Ward v R

• Jurisdiction: Barbados
• Judge: Williams, J.A.,Moore, J.A.
• Judgment Date: 13 July 2006
• Neutral Citation: BB 2006 CA 21
• Docket Number: Criminal Appeal No. 47 of 2004
• Court: Court of Appeal (Barbados)
• Date: 13 July 2006

Court of Appeal

Williams, J.A.; Connell, J.A.; Moore, J.A.

Criminal Appeal No. 47 of 2004

Ward

and

R.

Appearances:

Mrs. Angella Mitchell-Gittens for the appellant

Mr. Douglas Frederick for the respondent

Constitutional law - Fundamental rights and freedoms — Breach of right to a fair hearing — s. 18(2)(d) of Constitution — Whether appellant's right to a fair hearing was breached by proceeding with the trial in the absence of his counsel — Underlying issues existed which appellant did not understand — Right required that a party have a reasonable opportunity to present its case — Appellant was prejudiced and disadvantaged by the absence of legal representation — Appellant not afforded a fair hearing — Conviction quashed — retrial ordered.

Evidence - Depositions — Witness unavailable at trial — Depositions from preliminary inquiry read into evidence — Whether depositions were properly read in as evidence — Explanation for absence of witness should be given — Content of deposition should be scrutinized by trial judge to determine whether or not it should be excluded — Warning should have been given to the jury on the correct approach in considering the evidence.

Williams, J.A.

I. INTRODUCTION

1 The issue in this appeal is whether the appellant was deprived of a fair trial. We have to consider whether he was denied his fundamental right under section 18(2)(d) of the Constitution to defend himself by a legal representative as a result of his trial proceeding without defence counsel and whether he was afforded a fair hearing within the meaning of section 18(1) of the Constitution.

2 On 15th October, 2004, the appellant was convicted of having unlawfully and maliciously engaged in conduct on 3rd April, 2002, which placed Curtis Seale (Seale) in danger of death or serious bodily harm contrary to section 19 of the Offences Against the Person Act, Cap. 141 (the Act). He was also convicted of unlawfully and maliciously wounding Seale on the same date, contrary to section 14 of the Act. Kentish, J. sentenced him to 13 years imprisonment on the first count and 4 years' imprisonment on the second count, the sentences to run concurrently.

II. FACTS

3 On the 3rd April, 2002, Seale was shot. He was examined at the Queen Elizabeth Hospital and found to have an entry wound in his abdomen, but no exit wound. On the following day, he was taken to surgery where “a through and through perforation of his transverse colon and of the duodenum” was found and a small bleeding injury to his liver. The surgeon was unable to recover the bullet. The medical evidence was that because of the primary injury and subsequent surgery, Seale is at risk of chronic abdominal pain.

4 Prior to being shot, Seale travelled with his girlfriend on a minivan from his home in Black Rock to Bridgetown. While on the minivan an argument ensued with the appellant over the seat in which he was sitting. When the minivan arrived in Bridgetown, he escorted his girlfriend to Fairchild Street, where she took a bus to St. Philip and he took a minivan to return home. The appellant boarded the same minivan and after Seale alighted and walked some distance, the appellant allegedly shot him and ran.

5 When asked by the police to account for his whereabouts on 3rd April, 2002, the appellant is alleged to have said, “I can't remember where I was or what I was doing”. When asked if he was on a route taxi on that night, he is alleged to have replied, “I does work minivan but I can't remember where I was”. At his trial he raised the defence of alibi and he made the following unsworn statement from the dock:

“On the 3rd April, 2002, I visited Joy-Ann Newton at her home in Nurse Land — 2nd Avenue, Nurse Land, Tweedside Road, St. Michael. I got there around 7:15 a.m. and was there for the whole day. She told me that she wanted me to help her pack some things and to clean up 'round the house because she was moving. As time got away, I decided to sleep over that night. That's it, Ma'am.”

The appellant's unsworn statement was supported by the sworn evidence of Joy-Ann Newton.

III. GROUNDS OF APPEAL

6 The amended grounds of appeal are:

It is only necessary for us to consider the second ground of appeal.

• 1 The learned trial judge did not properly and adequately direct the jury on the defence of alibi.

• 2 The learned trial judge erred in Law when she allowed the trial to proceed in the absence of the applicant's attorney (affidavit from attorney-at-law Andrew O.G. Pilgrim is annexed).

• 3 The learned trial judge did not properly and adequately deal with the issue of identification.

• 4 The verdict is unsafe and unsatisfactory.

• 5 The sentence is excessive.”

