1
COURT OF APPEAL SITTING
SAINT CHRISTOPHER AND NEVIS
10th – 13th June 2014
APPLICATIONS AND APPEALS
Case Name: Craig Bradshaw
v
The Director of Public Prosecutions
[SKBHCRAP2011/0009]
Date: Tuesday, 10th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: Mr. John Cato
Respondent: Ms. Greatess Gordon for the Director of Public
Prosecutions
Issues: Appeal against sentence – Unlawful carnal knowledge –
Virtual complainant was 13 at time of offence and
became pregnant as a result – Whether sentence
imposed by learned trial judge too harsh for first time
offender
Result / Order: [Oral delivery]
1. The appeal against sentence is allowed.
2. The sentence of 20 years imposed by the trial judge
is quashed and a sentence of 12 years is imposed.
3. Time spent on remand to be taken into account.
Reason: The Court found that although the learned trial judge
had mentioned the guiding principles for sentencing,
there was no evidence that he applied those principles
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and the relevant cases.
There was no evidence that the trial judge used a
benchmark in this case. It did not appear that he
started from a benchmark and then considered the
aggravating and mitigating factors in order to arrive at
the sentence which he imposed. Rather, he seemed to
have started from the maximum sentence of life
imprisonment and moved to 20 years, which was a
wrong approach.
Counsel on both sides agreed to a benchmark of 8
years, which the Court accepted. Then, after weighing
the strong aggravating factors against the mitigating
factors, the Court considered a sentence of 12 years to
be appropriate.
The mitigating factors were as follows:
a) The appellant was a first time offender;
b) The appellant was a relatively young man;
c) The appellant was known to be of good behavior
and disposition generally;
d) There was no violence other than that associated
with the commission of this type of offence;
e) The Social Inquiry Report stated that the
appellant showed remorse.
The aggravating factors were as follows:
a) The appellant had sexual intercourse with a
minor using no protective device and thus
exposed the minor to infection and pregnancy;
b) The minor became pregnant as a result of the
offence.
Case Name: Jermul Jules
v
The Director of Public Prosecutions
[SKBHCRAP2011/0008]
Date: Tuesday, 10th June 2014
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Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: Dr. Henry Browne, QC
Respondent: Mr. Travers Sinanan, Director of Public Prosecutions
Issues: Appeal against conviction and sentence – Robbery –
Record inadequate (missing some relevant pages) –
Whether learned trial judge erred in failing to give
proper direction on doctrine of recent possession
Result / Order: [Oral delivery]
1. The appeal is allowed.
2. The sentence is set aside and the conviction
quashed.
Reason: The Court noted that the Director of Public
Prosecutions quite properly conceded that the learned
trial judge erred in directing the jury on the doctrine of
recent possession, which was what the case for the
prosecution turned on. At trial, even after the Crown
had sought to bring to the judge’s attention the
direction that he ought to give, the one which was
ultimately given was woefully inadequate and of no
assistance to the jury.
Case Name:
Allister Forde
v
The Director of Public Prosecutions
[SKBHCRAP2011/0024]
Date: Tuesday, 10th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
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Appearances:
Appellant: In person
Respondent: Mr. O’Neil Simpson
Issues: Appeal against sentence – Shooting with intent
Result / Order: [Oral delivery]
The matter is adjourned to next sitting of the Court of
Appeal in the Federation of Saint Christopher and Nevis
at the instance of the appellant in order to instruct
counsel.
Reason: The appellant indicated that he wished to appeal his
conviction as well as his sentence. He also wanted to
retain and instruct counsel. The Court granted him
some time to do so.
Case Name: Ourtic Gileard
v
The Director of Public Prosecutions
[SKBHCRAP2011/0025]
Date: Tuesday, 10th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Mr. O’Neil Simpson for the Director of Public
Prosecutions
Issues: Appeal against conviction and sentence – Robbery
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Result / Order: [Oral delivery]
Hearing of the appeal is adjourned to next sitting of the
Court of Appeal in the Federation of Saint Christopher
and Nevis during the week of 27th – 31st October 2014.
Reason: To give the appellant an opportunity to retain counsel.
Case Name: Keithley Griffin
v
The Director of Public Prosecutions
[SKBHCRAP2011/0010]
Date: Tuesday, 10th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: Dr. Henry Browne, QC
Respondent: Mr. O’Neil Simpson for the Director of Public
Prosecutions
Issues: Appeal against conviction and sentence – Unlawful
carnal knowledge – Whether appellant was denied fair
trial within meaning of section 10 of Saint Christopher
and Nevis Constitution Order 1983 – Whether Crown
was under an obligation to cause appellant, virtual
complainant and infant child of virtual complainant to
undergo DNA testing in circumstances where the
accused, having been confronted about the offence
made following single statement to police officers: “I
don’t know anything about that, test me if you want” –
Whether sentence imposed by learned trial judge
unduly severe – Application of s. 154 of the Evidence
Act (Act No. 30 of 2011, Laws of Saint Christopher and
Nevis)
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Result / Order: [Oral delivery]
1. Appeal against conviction is dismissed. The
conviction is upheld and the verdict of the jury is
affirmed.
