Brathwaite v Attorney General of Barbados ( an Application for an Order of Mandamus)

• Jurisdiction: Barbados
• Judge: Williams, J.C.,Williams
• Judgment Date: 28 November 1988
• Neutral Citation: BB 1988 HC 82
• Docket Number: No. 145A of 1988
• Court: High Court (Barbados)
• Date: 28 November 1988

High Court. (Civil Jurisdiction)

Williams, C.J.

No. 145A of 1988

Brathwaite

and

Attorney General of Barbados (in the Matter of An Application For An Order of Mandamus)

Appearances:

Dr. Richard Cheltenham in association with Mr. P. Cheltenham and

Miss E. Thompson for the applicant.

Miss M. Clarke for the respondent.

Practice and procedure - Courts — Application for an order of mandamus to compel magistrate to state a case for the opinion of the Divisional Court — Application dismissed.

Williams, J.C.

1 This is an application by Selwyn Brathwaite for an order of mandamus to compel the magistrate for District “F”, Belleplaine, to state a case for the opinion of the Divisional Court. The applicant had requested the magistrate to state a case in an application made by him on November 5th, 1987 pursuant to s.159 of the Magistrate's Jurisdiction and Procedure Act Chapter 116.

2 Affidavits by the applicant and the magistrate are on record. I find the following facts: –

• (1) The applicant was charged with unlawfully beating Fern Roachford on May 27th,1987 contrary to s. 35 (1) of the Offences against the Person Act Chapter 141;

• (2) He was summoned to appear before the court on August 21st, 1987 but when the case was called on that day, Fern Roachford was not present and the case was adjourned to September 11th, 1987:

• (3) The case was started on September 11th and the prosecution closed its case after Fern Roachford, her mother Norma Roachford and one Marcia Devonish had given evidence. Fern, a 9-year-old girl, testified that the applicant was driving a van on Isolation Road, slowed it down, opened the door, got out and slapped her in her face. She felt her face bleeding and it was marked. The applicant, she said, always told her bad things when he saw her. Norma testified that Fern appeared to be scared and showed her a mark in her face and a bruise on the inner side of her mouth and Devonish that on the day in question she saw Fern near a mile tree “dodging about, frightened and crying” and she took her to the Police Station. The applicant, who was unrepresented, gave evidence and was cross-examined. He then indicated that he had 2 witnesses who were not present and requested an adjournment;

• (4) The magistrate was minded to adjourn. The police prosecutor objected to bail on the ground that the applicant was a violent man and there was a likelihood that the offence would be repeated. The court asked the applicant if he had anything to say. The applicant frowned and did not respond. The magistrate adjourned the case to September 18th and remanded the applicant in custody until that date.

• (5) On September 18 Dr. Cheltenham appeared for the applicant and successfully applied for bail which was granted on the applicant's personal recognisance in the sum of $100. The case was adjourned to October 9th and on that date. it was further adjourned to October 16th on which date a witness gave evidence for the applicant, Dr. Cheltenham addressed the court and the applicant was found guilty and fined $24.00 payable in 3 months or one month imprisonment.

• (6) The applicant gave notice of appeal and on November 2nd, 1987 entered into a recognisance to prosecute the appeal.

• (7) On November 5th, 1987 the applicant made the application to the magistrate for a case stated on the following points of law;

  • “(a) whether there was “a fair hearing” within the meaning of section 18 of the Constitution of Barbados having regard to the premature determination of the accused's guilt resulting in his remand to prison for one (1) week prior to the conclusion of the accused's case; and

  • (b) whether the continuation of the case by the same magistrate subsequent to the remand vitiated the conviction which followed.”

3 The magistrate refused to state a case and points out that section 159 of the Act gives the magistrate a discretion whether or not to state a case on the application of a party. The paragraphs of his affidavit which explain his refusal are: –

• “17. A constitutional motion was filed against the Attorney General claiming damages for breach of fundamental rights in this matter.

• 18. The applicant alleges in his constitutional motion that

  • (a) the court acted in a high-handed, arbitrary and oppressive manner;

  • (b) that the remand order was wholly unjustified in a democratic society;

  • (c) the order was made without jurisdiction.

• 19. The allegations are an attack on the integrity of the court …

• 22. In exercising the discretion not to grant the application for case stated the court was minded –

  • (a) that its integrity was being questioned;

  • (b) that it ought not to lend its hand to a...