Judgment Focus

JUDGEMENT SUMMARY

ATTORNEY GENERAL v ANTHONY HENRY AND FRANCIS NOEL – COURT OF APPEAL RULES ON

DETENTION OF ACCUSED PERSONS FOUND UNFIT TO PLEAD IN PRISON

On 10^th November 2021, The Eastern Caribbean Supreme Court of Appeal (“The Court”) delivered a unanimous judgment in Attorney General v Anthony Henry and Francis Noel.  The three-member panel which heard the appeal comprised Her Ladyship, The Hon. Dame Janice M. Pereira, DBE LL.D., Chief Justice, His Lordship, The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] and His Lordship, The Hon. Mr. Brian Cottle, Justice of Appeal [Ag.].  The written judgment was delivered by the learned Chief Justice, with whom the other Justices of Appeal concurred.

Background to the Appeal

The respondents, Anthony Henry (“Mr. Henry”) and Francis Noel (“Mr. Noel”), were charged with criminal offences and found unfit to stand trial.  Mr. Henry was detained in prison until he was discharged unconditionally by the Criminal Division of the High Court on 30^th May 2019, having been detained for 24 years.  Mr. Noel remained in prison at least up until the date of the judgment of the court below, having been detained therefore for at least 32 years. From 2003 onwards, the respondents were examined by psychiatrists and diagnosed with serious mental illnesses on several occasions.  Both respondents were never admitted to any mental health facility and remained in prison for the entire period of their detention pending recovery of their fitness to plead.  The respondents brought claims in the court below seeking declaratory relief and compensation for breaches of their constitutional rights to personal liberty, protection from inhuman treatment and protection of law arising from the circumstances of their detention.

The judge in the court below granted the respondents’ claims and made declarations to the effect that the State’s detention of the respondents in prison as opposed to a mental health facility after being found unfit to plead was in breach of their constitutional rights to personal liberty and to protection against inhuman and degrading treatment. The judge essentially considered that the respondents, having been found unfit to plead, ought to have been detained in a mental hospital and detaining them in a prison instead, amounted to a breach of their constitutional rights to personal liberty and to protection against inhuman and degrading treatment.  The judge awarded damages to Mr. Noel and Mr. Henry in the sums of $5,031,500.00 and $3,526,000.00 respectively for the breaches of their rights to personal liberty, calculated at a rate of $500.00 per day.

The Attorney General appealed against the judge’s decision, contending that the findings that the respondents’ constitutional rights to personal liberty and protection against inhuman and degrading treatment were breached were wrong in law.  The Attorney General also challenged the judge’s assessment of the damages awarded.

Reasons for Judgment

Among the issues considered by the Court was whether there exists a statutory requirement in Saint Lucia that persons who were found unfit to plead be detained in a mental hospital pending the recovery of their fitness to stand trial.  The Court observed that both section 31 of the Mental Hospitals Act and section 1021(1) of the applicable Criminal Code authorised the detention of a person found unfit to plead.  The former provision mandates that a person found unfit to plead prior to conviction is to be detained in a mental hospital while the latter provision gives the judge a discretion to determine the place of detention following a finding of unfitness to plead.  Having construed the provisions, the Court was of the view that there is an inescapable logical conflict between the two provisions and therefore found that the later section 1021(1) of the Criminal Code impliedly repealed section 31 of the Mental Hospitals Act.  The Court accordingly found that there is no statutory requirement in Saint Lucia for persons found unfit to plead to be detained in a mental hospital pending recovery of their fitness to plead and therefore, a judge has a broad discretion to determine the place and manner of detention of such persons.

