Arden Blackman v The Attorney-General

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 16 December 2020
• Neutral Citation: BB 2020 HC 072
• Docket Number: Civil Suit No: 1379 of 2014
• Court: High Court (Barbados)

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before:

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Civil Suit No: 1379 of 2014

Between:

Arden Blackman

Claimant

and

The Attorney-General

First Respondent

The Magistrate District ‘A’

Second Respondent

Appearances:

Mr. Hal Gollop QC for the Claimant.

Mr. Jared Richards in association with Ms. Nicole Boyce for the Respondents.

Judicial Review — Committal Proceedings — Right to Cross-examine Prosecution Witnesses — Refusal of Request to Recall Witnesses for Cross-examination — Whether Breach of Natural Justice .

DECISION

Introduction

1 The Claimant, Arden Blackman, was in June, 2014, committed to stand trial for an offence under the Sexual Offences Act, Cap. 154 of the Laws of Barbados. In September, 2014 the Claimant commenced proceedings for judicial review arising from that committal, against the Attorney-General as legal representative of the Government, and the judicial officer who committed him, the Magistrate of District A, Barbados (‘the Magistrate). It suffices to say at this juncture, that the Claimant's complaint in relation to his committal is that his Attorney-at-law was denied the opportunity to cross-examine the Prosecution's witnesses. The claim for judicial review targets the Magistrate's refusal to recall prosecution witnesses after the Claimant had been committed, in order for them to be cross examined.

2 The orders sought on review are (i) a declaration that the denial of the opportunity to cross examine was inter alia, unreasonable, an improper exercise of discretion, an act of bad faith; and a breach of natural justice; (ii) an order of certiorari to quash the decision of the Magistrate which denied the Claimant the opportunity to cross examine; (iii) an order of mandamus to compel the re-opening of the Preliminary Inquiry (PI), to afford the Claimant his right to cross examine the witnesses; (iv) damages, costs and interest.

There Application lists seven (7) grounds of review, ranging from abuse of power, ultra vires, unreasonableness and a breach of natural justice. The Claim for review is resisted primarily on the basis that the procedure at the Preliminary Inquiry was conducted fairly and in accordance with the right to a fair hearing as guaranteed by section 18 of the Constitution.

Background

3 The basic facts of this matter are not in dispute, however there are aspects of the parties' respective accounts of what transpired at the PI, which require the Court to resolve and make findings of fact. The evidence at the hearing of the Application for Review comprised four (4) witnesses, namely the Claimant on his own behalf; and for the Respondents, two police prosecutors involved in the PI – Sgts EG and JI, and former Magistrate DH who conducted the proceedings. Save for Sgt. EG, there was no cross examination of witnesses thus their affidavit evidence stood unchallenged. To the extent that there were any material facts in dispute, the Court is therefore at liberty to accept or reject facts from the unchallenged affidavits, and will specifically highlight those findings below. The evidence on the respective cases can be summarised as set out below.

The Claimant's Case

• (i) In March, 2010 the Claimant was charged with an offence under the Sexual Offences Act and was represented by an Attorney-at-Law in the conduct of his Preliminary Inquiry (PI). The Claimant received bail and his case was adjourned to May, 2010. The Claimant lists eleven (11) further adjourned dates between May, 2010 and March 2014, on which days he says no evidence was taken and the Complainant was absent for most of those dates. The Claimant also avers that the numerous adjournments were occasioned as his Attorney had not received his disclosure (of witness statements);

• (ii) Paragraphs 7 through 11 of the Claimant's affidavit are best extracted verbatim:-

  “7. My Attorney became ill towards the end of September, 2013 and was hospitalised. Sometime after his return to work, he told me that Coreen Hinkson had given her evidence in his absence however the Prosecuting Sergeant had advised him that they would be willing to have her recalled for cross-examination.

  8. The case came on for hearing 13 June 2014. However my Attorney was not in attendance at Court and I was unaware of the reason for his absence.

  9. On 20 June 2014, the case came on for hearing and the Magistrate expressed that she was prepared to commit me to stand trial in the Assizes.

  10. My Attorney reminded the Court of the promise made previously to him that the witness would be brought back for cross-examination and requested that it be done in accordance with my right to a fair hearing under the law.

  11. The Magistrate expressly refused the request made by my Attorney and maintained her position to commit me. In the process, she told my Attorney, “you could do what you have to do” when he suggested that he would seek Judicial review of the matter.

