Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN, GRAND CAYMAN 4.3.09
IND. NO. 70 OF 2008
REGINA
vs
ORRET, BORDEN, MONTAQUE & EBANKS
Ruling delivered by The Honourable Justice Henderson on the 4th day of March 2009, in George Town, Grand Cayman.
APPEARANCES:
For the Crown: Ms. C. Richards
For the Defendant Orret: Mr. S. Wilson
For the Defendant Borden: Mr. P. McGhee
For the Defendant Montague: Mr. E. Renvoize
For the Defendant Ebanks: Mr. N. Dixey
1 GRAND COURT COMMENCED ON WEDNESDAY,
2 MARCH 4TH, 2009 AT 3:13 P.M.
THE COURT: The important point I have been called upon to decide concerns the Attorney General's right to prefer an indictment containing counts which were not before the magistrate at the preliminary inquiry.
The issue arises in this way. These four defendants were committed for trial after two separate preliminary inquiries on charges of illegal possession of two unlicenced shot guns. Those charges have now been consolidated in one indictment. (The four defendants take no objection to being tried together on the counts upon which they were committed for trial.) The Attorney General intends to add two new counts to this fresh indictment, charging the defendants with discharging a firearm during the time they allegedly had the guns in their possession. The defendants object.
The Attorney General is acting pursuant to the authority given to him by section 107(3) of the Criminal Procedure Code which reads in
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1 part:
2 "The Attorney General may charge the
3 accused person with any offence
4 which, in his opinion, is disclosed
5 by the depositions either in addition
6 to or in substitution for the offence
7 upon which the accused person has
8 been committed for trial."
9 Ms. Moore (For the Crown) says this
10 language prohibits the Court from reviewing the
11 Attorney General's decision. She argues that
12 the words "in his opinion" are definitive. As
13 long as the Attorney General has addressed his
14 mind to the question and formed a subjective
15 opinion that the new charge or charges are
16 disclosed by the depositions, that is the end
17 of the matter. The Legislative Assembly, by
18 adopting this wording, intended to foreclose
19 any review by this Court of the Attorney
20 General's decision up until the point of a
21 no-case submission at trial.
22 I must determine what the Legislative
23 Assembly intended by this statutory provision.
24 Absent any applicable constitutional guarantee,
25 it would be open to the Legislative Assembly to
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1 clothe the Attorney General with a discretion
2 which is not subject to review.
3 I start with the observation that a review
4 of the sufficiency of the evidence before an
5 indictment is preferred is an important
6 safeguard which has long been a part of English
7 law. Usually that review is conducted by a
8 magistrate at a preliminary inquiry.
9 Exceptionally, a voluntary bill of indictment
10 may be preferred by the Attorney General under
11 the rules set out in the Fourth Schedule to our
12 Criminal Procedure Code. In these cases, the
13 Attorney General must first obtain leave of
14 this Court. In doing so, he must establish to
15 the Court's satisfaction that any new charge is
16 disclosed by witness statements and other
17 evidence, which must be filed on the
18 application. In effect, the Court conducts the
19 review that in more usual circumstances would
20 have been conducted by a magistrate.
21 If the Crown is correct in its position
22 here, section 107 (3) is a unique provision as
23 it provides to the Attorney General the ability
24 to bypass any preliminary vetting of the
25 evidence in any case where there has been a
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1 committal.
2 In the United Kingdom, the procedure for
3 preferring an indictment is similar to the
4 procedure here, with one important exception:
5 the Crown must obtain leave of the Court before
6 adding a count to an indictment after a
7 committal for trial and, in the process, must
8 permit the evidence to be assessed by a judge:
9 see Regina and Chairman of London County
10 Sessions ex parte Downes, 1953 C.A.R. 148 (Div.
11 CT.); and Regina and Jones and others, 1974
12 A.C. 120 (HL).
13 Our Legislative Assembly, of course, would
14 have been aware of the English position and
15 would not have intended to depart from it
16 without good reason. Because of the importance
17 of the procedural right enjoyed by defendants
18 prior to the enactment of section 107 (3), I
19 consider that the Legislative Assembly could
20 set aside this right only by the use of express
21 and clear language admitting of no other
22 interpretation. Any ambiguity in language must
23 be resolved in favour of preserving the
24 traditional rights of criminal defendants.