The Court then considered whether the respondents being detained in prison, without periodic reviews, could amount to breaches of their constitutional rights to protection from inhuman and degrading treatment and personal liberty enshrined in the Constitution of Saint Lucia.  The Court observed that detention of a person found unfit to plead in prison could not amount to inhuman and degrading treatment without more.  In the circumstances, the Court was satisfied that there was no evidence from which a breach of the respondents’ rights to protection against inhuman and degrading treatment could reasonably have been found.  The Court then examined whether the State’s failure to ensure periodic reviews of the respondents’ detention could result in a breach of the rights to liberty and protection from inhuman and degrading treatment.  The evidence in this case showed that both respondents continued to suffer from serious mental illnesses at the time the judgment in the court below was delivered.  The Court reasoned that no argument could therefore be made on the evidence that they would have been released whether on bail or otherwise had their detention been subject to periodic reviews.  Accordingly, it was held that the State’s failure to conduct periodic reviews could not have amounted to a breach of the respondents’ rights to personal liberty and protection against inhuman and degrading treatment.

The Court however considered that the respondents’ rights to liberty were breached as the purpose of their detention had been overtaken by the fact that the periods of their detention exceeded the lawful custodial sentence which could have been imposed on them following a possible conviction, and a fair trial could no longer take place due to the passage of time.  The Court observed that, although the relevant provisions of the Constitution of Saint Lucia and the Criminal Code authorised the detention of the respondents, these provisions did not vest the State with an unfettered right to detain the respondents. 

Having regard to these findings and the extraordinary circumstances of the case, the Court allowed the Attorney General’s appeal in part and set aside the declarations made by the judge, except a declaration in relation to the respondents’ right to personal liberty which it varied to declare that the respondents’ detention in prison for periods which undermined their rights to protection of the law was in breach of their rights to personal liberty.

The Court then determined the appropriate redress to be granted in the circumstances of the case.  The Court reasoned that there was no proper basis for which damages could have been awarded for the breaches of the respondents’ constitutional rights for the entire period of their detention and for the use of the daily rate applied by the judge.  The awards of damages were therefore set aside.  In carrying out the assessment of damages afresh, the Court considered it appropriate to award damages in the sums of $250,000.00 and $500,000.00 to Mr. Henry and Mr. Noel respectively for the breaches of their constitutional rights, in circumstances where there was no evidence of any actual loss of income or other losses suffered by them as a result of their detention.  The Court was also of the view that it would no longer serve the interests of justice for the prosecution of the respondents to proceed and on this basis, granted a permanent stay of the criminal proceedings against them.

This summary is provided to assist in understanding the Court of Appeal’s decision.  It does not form part of the reasons for the decision.  The judgment of the Court of Appeal is the only authoritative document.  The judgment is available on the Eastern Caribbean Supreme Court’s website via the following link: Attorney General v Anthony Henry et al (eccourts.org)

Court of Appeal rules that there is no jurisdiction in Antigua and Barbuda to impose suspended sentences in criminal cases

Director of Public Prosecutions v Shane Williams was an appeal by the Director of Public Prosecutions against the sentence imposed by a judge on Shane Williams for a guilty plea to a charge of sexual intercourse with a female under the age of 14. The sentence imposed was 2 years’ imprisonment, suspended for 1 year. The main issues on the appeal were (i) whether there was jurisdiction in Antigua and Barbuda to impose suspended sentences in criminal cases; and, (ii) if the court did have jurisdiction to impose suspended sentences, whether it was appropriate to impose such a sentence in the circumstances.

The Court of Appeal observed that the jurisdiction to impose a suspended sentence is a statutory jurisdiction. The Court accepted that the Legislatures in several Commonwealth Caribbean jurisdictions had passed legislation to confer this jurisdiction on their local criminal courts but noted that no such legislation had been passed in Antigua and Barbuda. The Court therefore concluded that the judge had no jurisdiction to impose a suspended sentence, in the present case or any at all. The Court, considered, in the alternative, that even if the courts in Antigua and Barbuda had the jurisdiction to impose suspended sentences, a judge should only impose such a sentence in exceptional circumstances. There were no exceptional circumstances in Williams’ case. The Court therefore found that, on any view, the judge erred in imposing the suspended sentence.