2. Appeal against sentence is allowed.
3. The sentence of 20 years is quashed and a sentence
of 14 years is imposed.
4. Time on remand to be accounted for.
Reason: The Court found that section 154 of the Evidence Act
(which had been used by the appellant to argue that the
police were obliged to carry out DNA testing on him, the
virtual complainant and her infant child upon him telling
the police to test him if they wanted to) was not
persuasive, the section having more to do with
prosecution’s right to make a request for DNA
evidence, rather than a request from accused.
The appellant made the following single statement to
the police investigator when confronted about the
offence: “I don’t know nothing about that, test me if you
want.” The Court noted that this was the sole reference
at to such a request. It was never repeated, neither by
the appellant nor by distinguished counsel on his
behalf. The Court did not consider that the Crown was
under any obligation to order that testing be done on
the appellant, virtual complainant and her child based
solely on the appellant making that remark when
confronted with the allegation.
The Court noted there was other evidence before the
jury. There was the evidence of the virtual complainant,
the evidence of other witnesses, and the evidence of
the appellant himself denying, in its entirety, the
witness allegation that he was a bus driver after
September 2008. Ultimately, the jury decided
unanimously that the appellant was guilty of the
offence.
In the circumstances, the Court did not consider that
the appellant was denied a fair trial on the basis that the
police did not take up the “challenge” to carry out the
DNA tests on his making the (abovementioned) remark.
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There was no basis to vitiate the entire trial on the
argument advanced.
In relation to sentencing, the learned trial judge failed to
follow the sentencing guidelines. He did not establish
the benchmark and then subsequently consider the
aggravating and mitigating factors and adjust the
sentence accordingly.
A benchmark of 8 years was accepted, and, having
regard to the significant aggravating factors which
outweighed the mitigating factors, the Court was of the
view that the sentence should be increased to 14 years.
The aggravating factors were as follows:
a) The appellant had sexual intercourse with a
minor without the use of a contraceptive device,
thus exposing her to infection and pregnancy;
b) The virtual complainant became pregnant as a
result of the offence;
c) The appellant abused the trust placed in him as a
bus driver on a public route. As a bus driver, he
was in a position of trust and confidence and
members of the public ought to feel safe on
boarding the bus and not be in danger of being
lured into pathways and assaulted.
d) The severe disparity between the appellant’s age
and that of the virtual complainant, the appellant
being 43 years old and the virtual complainant
being 15 years old at the time of the offence.
The only mitigating factor was that the appellant was a
first time offender.
Case Name: David Morton
v
The Director of Public Prosecutions
[SKBHCRAP2011/0011]
Date: Tuesday, 10th June 2014
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Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances
Appellant: In person
Respondent: Mr. O’Neil Simpson for the Director of Public
Prosecutions
Issues: Appeal against conviction and sentence – Rape –
Virtual complainant 16 years old at time of offence –
Sentence of 18 years imposed by learned trial judge –
Whether excessive
Result / Order: [Oral delivery]
1. The appeal against conviction, having been
withdrawn, is dismissed.
2. The appeal against sentence is allowed.
3. The sentence of 18 years is quashed and a sentence
of 15 years is imposed on the appellant for rape with
time spent on remand being accounted for in
calculating the time.
Reason: The appellant, in his argument, indicated that he was
merely asking for a reduction of his sentence, citing his
mother’s failing health and his desire to be there to
render support for her as his basis for that request. He
did not cite any factors that rendered judge’s decision
incorrect.
The Court, however, examined the facts of the case and
noted that it was not clear whether the learned trial
judge used a benchmark when he imposed the 18 year
sentence.
The Court accepted a benchmark of 10 years. Starting
from there and taking into account the aggravating
factors, it held that further 5 years should be added to
the benchmark. The aggravating factors greatly
outweighed the mitigating factors.
The mitigating factors were that the appellant was 22
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years of age at the time of the offence, and that this was
the first time that he was convicted of an offence of this
nature.
The aggravating factors were as follows:
a) A weapon was used in the commission of the
offence;
b) The appellant threatened to kill the virtual
complainant;
c) The violent nature of the attack;
d) The virtual complainant suffered injury during the
attack;
e) The victim ran from the appellant and he pursued
her, caught her and then dragged her onto the
school grounds and choked her;
f) The events leading up to the offence began
earlier in the night;
g) There was a demand for money before and after
the attack;
h) The appellant having a previous conviction for
wounding and choking of the victim in this case
showed that he had a propensity to be violent.
i) The virtual complainant was 16 years of age when
the offence was committed.
Case Name: Davril Battice Ruan
v
Chief of Police
[SKBMCRAP2013/0031]
Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Ms. Greatess Gordon
Issues: Appeal against sentence – Possession of controlled
10
drug – Possession of controlled drug with intent to
supply
Result / Order: [Oral Delivery]
Hearing of the appeal is adjourned to Wednesday, 11th
June 2014.
Reason: To allow the appellant to meet with his counsel.
Case Name:
Dustin Lapsey
v
Chief of Police
[SKBMCRAP2013/0034]
Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Mr. O’Neil Simpson
Issues: Appeal against sentence – Whether sentence imposed
by learned magistrate was excessive
Result / Order: [Oral delivery]
The appeal is withdrawn.
