Giles v Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Rajnauth-Lee, J.
• Judgment Date: 09 April 2002
• Neutral Citation: TT 2002 HC 46
• Docket Number: H.C.A. No. 3543 of 1999
• Court: High Court (Trinidad and Tobago)
• Date: 09 April 2002

High Court

Rajnauth-Lee, J.

H.C.A. No. 3543 of 1999

Giles

and

Attorney General

Appearances:

Mr. Osborne Charles S.C. leading Miss Lomette Simon instructed by Mr. Martin George for the applicant.

Mrs. Krishendeo Narinesingh instructed by Miss Taramatie Ramdass for the respondent.

Constitutional law - Fundamental rights and freedoms — The applicant alleged inter alia that his arrest, detention and search by police officers was illegal and unconstitutional — Whether the court had jurisdiction under section 23(b) of the Indictable Offences (Preliminary Inquiry) Act, 3 Chapter 12:01 to issue a warrant of arrest and committal for larceny in circumstances where the magistrate in the preliminary inquiry had upheld the no case submission — Finding that the judge had acted in accordance with the provisions of section 23(b) and therefore the arrest, committal and detention of the applicant was lawful.

Rajnauth-Lee, J.

INTRODUCTION

1 By his Notice of Motion dated and filed the 23rd November, 1999, the applicant sought the following reliefs:

• “1. A declaration that the arrest and detention of the applicant on the 8th January, 1999 by police officers tat the offices of the Port of Spain Criminal Investigations Department on St. Vincent Street for one hour was illegal and unconstitutional and constituted a breach of the applicant's fundamental rights to freedom of movement and liberty and the right not to be deprived thereof except by due process of law as guaranteed him by the Constitution.

• 2. A declaration that the search of the applicant's person at the offices of the Port of Spain Criminal Investigations Department on St. Vincent Street was unconstitutional and constituted a breach of the applicant's fundamental right to respect for his private life and security of the person as guaranteed him by the Constitution.

• 3. A declaration that the action of the police officers in marching the applicant in custody, through the streets of Port of Spain from the CID office on St. Vincent Street, escorted by Police Officers all the way down to the holding cells in the basement of the Hall of Justice situated on Knox Street, Port of Spain, in full view of all pedestrians, passersby and persons passing in motor vehicles in the busy lunchtime traffic, was illegal and constituted a breach of the applicant's fundamental rights to security of the person and liberty and the right not to be deprived thereof except by due process of law as guaranteed by him by the Constitution.

• 4. A declaration that the continued detention of the applicant on 8th January, 1999 by the servants and/or agents of the State in the area of the holding cells of the Hall of Justice, Knox Street, Port of Spain for a period of about three hours was illegal and constituted a breach of the applicant's fundamental rights to freedom of movement, security of the person and liberty and the right not to be deprived thereof except by due process of taw as guaranteed to him by the Constitution.

• 5. A declaration that the actions of the servants and/or agents of the State in continuing to detain the applicant wrongfully and refusing to release him from this wrongful detention unless and until he posted bail in the sum of $30,000.00 was illegal and unlawful and constituted a breach of the applicant's fundamental right to security of the person, freedom of movement and liberty and the right not to be deprived thereof except by due process of law as guaranteed to him by the Constitution.

• 6. A declaration that the obtaining of and the issue of a Warrant of Commitment in respect of a Charge of Larceny and the filing of an indictment by the servants and/or agents of the State against the applicant in respect of two counts of Larceny and one of demanding money with menaces and the arrest and detention of the applicant in pursuance thereof and the placing of him before the High Court of Justice, Criminal Assize to face trial on the said two charges of Larceny and one of demanding money with menaces, was illegal and unconstitutional and constituted a breach of the applicant's fundamental rights to freedom of movement, security of the person and liberty and the right not to be deprived thereof except by due process of law.

• 7. A declaration that placing of the applicant on trial on indictment for the charge of larceny of Three Thousand, Five Hundred Dollars from Stephen Seebarath when no evidence had been offered or tendered at the preliminary enquiry in respect thereof was illegal and unconstitutional and constituted a breach of the applicant's fundamental rights to be presumed innocent and his right to a fair and public hearing by an independent and impartial tribunal, and his rights to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

• 8. A declaration that the actions of the servants and/or agents of the State in the arrest, detention, search, marching the applicant publicly through the streets and placing him on illegal charges before the Criminal Assize are all illegal and unconstitutional and contravened the applicant's constitutional rights to equality of treatment from a public authority in the exercise of its function and to equality before the law and the protection of the law.

