Lett v Commissioner of Police and Attorney General
|28 May 2013
|GD 2013 HC 18
|GDAHCV 234 of 2011
|High Court (Grenada)
|28 May 2013
Price Findlay, J.
GDAHCV 234 of 2011
Mr. Ruggles Ferguson for the applicant.
Mr. Darshan Ramdhani for respondents.
Constitutional Law - Fundamental rights and freedoms — Right to a fair trial within a reasonable time — Protracted delays in completing trial constituted a violation of the claimant's right to a fair trial within a reasonable time — Permanent stay to police cases ordered — Costs.
This is an application by way of Fixed Date Claim Form for the following relief:
- A declaration that the protracted delays, involving 33 adjournments so far in completing the trial of the claimant in police cases Nos. 336/06, 337/06, 338/06 (COP v. Gregory Lett and Krishna Jagganaught) and 339/06 (Commissioner of Police v. Gregory Lett) constitutes a violation of his rights to a fair trial within a reasonable time as guaranteed by section 8(1) of the Constitution 2. An order permanently staying police cases Nos. 336/06, 337/06, 338/06 an 339/06 in the St. David's Magistrate's Court 3. Damages for breaches of the claimant's constitutional right 4. Such further or other relief as this Honourable Court deems just 5. Costs”
In his supporting affidavit the claimant sets out the facts on which he depends to substantiate his application.
The claimant is a member of the Royal Grenada Police Force and at the time of the application he had been a member for 16 years. He is a Constable.
On 30th May, 2006 he was arrested and charged summarily along with Krishna Jagganaught with the following:
a. Handling a controlled drug to wit: cocaine contrary to section 7(1) of the Drug Abuse (Prevention and Control) Act, Chapter 3 Volume 1 of the 1994 Revised Laws of Grenada; police case No. 338/06
b. Being in possession of a controlled drug to wit: cocaine contrary to section 6(2) of the Drug Abuse (Prevention and Control) Act, Chapter 3 Volume 1 of the 1994 Revised Laws of Grenada; police case No. 336/06
c. Trafficking in a controlled drug to wit: cocaine contrary to sections 18(4) and 18(2)(a) of the Drug Abuse (Prevention and Control) Act, Chapter 3 Volume 1 of the 1994 Revised Laws of Grenada; police case No 337/06.”
He was also charged with knowingly receiving EC$1,000.00 knowing it to be the proceeds of a crime.
He appeared in Court for the first time on 16th June 2006. He claims the materials in connection with the charges were not sent to the Government chemist until August 2006. The substance was then tested on or about early September 2006. He was not served with the analyst's certificate until 8th December 2006.
The trial of the matter did not start until 6th July, 2009, two years and ten months after the testing of the substance. On that day, one prosecution witness testified and the matter was adjoined for further cross-examination.
By that time he had already appeared in court some 19 times. The cross-examination of the first prosecution witness by his co-accused began in July 2009, and was adjourned to 25th September, 2009 for continuation, but this did not continue until 13th November, 2009.
His co-accused' counsel requested an adjournment to have the station diary presented in court. There was an adjournment to 15th January, 2010, but the cross-examination was not completed on that day. Further adjournments followed. He deponed that between 6th July, 2009 and 15th January, 2010 he made a further four appearances at Court.
He further deposes that since January 2010 he has been awaiting the completion of the matter. The last scheduled hearing was April 8 2011, but on that date it was adjourned to May 30, 2011. There was no hearing on 8th April, 2011. He was present at court on each of these occasions.
He has attended Magistrate's Court at least 33 times, but there were only hearings on three of those occasions. His attorneys applied for adjournments on three occasions, and apart from these times, the matter was adjourned by the police, counsel for the co-accused, or the Court on its own motion.
He proclaims his innocence and says that he is unable to prove this due to the numerous adjournments and the inordinate delay in the completion of the prosecution case. He made an application to the court under s. 16(3) of the Constitution, but this was overruled.
He deponed that he believed that the constant delays constituted a violation of his constitutional rights to a fair and impartial trial by an independent and impartial court.
The protracted delay has caused him emotional and financial hardship in that he has been on half pay for approximately five years. Further, the protracted delay will affect the ability of the Magistrate to properly weigh and assess the evidence when the time comes to make a determination in the matter. It will also affect his ability to present his defence to the court.
He states that of the 33 times the matter has come up, the following sequence of events has taken place:–
a. Witnesses for the prosecution has been absent on at least ten (10) occasions.
b. On at least two occasions the magistrate was absent and as a result there was no court
c. My attorney-at-law requested adjournments approximately three times
d. Counsel for my co-accused would have requested adjournments on at least ten (10) occasions
He is seeking the relief he has set out in his Fixed Date Claim Form. He has also applied for a permanent stay of the proceedings by way of Fixed Date Claim Form based on the following grounds:
- On even date the claimant filed a Constitutional motion alleging breach of his constitutional right pursuant to section 8(1) of the Constitution, his matter in the St. David's Magistrate Court having been adjourned on 33 occasions (from June 2006 to April 8, 2011) notwithstanding his presence in court and his readiness to continue with the trial 2. The matter has been scheduled on May 30, 2011, having been adjourned for the 33rd time on the last occasion. 3. The applicant contends that he would be unable to receive a fair and impartial trial given the protracted delays. The prosecution's case have not even been completed with the first witness still on the witness stand, having begun his testimony on July 6, 2009 and with cross-examination from the co-accused still incomplete after nine (9) adjournments. 4. The claimant will be severely prejudiced if the matter in the St. David's Magistrate's Court were to continue and to be adversely determined against him but he is thereafter granted the relief sought pursuant to the constitutional motion. 5. Further, it is in interest of all parties to grant a stay in these proceedings. 6. Based on the history of this matter, if no stay is granted the matter is likely to continue to be adjourned for several times over and above the already 33 adjournments.
The facts deponed to in this application are basically the same as in the constitutional application and will not be repeated here. In response the respondents deponed through Glen Charles, a Sergeant of Police who was the prosecutor in the matter.
He says that the matter came on for hearing for the just time on 7th June 2006 and was adjourned some 40 times thereafter, but that the prosecution has always been ready to proceed in the matter since the fifth hearing.
He says that an examination of the cases involving the claimant showed that there were eight adjournments by prosecution, broken down as follows:–
- 2 to facilitate the testing of the drugs, 1 to facilitate the serving of the certificate, 5 for the unavailability of police officers, 23 adjournments were at the instance of counsel for claimant and his co-accused, 13 on behalf of the claimant, 22 on behalf of the claimant co-accused, the remaining nine adjournments were as a result of the Magistrate being absent or the Court being on recess.
There were 26 adjournments before the trial started on 6th July, 2009, broken down as follows:
- 4 — the matter only be called for mention, 2 — the magistrate was absent, 3 — unavailability of prosecution's witnesses, 2 — to facilitate the testing of the substance, 1 — to facilitate service of analyst certificate, 1 — for the first hearing of the matter, 13 — at the instance of counsel for the accused men
He agrees that the first prosecution witness was led on the 6th July 2009 (some three years after the arrest of the claimant). He depones that the matter was adjourned for the cross-examination of the witness by counsel for the defendants.
He further deposes that ever since that adjournment counsel for the accused have sought further...
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