The New Today
Local News

Drug suspect to stand trial for Cocaine possession

Justice Raulston Glasgow – presided over the case

High court judge Raulston Glasgow has dismissed an attempt by an individual charged for possession of illegal drugs to get the case dismissed on the grounds that the overseas witnesses in the Preliminary Inquiry was not present to give evidence during the hearing.

The accused Andre Thomas was charged by the Police in Grenada in January 2013 for a Cocaine-related matter involving a barrel.

The accused filed a constitutional motion before Justice Glasgow challenging the decision of the sitting Magistrate to commit him to stand trial on charges of trafficking and exporting cocaine.

His contention is that the committal should be declared a nullity, as the evidence on which the committal was based at the Preliminary Inquiry (PI) consisted mainly of written statements from overseas witnesses who did not attend the PI.

Lawyers for Thomas argued that the PI process was flawed and a breach of his constitutional right to a fair trial as guaranteed by section 8 of the Constitution of Grenada.

Guyana-born Darshan Ramdhani, KC and his wife Sabrita Khan-Ramdhani appeared for Thomas while the then Solicitor General Dwight Horsford, the current Attorney General in Anguilla along with attorneys Sasha Courtney and Maurissa Johnson appeared for the Attorney-General.

In his ruling handed down on March 28, 2024, Justice Glasgow dismissed the Constitutional Motion and paved the way for Thomas to face trial for his cocaine offence.

As a public service, THE NEW TODAY reproduces in full the Justice Raulston Glasgow findings on the Constitutional Motion:-

JUDGMENT
[1] GLASGOW, J.: The claimant (Mr. Thomas) has brought this claim by way of a constitutional motion challenging the decision of a magistrate to commit him to stand trial on charges of trafficking and exporting cocaine. Mr. Thomas argues that the committal should be declared a nullity, as the evidence on which the committal was based at the preliminary inquiry (PI) consisted mainly of written statements from overseas witnesses who did not attend the PI. Mr. Thomas argues that the PI process was flawed and a breach of his constitutional right to a fair trial guaranteed by section 8 of the Constitution of Grenada.

[1] GLASGOW, J.: The claimant (Mr. Thomas) has brought this claim by way of a constitutional motion challenging the decision of a magistrate to commit him to stand trial on charges of trafficking and exporting cocaine. Mr. Thomas argues that the committal should be declared a nullity, as the evidence on which the committal was based at the preliminary inquiry (PI) consisted mainly of written statements from overseas witnesses who did not attend the PI. Mr. Thomas argues that the PI process was flawed and a breach of his constitutional right to a fair trial guaranteed by section 8 of the Constitution of Grenada.

Background
[2] Mr. Thomas filed this originating motion for constitutional relief on 27th September 2017. He recited in his evidence in support of the motion that he is a businessman. In February 2012, he was detained, interviewed, and questioned for 48 hours by the police about the exportation of a barrel. He was then released. In January 2013, police officers visited his premises, executed a search warrant, and Mr. Thomas was arrested and taken into custody. On 24th January 2013 he was formally charged with 2 offences – trafficking and exporting a controlled substance, namely cocaine. Mr. Thomas alleges that these charges related to events which took place in January 2012.

[3] The PI into the trafficking and exporting charges began on 27th February 2013. Mr. Thomas lamented that there were many adjournments over the following 2 years. He says that he was present on all occasions, and that it was the prosecution who was unable to proceed. No evidence was taken at the PI until 2015. Mr. Thomas recounts that 8 of the witnesses gave oral evidence at the PI during 2015 and 2016. Copies of the statements of the witnesses were exhibited to Mr. Thomas’ affidavit in support of his constitutional motion.

[4] Mr. Thomas further recounts that, during the PI, evidence was given orally that 5 police officers had given written statements of certain events in the United Kingdom. Copies of these statements were exhibited to Mr. Thomas’ affidavit in support of the constitutional motion. Mr. Thomas pleads that the magistrate allowed the statements of the overseas witnesses to be tendered into evidence on the basis that it was unreasonable to expect these witnesses to attend both the PI and the trial. Mr. Thomas indicates that he was informed that the evidence was admitted under section 36D(C) of the Evidence Act Cap 92.

