Michael J. Prest v Magistrate District “c” et Al
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Thom JA |
| Judgment Date | 16 April 2024 |
| Judgment citation (vLex) | [2024] ECSC J0416-1 |
| Docket Number | NEVHCVAP2022/0003 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Gerard St. C Farara Justice of Appeal [Ag.]
The Hon. Mde. Esco Henry Justice of Appeal [Ag.]
NEVHCVAP2022/0003
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
Interlocutory appeal — Judicial review — Appeal against decision to quash grant of leave for judicial review — Section 33(3)(a) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act Cap. 3.11 — Jurisdiction of Court of Appeal to hear appeals in a criminal cause or matter — Whether this appeal is a criminal cause or matter — Whether the learned judge erred in refusing to grant the appellant's application for an adjournment of the hearing and determined that the matter be heard on paper — Whether the learned judge applied the wrong principles in exercising his discretion to set aside leave — Whether the learned judge made findings of fact which were not supported by evidence
On 21 st July, 2021 the second respondent and member of the Royal St. Kitts and Nevis Police Force, Corporal Randolph Diamond submitted to the learned magistrate two information with respect to the appellant, outlining the offences that he (1) having received the sum of US$2,530,000.00 for the use and benefit of Mark Kucher, did fraudulently convert the money to his own use and (2) being a trustee of the sum of US$2,530,000.00 for the use and benefit of Mark Kucher did, fraudulently convert the money for his own use contrary to sections 20 and 19(d) respectively of the Larceny Act Cap. 4.16. Having received evidence on oath from Cpl. Diamond, the learned magistrate issued a warrant of arrest in relation to each offence. The warrants have not been executed as the appellant is outside of the jurisdiction.
On 27 th August 2021, the appellant applied for leave to make a claim for judicial review and sought orders to quash the decision of the first respondent made on 21 st July 2021 to issue arrest warrants against the appellant for the alleged contravention of sections 19(d) and 20. The appellant also sought an interim order for a stay of execution of the two arrest warrants issued by the first respondent pending the determination of the application for judicial review and an interim injunction restraining any publication of the existence of the arrest warrants pending the determination of the judicial review application.
The learned judge granted the appellant leave to apply for judicial review ex parte. The learned judge, at an inter partes hearing, granted the interim reliefs sought and ordered that the execution of the arrest warrants be stayed pending the hearing of the judicial review claim. The appellant subsequently filed his fixed date claim for judicial review.
The respondents made applications to set aside the order granting leave to bring a judicial review claim on the premise that the appellant was seeking to challenge the basis of the Director of Public Prosecution's decision to prosecute him and that the appellant had alternative remedies available to him in the criminal proceedings. On 18 th March 2022, the learned judge having considered the submissions of the parties, set aside the leave granted to bring a claim for judicial review and the interim orders and struck out the fixed date claim for judicial review. The judge found that the issues raised are matters best addressed in the criminal justice system and that it would be inappropriate for the court to hear a claim for judicial review on the grounds outlined by the appellant.
The appellant being dissatisfied with the ruling of the learned judge appealed with three main issues emerging for determination at the hearing: (i) the learned judge erred in refusing to grant the appellant's application for an adjournment of the hearing and determined that the matter be heard on paper, (ii) the learned judge applied the wrong principles in exercising his discretion to set aside leave and (iii) the learned judge made findings of fact which were not supported by evidence.
On consideration of the submissions, the issue of whether this Court has jurisdiction to determine the appeal was raised. The Court directed that the parties file submissions on the effect of section 33(3)(a) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act Cap. 3.11 and subsequently received those submissions.