IV. ABSENCE OF LEGAL REPRESENTATIVE

(a) Section 18(2)(d) of the Constitution

7 Section 18(2)(d) provides:

“18.(2) Every person who is charged with a criminal offence -

• (d) shall be permitted to defend himself before the court in person or by a legal representative of his own choice…”

It is important that we determine whether on the facts there was a breach of the appellant's constitutional right to defend himself by a legal representative.

(b) Mr. Pilgrim's affidavit

8 Mr. Andrew Pilgrim, attorney-at-law, in association with Mr. Tennyson Vaughn represented the appellant at the preliminary inquiry in the Magistrate's Court and Mr. Marion Gordon held papers for Mr. Pilgrim when the medical evidence was given. However, Mr. Pilgrim also attended the Plea and Directions hearing. In support of this ground of appeal the appellant relied on an affidavit of Mr. Pilgrim sworn and filed on 7th April, 2005. The facts deposed to in the affidavit are as follows:

• 1 I attended a Plea and Directions hearing in respect of the October Assizes on the 29th day of September, 2004.

• 2 At the said hearing I entered an appearance on behalf of Corey Ward.

• 3 I alerted both judges, who were present of my intentions to leave the jurisdiction on the 7th day of October until the 15th day of October, 2004.

• 4 Officers of the Director of Public Prosecutions Department were present when the matter was set for trial.

• 5 The matter was set for trial on the 3rd day of November, 2004.

• 6 On the 17th day of October I was informed that the accused was tried and found guilty and was sentenced to 14 (sic) years during the time I was abroad.

• 7 I was retained by the appellant's mother who was overseas at the time. The appellant was not notified of my retainer.

• 8 I make this affidavit in support of my client's appeal and his Application for Bail.”

9 It should be noted that paragraph 8 of the affidavit states that it was filed in support of the appeal. There is a note on the affidavit showing that it was served on the Director of Public Prosecutions (DPP) on 19th April, 2005 and this fact is not disputed. We have taken two facts into account in our determination of the issue. First, the DPP did not respond to Mr. Pilgrim's affidavit either contradicting or qualifying the matters deposed to. Secondly, the affidavit was not served on the trial judge.

(c) Practice Direction — Plea and Directions Hearings

10 We now examine the facts deposed to in Mr. Pilgrim's affidavit in the light of Practice Direction No. 1/2003 Re: Plea and Directions Hearings (P.D.H.) issued by the Chief Justice, which came into force on 15th September, 2003, a year prior to the trial on 8th October, 2004. The Practice Direction “seeks to provide a structured system for the intimation of pleas and the giving of directions, where necessary, with a view to ensuring that indictable cases are disposed of with efficiency and reasonable dispatch”. One of the “overriding objectives” of the P.D.H. is “to provide sufficient information for a trial date to be arranged”. Attorneys-at-law “who have been retained in a case” are expected to appear at the hearing. “Judges assigned for the relevant Assizes will preside. A P.D.H. will be conducted in court in the presence of the accused.” There is a prescribed questionnaire, which must be completed by the attorney-at-law for the accused or by the accused seven days prior to a P.D.H. and a completed copy must forthwith be forwarded to the DPP in order to comply with paragraph 7 of the Practice Direction. Where the defence intimates that a plea of Not Guilty will be made at the trial, paragraph 10 specifies the matters of which the prosecution and the defence shall inform the Court, including:

• “…

• (c) any alibi which should be disclosed;

• (d) any point of law which it is anticipated will arise at the trial;

• (e) any question affecting the admissibility of evidence which appears on the face of the depositions or papers;

• (f) the estimated length of trial;

• (g) the availability of counsel;

• (h) whether there is need for any further directions.”

Paragraph 11 empowers the judge to make such order “as appears to be necessary to secure the proper, fair and efficient trial of the case”.

11 Paragraph 12 states that the questionnaire “provides a recommended structure for use by judges in conducting a P.D.H.” The relevant questions material to this case that should have been answered in the Plea and Directions Questionnaire are:

The Practice Direction provides for a record to be made of prosecution and defence counsel's availability and of the case listing arrangements, including the name of the trial judge, the date fixed for trial and if not fixed, the tentative date for trial. We are satisfied that provided the Practice Direction is complied with the trial of criminal cases in the High Court can be efficiently managed.

• 1 Has counsel for the defence been adequately retained?

• 2 Is counsel for the defence in possession of the depositions relating to this matter?

• 4 How long does counsel anticipate that the trial will last?

• 9 Is an alibi defence to be presented?

• 10 Identify any questions of admissibility of evidence together with any authorities it is intended...