25 The argument advanced by Ms. Moore has
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1 been advanced on different but analogous circumstances in the House of Lords on more than one occasion. In their book Judicial Review of Administrative Action, De Smith,
5 Woolf and Jowell describe the initial acceptance and subsequent rejection of an argument essentially the same as that advanced by the Crown here. I read from the Fifth Edition at paragraphs 6-017 and 018.
10 "In Liversidge vs. Anderson, the House of Lords held that the Secretary of State's power to order the detention of any person whom he had "reasonable cause to believe" to be of hostile origins or associations, and over whom it was therefore necessary to exercise control, was validly exercised unless
19 it was shown that he had not honestly considered that he had had reasonable cause for his belief. This interpretation of the words 'reasonable cause to believe' cannot
24 be said to be logically impossible,
25 but it is contrary to the traditional
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1 attitude of the courts towards such formulae and it is unlikely to be repeated save in extraordinary circumstances where the courts consider that judicial review of executive discretion would be highly detrimental to the national interest.
2 In 1970, powers were given to the tax authorities to issue a warrant to enter premises where they had 'reasonable ground' for suspecting an offence. Having entered the premises, they had the power to seize and remove items found there which they had 'reasonable cause to believe' may be required as evidence of the offence.
3 Suspecting tax fraud, the Inland Revenue officials obtained search warrants, entered premises and seized documents without informing the applicants of the offences suspected or the persons suspected of having committed them.
4 The House of Lords upheld the Inland
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1 Revenue's actions and held that the
2 applicants had no right to be
3 informed of the alleged offences or
4 of the reasonable ground for
5 suspecting an offence. Nevertheless,
6 it was held that the existence of
7 'reasonable cause to believe' was a
8 question of objective fact to be
9 tried on evidence, and Lord Diplock
10 said that:
11 'The time has come to
12 acknowledge openly that the
13 majority of this House in
14 Liversidge vs. Anderson were
15 expediently and, at that time
16 perhaps excusably, wrong, and
17 the dissenting speech of Lord
18 Atkin was right.'
19 The police officer who has a common
20 law or statutory power to arrest on
21 reasonable suspicion and the public
22 official who has power to cancel a
23 licence when he has reasonable
24 grounds to believe the licensee to be
25 unfit to hold a licence must be
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1 prepared to justify in court the
2 reasonableness of their beliefs.
3 They cannot defeat an attack on the
4 grounds on which they have exercised
5 their discretion merely by proving
6 that they honestly thought that their
7 beliefs had been reasonable. The
8 criterion of reasonableness is not
9 subjective but objective in the sense
10 that it is subject to independent
11 scrutiny."
12 In truth, statutes often clothe decision
13 makers with the authority to do something if,
14 after consideration of evidence, they have
15 formed a certain opinion. The modern view is
16 that such language is not a bar to judicial
17 review of the reasonableness of the opinion.
18 That view has all the more force in the present
19 case where the rights of criminal defendants
20 are in issue.
21 I am satisfied that section 107 (3) does
22 no more than dispense with the need to obtain
23 leave of the court before the Attorney General
24 prefers an indictment containing a new count.
25 It does not prevent the Grand Court from
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1 reviewing the sufficiency of the evidence when
2 asked by a defendant to do so. Upon such a
3 review, the witness statements and other
4 evidence will be examined and the Court will
5 determine whether a properly-instructed jury
6 acting reasonably could (not would) return a
7 conviction. If the answer is "no", the count
8 must be set aside. In this way, the procedure
9 conforms substantially to the practice in the
10 United Kingdom and to that under the Fourth
11 Schedule to our own Criminal Procedure Code.
12 For these reasons, I grant to each of the
13 four defendants liberty to apply for a review
14 of the witness statements and other evidence
15 underpinning the two new counts.
17 (PROCEEDINGS CONCLUDE AT 3:26 P.M.)