Held: dismissing the appeal, affirming the decision of the learned judge and ordering the appellant to pay the respondents their costs on the appeal to be assessed by a judge of the lower court, that:
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1. The preliminary issue which arises is whether this appeal is a “criminal cause or matter” as prohibited by section 33(3)(a) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act Cap. 3.11. The principle emanating from the authorities on this issue is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a “criminal cause or matter”. It is the nature and character of the proceedings in which the relief is sought which provides the test. Every order made in such a cause or matter is an order in a criminal cause or matter, even though the order taken by itself is neutral in character and might equally have been made in a cause or matter which is not criminal. The proceedings brought by the appellant are not collateral to the exercise of the criminal jurisdiction. They relate to the decision of the magistrate made pursuant to section 37 of the Magistrate's Code of Procedure Act, where the magistrate issued warrants of arrest. The appellant, being dissatisfied with the ruling of the learned judge where he refused to quash the warrants of arrest appealed to this Court. The direct outcome of the learned judge's decision may lead to the arrest of the appellant, his trial and his possible punishment for the alleged offences by the criminal court. This appeal is therefore an appeal in a “criminal cause or matter” and falls within the ambit of section 33(3)(a). This Court has no jurisdiction to hear and determine the appeal. Nonetheless, the issues on the raised grounds of appeal are addressed below.
Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 applied; Glasford and Others v The Commissioner of Police (1995) 48 WIR 117 followed; Hapgood v Commissioner of Police and Another AXAHCVAP2020/003 (delivered 24th June 2020, unreported) followed; Belhaj and Another v DPP and Another [2018] UKSC 33 followed.
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2. The right to personal liberty is not an absolute right. The constitution itself outlines circumstances in which the right may be infringed such as by a warrant of arrest. The processes of the criminal justice system inevitably impact constitutional rights, such as the right to liberty (as in this case), a warrant of arrest having been issued. The mere fact that a constitutional right has been impacted and the judge erred in his decision on review does not mean that a right of appeal is automatic. An appeal lies in relation to a person who has been convicted of a criminal offence.
( Attorney General of St. Christopher and Nevis et al v Lawrence delivered 12th May 1997, unreported) followed; Hapgood v Commissioner of Police and another [1921] 2 A.C. 570 followed.
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3. The decision of the learned judge to dismiss the application to adjourn and to hear the matters on paper was a case management decision. It is trite law that an appellate court will not interfere with a case management decision of a judge save in circumstances where the decision was blatantly wrong. The notice of hearing which was served on all parties to the proceedings was served on 20 th December 2021. Between 20 th December and the date of the hearing (approximately 2 and a half months) no application was made to the Court for an adjournment. Counsel for the appellant emphasized that the times for hearing of appeals in the Belize Court of Appeal are fixed. King's Counsel would therefore have had notice that the date of hearing was within the period fixed for hearing of appeals in Belize yet the application for adjournment was made on the very morning the applications were scheduled to be heard. Further, Part 11.17 must be read in its entirety and Part 11.17(c) clearly gives the court a discretion to determine any application without a hearing. The learned judge was empowered in the exercise of his discretion to hear the matter on paper and the Court discerns no error in the exercise of the learned judge's discretion.
Civil Procedure Rules 2000 applied; Dufour et al v Helenair Corporation Ltd. et al (1996) 52 WIR 188 applied; Global Torch Ltd v AFSC Global Management Ltd (No 2) 2014 UKSC 64; Broughton v Kop Football (Cayman) Ltd 2012 EWCA Civ 1743 followed.
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4. The evidence of Cpl. Diamond was prima facie evidence on which the learned magistrate could have been satisfied that Mr. Prest had received the funds. While the learned magistrate did not outline in detail the evidence she took on oath from Cpl. Diamond, Cpl. Diamond outlined the evidence he gave on oath before the learned magistrate. The learned judge did not err in finding that in view of the evidence of Cpl. Diamond and the opposing evidence in Ms. Hobson's affidavit this dispute would best be resolved in the criminal court. In issuing the warrant, the magistrate only had to be satisfied that there was prima facie evidence of the ingredients of the offence. The learned magistrate did not have to be satisfied beyond a reasonable doubt that the appellant had received the funds.
R v Wilson [1947] 2 AER 569 followed; R v West London Justices, ex parte Klahn [1979] 2 All ER 221 followed;...
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