Wingrove George v The Senior Magistrate

• Jurisdiction: Saint Kitts and Nevis
• Judge: Thom JA
• Judgment Date: 31 July 2020
• Judgment citation (vLex): [2020] ECSC J0731-2
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: SKBHCVAP2019/0004
• Date: 31 July 2020

[2020] ECSC J0731-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SKBHCVAP2019/0004

Between:

Wingrove George

Appellant

and

[1] The Senior Magistrate

[2] Director of Public Prosecutions

Respondents

Appearances:

Mr. Sylvester Anthony and Mrs. Angelina Sookoo-Bobb for the Appellant

Mr. Dane Hamilton, QC with him, Mr. D. Victor Elliott-Hamilton for the Respondents

Civil appeal — Misconduct in public office — Judicial review — National Assembly Elections Act of Saint Christopher and Nevis — Principles of the election jurisdiction — Scope of the election jurisdiction — Whether the election jurisdiction of the high court encompasses the offence of misconduct in public office — Implied repeal of the common law — Whether judicial review is an appropriate remedy — Importation of the election jurisdiction in Saint Kitts and Nevis — Costs on an application for leave for judicial review

The appellant, Mr. George, was the acting Supervisor of Elections when elections were held in St. Christopher and Nevis on 16 ^th February 2015. Two years later, and after his appointment was revoked, he was arrested and charged with two offences of misconduct in public office. The charges related to the said 2015 elections. It was alleged that Mr. George, whilst acting as Supervisor of Elections, failed to carry out his duty to ensure that the results of the election for constituency number 4 and constituency number 6 were announced in a timely manner.

Mr. George applied to the High Court for leave to apply for judicial review of the decisions of (i) the Director of Public Prosecutions in preferring the charges against him, and (ii) the magistrate in issuing a warrant for his arrest. The application for leave to apply for judicial review was refused and the learned judge awarded costs to the respondents to be assessed if not agreed within 21 days.

Aggrieved, Mr. George appealed to the Court of Appeal. The thrust of the appeal was threefold. Mr. George contended that (i) as the charges related to offences alleged to have been committed during the election time and in the course of an election, the peculiar and exclusive nature of the election jurisdiction meant that the charges could only have been brought pursuant to the election jurisdiction of the court; or, alternatively, pursuant to the National Assembly Elections Act and therefore by way of an election petition; (ii) the charges could not be brought under the common law jurisdiction of the court as the common law was not incorporated into the election jurisdiction and the court cannot expand the election jurisdiction to include common law offences and; (iii) the trial judge should have allowed leave to file an action for judicial review as it would have been appropriate in the circumstances to resolve an issue of law and thereby save time and expense by determining that there was no realistic prospect of success of the charges since Mr. George had no duty to announce the results of elections in the media and there was no evidence before the court of any directive from the Electoral Commission for him to do so.

Held: dismissing the appeal in part; allowing the appeal in relation to cost in the court below; and making an order that each party bear its own cost in the appeal, that:

• 1. The election jurisdiction is a very limited jurisdiction which relates to the validity of the election of members of Parliament/the National Assembly. The principles which apply to the election jurisdiction do not apply to every matter or conduct related to an election. While the charges against Mr. George are related to conduct during an election of members to the National Assembly, they do not, in any way, have the potential to affect the validity of the election of those members. The proceedings brought by the DPP do not therefore engage the election jurisdiction of the court and accordingly the principles applicable to the election jurisdiction do not apply.

  Peters (Winston) v Attorney-General and Another, Chaitan (William) v Attorney-General and Another (2001) 63 WIR 244 considered; Ram v Attorney General and others and other appeals [2019] CCJ 10 (AJ) considered; Devon Nair v Yong Kuan Teik [1967] 2 All ER 34 considered; Joseph Parry v Mark Brantley; Leroy Benjamin (The Supervisor of Elections) and another v Mark Brantley; Hensley Daniel v Mark Brantley [2012] ECSCJ No. 233 applied; Cedric Liburd v Eugene Hamilton and others; The Attorney General of Saint Christopher and Nevis v Cedric Liburd and others [2011] ECSCJ No. 334 applied; Saint Christopher and Nevis Constitution Order Chapter 2.01, Laws of Saint Christopher and Nevis, Revised Edition 2009 applied.

