Francis and Quimby v The Queen
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 30 March 2007 |
| Neutral Citation | BB 2007 CA 12 |
| Court | Court of Appeal (Barbados) |
| Date | 30 March 2007 |
| Docket Number | Criminal Appeal Nos. 8 and 10 of 2005 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Connell, J.A.
Criminal Appeal Nos. 8 and 10 of 2005
Mr. Tariq Khan and Mr. Bryan Weekes for the appellant Francis.
Appellant Junior Quimby in person.
Mr. Alliston Seale for the respondent.
Constitutional law - Fundamental rights and freedoms — Right to a fair hearing — S. 18(2)(c) of Constitution — Unrepresented appellants — Pre-trial disclosure — Guidelines for appropriate disclosure — Requested materials not linked with any aspect of trial — No prejudice demonstrated — Application for disclosure denied.
Criminal practice and procedure - Pre-trial disclosure — Guidelines for appropriate disclosure — Requested materials not linked with any aspect of trial — No prejudice demonstrated — Application for disclosure denied.
On 27 November 2006 we granted the appellants (Francis and Quimby) leave to appeal against their convictions and sentences. They had been jointly charged with theft of a motor car belonging to Rhonica Hinds on 3 December 2001. Quimby was also separately charged with handling the motor car, knowing or believing it to have been stolen. They were convicted before Greenidge, J., and a jury on 7 February 2005 and sentenced on 11 March as follows: Francis, 6 years' imprisonment; Quimby, 7 years' imprisonment. We dismissed Quimby's appeal against conviction but allowed his appeal against sentence, reducing the term to 4 years. Thereafter, we heard argument from Mr. Khan and Mr. Seale on a preliminary point taken by Mr. Khan that Francis's right to a fair hearing had been violated on the ground that he “had no pre-trial disclosure”. We reserved our decision since Mr. Khan's application for pre-trial disclosure raises important questions of law and practice in this jurisdiction.
At their trial, Francis and Quimby were unrepresented. They were in possession of the depositions taken at the preliminary inquiry into the charges. Neither appellant applied for disclosure of relevant materials in the possession of the prosecuting authorities. The trial proceeded in accordance with accepted practice. Each appellant cross-examined the prosecution witnesses. Francis requested a voir dire to test the admissibility of a written statement given to Sgt. 131 Catwell. He alleged that he had been beaten to sign the statement. The trial judge heard evidence on the voir dire and ruled that the statement was admissible. After the close of the prosecution case, Francis and Quimby elected to give sworn evidence. Francis called 4 witnesses including his co-accused, Quimby. They both addressed the jury.
Ground 6 of Francis' grounds of appeal alleges that he was deprived of his constitutional right to a fair trial under s.18 of the Constitution because he “had no pre-trial disclosure”. Mr. Khan raised the issue of pre-trial disclosure in this way. In a letter of 7 November 2006 written to the Deputy Registrar, Mr. Khan requested that:
“an additional two items be added to the settling of the record in the instant appeal. These items comprise the pre-trial disclosure and the depositions submitted for the purpose of the preliminary inquiry in the instant case.”
Then, without leave of this Court, he filed an affidavit on 15 November 2006 in which Francis deposed, without more, and in a single paragraph:
“1. That during the course of the preliminary inquiry held by the Magistrate, I was never provided with or have since been provided with full pre-trial disclosure relating to the matter currently under appeal.”
Counsel produced to us correspondence passing between Mr. Khan and the substantive Director of Public Prosecutions and/or Mr. Seale on behalf of the Director as follows in paras. [4] and [5].
On 10 November 2006, Mr. Khan wrote to the Director (copying Mr. Seale):
“Dear Director,
Re: Criminal Appeal No.10 of 2005 Julian Oscar Francis v. The Queen
You will be aware that Mr. Alliston Seale and I met with the Deputy Registrar to settle the record on October 30, 2006.
At the meeting I recall that I asked for copies of the pre-trial disclosure that should have been provided to the Accused at the PI stage. This is particularly critical as the appellant was unrepresented at both the PI and the High Court Trial.
I formally wrote the Registrar on November 7 asking that pre-trial disclosure be included as part of the record for the appeal. I was contacted by Mr. Seale today who advised me that he would be objecting to its inclusion in the record.
I am grateful that he sought to warn me in advance of his objection. I also understand that the Registrar intends to call all parties together to finalise the record in this matter.