Reason: The appellant, having already served his time, made an
application to withdraw the appeal.
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Case Name: Sean Smith
v
The Chief of Police
[SKBMCRAP2013/0033]
Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: No appearance
Respondent: Ms. Greatess Gordon
Issues: Appeal against conviction and sentence – Aggravated
assault – Appellant charged by police with battery
under s. 12(1) of Small Charges Act (Cap. 75, Revised
Laws of St. Christopher Nevis and Anguilla) which
carries maximum sentence of 2 months imprisonment
hard labour – Court deemed assault by appellant
sufficiently serious for it to amount to aggravated
assault upon a female in accordance with s. 12(2)(b) of
Small Charges Act which carries maximum sentence of
6 months imprisonment hard labour – Whether learned
magistrate erred in imposing a greater sentence than
that for which appellant was charged
Result / Order: [Oral delivery]
1. The Registrar is directed to serve upon the appellant
Mr. Sean Smith a notice of hearing of his appeal
fixed for Friday, 13th June 2014 at 9:00 a.m.
2. The court office is to arrange for service on
appellant.
3. The hearing is adjourned to Friday, 13th June 2014.
Reason: There was no evidence on file to prove that the
appellant had been served with a notice of the day’s
hearing.
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Case Name: Lawten Forbes
v
Chief of Police
[SKBMCRAP2013/0030]
Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: No appearance
Respondent: Mr. O’Neil Simpson
Issues: Appeal against conviction – Breaking and entering
dwelling house – 10 year delay in prosecution of appeal
– Whether learned magistrate had sufficient evidence
upon which to arrive at verdict of guilty – Whether
learned magistrate properly considered requirements of
Turnbull direction in contemplating matter of
identification evidence arising in case
Result / Order: [Oral delivery]
1. The Registrar is directed to serve upon the appellant
Mr. Lawten Forbes a notice of hearing of his appeal
fixed for Friday, 13th June 2014 at 9:00 a.m.
2. The hearing is adjourned to Friday, 13th June 2014.
Reason: There was no evidence on file to prove that the
appellant had been served with a notice of the day’s
hearing.
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Case Name: Timothy Abbott
v
The Commissioner of Police
[SKBMCRAP2013/0001]
Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Mr. Hesketh Benjamin
Respondent: Ms. Greatess Gordon
Issues: Appeal against conviction and sentence – Fraudulent
conversion – Section 51 of Magistrate’s Code of
Procedure Act (Cap 3.17, Revised Laws of Saint
Christopher and Nevis 2009) – Whether learned
magistrate erred in failing to give appellant opportunity
to elect whether to be tried by jury or to have case dealt
with summarily, contrary to s. 51 of Act – Whether
learned magistrate’s decision to proceed in manner
which deprived appellant of opportunity to have
counsel cross-examine certain prosecution witnesses
breached his right to a fair trial – Whether decision of
learned magistrate unreasonable or cannot be
supported having regard to the evidence – Whether
appellant’s conviction and sentence based on wrong
principle or were such that a magistrate viewing
circumstances reasonably could not properly have so
decided – Whether sentence of 9 months imprisonment
with hard labour imposed by learned magistrate unduly
severe
Result / Order: [Oral delivery]
The matter is adjourned to the next sitting of Court of
Appeal in the Federation of Saint Christopher and Nevis
during the week commencing 27th October 2014.
Reason: Counsel for the appellant requested that the matter be
adjourned.
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Case Name: Gweneth Williams
v
The Chief of Police
[SKBMCRAP2013/0011]
Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Ms. Greatess Gordon
Issues: Appeal against conviction and sentence – Disorderly
conduct – Whether there was sufficient evidence for
learned magistrate to have found appellant guilty
Result / Order: [Oral delivery]
The matter is adjourned to the next sitting of Court of
Appeal in the Federation of Saint Christopher and Nevis
commencing 27th October 2014.
Reason: The appellant requested an adjournment.
Case Name: Mary Christopher
v
The Chief of Police
[SKBMCRAP2013/0012]
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Date: Tuesday, 10th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: No appearance
Respondent: Ms. Greatess Gordon
Issues: Appeal against conviction and sentence – Possession
of controlled drug – Whether decision of learned
magistrate unreasonable or cannot be supported
having regard to the evidence – Whether judgment
passed was based on wrong principle or was such that
a magistrate viewing circumstances reasonably could
not properly have so decided
Result / Order: [Oral delivery]
1. The Registrar is directed to serve upon the appellant
Ms. Mary Christopher a notice of hearing of the
appeal fixed for the week commencing 27th October
2014.
2. The hearing of this appeal is adjourned to next
sitting of Court of Appeal in the Federation of Saint
Christopher and Nevis commencing the 27th October
2014.
Reason: There was no evidence on file to prove that the
appellant had been served with a notice of the day’s
hearing.
