Nurse v Cooke et Al

• Jurisdiction: Barbados
• Judge: Blackman, J.
• Judgment Date: 29 March 2004
• Neutral Citation: BB 2004 HC 7
• Docket Number: 117 of 2004
• Court: High Court (Barbados)
• Date: 29 March 2004

High Court

Blackman, J.

117 of 2004

Nurse

and

Cooke et al

Appearances:

Dr. Richard L. Cheltenham Q.C. and Miss Verla Depeiza for the applicant.

Mr. Elson Gaskin, Principal Crown counsel and Miss Anika. Jackson, Crown counsel, for the first respondent.

Mr. Charles Leacock Q.C and Mr. Eli Edwards, Principal Crown Counsel, for the second respondent.

Administrative Law - Application for judicial review — Murder — Whether the committal for murder rather than manslaughter was an error — Whether the committal should be set aside as a nullity — Applicant's motion dismissed.

1. BACKGROUND

Blackman, J.

1 Shane Omar Nurse, the applicant of Ruby Tenantry, St. Philip, was charged on the 14th day of January, 2001 with the murder of Medford Ince, also known as “Ninja Man”. The Preliminary Inquiry into the killing was conducted by Ms. Barbara Cooke, the Magistrate for District “C”, the first respondent in this matter, and at the conclusion of the Preliminary Inquiry on the 18th day of December, 2002, the magistrate, announced in open Court in the presence of counsel for the applicant and the Police Prosecutor, that she was committing the applicant to stand trial at the next Assizes for the offence of Manslaughter. The applicant was granted bail by the High Court on the 23rd day of December and remained on bail until the 5th day of March, 2003 when he appeared before The Honourable Mr. Justice Sherman Moore on the charge of murder. The Director of Public Prosecutions then applied for a traversal of the case until the April Assizes.

2 The following extracts from the affidavit of Miss Verla Depeiza filed on the 23rd day of January, 2004 in support of the applicant's application succinctly chronicle the events that have led to this hearing.

• “11. This matter was thereafter twice traversed and did not come on for hearing again until late in the Assizes of October 2003.

• 12. On or about the 25th day of November 2003 the substantive matter came on for hearing before Mr. Justice LeRoy Inniss. Dr. Richard Cheltenham, Q.C. appeared on behalf of the applicant in association with Mr. Aidan Rogers, attorney-at-law and me, while Mr. Eli Edwards, Crown counsel, prosecuted on behalf of the Crown.

• 13. On the opening day of the trial, there was a break following the empanelling of the jury and Dr. Cheltenham, who did not appear for the applicant at the preliminary inquiry, was reminded by me that the first respondent had committed the applicant to face the charge of manslaughter. Nowhere in the record of the proceedings at the Magistrate Court, however, does the committal for manslaughter appear.

• 14. Thereafter, defence counsel in the company of prosecuting counsel approached Mr. Justice Inniss in Chambers.

• 15. Mr. Edwards, too, was unaware of what had taken place at the Magistrate's Court or subsequently in relation to this matter. He undertook to investigate the matter by the next morning. In the meanwhile, the jury was recalled after the break and the matter adjourned until the next day.

• 16. On the following day Dr. Cheltenham, Q.C. in the absence of the jury addressed the Court and recited the history of the matter and in particular drew what he described as “a fundamental irregularity” formally to the attention of the Court. Mr. Edwards, too, addressed the Court and confirmed that the magistrate had decided to and announced a committal of the applicant to stand trial for manslaughter and not murder. Dr. Cheltenham urged the Court to dismiss the jury which it did and so provide the defence with an opportunity to test before the High Court the propriety and legality of the committal in this case.

• 17. Mr. Edwards in response argued that notwithstanding the fact that the magistrate had decided to commit the applicant for manslaughter and had so announced, the second respondent possesses wide constitutional powers to decide which charges to bring against an accused. He contended further that all the prosecution is required to do at the preliminary inquiry stage is to prove a prima facie case and may have unused material which could well be used at trial. He confessed, though, that he was not prepared to argue the merits of the point at this stage.

• 18. Without hearing arguments on the merits of the issue, Mr. Justice Inniss discharged the jury to grant the applicant the opportunity to challenge the propriety/legality of the actions of the first and second respondents by way of judicial review.”

3 The first respondent in her Affidavit filed on the 12th day of March, 2004 deposed (inter alia) that

• “5. On the 18 day of December 2002, I gave my decision on the no case submission and orally informed the Court that a prima facie case had been established for manslaughter and that I would commit the applicant to the January 2003 Assizes on a charge of manslaughter.

• 6. I denied a subsequent application for bail on the basis that the proximity of the applicant's residence to that of the family of the deceased may have proven problematic.

• 7. The warrant of committal in relation to the applicant ought to have reflected that the applicant was committed to stand trial for manslaughter and if the said warrant indicates otherwise, that is an error.

• 8. I make this Affidavit for the purpose of assisting the Court as far as the factual circumstances of the applicant's committal is concerned.”

4 On January 23rd, 2004 the applicant, by Notice of Originating Motion instituted these proceedings, and sought the following relief:

• (a) an Order of Certiorari quashing the warrant of committal for the offence of murder issued against the applicant on the 18th day of December 2002 by the first respondent in a preliminary inquiry into the alleged murder of Medford Ince, also known as Ninja Man;

• (b) an Order of Certiorari quashing the indictment for murder signed by the second respondent;

• (c) a Declaration that the applicant cannot properly or validly be made to stand trial upon the said indictment;

• (d) an Order of Mandamus requiring the first respondent to sign a warrant of committal in accordance with her findings;

• (e) Such further or other relief as the Court deems just;

• (f) Costs.”

5 In the course of the hearing of the application, counsel for the applicant abandoned the relief sought with respect to the Order for Mandamus.

6 The grounds on which the said relief was sought are:

• (a) The first respondent having heard evidence at the preliminary inquiry decided and announced that the applicant was to be committed to stand trial for the offence of manslaughter;

• (b) The first respondent wrongly issued and signed a committal for murder having decided to commit for manslaughter thereby making a committal which was a nullity;

• (c) The second respondent was not entitled to sign an indictment in pursuance of a committal which was a nullity;

• (d) A material irregularity occurred to the prejudice of the applicant when he was unlawfully committed for murder;

• (e) The applicant was denied natural justice because the second respondent did not have the benefit of the knowledge of a committal for manslaughter which was in fact the offence for which the first respondent (had) decided to commit the applicant for trial;

• (f) The second respondent was denied the benefit of the conclusion of the first respondent, a Judicial Officer, who heard the evidence, saw all of the witnesses including witnesses for the defence and concluded that the applicant could not be tried for murder but ought to be committed to stand trial for manslaughter;

• (g) The first respondent was in breach of her legal duty when she issued a committal for murder having decided and announced to counsel in open Court that the Committal was to be for manslaughter.”

THE APPLICANT's CASE

7 Dr. Cheltenham, counsel for the applicant, submitted that the action of the first respondent in sending, a Committal for murder rather than manslaughter to the Director of Public Prosecutions was an error so egregious, that the committal should be set aside as a nullity. He further contended that the Director was entitled to have before him the accurate opinion of the magistrate, a trained lawyer and judicial officer, who had had the privileged position of seeing and hearing all the witnesses for the prosecution and the defence before coming to her considered opinion, that a prima facie case had been made...