Having determined that the judge did not have jurisdiction to impose a suspended sentence, the Court set aside the judge’s sentence and considered the sentence to be imposed in its place. The Court considered this question against the circumstances of the case, including the fact that Williams only plead guilty after the judge gave an indication of the sentence he would impose if Williams pleaded guilty (a “Goodyear Indication”). The Court found that the manner in which the judge went about giving the Goodyear Indication unduly pressured Williams to plead guilty, and therefore that Williams’ plea was not voluntarily entered. Against that background, the Court considered that both Williams’ conviction and sentence were fundamentally defective and, in those circumstances, justice and fairness required that the Williams’ sentence be reckoned to be the time he already spent on remand – 7 days’ imprisonment.

Court of Appeal rules that Black Swan was wrongly decided

In Broad Idea International Limited v Convoy Collateral Limited , the Court of Appeal considered the issue of whether the BVI court has jurisdiction to grant an interlocutory injunction (a freezing order in this case) against a person resident in the BVI against whom no substantive proceedings have been pursued anywhere in the world, and whether any such jurisdiction extends to granting an injunction in aid of foreign proceedings to which that person is not a party. The appeal in effect was a direct challenge to the Black Swan jurisdiction, named after the 2010 decision of the BVI Commercial Court in Black Swan Investment I.S.A. v Harvest View Limited et al. The decision has been relied on in the BVI as authority for the existence of the jurisdiction in issue.

The Court’s resolution of the jurisdiction issue was two-fold. First, the Court observed that the jurisdiction to grant interlocutory injunctions under section 24 of the Eastern Caribbean Supreme Court (Virgin Islands) Act is a statutory one which is premised on the existence of underlying substantive proceedings. In the absence of such proceedings, the Court stated that the BVI court has no jurisdiction to grant an interlocutory injunction. Second, the Court examined whether the BVI court has jurisdiction to grant interlocutory injunctions in aid of foreign proceedings. The Court expressed that section 24 which clothes the court with the jurisdiction to grant interlocutory injunctions makes no reference to the grant of injunctions in aid of foreign proceedings. Further, the Court noted that in other common law jurisdictions, such as the United Kingdom and the Cayman Islands, legislatures have made express statutory provisions to empower courts to grant injunctions in aid of foreign proceedings, but the BVI Legislature has not given the court such power. The Court held that, given the historical statutory jurisdiction underpinning the grant of such interlocutory relief, the BVI court has no jurisdiction to grant interlocutory injunctions in aid of foreign proceedings.

It is therefore settled that Black Swan was wrongly decided and thus, the BVI court has no jurisdiction to grant a freestanding interlocutory injunction in aid of foreign proceedings.

The Court of Appeal in The Supervisory Authority v Cresswell Overseas S. A et al, considered whether the trial judge had jurisdiction to order the registration of a foreign criminal restraint order from a non-Commonwealth country and the procedure for the registration of such orders; namely a Brazilian foreign restraint order (“the Moro Order”). The Court examined the High Court’s jurisdiction under four heads: (1) the Mutual Assistance in Criminal Matters Act 1993 (the “MACMA”); (2) the Money Laundering (Prevention) Act 1996 (the “MLPA”); (3) International treaties; and, (4) the principle in Black Swan Investment I.S.A v Harvest View Limited et al (the “Black Swan Principle”).

The Court held that the registration of foreign criminal restraint orders originating from Commonwealth countries are governed by section 27 of the MACMA and on its own, section 27 of the MACMA does not extend to the registration of orders from non-Commonwealth countries. However, section 30 of the MACMA makes provisions for the registration of foreign orders from non-Commonwealth countries, specifically that regulations must exist in accordance with the requirements contained within section 30 of the MACMA, or some other legislation having the effect of section 30 regulations. In the present case, no such regulations or legislation existed.