Case Name: West Indies Power (Nevis) Limited
v
Nevis Island Administration
[SKBHCVAP2013/0003]
Date: Wednesday, 11th June 2014
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Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Louise E. Blenman, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: Mr. Terence Byron
Respondent: Ms. Dia Forrester, with her, Mr. Jomokie Phillips
Issues: Interlocutory appeal – Case management
Result / Order: [No order made]
Reason: Given the state of the matter, the Court was of the view
that there was nothing for it to do at the moment. The
parties were told that they were free to take the steps
that they considered were necessary.
Case Name: Denzil Hinds
v
The Director of Public Prosecutions for the
Federation of Saint Christopher and Nevis
[SKBHCRAP2012/0022]
Date: Wednesday, 11th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Louise E. Blenman, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: Ms. Keisha Spence
Respondent: Mr. Travers Sinanan, Director of Public Prosecutions
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Issues: Contempt proceedings – Attorney-at-law summarily
committed to prison for 10 days for contempt of court –
Learned trial judge found comments and gestures made
by defence counsel during cross-examination of
complainant at trial highly offensive and inappropriate
– In giving appellant opportunity to show cause why he
should not be committed, appellant was provided only
with copy of transcript of sitting to which contempt
proceedings related – Appellant requested transcript of
entire trial in order to show cause – Learned judge
refused appellant’s request – Whether learned trial
judge erred in not allowing appellant to have copy of
transcript of entire proceedings – Whether learned
judge erred in depriving appellant of opportunity to be
represented by counsel of his choosing upon his
request – Whether learned judge erred in law and/or
misdirected himself in finding that the words and/or
conduct included in transcript were contemptuous –
Whether learned judge erred in law and misdirected
himself in failing to allow appellant adequate time
and/or facilities upon his request to prepare his defence
in contravention of his fundamental human right to
secure protection of the law – Whether learned judge
erred in imposing custodial sentence on appellant
Result / Order: [Oral delivery]
The Registrar of the High Court is hereby directed to
take all steps necessary to cause to be prepared a
transcript of the entire proceedings in relation to the
matter in the court below and that the said transcript be
made available to the parties no later than Friday, 18th
July 2014.
Reason: Counsel for the appellant indicated that she had
requested the transcripts but was having difficulty
obtaining them.
Case Name: Clive Grant
v
The Director of Public Prosecutions
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[SKBHCRAP2011/0027]
Date: Wednesday, 11th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Louise E. Blenman, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Mr. O’Neil Simpson for the Director of Public
Prosecutions
Issues: Appeal against conviction and sentence – Burglary –
Possession of stolen goods – Identification – No direct
evidence on identification – Doctrine of recent
possession – Stolen items taken from appellant –
Appellant in possession of house breaking implements
– Whether there was sufficient evidence to identify
appellant as perpetrator – Consecutive sentences
imposed for 2 charges arising out of 1 incident
Result / Order: [Oral delivery]
1. The appeal against conviction is dismissed. The
conviction is upheld.
2. Sentence is varied to the extent that the sentence of
8 years imposed for burglary in SKBHCR2011/0045
and the sentence of 5 years reduced to 3 years and 4
months imposed in SKBHCR2011/0042 for
possession of housebreaking implements are to run
concurrently and not consecutively.
Reason: The Court held that there was no miscarriage of justice
in this matter, notwithstanding that the virtual
complainant could not identify the appellant. There was
sufficient evidence before the jury upon which it could
have properly come to a verdict of guilty – the presence
of circumstantial evidence as to the colour of the phone
which had been stolen; the chips, scratches and
description of the phone; the fact that the phone was
found on the appellant in a bag the appellant identified
as belonging to him; and, the evidence that the
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appellant was hiding.
The jury would have heard all the evidence – that is, the
appellants’ version, the police’s version as well as that
of the virtual complainant – and, as the trier of fact,
would have determined which version it accepted.
The trial judge properly directed the jury on the relevant
principle of law, the doctrine of recent possession.
This doctrine states that where a person is said to be
found in possession of something that has been taken,
and that thing has been identified as belonging to
another person, and the person in possession of the
item is found with it shortly after that item has gone
missing, then the law allows the presumption that that
person found with it is the taker of it, failing an
explanation. This doctrine was applicable on the facts
even in the absence of direct evidence of identification.
Concerning the appellant’s sentence, having regard to
the circumstances of the offence, what transpired
afterwards, as well as the numerous convictions for
similar offences, the Court held that it was proper for
the trial judge to take these factors into account and
decide that 8 years was an appropriate sentence for the
robbery and 3 years, for possession of housebreaking
implements. However, the law is clear on the legal
principles that guide imposing consecutive sentences.
This case did not fall within this category. Accordingly,
the Court held that the learned trial judge erred in
imposing consecutive sentences.
Case Name: Glenville Isles
v
The Director of Public Prosecutions
[SKBHCRAP2011/0030]
Date: Wednesday, 11th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Louise E. Blenman, Justice of Appeal
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The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Mr. Travers Sinanan, Director of Public Prosecutions
Issues: Appeal against conviction and sentence – Attempted
murder – Whether conviction sound in law – Whether
there was violation of appellant’s rights which resulted
in miscarriage of justice – Whether sentence was too
harsh
Result / Order: [Oral delivery]
The hearing of this appeal is adjourned to the next
sitting of the Court in the Federation of Saint Kitts and
Nevis beginning the week of 27th October 2014.