• 2. The applicability of the common law offence of misconduct in public office to St. Christopher and Nevis has not been expressly repealed by the Elections Act or any other Act of Parliament. In the absence of an express prohibition to the application of common law offences in relation to the conduct of a person during elections, the common law is applicable. Additionally, the principle of implied repeal is not applicable in these circumstances as there is no inconsistency between the common law and the National Assembly Elections Act which would render the Elections Act, as the law enacted later in time, the prevailing law. Furthermore, there is a presumption against implied repeal and plain words would be needed to repeal the common law offence of misconduct in public office. Accordingly, the charges for the offence of misconduct in public office could be brought pursuant to the common law and the learned judge was open to find that the proposed judicial review action had no arguable ground with a reasonable prospect of success.

  R v Goldstein; R v Rimmington [2005] UKHL 63 applied; Secretary of State v Bank of India [1938] 2 All ER 797 applied; Churchwardens and Overseers of West Ham v Fourth City Mutual Building Society and Another [1892] 1 Q.B. 654 applied; Hamnet v Essex County Council [2017] EWCA Civ 6 applied; Jennings v United States Government [1982] 3 All ER 104 applied; Nwogbe v Nwogbe [2000] 2 FLR 744 applied.

• 3. Where a matter relates to the interpretation of statute and is not based on evidence, it would be appropriate for the matter to be resolved by way of judicial review. However, in his application for leave, Mr. George first had to satisfy the court that his argument on the applicability of the Elections Act and the election jurisdiction and the resultant alleged invalidity of the charges had a reasonable prospect of success, which he failed to do. Further, whether Mr. George breached any duties, if such duties existed, is an evidentiary matter to be determined in the criminal court and the judicial review process is not appropriate to deal with such matters as there are alternative remedies.

  Gangar v Her Worship Ejenny Espinet [2008] UKPC 48 considered; Sharma v Brown-Antoine and others [2006] UKPC 57 applied; McNicholls v Judicial and Legal Services Commission [2010] UKPC 6 applied.

• 4. A trial judge has a discretion to award costs on an application for an administrative order where the court considers that the applicant has acted unreasonably. Whilst bringing an action for judicial review where the law is settled can be considered unreasonable and attract a cost order, in the present circumstances, it cannot be said that Mr. George had acted unreasonably as the issue of election offences and how conduct by public officers relating to elections should be dealt with, had not previously been considered and determined by the court before very recently in Skerrit v Defoe and in which case this court gave a majority decision. The award of costs therefore fell outside of the generous ambit within which reasonable disagreement is possible and should be set aside.

  Part 56.13(6) of the Civil Procedure Rules 2000 considered; Dufour and Others v Helenair Corporation Limited and Others (1996) 52 WIR 188 applied.

Thom JA

1 On 16 ^th February 2015, an election of members of the National Assembly of Saint Christopher and Nevis was held pursuant to writs of election issued by the Governor General of Saint Christopher and Nevis. The appellant, Mr. Wingrove George (“Mr. George”), was the acting Supervisor of Elections. His appointment was subsequently revoked on 24 ^th June 2015.

2 On 15 ^th December 2017, Mr. George was charged with two offences of misconduct in public office. The particulars of the charges allege that he failed to carry out his duty to ensure that the results of the election for constituency number 4 and constituency number 6 were announced in a timely manner. The charges were preferred by information laid in the Magistrates' Court by the Director of Public Prosecutions (“the DPP”). The charges are worded the same therefore I will only outline the charge in relation to constituency number 4. It reads as follows:

“For that you, between the 16 ^th day of February, 2015 and the 17 ^th day of February, 2015 in Basseterre, in the Parish of St. George in the Magisterial District “A” in the Federation of St. Christopher and Nevis, whilst carrying out public functions in the public office of Acting Supervisor of Elections for the Federation of St Christopher and Nevis to supervise the conduct of Elections of Representatives in the Federation of St. Christopher and Nevis, misconducted yourself in the said public office, in that, having received the results from the Returning Officer for Constituency Number 4, and without reasonable explanation or justification, you failed to carry out your duty to ensure the announcement of the election results for Constituency Number 4 contrary to Common Law.”

3 Mr. George was arrested and placed on bail in the sum of $25,000.00 with two sureties and...