• 9. All such orders, writs and directions as may be necessary or appropriate to secure redress by the applicant for the contravention of his rights and fundamental freedoms as guaranteed him by the Constitution of Trinidad and Tobago.

• 10. Damages.

• 11. Exemplary and Aggravated Damages.

• 12. Costs certified fit for Senior and Junior Counsel.

• 13. Such further and/or other relief as this Honourable Court may deem fit.”

2 The applicant swore and filed an affidavit in support of his motion on the 23rd November, 1999. The respondent filed four (4) affidavits in opposition to the Motion: the affidavit of Janice Rigsby sworn and filed on the 29th February, 2000, the affidavit of Jerry Garcia sworn the 13th March, 2000 and filed on the 16th March, 2000, the affidavit of Alick Alexander sworn the 15th March, 2000 and filed on the 16th March, 2000 and the affidavit of Noel Duncan sworn the 15th March, 2000 and filed on the 16th March, 2000.

3 Apart from matters touching the actual arrest of the applicant and what transpired between his arrest and his being granted bail, the facts of this case are essentially undisputed:

• (1) By Informations No. 2280 of 1997 and No. 2281 of 1997, the applicant (together with one Ken Cephas and one Tence Garrette) [hereinafter jointly referred to as “the three accused”] were charged with demanding with menaces and larceny respectively.

• (2) A preliminary enquiry was held by Marcia Ayres-Caesar, Magistrate of Trinidad and Tobago, at the Chaguanas Magistrate's Court into the charge of demanding with menaces (Information No. 2280/97). The Learned Magistrate, after hearing the evidence led on behalf of the prosecution, upheld a no-case submission made on behalf of the three accused and discharged them on the 15th June, 1998. With respect to the charge of larceny, no evidence was offered and on the 251i June, 1998, the three accused were discharged.

• (3) Pursuant to the provisions of section 23(5) of the Indictable Offences (Preliminary Enquiry) Act Chap. 12:01, on the 21st July, 1998, the Director of Public Prosecutions required the Learned Magistrate to transmit to him the record of the proceedings taken at the preliminary enquiry on a charge of (1) larceny; and (2) demanding with menaces against the three accused.

• (4) The Notes of Evidence and Proceedings taken at the preliminary enquiry into the charge of demanding money with menaces - No. 2280/97 - were transmitted to the Director of Public Prosecutions, but instead of Information No. 2280/97, Information No. 2281/97 (larceny) was inserted in the record. The cover sheet or first page of the Notes represented that it was a certified copy of the Notes of Evidence taken in Case No. 2281/97 (the larceny charge). In fact, a perusal of the Notes would lead one to believe that both charges were heard together - No. 2280/97 and 2281/97. However, at page 6 of the Notes (back of Information) and at page 55 (the last page) of the Notes, the words “Discharged No evidence offered” are noted in respect of Information No. 2281/97. Despite what is represented in the Notes of Evidence, it is not in dispute that evidence was led only in respect of Information No. 2280/97 (demanding with menaces) and that no evidence was offered in respect of Information No. 2281/97 (larceny).

• (5) On the 13th November, 1998, the Director of Public Prosecutions having received the record of the proceedings described above, forwarded an application to a Judge of the High Court for a warrant for the arrest and committal for trial of the three accused. The application was set out in the affidavit of Mr. Mark Mohammed, the Director of Public Prosecutions:

“I, MARK MOHAMMED, of 112 Henry Street, Port of Spain, in the Island of Trinidad make oath and say as follows: –

• 1. I am the Director of Public Prosecutions of Trinidad and Tobago.

• 2. On divers day between the 26th day of May, 1997 and the 25th day of June, 1998, a Preliminary Enquiry was held by Marcia Ayres Caesar, Magistrate of Trinidad and Tobago at the Chaguanas Magistrate's Court into an Indictable Offence alleged to have been committed by the above-named Ken Cephas, Tence Garrette and Daryl Giles namely, that the said Ken Cephas, Tence Garrette and Daryl Giles on the 8th day of May, 1997, at Caroni, in the County of Caroni, stole the sum of $3,500.00, the property of Stephen Seebrath.

• 3. On the 25th day of June, 1998, the learned magistrate, discharged the said Ken Cephas, Tence Garrette and Daryl Giles having heard the evidence against them.

• 4. Hereto annexed and marked “A” is a record of the proceedings transmitted to me by the said...