Gavin Scott Hapgood v Commissioner of Police

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgePereira CJ
Judgment Date24 Jun 2020
Judgment citation (vLex)[2020] ECSC J0624-5
Docket NumberAXAHCVAP2020/0003
[2020] ECSC J0624-5

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

AXAHCVAP2020/0003

Between:
Gavin Scott Hapgood
Appellant
and
[1] Commissioner of Police
[2] His Honour, Magistrate Keithly Benjamin
Respondents
Appearances:

Mr. Michael Fay, QC with him, Ms. Lavan Hoyoung for the Appellant

Mr. Terrence Williams and Ms. Erica Edwards, Senior Crown Counsel for the First Respondent

Ms. Navine Fleming holding a watching brief for the Second Respondent

Civil appeal — Judicial review — Preliminary objection — Jurisdiction of Court of Appeal to hear appeal — Whether appeal is against order made in criminal cause or matter — Whether civil appeal lies to Court of Appeal against order made in criminal cause or matter — Section 29(2) of Eastern Caribbean Supreme Court (Anguilla) Act

REASONS FOR DECISION
Pereira CJ
1

On 24 th June 2020, we dismissed an appeal filed by Mr. Gavin Scott Hapgood (“Mr. Hapgood”), the interested party in the claim below. The appeal was against the judgment of Innocent J (“the learned judge”) dated 20 th January 2020 on a judicial review claim filed by the first respondent (the “Commissioner of Police”) against the second respondent (“the magistrate”) in respect of his decision not to continue the preliminary inquiry into the offence of manslaughter alleged to have been committed by Mr. Hapgood, in Mr. Hapgood's absence, who he found had voluntarily absented himself from the hearing and from the jurisdiction of Anguilla. We dismissed the appeal on the basis of the Commissioner of Police's preliminary objection that the Court had no jurisdiction to hear the appeal; and made no order as to costs. As a consequence of the dismissal of the appeal, all related applications filed by Mr. Hapgood were also dismissed without further hearing. At the conclusion of the hearing, we promised to provide written reasons for our decision at a later date. We now do so.

Factual Background
2

On 16 th April 2019, Mr. Hapgood, a citizen of the United States of America, was charged with the offence of manslaughter of Mr. Kenny Mitchell at Malliouhana Resort in Anguilla. He was granted bail by a judge of the High Court on 17 th April 2019. The grant of bail was on the condition that Mr. Hapgood submit to the jurisdiction of the Magistrate's Court, having conduct of the preliminary inquiry into the offence alleged to have been committed by him.

3

On 9 th September 2019, the preliminary inquiry into the offence commenced before the magistrate. On 13 th September 2019, the magistrate adjourned the preliminary inquiry to 11 th November 2019 in the presence of Mr. Hapgood and his counsel. On 11 th November 2019, when the preliminary inquiry was scheduled to continue, Mr. Hapgood was absent. Mr. Hapgood's counsel indicated to the magistrate that he (Mr. Hapgood) would not be returning to Anguilla voluntarily for participating in the proceedings. The magistrate adjourned the preliminary inquiry to 12 th November 2019 to enable the Commissioner of Police to make an application to the High Court for the revocation of Mr. Hapgood's bail and the issuance of a warrant of arrest for him. A judge of the High Court revoked Mr. Hapgood's bail and issued a bench warrant for his arrest.

4

On 12 th and 13 th November 2019, the matter came before the magistrate for a determination as to whether the preliminary inquiry should continue in Mr. Hapgood's absence. The magistrate declined to continue the preliminary inquiry on the basis that he had no jurisdiction to do so in Mr. Hapgood's absence.

5

With the leave of the court, the Commissioner of Police commenced judicial review proceedings against the magistrate seeking to quash his decision to not continue with the preliminary inquiry in Mr. Hapgood's absence. Mr. Hapgood was joined to the proceedings as an interested party. The judicial review claim was heard by the learned judge who made orders quashing the magistrate's decision to not continue the preliminary inquiry and compelling him to resume, continue and determine the preliminary inquiry without further delay.