The Court noted that sections 19 and 19A of the MLPA is limited to the court’s power to grant an injunction against the property of a person who has been charged or convicted of a money laundering offence, and does not extend jurisdiction to the court to make a registration order. Further, section 23 of the MLPA provides a general power to facilitate the provision of legal assistance and therefore, registration of foreign orders such as the Moro Order must be done in accordance with the laws of Antigua and Barbuda pursuant to part 72 of the CPR and section 27 and 30 of the MACMA. 

The Court also examined whether the High Court had jurisdiction to register a restraint order under international treaties; and found that the four international treaties relied upon were not ratified in accordance with section 3(3) of the Ratification of Treaties Act (the RTA), and therefore could not have given the court any powers to register the Moro Order. In any event, the Court found that the treaties deferred to domestic laws of the signatory states on the procedure to be taken in processing of legal mutual assistance requests, therefore the registration of foreign orders were to be done in accordance with the provisions of the MACMA.

The Court stated that the Black Swan principle was of a civil proceedings nature and reliance should not be placed on the same in criminal or quasi criminal proceedings. Further, the court was of the view that the common law principles which seek to invoke the court’s inherent jurisdiction are not intended to circumvent or derogate from statutory provisions which govern the registration of orders; thus, strict compliance of sections 27 and 30 of the MACMA was intended by parliament.

It is therefore settled that the powers of the High Court in Antigua and Barbuda, in registering criminal restraint orders, are regulated by sections 27 and 30 of MACMA. 

Court of Appeal clarifies the approach to compensation for compulsorily acquired land, injurious affection, and to the computation of interest awards in compensation claims, under the Land Acquisition Act of Anguilla.

In Estate of Dame Bernice Lake et al v The Attorney General of Anguilla this Court evaluated the compensation award made by a Board of Assessment for land which was compulsorily acquired by the Government of Anguilla pursuant to the Land Acquisition Act of Anguilla (“the Act”). The Court assessed the appropriateness of the compensation awarded to the Estate of Dame Bernice Lake, QC for the acquisition of Dame Bernice Lake’s land, the compensation awarded to her for the injurious affection (or decrease in value) of her adjoining land, and the interest on the compensation awards.

In assessing the award of the Board of Assessment, the Court made a number of findings which will affect the way compensation will be awarded in future compensation claims of this nature.

First, the Court held that the valuation of compulsorily acquired land ought to be undertaken on the open market value of land, and that the acquired land must be valued in the context of the larger parcel from which it was severed.

Second, the Court held that compensation for acquired land must be assessed having regard to the highest and best use of the land, and defined highest and best use as the most profitable use to which land could be put that is legally permissible, physically possible and financially feasible.

Third, the Court considered the occurrence of injurious affection, and explained that it could only arise when a piece of land was compulsorily acquired from a larger portion of land, and the acquired land is intended to be or is actually used for a scheme or project which adversely affects the value of the remainder of the land.

Fourth, the Court found that in order to receive compensation for acquired land, one must be the owner of that land at the time of the acquisition. However, one need not be the owner of adjoining lands at the time of an acquisition to receive compensation for the injurious affection of the adjoining land.

Fifth, the Court considered the computation of interest in land acquisition cases where the quantum of compensation is in dispute. The Court found that the relevant dates to and from which interest on the compensation awarded for acquired land should run are: (1) the date of the acquisition (start date); and (2) the date on which compensation is awarded by the Board of Assessment (end date). In the case of land which is acquired by the Government, and thereafter re-vested to the original land owner, the relevant dates are: (1) the date of acquisition (start); and (2) the date on which the land was re-vested (end).

The Court’s analysis of this appeal is rounded by its comments on the legal status and applicability of the International Valuation Standards, the Land Compensation Manual and the RICS Valuation Standards. The Court concluded that these publications did not enjoy the legal status to oust its jurisdiction to consider land valuation reports which were made in breach of the standards and rules contained in those publications.