[5] Mr. Thomas contends that on the oral evidence led before the court, there was no evidence against him of any crime, and it was only the written statements from the overseas witnesses that made out a prima facie case against him. On 13th July 2016, Mr. Thomas was committed to stand trial. He was later granted bail with 2 sureties and was ordered to surrender his travel documents. On 12th January 2017, he was indicted by the Director of Public Prosecutions on 3 drug related offences – namely possession, trafficking and exportation of cocaine contrary to the Criminal Procedure Code Cap 72 of the laws of Grenada. Attached to Mr. Thomas’ affidavit in support of the constitutional motion was the order of committal and the indictment.

[6] Mr. Thomas is of the view that the procedure adopted at the PI was bad in law and in breach of his constitutional right to a fair trial. His case is that section 102 of the Criminal Procedure Code Cap.72B of the laws of Grenada applies, in that every witness at a PI must give evidence in the presence of the accused, who shall have a right of cross examining the witnesses. Mr. Thomas further argues that when the magistrate is considering whether to discharge or commit an accused under section 106 of the Criminal Procedure Code, the magistrate is only entitled to do so on a consideration of all of the evidence of the witnesses who have given oral evidence. He asserts that section 36(D) of the Evidence Act is inapplicable to PI’s, having regard to the specific provisions of the Criminal Procedure Code. Mr. Thomas further posits that a PI is part and parcel of a fair trial as envisaged by section 8 of the Constitution of Grenada.

[7] Mr. Thomas complains that the failure by the magistrate to comply with the Criminal Procedure Code deprived him of an opportunity of cross examining the overseas witnesses whose statements were tendered at the PI, thereby interfering with his right to a fair trial. He articulates that the committal which followed is bad in law, rendering the indictment grounded in the committal also bad in law. In the circumstances, Mr. Thomas complains that his right to a fair trial has been interfered with, and it is therefore unfair for him to stand trial on the indictment, as he would be in jeopardy of an unfair conviction and resulting consequences. Mr. Thomas further postures that taking these points before the trial judge is not an adequate alternative remedy to this claim for constitutional redress, as facing trial on a bad indictment is an ongoing breach, and if redress is not granted, he is at risk of being put on trial following the breach of his right to a fair trial at the PI.

Related:  Dr. Bert Brathwaite: “I will not quit NNP

[8] Mr. Thomas claims:

(1) A declaration that the conduct of the PI into the charges of ‘trafficking’ and ‘exporting’ a controlled substance against him which concluded on 13th July 2016 was in breach of sections 102 and 106 of the Criminal Procedure Code Cap 72B of the Continuous Revised Laws of Grenada;

(2) A declaration that as a result of the breach of sections 102 and 106 of Cap 72B, his committal on the 13th of July 2016 to stand trial for charges of trafficking and exporting is a nullity.

(3) A declaration that the indictment dated 3rd April 2017 and grounded in the committal of 13th July 2016 is a nullity;

(4) A declaration that the breaches of sections 102 and 106 of Cap. 72B amount to a continuous breach of the Claimant’s right to a fair trial as guaranteed by section 8 of the Constitution of Grenada;

(5) Damages for breach of the Claimant’s constitutional rights; and

(6) Costs.

Defendant’s Objection
[9] On 9th November 2017, the defendant (the AG) filed a ‘Notice of Objection’ to Mr. Thomas’ constitutional motion. This notice states that the AG intended to take a preliminary point at the hearing of the motion fixed for 27th November 2017 regarding the sustainability of the constitutional motion in the claim. The AG contends that the constitutional motion discloses no justiciable constitutional cause or grounds for constitutional redress and ought properly to be dismissed on the following grounds:

(1) Section 102 of the Criminal Procedure Code Cap 72B does not prescribe the exclusive procedure for the admission of evidence at a PI;

(2) The admission into evidence by the magistrate of unsworn statements of witnesses who are not present in court is not inconsistent with or in contravention of section 8(1) of the Constitution of Grenada, because no person has a vested right to any particular form of procedure;

(3) The procedure set out in section 36D(C) of the Evidence Act Cap 92 is an exception to the hearsay rule; common law exceptions to the hearsay rule existed for centuries prior to the commencement of the Grenada Constitution; and

(4) Section 8(1) of the Grenada Constitution does not guarantee that there would not be any further statutory exceptions to the hearsay rule and there are adequate safeguards contained in section 36D(C) of the Evidence Act which all satisfy the requirements of fairness and a fair trial guaranteed by section 8 of the Constitution. No breach of section 106 of the Criminal Procedure Code arises.