Reason: The appellant applied for an adjournment. There was
no objection by the Director of Public Prosecutions.
Case Name: Joseph Herbert
v
The Director of Public Prosecutions
[SKBHCRAP2011/0014]
Date: Wednesday, 11th June 2014
Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice
The Hon. Mde. Louise E. Blenman, Justice of Appeal
The Hon. Mr. Paul Webster, QC, Justice of Appeal [Ag.]
Appearances:
Appellant /
Applicant:
In person
Respondent: Ms. Greatess Gordon for Mr. Travers Sinanan, Director
of Public Prosecutions
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Issues: Appeal against conviction and sentence – Buggery –
Application for adjournment
Result / Order: [Oral delivery]
Hearing of this appeal, at the request of the appellant, is
adjourned to the next sitting of the Court in the
Federation of St. Kitts and Nevis during the week
commencing 27th October 2014.
Reason: The appellant indicated to the Court that his attorney
was out of the Federation of St. Kitts and Nevis. The
appellant therefore requested an adjournment to
contact and instruct counsel. There was no objection
by the Director of Public Prosecutions.
Case Name: General Security Services Limited
v
St. Christopher and Nevis Solid Waste
Management
[SKBMCVAP2013/0021]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Ms. Miselle O’Brien-Norton holding papers for Mr.
Hesketh Benjamin
Respondent: Ms. Angelina Gracy Sookoo
Issues: Contract for security services to be provided to
respondent by appellant company – Whether terms of
contract breached by appellant – Termination of
22
contract by respondent – Sums owed to appellant at
time of termination of contract – Case dismissed by
learned magistrate – Whether decision of learned
magistrate unreasonable and cannot be supported
having regard to evidence – Whether decision of
learned magistrate based on wrong principle or was
such that a magistrate viewing the circumstances
reasonably could not properly have so decided
Result / Order: [Oral delivery]
The matter is adjourned to the next sitting of the Court
of Appeal in the Federation of Saint Christopher and
Nevis commencing the week of 27th October 2014.
Reason: Counsel for the appellant requested an adjournment of
the matter.
Case Name: John Cato
v
Jessica Ferdinand
[SKBMCVAP2007/0003]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Ms. Robin Herbert-Thompson
Issues: Land purchased by respondent from third party –
Appellant acted as agent in purchase of land –
Proceedings commenced by appellant in court below
for monies owed to him by respondent for services
rendered in his capacity as agent – Whether learned
magistrate was biased – Appellant ordered to pay costs
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in amount of $1,500.00 – Whether learned magistrate
had jurisdiction to order costs in amount of $1,500.00
when claim was only for $1,000.00 – Whether learned
magistrate’s discretion exercised in punitive manner –
Case management – Notice of appeal filed but no
recognizance on file
Result / Order: [Oral delivery]
The matter is adjourned to the sitting of the Court of
Appeal in the Federation of Saint Christopher and Nevis
commencing the week of 27th October 2014, by which
time the appellant shall comply with all directions,
otherwise the appeal will be dismissed with costs.
Reason: The appellant made an application for the matter to be
adjourned to allow him to file his recognizance to
complete the record of appeal.
Case Name: Andre Phipps
v
Beulah Mills
[SKBMCVAP2013/0012]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: No appearance
Respondent: Ms. Angelina Gracy Sookoo
Issues: Case management – Proceedings brought against
appellant in court below for breach of lease agreement
between appellant and respondent – Terms of
agreement – Whether rent inclusive of water and
electricity – Utility bills not paid by appellant –
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Recovery of outstanding sums
Result / Order: [Oral delivery]
The appeal listed as magisterial civil appeal 2013/0012
is hereby dismissed for want of prosecution.
Reason: There was no appearance of or on behalf of the
appellant. Also, no notice of appeal had ever been
presented to the Court evidencing the filing of an
appeal (although the court record showed that a notice
of appeal had been filed by an attorney on behalf of the
appellant).
Case Name: Edwin Glasford
v
Venetta Berridge
[SKBMCVAP2013/0032]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Mr. Terence V. Byron
Respondent: Ms. Deidre Williams
Issues: Road traffic accident – Whether decision unreasonable
or cannot be supported having regard to the evidence –
Whether learned magistrate erred in failing to apply
principle of law in case of Eudelle Adams v Patrick
Ribeiro SKBHCV1991/0217 (dated 23rd September 1994,
unreported)
Result / Order
& Reason:
[Oral delivery]
Upon application by the appellant to discontinue the
25
appeal filed on 22nd January 2008 and with no
objections by the respondent, this appeal is dismissed
with no order as to costs.
Case Name: Keithroy Isaac
v
St. Clair Kelly
[SKBMCVAP2013/0025]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: No appearance
Issues: Contract – Agreement for sale of passenger bus to
respondent – Term of contract that registration number
of bus would be leased to respondent for period of 2
years – Payments for lease of registration number made
by respondent for only 2 months – Registration number
retained by respondent – Whether written agreement
between appellant and respondent legally enforceable –
Whether licence to use registration number capable of
being assigned or transferred
Result / Order: [Oral delivery]
Hearing of this appeal is adjourned to the next sitting of
the Court of Appeal in the Federation of Saint
Christopher and Nevis commencing the week of 27th
October 2014.