In allowing the appeal in part, the Court varied the awards of compensation made to the Estate of Dame Bernice Lake, and the awards of interest made, in light of the principles which it deemed applicable to land valuation in Anguilla.

The Court of Appeal in Dr. Martin Didier et al v Royal Caribbean Cruises Ltd. held that the court will not order security for costs solely because the claimant is ordinarily resident outside the jurisdiction. However, a non-resident claimant with no assets in the jurisdiction will, in all likelihood, be required to put up security for the defendant’s costs.

In Dr. Martin Didier et al v Royal Caribbean Cruises Ltd., this Court considered an appeal against the judgment of a High Court Master.  The master refused an application, made by Dr. Martin Didier and the other named appellants, for an order that Royal Caribbean Cruises Limited provides security for the appellants’ costs in the proceedings in the lower court.  Royal Caribbean Cruises Limited is a company registered in Liberia with its registered office in Monrovia.

The Court held that it would not order security for costs on the sole basis that the claimant in the matter is ordinarily resident outside the jurisdiction of the court.  The court however made it clear that a non-resident claimant with no assets in the court’s jurisdiction will likely be required to put up the security for the costs of the defendant.  This ruling is based on the general principle that the court has the discretion, supported by rules 24.2 and 24.3 of the Civil Procedure Rules 2000, to make an order that a claimant is to put up security for a defendants costs once the court is satisfied “that there is a significant risk of the defendant suffering an injustice by having to pay to defend the proceedings, with no real prospect of being able to recover his costs if he is eventually successful.”

This Court was guided by the decision of the Court of Appeal of England in the case of Berkeley Administration Inc. and others v McClelland and others.  The simple principle coming out of that authority is that the plaintiff being a resident abroad is not per se a ground for making the order.  However, this Court having assessed the facts, acknowledged and applied the important point that a “non-resident claimant with no assets in the jurisdiction will, in all likelihood, be required to put up security for the defendant’s costs.” 

Interestingly, this Court highlighted that Berkeley Administration Inc “coincidentally…made the point that a ‘one ship’ company resident in Liberia with no local assets will not contest the making of an order, only the quantum of costs to be posted.”  Acknowledging though, that Royal Caribbean Cruises Ltd. was by no means a “one ship” company, this Court stated that “there is no evidence that it has assets in Saint Lucia, and the only ship about which there are any details (Explorer of the Seas) flies a Bahamian flag.”  Given the circumstances this Court concluded that Royal Caribbean Cruises Ltd. does not have assets in the jurisdiction and there are potentially uncertain difficulties and expenses associated with enforcing a costs order against it, either in the jurisdiction or elsewhere.  This Court conclusively found that it would be just to make an order that Royal Caribbean Cruises Ltd. provide security for the costs of the appellants.

The Court of Appeal in Steadroy Matthews v Garna O’neal held that the Court has jurisdiction to award pre-judgment interest. In doing so the Court reaffirms the decision of Andrey Adamovsky et al v Andriy Malitskiy et al and declares Alphonso v Ramnath good law.

In Steadroy Matthews v Garna O’neal , this Court considered whether a court in the BVI has jurisdiction to award pre-judgment interest on general damages and thus whether the the High Court judge was entitled to award pre-judgment interest or if such a decision was an error in law.

The Court held that having regard to Alphonso v Ramnath, it did not specifically peg its decision on the judgment in Jefford v Gee, an English case which was challenged on the fact that England had specific legislation providing for prejudgment interest and the BVI did not. The Court stated that, in Alphonso v Ramnath it made a pronouncement which has since been followed by courts throughout the Eastern Caribbean.