• (iii) By way of evidence, the Claimant sought also to rely on two letters, one written shortly after his committal in June, 2014 by his Attorney to the Director of Public Prosecutions (‘the DPP’); and the response thereto returned to his Attorney by the DPP, in August, 2014. These letters were appended to, but were not addressed in the Claimant's affidavit. Instead, the letters were referred to in the Statement of Particulars signed by Queen's Counsel for the Claimant, which accompanied the Fixed Date Claim.

• (iv) For now, it can be stated that the purpose of those letters was to illustrate that the Claimant's Attorney, shortly after the committal, wrote to the DPP requesting that the hearing be re-opened to facilitate the cross-examination of the Prosecution's witnesses. The letter in response from the DPP declined to do so. Queen's Counsel for the Claimant's specific complaint in relation to that response is that it conveyed that a re-opening of the PI was unrealistic in light of the fact that the then Magistrate had been elevated from the Magistracy.

The Respondents' Case

4 The first affidavit filed in response to the Claim was that of the former Magistrate, DH who gave an account of the proceedings from the court's record, summarised as follows:-

• (i) The Claimant's first appearance before former Magistrate DH was on 6 ^th April, 2011, at which time he was represented by his Attorney-at-Law, (who remains in such capacity in the instant proceedings). Said Attorney-at-Law informed the court that he had received disclosure (of the Prosecution's witness statements);

• (ii) According to the record, aside from the final date on which the matter was called in June, 2014, the Claimant's Attorney appeared in the matter only on three (3) occasions - specifically the 6 ^th April, 2011, 20 ^th December, 2011 and 5 ^th June, 2012. The court received no communications in connection with his absences and as a consequence, former Magistrate DH states that the Claimant was reissued with his disclosure on the 18 ^th April, 2013 so as to expedite the matter. It is also stated that the former Magistrate DH from time to time enquired of the Claimant whether he was still represented by his Attorney and received responses in the affirmative, but the Claimant was unable to say why his Attorney was not attending the proceedings;

• (iii) The Complainant gave evidence in the absence of the Claimant's Attorney and former Magistrate DH says that she indicated to the Claimant that ‘should his attorney make a request to have her [the Complainant] recalled for cross-examination that this would be allowed.’ The Complainant however had given evidence one year prior to the Claimant's committal and no request had been made to the court for her recall;

• (iv) The record of the proceedings shows a total of 15 adjourned dates of hearing from the 6 ^th April, 2011 (when the Claimant first appeared before the former Magistrate DH) to the last scheduled date on the 20 ^th June, 2014. The Claimant's Attorney's attendance on the last date of 20 ^th June, 2014 amounted to two (2) years from his last appearance in June, 2012;

• (v) In relation to the witnesses, the Complainant gave evidence on the 13 ^th June, 2013; a second witness DC on the 7 ^th February, 2014; police constable MS on the 9 ^th May, 2014; and police constable B on the 13 ^th June, 2014. On those days when the evidence of witnesses was taken, the former Magistrate DH says that the Claimant was afforded the opportunity to put questions to the witnesses, and was given assistance in so doing, in light of the absence of his counsel;

• (vi) Insofar as the Claimant speaks to his Attorney's illness preventing said Attorney from attending Court in September, 2013, former Magistrate DH depones that the Complainant's evidence taken in June, 2013, was before that period of illness. Further, that the Claimant was present in court and was as such aware that the Complainant had given evidence, contrary to the impression the Claimant seeks to give in paragraph 7 of his affidavit in support of his Application for Judicial Review;

• (vii) On the 13 ^th June, 2014 there was another matter before the Court in which the Claimant's Attorney was involved and the former Magistrate DH learned from co-counsel appearing in that case, that the Claimant's Attorney was out of the island. There was no appearance entered by counsel in that matter on behalf of the Claimant. The Claimant was in fact committed to stand trial on that day, in the absence of his Attorney. However the Claimant's surety was absent and the case was adjourned to the 20 ^th June, 2014 for purposes of enabling the Claimant's surety to re-sign his bail and to be made aware of his duty given that the Claimant had been committed;

• (viii) On the 20 ^th June, 2014 the Claimant's Attorney attended. The former Magistrate DH however says she made no statements regarding her intention to commit the Claimant,...