio … is an expression apt to describe the position where a court or tribunal revisits a dispute which it has already finally decided” See Laws J in R v. Crown Court at Stafford ex parte Chief Constable of the Staffordshire Police [1998] 2 All E.R. 812 at 816.

8 Was the magistrate functus when she discharged the accused? One cannot consider this question in a narrow sense. It would be important to pay regard not only to the Magistrate's Code of Procedure Act, Chapter 46 but also and to my mind mare importantly sections 15 and 16 of the Criminal Procedure Act, Chapter 20. It is pellucid from a reading of these sections that the magistrate's judicial function at a preliminary inquiry does not cease or end upon the accused being discharged. For upon discharging an accused person the Director of Public Prosecutions is empowered to require the magistrate to send to him the depositions or a copy thereof and after receipt of those documents, if he is of the opinion that the accused should have been committed for trial, remit them to the magistrate with directions to deal with the matter accordingly. These directions shall be in writing and shall be complied with by the magistrate. Clearly then in the context of a preliminary inquiry the magistrate does not finally decide the issue by discharging the accused. It is a fallacy therefore to suggest that upon discharging an accused person at a preliminary inquiry, the learned magistrate had exhausted her jurisdiction to deal with the “offence and was functus officio. In the context of a preliminary inquiry a magistrate only becomes functus having discharged an accused person if no directions are given to the magistrate consequent upon and subsequent to such discharge. If directions are given pursuant to sections 15 and 16 of the Criminal Code of Procedure Act, the magistrate is under a duty to comply. How then, can the magistrate be functus? Being under a duty to comply it cannot be said that the magistrate is functus upon discharging the accused. In the circumstances the submissions of the applicants mounted upon the concept of functus officio cannot be sustained.

THE CRIMINAL PROCEDURE ACT

Section 15 (1) of the Criminal Procedure Act states:

“In any case where the magistrate discharges an accused person the Director of Public Prosecutions may require the magistrate to send to him the depositions taken in the cause, or a copy thereof, and any other document or things connected with the cause which he thinks fit.

• (2) If after the receipt of those documents and things the Director of Public Prosecutions is of opinion that the accused person should have been committed for trial, the Director of Public Prosecutions may, if he thinks fit remit them to the magistrate, with directions to deal with the matter accordingly, and with any directions he thinks proper.

9 Section 16 (1) of the Criminal Procedure Act states: “Any directions given by the Director...