[10] Given the objection filed by the AG, the parties were invited to file written submissions and authorities to assist the court on its determination on the preliminary points raised. The AG filed submissions on 24th November 2017 and counsel for Mr. Thomas filed submissions on 4th December 2017. It is not clear what transpired in the interim period, but this matter languished for some time in the system and the submissions were only recently brought to this court’s attention.

ISSUES
[11] After considering the pleadings and the submissions of each party, the following issues presented themselves for determination:

(1) Whether section 102 of the Criminal Procedure Code Cap 72B prescribes the exclusive procedure for the admission of prosecution evidence at a PI;

(2) Whether the magistrate was permitted at law to admit the written statements of the overseas witnesses at the PI;

(3) Whether the procedures adopted at the PI breached Mr. Thomas’ constitutional right to a fair trial as enshrined in section 8 of the Constitution of Grenada; and

(4) Whether Mr. Thomas is entitled to the declaratory and other relief sought.

DISCUSSION & ANALYSIS
[12] It was submitted for the first time in written submissions filed by Mr. Thomas that the magistrate made certain errors in relation to the authentication of the written statements of the overseas witnesses. These arguments were not recounted in Mr. Thomas’ pleadings or his evidence and ought not to form part of the court’s consideration of the issues. This court has been asked on the pleadings and evidence to answer the questions: (1) whether the written statements of the overseas officers were admissible into evidence by the magistrate as part of her determination of whether to commit Mr. Thomas to stand trial in the high court; and (2) whether Mr. Thomas’ right to a fair trial was breached as a consequence of the magistrate’s decision to admit the written statements during the PI.

[13] However, for the reasons to follow, it will become apparent that notwithstanding the late entry of the ground of contention with respect to authentication, Mr. Thomas does turn out to be wrong in his assertions on this issue. I further take the opportunity to remind litigants that the law is clear on the requirements for proper and substantive pleadings1.The court is not obliged to make pronouncements on factual or legal contentions which do not form part of the pleaded case, or the evidence presented for its consideration.

Whether section 102 of the Criminal Procedure Code Cap 72B prescribes the exclusive procedure for the admission of prosecution evidence at a PI

The submissions
[14] Mr. Thomas’ counsel argues that the Criminal Procedure Code2 (CPC) and the Criminal Procedure (Preliminary Inquiries) Act3 (the 1978 Act) are the specific enactments which govern the conduct of a PI in Grenada. Learned counsel contends that the specific provisions of the CPC and the 1978 Act provide the basis on which the fair trial provisions of the Grenada Constitution are ensured, and any breach of these specific provisions will amount to the breach of the right to a fair trial. Counsel further submits that section 36D of the Evidence Act4 is a general exception to the hearsay rules but does not fit within the scheme of the framework governing PIs and relies on the principle of generalia specialibus non derogat. Counsel maintains that the utilization of the Evidence Act in PIs is absurd and leads to mischief, as it is a general provision, and the specific provisions of the CPC ought to be followed.

[15] The AG in submissions accepts that a PI forms part of the criminal procedural process, to which the CPC applies. However, the AG explains that section 4 of the CPC makes clear that the provisions of any other statute touching and concerning criminal proceedings may apply to criminal proceedings in tandem with the CPC or instead of the CPC, once such application is expressly stated in the other statute. Given that the Evidence Act provides for the statutory recognition of the common law rules on hearsay evidence, the AG submits that section 36D(c) of the Evidence Act makes provision for the circumstances in which firsthand hearsay statements may be admitted in criminal proceedings. The AG submits that the once the conditions stipulated in section 36D(c) of the Evidence Act are satisfied, firsthand hearsay evidence in the form of unsworn statements of witnesses who are absent or not in attendance before the magistrate may legitimately be admitted into evidence at the PI. The argument that section 102 of the CPC provides for the exclusive procedure for the taking of prosecution evidence at a PI is therefore not available and accordingly, the AG opines that this ground of the claim is unmeritorious.

TO BE CONTINUED

If you are satisfied with the information provided by The New Today to our many readers, followers and supporters around the world, then you can show your appreciation by making a financial contribution to the effort of our team of dedicated workers.

Giving back is a way of saying thank you for our efforts

Support The New Today