In the meantime and notwithstanding the above, I must now ask for the pre-trial disclosure.
Yours sincerely M. Tariq Khan”
On 16 November 2006 Mr. Seale replied to Mr. Khan:
“ Re: Julian Francis v. The Owen Appeal No.10 & 8
Pursuant to the Court of Appeal decision in Dib Camille El. Habre v. The Queen we wish to inform that requests for disclosure are satisfied by the preliminary inquiry. All witnesses upon whom the prosecution intended to rely, gave evidence at the preliminary enquiry hence the defence had adequate opportunity for cross-examination. These depositions were recorded and the accused was furnished with a copy.
Nothing by way of unused material remains in the possession of the Department of Public Prosecutions since the matter has long been concluded and all police files have been returned to the Police Department.
Alliston Seale
Senior Crown Counsel (Ag.)
For Director of Public Prosecutions”
Thereafter, on 22 November 2006 Mr. Khan wrote to Mr. Seale in the following terms:
“Dear Mr. Seale
Re: Criminal Appeal No.10 of 2005 Julian Oscar Francis v. The Queen
I refer to your letter dated November 16, 2006 received at chambers today which is in response to my formal request for pm trial disclosure made to the Director on November 10.
You have cited Dib Camille El Habre v. The Queen as authority for your contention that the request of disclosure was satisfied by the preliminary inquiry. You are aware that the appellant has deposed in his affidavit that he did not receive pre trial disclosure at the preliminary inquiry or any time thereafter. I have pulled the case Dib Camille El Habre v. The Queen a copy of which I have enclosed for your perusal and am hard put to find the authority upon which you base your response. Please advise or guide me if this is the case you refer to or direct me to the case which acts as the authority for your contention.
Notwithstanding the above, your response with regard to unused material being returned to the Police Department is wholly unsatisfactory and I am aware that it is within the gift of the Director of Public Prosecutions to retrieve such information if he desires.
Accordingly, I wish to put you on notice that if I do not receive the pre trial disclosure I requested on November 10 by Friday November 24, I shall make an application for pre trial disclosure to the Court of Appeal on the date of hearing and will seek an adjournment to properly consider the pre trial disclosure with regard to the prosecution of the appeal.
Yours faithfully
M. Tariq Khan
Attorney-at-Law”
Mr. Khan advanced three arguments before us. First, he submitted that every person, whether represented or not, has a right to be provided with “pre-trial disclosure as a matter of course”. There is a common law duty on the part of the prosecution to provide “pre-trial disclosure”. Secondly, the prosecution must prepare a bundle of materials and hand them over to an accused in accordance with its common law duty. Thirdly, pre-trial disclosure materials include all witness statements, evidence of oral admissions, evidence proving the existence of documents which may have been used at the preliminary inquiry; evidence which may have been obtained but was not used; and “any reference to station diaries and police notebooks which may have been used”.
Mr. Seale, for the respondent, accepted the proposition that accused persons should be supplied with pre-trial disclosure but submitted that disclosure should be on request to the appropriate person, namely, the Commissioner of Police. He explained that when requests are made of the Director of Public Prosecutions, the latter will write to the Commissioner requesting copies of the materials to be disclosed. These are then forwarded to counsel. Above all else, Mr. Seale opposed the present application to the Court of Appeal on the ground of its lateness. Both counsel suggested that this Court should set out guidelines relating to disclosure at common law and we shall endeavour to do so later in this decision.
The legal position regarding disclosure of materials in the possession of the prosecuting authorities in Barbados rests upon common law principles, a Practice Direction handed down by the then Chief Justice, Sir Denys Williams, in the Court of Appeal on 29 July 1988 and “Guidance on pre-trial disclosure in Paper Committals” issued by the Director of Public Prosecutions, Mr. Charles Leacock Q.C. on 19 January 1996 (DPP's Guidance). On the other hand, in England, these matters are now governed principally by the Criminal Procedure and Investigations Act, 1996. The Court of Appeal of Barbados has, twice before the present appeal, considered aspects of the law of disclosure in criminal cases – see, Richard Bourne v. R. (1998) 56 W.I.R. 95 and Dib Camille el Habre ( Criminal Appeal No.72 of 1994, unreported decision of 7 July 2000).
In Bourne (a remission of a petition from the Judicial Committee of the Privy Council (JCPC) to the Court of Appeal), the Court of Appeal upheld a submission by counsel for Bourne that the defence had been prejudiced by the Crown's failure to...
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