Furthermore, the Court held that section 3 (1) of the Law  Reform  (Miscellaneous  Provisions) Act,  1934  (the  UK  Act)  is applicable in the BVI by virtue of section 7 of the  West  Indies Associated  States  Supreme  Court  (Virgin  Islands)  Act, which provides that: “The High  Court  shall  have  and  exercise  within  the  Territory  all  such jurisdiction  (save  and  except  the  jurisdiction  in  Admiralty)  and  the  same powers  and authorities  incidental  to  such  jurisdiction as  on  the  first day of January, 1940 was vested in the High Court of Justice in England.” 

The Court noted that the judgment in Alphonso v Ramnath, has not been overruled by any higher court but instead, has been reinforced by the judgment of the Privy Council in another BVI appeal in the case of Creque v Penn. The Court illustrated that in that case, the Privy Council held that: “They are satisfied that the court had jurisdiction to award pre-judgment…”.

Alphonso v Ramnath is now settled law in the Territory of the Virgin  Islands  on  the  issue of  pre-judgment  interest  on  damages, and  that its authority is  buttressed by the judgment of this Court  in Adamovsky v Malitskiy, in which this Court stated “It cannot be disputed that a party wrongfully deprived by another of money to which the first party is entitled ought to be compensated for his loss, not just by an award to him of the sum of money to which he was entitled, but so too  by  an  award  of  the  time  value  of  the  money  from  the  date  of  its appropriation  to  the  date  on  which  it  is  ordered  to  be  paid  to  him.  This latter award is what is referred to as an award of pre-judgment interest”.

From Steadroy Matthews v Garna O’Neal, an issue of contention is now settled, in that even where states do not specifically provide for prejudgment interest by statute, the Court has the discretion to award interest on damages to a claimant from the date of the loss to the date of judgment.

Court of Appeal rules that the Government of Grenada as the “visitor” of the Saint George’s University has sole and exclusive jurisdiction to deal with the internal affairs of the University

In Rajiv Gunness v Saint George’s University Limited et al, this Court considered whether the Government of Grenada was a visitor of the University on a proper construction of Article 2 of the Second Schedule of the Saint George’s University Limited Act.

The Court held that having regard to the nature of the visitor’s jurisdiction, the appointment of a visitor must be expressed.  No particular form of words is necessary but the intention is to be gleaned from the statute.  In interpreting legislative provisions, the court would adopt a purposive interpretation so as to give effect to what is taken to have been intended by Parliament.  However, the court has no power to improve upon the instrument which it is called upon to construe; it can only discover what the instrument means.  In this connection, the Court found that under Article 2 titled “Visitation Rights”, the parties agreed for the government to be the visitor of the University with full visitation rights with the government determining the person or persons who will exercise the rights on behalf of the government.

In dismissing the appeal, the Court held that a visitor has sole and exclusive jurisdiction over the internal affairs of a university.  A dispute as to the correct interpretation and fair administration of the domestic laws of the university falls within the jurisdiction of the visitor, therefore the Court usually lacks jurisdiction in the first instance to interfere.  However, a decision of the university visitor may be amenable to judicial review as the visitor is susceptible to the supervisory jurisdiction of the court.  The dispute in this case being a disciplinary matter and being grounded in the domestic laws of the University, was a matter which fell squarely within the internal management of the University and therefore was a matter within the jurisdiction of the visitor.

In Phillip Brelsford et al v Providence Estate Limited, this Court considered whether land transfer instruments were effective in transferring title to a purchaser, notwithstanding their non-compliance with the registration requirements of section 107 of the Registered Land Act of Montserrat (“the Act”).

The Court held that once registration is effected, it must attract the consequences which the Act attaches to registration, whether the registration was regular or otherwise. As it is the registration and not its antecedents which vests and divests title, the failure by a vendor to execute the land transfer instruments in accordance with section 107 of the Act does not affect the validity of a purchaser’s title. In other words, once a purchaser is registered as a proprietor of a parcel, that purchaser acquires title to that parcel, notwithstanding any irregularity that may have occurred with respect to the vendor. Furthermore, in the absence of fraud or mistake, the conditions for rectification of the register under section 140 of the Act do not arise and the court has no jurisdiction to otherwise order rectification, that is, cancellation or correction of the register.