Reason: The respondent could not be located for the notice of
hearing to be served on him.
26
Case Name: Lefco Equipment Rental & Construction Co. Ltd
v
Robert (Bob) Getz
[SKBMCVAP2012/0009]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Ms. Farida Hobson
Respondent: No appearance
Issues: Contract – Supply of goods and services by appellant
to respondent – Sums owed to appellant under
agreement – Whether appellant’s claim statute barred
Result / Order: [Oral delivery]
1. Hearing of this appeal is adjourned to the next
sitting of the Court of Appeal in the Federation of
Saint Christopher and Nevis commencing the week
of 27th October 2014.
2. The Registrar of the High Court shall cause a notice
of hearing to be served on the respondent.
Reason: Counsel for the appellant requested an adjournment to
allow her to file a skeleton argument. There was no
evidence that the respondent had been served with a
notice of the day’s hearing.
Case Name: Wentworth Richardson
27
v
Jason Hamilton
[SKBMCVAP2013/0022]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: In person
Respondent: Ms. Keisha Spence
Issues: Enforcement of judgment debt – Legal fees owed to
respondent by appellant – Whether barrister can sue for
legal fees owed to him by client – Whether learned
magistrate erred in not giving sufficient weight to
evidence presented to her by appellant – Whether
learned magistrate erred in not allowing appellant to
present his case in absence of solicitor who was on
record as acting for him – Application for adjournment
Result / Order
& Reason:
[Oral delivery]
1. Hearing of this appeal is adjourned to the next
sitting of the Court of Appeal in the Federation of
Saint Christopher and Nevis commencing the week
of 27th October 2014 to allow the appellant a final
opportunity to seek legal representation.
2. If, at the next sitting, the appellant does not have
legal representation, he would have to present his
own case or withdraw the appeal.
3. Costs for the day in the sum of $250.00 to be paid
before 27th October 2014.
STATUS HEARING
28
Case Name: Manuel Antonio de los Santos Marte
v
Miriam Lorenzo Altagracia
[SKBMCVAP2013/0003]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Mr. Terence V. Byron
Respondent: Mr. John Cato
Issues: Status of matter – Whether learned magistrate erred in
ordering appellant to repay money which she found had
been loaned to him by respondent – Whether decision
unreasonable or cannot be supported having regard to
evidence – English not appellant’s native language –
Whether merits of appellant’s defence at trial
substantially affected by level of competence of
interpreter used in court
Result / Order
& Reason:
[Oral delivery]
Upon application by the appellant to discontinue appeal
filed on 11th April 2013 and with no objections by the
respondent, this appeal is dismissed with no order as
to costs.
APPLICATIONS AND APPEALS
Case Name: Davril Battice Ruan
v
Chief of Police
29
[SKBMCRAP2013/0031]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant /
Applicant:
Mr. John Cato
Respondent: Ms. Greatess Gordon
Issues: Appeal against sentence – Possession of controlled
drug – Possession of controlled drug with intent to
supply – Application (by appellant) for adjournment of
matter
Result / Order
& Reason:
[Oral delivery]
Hearing of this appeal is adjourned to the next sitting of
the Court of Appeal in the Federation of Saint
Christopher and Nevis commencing the week of 27th
October 2014 to enable the appellant to seek legal
representation.
Case Name: Cecil Rock
v
National Bank Trust Company (St. Kitts-Nevis-
Anguilla) Limited
The lawfully appointed attorney for Joseph
Edwards and Ione Edwards
[SKBMCVAP2013/0024]
Date: Wednesday, 11th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
30
Appearances:
Appellant: Mr. John Cato
Respondent: Ms. Miselle O’Brien-Norton
Issues: Recovery of cost of cleaning and repair services carried
out on premises previously rented by appellant –
Whether learned magistrate displayed bias in favour of
respondent during hearing – Whether decision was
against the weight of the evidence
Result / Order: [Oral delivery]
1. The appeal is allowed to the extent that the total sum
awarded by the learned magistrate is varied to the
extent that it is reduced by the sum of $842.24.
2. There is no order as to costs.
Reason: Grounds of appeal 1 and 2, which were both related to
bias, were abandoned by the appellant.
With regard to grounds 3 and 4, that the learned
magistrate erred in not allowing the appellant to present
his case when his solicitor, who was on record as
acting for him, did not show up for the hearing
(because he was involved in another court matter), the
Court stated that there was no record to support the
appellant’s submissions and also, there was no merit in
the submissions.
In relation to ground of appeal 5, that the decision of
the learned magistrate was against the weight of the
evidence, the Court held that this was not the case; the
decision of the learned magistrate was not against the
weight of the evidence.
Learned counsel for the appellant, Mr. Cato, argued that
there was not sufficient evidence on which the
magistrate could have found that the respondent was
entitled to the sum claimed for cleaning of the premises
and for repairs to be done as there was no evidence as
to the state of repair of the property, both when the
appellant entered it in 1999 and when he left it in 2008.
