The Attorney General v Gibson
| Jurisdiction | Barbados |
| Judge | Williams, J.A. |
| Judgment Date | 15 December 2009 |
| Neutral Citation | BB 2009 CA 21 |
| Docket Number | Civil Appeal No. 8 of 2007 |
| Court | Court of Appeal (Barbados) |
| Date | 15 December 2009 |
Court of Appeal
Waterman, J.A.; Williams, J.A.; Mason, J.A.
Civil Appeal No. 8 of 2007
Mr. Wayne A. Clarke and Ms. Deidre Gay for the appellant.
Mr. Larry A. C. Smith, Mr. Ajamu N. K. Boardi and Mrs. Miriam D. White for the respondent.
Constitutional law - Fundamental rights and freedoms — Right to protection of the law — Right to a fair hearing within a reasonable time — Whether accused entitled to be provided with the services of an expert witness of his choosing by the Crown.
Frank Errol Gibson (“Gibson”), the respondent, was charged with murder over seven years ago. He has not yet been tried. At the start of his trial he objected to the prosecution's expert dental witness; he wished to be provided with the facilities of an expert forensic odontologist. He has been trying to have the Attorney-General, the appellant, provide one as his constitutional right for over three years. The Attorney-General has offered to pay a modest sum for the services of an expert. He brought a motion for a declaration, inter alia, that he had a constitutional right to be provided with the financial resources by the state to facilitate the acquisition of the services of an expert forensic odontologist. Blackman J granted the declaration and ordered the state to pay for the expert witness(es). He further ordered that the trial take place by a fixed date. Although there was no stay of execution of the Order it was not complied with. The Attorney-General appealed. The appeal raises important constitutional issues as to the nature of the state's obligation to provide facilities to an accused person in the context of the legitimate requirements of a fair trial.
The events leading up to the appeal have to be recounted in some detail for reasons which will become apparent in the judgment. Between 15 and 16 January 2002 Francine Bolden was murdered in the parish of St. John. On 23 January 2002 Gibson was charged with her murder and remanded in custody. Two and a half years elapsed before evidence was first taken on 9 July 2004 in the preliminary inquiry, according to the affidavit of the magistrate. Nine months later, on 14 March 2005, Gibson was committed to stand trial.
Dr. Victor Eastmond, a registered dental practitioner, gave evidence for the prosecution at the preliminary inquiry. He stated that he had done some training in forensic odontology; he was accepted as an expert witness. The record of appeal does not contain the evidence of Dr. Eastmond given at the preliminary inquiry or any detailed information on the case. It was not made clear by the applicant precisely on what matter the opinion of a defence odontologist was sought. However, the letter dated 3 October 2006 (quoted at paragraph [9] below) from the appellant to Mr. Larry Smith makes reference to “bite marks on the arm of the accused” and our understanding is that the issue is whether or not those bite marks matched the dentition of the deceased.
On 14 July 2005, the trial came on for hearing before Inniss, J. when evidence was led by the prosecution. However, Mr. Michael Lashley, counsel for Gibson, objected to Dr. Eastmond giving evidence as an expert because of his lack of qualifications in odontology. The judge thereafter stopped the trial and traversed it to the October Assizes; but it appears to have been further traversed as it did not come up for hearing again until 6 February 2006.
On 13 January 2006, Mr. Smith wrote to Mr. Charles Leacock Q.C., the Director of Public Prosecutions (“DPP”), referring to Mr. Lashley's recent discussion with the DPP in which the DPP was informed that the defendant was seeking the services of a forensic odontologist to assist in the preparation of his defence. Mr. Smith in his letter requested copies of all radiographs and models taken and done by Dr. Eastmond. The letter further alerted the DPP to the possible need to have the odontologist present to give evidence at the trial on behalf of the defendant and in that event to have his fees and expenses paid. In the circumstances, on 6 February 2006 an adjournment of the trial was requested to a later date. According to Gibson's affidavit, Mr. Smith informed the court that the defendant required the services of the odontologist at the expense of the State because he was in no financial position to pay for such services himself. The DPP responded the same day by facsimile transmission stating that there was no objection to Dr. Eastmond providing the copies as requested and the DPP copied his letter to Dr. Eastmond.
On 6 February 2006, the hearing was adjourned by Blackman, J. without objection. On 22 February 2006, Mr. Smith wrote to the appellant, who by section 72(1) of the Constitution was expressly “assigned the functions of principal legal adviser to the Government”. The letter was as follows:
“Attention: The Hon. Mr. Dale D. Marshall M.P.