The Appeal
6

On 28 th February 2020, Mr. Hapgood filed a notice of appeal against the learned judge's decision on several grounds of appeal, which he subsequently amended. For the purposes of these reasons, however, it is not necessary to recite those grounds. On 25 th March 2020, the Commissioner of Police filed a notice of opposition to Mr. Hapgood's appeal. The notice of opposition raised the preliminary objection that the Court of Appeal had no jurisdiction to hear Mr. Hapgood's appeal having regard to the prohibition contained in section 29(2) of the Eastern Caribbean Supreme Court (Anguilla) Act 1 (the “Act”). Specifically, learned counsel on behalf of the Commissioner of Police, Mr. Terrence Williams contended that the appeal

filed by Mr. Hapgood is one against an order made in a criminal cause or matter from which no appeal shall lie to the Court of Appeal
7

On the 23 rd and 24 th of April 2020 and 7 th day of May 2020, the matter came up for hearing before a single judge of this Court on an amended application filed by Mr. Hapgood on 7 th April 2020, for a stay of the order of the learned judge pending the hearing of the appeal; and on an application filed on 23 rd April 2020 for an order seeking to prevent the Commissioner of Police from being heard on the appeal as a consequence of its contempt of court (“a Hadkinson order”). The learned single judge dismissed the application for a Hadkinson order and directed that the following matters be listed for hearing before the Full Court: (i) any further application for a Hadkinson order filed by Mr. Hapgood; (ii) the amended application for a stay of proceedings pending the determination of the appeal filed on 7 th April 2020; and (iii) the preliminary point on jurisdiction raised by the Commissioner of Police's notice of opposition. These matters as well as an application to vary, discharge or revoke the order of the single judge refusing to grant a Hadkinson order, filed by Mr. Hapgood on 6 th May 2020, were accordingly listed for hearing before the Full Court.

8

During the hearing before this Court, learned Queen's Counsel on behalf of the appellant, Mr. Michael Fay, sought to persuade us that the issue of the Hadkinson application ought to be determined at the outset, as its outcome would have determined whether the Commissioner of Police could be heard by the Court on any issue. We disagreed entirely with the position advanced by Mr. Fay, QC. In our view, the issue of jurisdiction is quite properly a threshold issue. It was therefore necessary for that issue to be resolved before turning to any other issue in this matter. Indeed, the Court observed that the issue of its jurisdiction could be raised by the Court of its own motion. It would be incongruous to entertain a Hadkinson application, which would determine who should be heard on an appeal, before first deciding whether there was jurisdiction to hear such an appeal. The issue then before this Court was whether Mr. Hapgood's appeal was from an order made in a criminal cause or matter, from which no appeal shall lie to the Court of Appeal under the Act (the “jurisdiction issue”).

Discussion
The Jurisdiction Issue
9

The jurisdiction of the Court of Appeal to hear appeals from decisions of the High Court is provided for under section 27 of the Act as follows:

“The jurisdiction of the Court of Appeal so far as it concerns practice and procedure in relation to appeals from the High Court shall be exercised in accordance with the provisions of this Act and the rules of court and, where no special provisions are contained in this Act or the rules of court, such jurisdiction so far as concerns practice and procedure in relation to appeals from the High Court shall be exercised as nearly as may be in conformity with the law and practice for the time being in force in England –

  • (a) in relation to criminal matters, in the Court of Appeal (Criminal Division); and

  • (b) in relation to civil matters, in the Court of Appeal (Civil Division)”

10

Notwithstanding section 27, the Act expressly precludes appeals to the Court of Appeal in respect of certain orders or decisions of the High Court. Of relevance to this matter is section 29(2) of the Act which provides that:

“(2) No appeal shall lie –

(a) from any order made in any criminal cause or matter except as provided by this Act…” (emphasis supplied)

11

The principles which govern the question of whether an order was made in a ‘criminal cause or matter’ have been the subject of a number of judicial pronouncements from this Court. Mr. Fay, QC referred the Court to the decision of Michael Glasford and Others v Commissioner of Police and Another, 2 where Sir Vincent Floissac CJ considered that there appeared to be three pre-conditions to an order being one made in a criminal cause or matter. His Lordship stated:

“The principles which govern the question whether an order was made in a criminal cause or matter were authoritatively stated in the decisions of the House of Lords in Re Clifford and O'Sullivan [1921] 2 AC 570 and Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147. According to these decisions, there appear to

be three pre-conditions to an order being in a criminal cause or matter. The first pre-condition is that, at the time of the filing or hearing of the application on which the order was made, a charge of crime punishable by a fine, imprisonment or otherwise had been or was about to be preferred against the applicant or some other person. The second pre-condition is that the application involved consideration of that charge of crime. The third pre-condition is that the direct outcome or result of the application was or might
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