Shakespeare Southwell v The Attorney General of Saint Christopher and Nevis the Chief of Police
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Ventose, J. |
| Judgment Date | 21 October 2020 |
| Neutral Citation | KN 2020 HC 6 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO. SKBHCV2019/0057 |
| Date | 21 October 2020 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SKBHCV2019/0057
CLAIM NO. SKBHCV2019/0061
In the Matter of sections 3(a) and 10(2)(a) of the Constitution of the Federation of Saint Christopher and Nevis
and
In the Matter of sections 6(3) and 6(4) of the Drugs Prevention and Abatement of the Misuse and Abuse of Drugs Act Cap 9.08 of the 2009 Revised Edition
and
In the Matter of an Application for Declaratory Orders by Shakespare Southwell pursuant to section 18(1) & (2) of the Constitution of the Federation of Saint Christopher and Nevis
and
In the Matter of an Application pursuant to Part 54 of the Civil Procedure Rules 2000
In the Matter of Sections 2, 3(a),5(1), 7, 10 and 37 of the Constitution of the Federation of Saint Christopher and Nevis
and
In the Matter of an Application for Declaratory Order by KAUESI HANLEY, pursuant to Section 18 of the Constitution of the Federation of Saint Christopher And Nevis
and
In the Matter of an Application pursuant to Part 54 of the Civil Procedure Rules 2000 as amended
Dr. Henry Browne Q.C., with him, Mr. O'Grenville Browne for Mr. Southwell
Mr. Jason Hamilton for Mr. Hanley
Mrs. Simone Bullen Thompson for the Defendants
The Claimants in both cases were convicted of possession of, and possession with intent to supply, cannabis contrary to sections 6(2) and 6(3) of the Drugs (Prevention and Abatement of Misuse and Abuse of Drugs) Act CAP 9:08 of the Revised Laws of Saint Christopher and Nevis (the “ Drugs Act”). Both Claimants were sentenced to 24 months imprisonment to run concurrently on both charges purportedly in accordance with section 15(1) of the Drugs Act. The Claimants challenge the constitutionality of sections 6(4) and 15(1) of the Drugs Act. on the basis that they are: (1) inconsistent with section 7 of the Constitution of Saint Christopher and Nevis which provides for protection against inhuman treatment; and (2) contrary to the Claimants' right to life, liberty and security of the person and the right not to be deprived thereof without the protection of law contrary to sections 3(a) and 10(2)(a) of the Constitution.
The relevant sections of the Drugs Act that are at issue in this matter are as follows:
is deemed to have the controlled drug for the purpose of trafficking unless the contrary is proved, the burden of proof being on the accused.
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(1) Subject to any regulations made under section 8 for the time being in force, it shall not be lawful for a person to have a controlled drug in his or her possession.
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(2) Subject to subsection (5) and to section 29, it is an offence for a person to have a controlled drug in his or her possession in contravention of subsection (1).
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(3) Subject to section 29, it is an offence for a person to have a controlled drug in his or her possession, whether lawfully or not, with intent to supply it to another in contravention of section 5(1).
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(4) Subject to subsection (1), a person found in possession of the following controlled drugs in quantities of more than
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(a) two grammes of diacetylmorphine (hexion);
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(b) one gramme of cocaine;
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(c) fifty-five grammes of opium;
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(d) three grammes of morphine; or
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(e) fifteen grammes of cannabis or cannabis resin;
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Drug trafficking.
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(1) A person who commits a drug trafficking offence or of being in possession of a controlled drug for the purpose of drug trafficking is liable,
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(a) on summary conviction,
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(i) to a fine of four hundred thousand dollars or where there is evidence of the street value of the controlled drug, of three times the street value of the controlled drug whichever is the greater, and
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(ii) to imprisonment for a term which may extend to ten years but which shall not be less than five years; or
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(b) upon conviction on indictment, to imprisonment for life but which shall not be less than fifteen years.
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(2) A person who commits a drug trafficking offence in a substance other than a controlled drug, which he or she represents or holds out to be a controlled drug is liable,
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(a) upon summary conviction, to a fine of five thousand dollars and to imprisonment for two years; or
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(b) upon conviction on indictment, to a fine of twenty-five thousand dollars and to imprisonment for five years.
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Proof of lack of knowledge, etc., to be a defence in proceedings for certain offences.
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(1) This section applies to offences under any of the following provisions of this Act, that is to say, section 5(2) and (3), section 6(2) and (3), section 7(2) and section 10.
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(2) Subject to subsection (3), in any proceedings for an offence to which this section applies it shall be a defence for the person charged to prove that he or she neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he or she is to be convicted of the offence charged.
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(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused
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(a) shall not be acquitted of the offence charged by reason only of proving that he or she neither knew, nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
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(b) shall be acquitted thereof
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(i) if he or she proves that he or she neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
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(ii) if he or she proves that he or she believed the substance or product in question to be controlled drug or a controlled drug of a description, such that if it had in fact been that controlled drug or a controlled drug of that description, he or she would not at the material time have been committing any offence to which this section applies.
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(4) Nothing in this section shall prejudice any defence which is open to a person charged with an offence to which this section applies to raise apart from this section.
The applicable constitutional provisions are as follows:
3. Fundamental rights and freedoms.
Whereas every person in Saint Christopher and Nevis is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his or her race, place of origin, birth, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely,
(a) life, liberty, security of the person, equality before the law and the protection of the law;
…
the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any person does not impair the rights and freedoms of others or the public interest.
7. Protection from inhuman treatment.
A person shall not be subjected to torture or to inhuman degrading punishment or other like treatment.
10. Provisions to secure protection of law.
(2) Every person who is charged with a criminal offence
(a) shall be presumed to be innocent until he or she is proved or has pleaded guilty;
…
(12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of
(a) subsection (2)(a) to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
…
These cases require the application of well-established decisions of Commonwealth and Caribbean courts where the issue of the constitutionality of mandatory sentences have been pronounced upon.
In Attorney General of Belize v Zuniga and others [2014] CCJ 2 (AJ), the Caribbean Court of Justice (the “ CCJ”) had to consider the constitutionality of legislation passed by the Parliament of Belize. The legislation: created the offence of knowingly disobeying or failing to comply with an injunction (in particular an anti-arbitration injunction); prescribed severe penalties for persons convicted of this offence, including mandatory minimum penalties; and provided for a range of ancillary matters. If a natural person is found guilty of an offence, the penalty is a fine which shall not be less than $50,000.00 but which may extend to $250,000.00, or imprisonment for a term which shall not be less than five (5) years but which may extend to ten (10) years, or both such fine and term of imprisonment. The CCJ stated that:
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[65]. Section 6(3)(a) of the Constitution establishes the presumption of innocence. Every person charged with a criminal offence is presumed to be innocent until he is proved or has pleaded guilty. It is, however, permissible for a law to impose on an accused person the burden of proving particular facts. …
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[71]. We agree with the conclusion reached by the court below that the sub-section contravenes the principle of the presumption of innocence. The analysis must begin with the fundamental duty of the prosecution in a criminal case. The basic principle is that the prosecution must prove every essential...
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