I, in association with Mr. Michael Lashley M.P. act on behalf of Mr. Frank Gibson the accused in the matter at caption.
The Crown, in presenting its case at the preliminary inquiry of this matter, adduced evidence in the area of forensic odontology against Mr. Gibson. As at the date hereof, Mr. Lashley and I have been unable to adequately prepare (sic) Mr. Gibson a defence since he has been unable to avail himself of the services of a forensic odontologist to review the Crown's forensic odontology evidence. Mr. Lashley and I are of the view that the acquisition of the services of a forensic odontologist to review the Crown's evidence and prepare for trial is necessary in this matter.
However, this matter is being funded by the Community Legal Services Commission (Legal Aid), since Mr. Gibson is unable to afford to pay for legal services. As such, in order to obtain the services of a forensic odontologist, Mr. Gibson will require financial assistance. A check with personnel at Legal Aid, and a review of the relevant legislation has indicated that the funding necessary to acquire these services for Mr. Gibson is not provided for by Legal Aid.
In our submission, the justice of this case, particularly being of a capital nature, requires that Mr. Gibson be afforded all that is necessary in order to properly defend himself.
In these circumstances, a request is hereby made for the funding necessary to acquire the services of a forensic odontologist to be paid for by the Government of Barbados.
I look forward to hearing from you.”
There was no reply to the letter and on 9 May 2006 Mr. Smith wrote another letter as follows:
“Attention: The Hon. Mr. Dale D. Marshall M.P.
I refer to my letter dated February 22, 2006 with respect to the captioned matter.
As at the date hereof, I am yet to receive a response to the request on behalf of Mr. Frank Gibson made in my letter under reference on behalf of Frank Gibson for the Crown to pay for the services of a Forensic Odontologist to assist him in the preparation of his defence.
Mr. Gibson is presently on remand at Her Majesty's Prison located at Harrison's Point, St. Lucy awaiting trial. The commencement of his trial has been hampered by his inability to acquire the services of a Forensic Odontologist. In the circumstances, both Mr. Michael Lashley M.P., Attorney-at-Law and I are willing to meet with you at a time convenient to you to discuss a way forward in this matter.
I look forward to hearing from you at your soonest.”
There was again no reply to the letter and on 6 September 2006 Mr. Smith wrote a third letter as follows:
“Attention: The Hon. Mr. Dale D. Marshall Q.C., M.P.
I refer to my letters dated February 22 and May 9, 2006 with respect to the captioned matter and to which I am yet to receive a reply.
As indicated in my letters under reference, in order for Mr. Frank Gibson to adequately prepare his defence he requires the facility of the services of a Forensic Odontologist to be afforded him, pursuant to section 18 (c) of the Barbados Constitution.
This matter is now one of the utmost urgency, since Mr. Gibson remains on remand and this matter [is] in abeyance. In the circumstances, both Mr. Lashley and I remain amenable to meeting with you at a time which is convenient for you to discuss a way forward in this matter.
I look forward to hearing from you at your soonest.”
On 3 October 2006, the Permanent Secretary in the appellant's office replied to the above letter as follows:
“In reference to your letter of September 6, 2006 on the matter indicated above. I wish to inform you that this Office will meet the cost of BDS $2,000 for the services of a Forensic Odontologist to review the evidence of the Prosecution, namely the report of Dr. Eastmond, models of dentures of the deceased and photograph (sic) of bite marks on the arm of the accused. It is expected that any reports obtained for this purpose must be made available both to the Crown and Defence.
I wish to apologise for the delay in responding to your query, which was occasioned by matters beyond our control.
I would be grateful if you would indicate where payment should be made and in what form.”
The correspondence between Mr. Smith and the appellant therefore reveals that Mr. Smith requested as his client's constitutional right the services of a forensic odontologist to review the prosecution's evidence and to assist in the preparation of the defence. No specific sum of money was requested. The appellant did not deny the constitutional basis of the respondent's claim to funding for the expert. The appellant acknowledged its constitutional obligation but offered merely an ex gratia payment of $2,000 for the services of a forensic odontologist to review the prosecution's evidence and to report. The sum offered does not appear to have been related to any information on the cost of providing adequate facilities for the respondent in terms of his...
To continue reading
Request your trial