R v Pascall et Al

• Jurisdiction: Grenada
• Judge: Patterson, J.
• Judgment Date: 22 June 1983
• Neutral Citation: GD 1983 HC 7
• Court: High Court (Grenada)
• Date: 22 June 1983
• Docket Number: No. 60 of 1982

High Court

Patterson, J.

No. 60 of 1982

R.

and

Pascall et al

Appearances:

Mr. Langston Sibblies for the Crown.

Mr. Ernest John for accused Isaac James and Denzil Richardson.

Michael Andrew for accused Richard Pascall, Jimmy Julien, Annas Pascall and Matthew Pascall and Catherine Pascall

Practice and procedure - Criminal proceedings — Preliminary inquiry — Purpose — Breaches of Criminal Proceedings (Preliminary Inquiry) Act — Proceedings declared a nullity.

Patterson, J.

1 The accused have been charged under various sections of the Terrorism (Prevention) Law, 1980 alleging various offences under the said Act. A preliminary inquiry was embarked upon and the accused were all committed for trial by the presiding magistrate on the 9th day of February 1982. A consequence of that committal was the appearance of the said accused before this Court on Wednesday 15th June 1983.

2 Prior to their arraignment, submissions in limine were invited by the court, since there appeared to be certain obvious defects on the face of the record. However, Mr. John for two of the accused, Isaac James and Denzil Richardson and Mr. Andrew for the other four accused submitted that the Terrorism (Prevention) Law No. 46 of 1980 which was purported to have been made under People's Law No. 10 of 1979 is a nullity. This was substantially the same point argued in the case of The Queen v. Grace Augustine and others, Suit No. 34 of 1982in the High Court of Grenada. Having listened with care to counsel on both sides, I have no hesitation in finding that their submission is without merit. The arguments raised in this Court collide violently with some hallowed principles of constitutional and international law. In view of my ruling to follow, that submission is dismissed without my giving full reasons for so doing.

3 The court after hearing arguments on the above submission invited Crown Counsel to state whether sections 2(1)(a) 3(1)(c) and (3) (3)(c) of the Criminal Procedure (Preliminary Inquiries) Act 1978 have been complied with. Counsel for the Crown candidly admitted that, from the record, it appear, that the above sections were not complied with but, having himself appeared in the court below, he knew as a fact that they were. The court then ordered the filing of affidavits and the matter was adjourned to Monday 20 ^th June, 1983. At the resumption on the 20th June, 1983, an affidavit was submitted. The magistrate's note books were also produced.

4 Paragraph 2 of the said affidavit states this:

“The said Inquiry was held and conducted in accordance and compliance with the provisions of section 16 of the Terrorism Prevention) Law 1980.”

5 Paragraph 5 of the schedule of that law excludes the operation of sections 3(2)(d) and 3(4) of the Crime Procedure (Preliminary Inquiries) Act, 1978 leaving the other provisions of that Act intact.

6 Paragraph 3 of the affidavit avers that all the accused were represented at the trial yet there is no note of this in the record.

7 Paragraph 4 of the affidavit avers that both prosecution and defence counsel admitted that the statements “had been served on the defence not less than two clear days prior to the date on which it was proposed to tender the particular statement.” No note to this effect appears anywhere on the record.

8 Paragraph 6 of the affidavit avers that “no case submissions” were made. Nothing appears in the record. The court called for and was shown the magistrate's note books. Nothing in these books verify the assertions mentioned in the affidavit except that the names of counsel appeared as representing the accused in one or two entries. I want to make it quite clear that nothing I say must be construed as impugning the integrity of the learned magistrate. In fact, he took no notes of the trial as we understand note taking to be, so he must have sworn to the affidavit with the honest intention that to the best of his knowledge, information and belief what he said was true.

9 It is clear to me that the conduct of the enquiry must be based on the provisions of the Criminal Procedure (Preliminary Inquiries) Act, 1978 as amended by the relevant sections of the Terrorism Prevention Law No. 46 of 1980. So says section 16 of the Terrorism (Prevention) Law which reads:

“The provisions of the Criminal Procedure (Preliminary Inquiries) Act, 1973 as modified by the Schedule to this Law shall apply to preliminary inquiries into this Law.”

10 Counsel for the Crown declares that the provisions of the Terrorism (Prevention) Law as amended effectively precludes a conventional preliminary inquiry. This cannot be an intelligent interpretation of the Terrorism (Prevention) Law, 1980 when paragraph 1 of the Schedule specifically preserves the operation of the Criminal Procedure (Preliminary Inquiries) Act, 1978 which mandates a conventional preliminary inquiry in certain cases.

11 Counsel for the Crown agrees that under the procedure as he conceives it, the defence can call witnesses and have them cross-examined but witnesses for the prosecution cannot be called. The magistrate, he insists, must consider the whole evidence and rule on a prima facie case. The whole evidence, he contends, means only the evidence allowed as above, that is, all the evidence excluding sworn testimony of prosecution witnesses. This is manifestly unfair and cannot be the intention of the relevant Acts.

12 Committal proceedings are an integral part of the “prosecution process” in Grenada. It is a judicial enquiry conducted by a magistrate to determine whether the evidence adduced by the prosecution to establish a charge against an accused is sufficient to prove the constituent elements of the offence charged or whether the quality of the evidence is such that, if it could not be contradicted at...