In the case at bar, the land transfers made in the purchasers’ favour were void as they were not the act of the vendor, but were executed by a person purporting to be the vendors’ representative. Notwithstanding, the void transaction does not give rise to an equitable interest in the property itself, but could however give rise to the equitable right to sue for recovery of the land, and the purchasers as the new registered proprietors of the land would hold their titles subject to this right.

In Alcedo Tyson v The Queen, this Court considered whether section 27(b) of the BVI Jury Act, which gives the Crown the unlimited right to stand-by jurors in criminal proceedings, infringes the equality of arms provision enshrined in section 16 (the fair hearing provision) of the Virgin Islands Constitution Order 2007. At the appellant’s trial the Crown stood-by 21 potential jurors without ascribing any reason. The appellant contended that this was likely to lead the fair-minded observer to find that the selection of an independent and impartial tribunal was biased.

The court held that section 27(b) of the Jury Act is unconstitutional due to the extreme disparity it creates in the jury selection process. The court underscored that the section permits the infringement of the principle of equality of arms by making the defendant’s position extremely weaker than that of the Crown, as a defendant is afforded merely 3 peremptory challenges under the Act. The court found that the Crown’s unlimited right to stand-by jurors was not justifiable in the public interest since section 28 of the Act allows the Crown to challenge a juror for cause if, in the opinion of the presiding judge, it is improper or inadvisable for the juror challenged to be impaneled. Section 28 of the Act therefore safeguards the selection of a competent jury. Consequently, the Crown would not be disadvantaged in the jury selection process by the removal of its unlimited right of stand-by.

In allowing the appeal, the court held that section 27(b) of the Act infringed the appellant’s substantive fundamental right to a fair trial by an impartial court as the perception of bias in the selection process may have resulted in the perception of bias during the trial, and in effect rendered his conviction unsafe.

In the Director of Public Prosecutions et al v Roddy Felix et al this Court considered whether the power of the Director of Public Prosecutions and/or the Commissioner of Police to initiate criminal proceedings is suspended pending the outcome of a coroner’s inquiry in circumstances that bring section 9 of the Coroners Act into play.

The Court examined the relationship between section 71 of the Grenada Constitution Order, 1973 which deals with the DPP’s power to initiate, take over and continue, or discontinue criminal proceedings etc and the Coroners Act.  The Court held that both the DPP and the Commissioner have the power to initiate criminal proceedings and that nothing in the Coroners Act postpones or takes away that right.  If these officials have to await the outcome of a coroner’s inquest before they can initiate criminal proceedings, it would be a restriction on their powers, and, in the case of the DPP, a breach of section 71 of the Constitution.  The Coroners Act contains one of the two ways of initiating criminal proceedings in the case of a suspicious death of a person in custody.  It does not shut out or postpone the alternative route of the Commissioner or the DPP exercising their independent power to initiate murder or manslaughter proceedings in the Magistrate’s Court.

The Court also found that the DPP’s powers to initiate, take over and continue, or discontinue criminal proceedings at such times as the DDP sees fit are clearly defined in section 71 of the Constitution. Restricting the DPP’s constitutional power to prosecute criminal offences by an existing law, namely, section 9 of the Coroners Act, would be an improper, if not contrary use of the existing law principle. Section 9 should not be construed by reading into the section a limit on the DPP’s constitutional powers.  If anything, the coroner’s mandatory duty under section 9 should be construed as being subject to the DPP’s overarching constitutional power to control criminal proceedings.  The power to prevent the DPP and the Commissioner from commencing criminal proceedings was not included in the Coroners Act and that power should not be implied into the Act.  Even if the power could be implied into section 9, it would be inconsistent with section 71 of the Constitution and to that extent would be void, or, as an existing law, would be required to be read with such modification as to yield to the provisions of section 71 of the Constitution.