George Finton De Bourg Appellant v [1] Chief Magistrate Tamara Gill [2] Director of Public Prosecutions Respondents

• Jurisdiction: Grenada
• Judge: Michel JA
• Judgment Date: 07 April 2017
• Judgment citation (vLex): [2017] ECSC J0407-3
• Court: Court of Appeal (Grenada)
• Docket Number: GDAHCVAP2012/0017
• Date: 07 April 2017

[2017] ECSC J0407-3

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

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

The Hon Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

GDAHCVAP2012/0017

Between:

George Finton De Bourg

Appellant

and

[1] Chief Magistrate Tamara Gill

[2] Director of Public Prosecutions

Respondents

On written submissions:

Mr. George Prime for the Appellant

Mr. Dwight Horsford, Solicitor General and Ms. Maurissa Johnson, Crown Counsel for the Respondents

Civil Appeal — Preliminary issue — Judicial review — West Indies Associated States Supreme Court (Grenada) Act — Section 33(2)(a) — No appeal shall lie under s. 33 from any order made in a criminal cause or matter — Application to strike out notice of appeal — No realistic prospect of success as appeal arises out of a criminal cause or matter — Whether notice of appeal purports to be a civil appeal from order made in a criminal cause or matter from which no appeal shall lie by virtue of section 33(2)(a) of the West Indies Associated States Supreme Court (Grenada) Act

This appeal arises out of a claim filed by the appellant for judicial review of a decision by the first respondent to commit the appellant to stand trial at the criminal assizes for offences under the Proceeds of Crime Act, 2012 and a decision by the second respondent to indict the appellant for the offences. By a judgment dated 23^rd August 2012 the learned judge dismissed the appellant's claim and by notice of appeal filed on 5^th October 2012, the appellant appealed against her judgment.

The respondents filed an application on 29^th May 2014 seeking to strike out the notice of appeal on the ground that there was no realistic prospect of success on the appeal because the appeal arises out of a criminal cause or matter and section 33(2)(a) of the West Indies Associated States Supreme Court (Grenada) Act provides that no appeal shall lie under that section from any order made in a criminal cause or matter.

On 30^th June 2014, Baptiste JA (sitting in Chambers) dismissed the respondents' application on the basis that the application did not comply with the provisions of rule 11.9 of the Civil Procedure Rules 2000 ("CPR") and paragraph 3(a) of Practice Direction No. 3 of 2008.

On 9^th November 2016, the respondents filed a preliminary objection to the appeal against the judgment of Ellis J on the ground that, by virtue of section 33(2)(a) of the West Indies Associated States Supreme Court (Grenada) Act, no appeal can lie to the Court of Appeal in its civil jurisdiction against an order made by a judge in a criminal cause or matter. The issue before this Court, as put by the respondents in their preliminary objection is "Whether the Notice of Appeal filed on the 5^th October, 2012 purports to be a civil appeal from an Order made in a criminal cause or matter from which no appeal shall lie by virtue of Section 33(2)(a) of the West Indies Associated States Supreme Court (Grenada) Act Cap 336".

Held: allowing the preliminary objection taken by the respondents and dismissing the appeal that:

• 1. There appear to be three pre-conditions to an order being in a criminal cause or matter. The first pre-condition is that, at the time of the filing or hearing of the application on which the order was made, a charge of crime punishable by a fine, imprisonment or otherwise had been or was about to be preferred against the applicant or some other person. The second pre-condition is that the application involved consideration of that charge of crime. The third pre-condition is that the direct outcome or result of the application was or might have been the applicant's or other person's trial and possible conviction and punishment by a court or tribunal having or claiming jurisdiction to try, convict and punish for that crime.

  West Indies Associated States Supreme Court (Grenada) Act, section 33(2)(a) applied; Attorney General of Antigua and Barbuda v Lewis (1995) 51 WIR 89 followed; Glasford v Commissioner of Police (1995) 48 WIR 117 followed.

• 2. In the present case, the judgment of the learned judge dismissing the application for judicial review satisfied the three aforementioned pre-conditions, in that — (1) at the time of the hearing of the application for judicial review, criminal charges were preferred against the appellant; (2) the application had to have involved some consideration of the criminal charges for which the appellant was committed and indicted; and (3) the direct outcome or result of the dismissal of the application for judicial review was the possible trial and conviction of the appellant for the offences. Consequently, the application for judicial review and the grant or refusal thereof were integral parts of criminal proceedings and, in the circumstances, the judgment dismissing the application for judicial review must be held to be an order made in a criminal cause or matter and is therefore not appealable in accordance with section 33(2)(a) of the West Indies Associated States Supreme Court (Grenada) Act.

  West Indies Associated States Supreme Court (Grenada) Act, section 33(2)(a) applied; Attorney General of Antigua and Barbuda v Lewis (1995) 51 WIR 89 followed; Glasford v Commissioner of Police (1995) 48 WIR 117 followed.

REASONS FOR DECISION

Michel JA

[1] On 8^th May 2012, Ellis J heard a claim filed by the appellant for judicial review of a decision by the first respondent to commit the appellant to stand trial at the criminal assizes for offences under the Proceeds of Crime Act, 20121 and a decision by the second...