31
The Court, having examined the record, was satisfied
that, based on the evidence, in particular, that of Mrs.
Edwards and Ms. Maynard (Administrative Assistant at
National Bank Trust), the learned magistrate could have
come to the decision which was arrived at, that the
appellant was liable for the cost of cleaning the
premises and the repairs to be done, and the learned
magistrate was within her right to award the claimants
the sum of $5,854.30, being the cost of the repairs and
cleaning; there was sufficient documentary evidence in
support of the costs incurred by the claimant.
On the issue of costs, the Court found that it was within
the magistrate’s discretion to award costs in the matter,
having found that the claimants were successful in their
claim, and there was no basis on which the Court could
interfere with the exercise of the discretion of the
learned magistrate.
In relation to the sum of $842.24 which was awarded by
the learned magistrate to the claimant, this sum being
the cost of claimant’s ticket to travel to St. Kitts for the
hearing of the matter, Mr. Cato submitted that there was
no evidence on the record to support this claim and nor
was a claim made for this sum. Having examined the
record, the Court agreed with the submissions of
counsel for the appellant that indeed there was no
evidence on the record which showed that the claimant
had made a claim for the sum of $842.24 and nor was
there any evidence on the record which showed that
this sum was incurred for the purpose of the hearing of
the claim.
Case Name: The Attorney General of St Christopher and
Nevis
v
[1] Hon. Sam Condor
[2] Hon. Shawn K. Richards
[SKBHCVAP2013/0005]
32
The Rt. Hon. Dr. Denzil L. Douglas – Prime
Minister
v
[1] Hon. Sam Condor
[2] Hon. Shawn K. Richards
[SKBHCVAP2013/0006]
Date: Thursday, 12th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellants: Ms. Angelina Gracy Sookoo (for the appellant in
SKBHCVAP2013/0005)
Ms. Simone Bullen-Thompson (for the appellant in
SKBHCVAP2013/0006)
Respondents: Ms. Talibah Byron (instructed by Mr. DeLara MacClure
Taylor)
Issues: Senators (Increase of Number) Act, 2013 – Whether
Attorney General proper party to claim – Whether
court’s jurisdictions under ss. 36 and 96 of the Saint
Christopher and Nevis Constitution Order 1983 could
be merged and properly heard and determined together
– Whether learned judge erred in holding that natural
and ordinary meaning of proviso to s. 26(2) of
Constitution was that the Senate does not increase in
number from three to four until person who is already
senator also holds office of Attorney General – Whether
learned judge erred in holding that it was unlawful to
appoint Mr. Jason Hamilton as senator and Attorney
General because there were already three senators
appointed – If appointment of Jason Hamilton as fourth
senator and Attorney General unlawful, does fact that
he participated in passing of the Senators (Increase of
Number) Act, 2013 render the Act void ab initio –
Whether appointment of fourth senator by Governor
General on advice of Prime Minister justiciable – Effect
of s. 44(2) of Constitution – Whether s. 44(2) operates
33
as absolute and unequivocal constitutional ouster of
jurisdiction of High Court to invalidate passing of 2013
Act – Application to consolidate appeals
SKBHCVAP2013/0005 and SKBHCVAP2013/0006
Result / Order: [Oral delivery]
Hearing of the appeal is adjourned to the next sitting of
the Court of Appeal in the Federation of Saint
Christopher and Nevis during the week of 27th – 31st
October 2014.
Reason: The appellant requested that the matter be adjourned
due to the illness of counsel.
Case Name: [1] Carmel Bernadette Agnes McGill
[2] Laszlo Stephen Siegmund
v
[1] The Attorney General of St. Christopher and
Nevis
[2] KHT Land Holdings Limited
[SKBHCVAP2013/0022]
Date: Thursday, 12th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellants: Mr. E. Anthony Ross, QC, with him, Ms. Dollrita Jack-
Cato
Respondents: Ms. Violet Williams holding papers for Ms. W. Alethea
Gumbs (for the 1st respondent)
Mr. Emile Ferdinand, QC, with him, Mr. Damian Kelsick
and Ms. Keisha Spence (for the 2nd respondent)
34
Issues: Compensation for acquisition of land by the State –
Indefeasibility of certificate of title – Whether learned
judge erred in striking out appellants’ claim on grounds
that it disclosed no reasonable cause of action or was
statute barred by the Public Authorities Protection Act
(Cap. 5.13, Revised Laws of Saint Christopher and
Nevis 2009) – Appeal against findings of fact of learned
judge – Whether facts raised on pleadings of
appellants/claimants were sufficient to show serious
case to be tried
Result / Order: [Oral delivery]
1. Hearing of the appeal is adjourned to the next sitting
of the Court of Appeal in the Federation of Saint
Christopher and Nevis during the week of 27th – 31st
October 2014.
2. Costs of travelling and accommodation for the
period 11th – 13th June 2014 are awarded to Mr.
Anthony Ross, QC, counsel for the appellant.
Reason: The first respondent requested an adjournment
because Ms. Gumbs (counsel for the first respondent)
was ill.
Case Name: Development Bank of St. Kitts-Nevis
v
[1] Osbert Chapman
[2] Lionel R. Williams
[3] Prudence France
[SKBHCVAP2013/0015]
Date: Thursday, 12th June 2014
Coram: The Hon. Mr. Davidson K. Baptiste, Justice of Appeal
The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
35
Appellant: Mr. Glenford Hamilton, with him, Ms. Deidre Williams
Respondents: Mr. Arudranauth Gossai (for the 3rd respondent, who
was also present)
Issues: Appeal against order made by learned trial judge in
court below on application to amend claim form and for
extension of time to file witness statements – Court
struck out statement of case of its own initiative –
Whether learned trial judge erred in failing to grant
application to extend time to file witness statements –
Whether learned trial judge erred in ruling that appellant
in the had not satisfied the criteria under rule 26.1(2)(k)
of the Civil Procedure Rules 2000 in relation to
application for extension of time to file witness
statements
Result / Order: [Oral delivery]
1. The appeal is allowed.
2. The order of learned trial judge is set aside.
3. Leave is granted to the appellant to file witness
statements within 14 days and the matter is to
proceed in accordance with CPR 2000.
4. Costs to appellant in the sum of $2,000.00 as agreed.
Reason: Having heard submissions from counsel on both sides,
the Court noted that in the court below, the appellant
had indicated in its written submissions that it no
longer wished to pursue the application in relation to
the amendment of the claim form. The appellant having
done so, the learned trial judge ought not to have
proceeded to extensively address the issue and
virtually determine the case on the basis of the
withdrawn application.
In relation to the application for an extension of time to
file the witness statements, the Court held that the
relevant criteria is set out in the line of cases starting
with the decision of this Court in the case of John Cecil
Rose v Anne Marie Rose SLHCVAP2003/0019 (delivered
22nd September 2003, unreported) where Sir Dennis
Byron CJ stated (at paragraph 2 of the judgment):
36
“Granting the extension of time is a discretionary
power of the Court, which will be exercised in
favour of the applicant for good and substantial
reasons. The matters which the Court will
consider in the exercise of its discretion are: (1)
the length of the delay; (2) the reasons for the
delay (3) the chances of the [matter] succeeding
if the extension is granted; and (4) the degree of
prejudice to the Respondent if the Application is
granted.”
The Court was satisfied that the appellant had met the
requirements in the present case.
In relation to the issue of the dismissal of the claim, the
Court noted that there was no application to strike out
the claim. Also there was no indication that the learned
trial judge had proposed to make an order dismissing
the matter of his own initiative, but nevertheless, he still
went on to do so. If the judge was inclined to dismiss
the matter he ought to have followed the procedure set
out in rule 26.2 of the Civil Procedure Rules 2000 and
given the appellant an opportunity to be heard on that
point.
Case Name: Lawten Forbes
v
Chief of Police
[SKBMCRAP2013/0030]
Date: Friday, 13th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Dr. Henry Browne, QC, with him, Ms. C. Marissa
Hobson-Newman
Respondent: Mr. O’Neil Simpson, with him, Ms. Greatess Gordon for
the Director of Public Prosecutions
37
Issues: Appeal against conviction – Breaking and entering
dwelling house – 10 year delay in prosecution of appeal
– Whether learned magistrate had sufficient evidence
upon which to arrive at verdict of guilty – Whether
learned magistrate properly considered requirements of
Turnbull direction in contemplating matter of
identification evidence arising in case
Result / Order: [Oral delivery]
1. The appellant’s conviction is upheld.
2. The sentence imposed by the learned magistrate is
set aside and substituted by caution, reprimand and
discharge.
Reason: The Court found that there was no basis to overturn the
conviction. However, with regard to the sentence
imposed by the learned magistrate, the Court held that
it would be inhumane, inappropriate and fundamentally
unfair, in terms of the right to a fair trial, not to set it
aside in the circumstances; there was a very long delay
in getting the appeal heard, through no fault of the
appellant’s.
Case Name: Sean Smith
v
The Chief of Police
[SKBMCRAP2013/0033]
Date: Friday, 13th June 2014
Coram: The Hon. Mr. Mario Michel, Justice of Appeal
The Hon. Mde. Gertel Thom, Justice of Appeal [Ag.]
Appearances:
Appellant: Dr. Henry Browne, QC
Respondent: Ms. Greatess Gordon, with her, Mr. O’Neil Simpson, for
38
the Director of Public Prosecutions
Issues: Appeal against conviction and sentence – Aggravated
assault – Appellant charged by police with battery
under s. 12(1) of Small Charges Act (Cap. 75, Revised
Laws of St. Christopher Nevis and Anguilla) which
carries maximum sentence of 2 months imprisonment
hard labour – Court deemed assault by appellant
sufficiently serious for it to amount to aggravated
assault upon a female in accordance with s. 12(2)(b) of
Small Charges Act which carries maximum sentence of
6 months imprisonment hard labour – Whether learned
magistrate erred in imposing a greater sentence than
that for which appellant was charged
Result / Order: [Oral delivery]
Hearing of this appeal is adjourned to the next sitting of
the Court of Appeal in the Federation during the week
of 27th – 31st October 2014.
Reason: Counsel for the appellant requested an adjournment.