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Brandt loses appeal and must move on to the High court, unless…

Attorney-at-Law David S. Brandt, a former chief minister of Montserrat was arrested and charged on Monday, September 21, 2015, on sexually related charges allegedly involving minors dating back to 2010. On the matter being sent from the magistrate’s court to the high court for sufficiency hearing, Brandt appealed and lost.

The man known as ‘the man of the people’ and still popularly referred to politically as, ‘The Heavy Roller’ is second to former Premier Reuben T Meade who served for 25 years non stop from 1991 – 2014, and he for 23 years as the longest serving legislators alive. He was elected in 1983 until he opted not to contest the elections 2001 under a new system in 2001; then again from 2006 to 2009 when Chief Minister Dr. Lowell Lewis asked for elections to give the government a new start.

In January this year, the practising prominent lawyer David S. Brandt, faced charges in the Magistrate’s court under the Penal Code of Montserrat with the offences  of  sexual  intercourse  with  a  girl  under  the  age  of  16  years  contrary  to  section 122(1);  conspiracy with  persons  unknown to  have  unlawful  sexual  intercourse  with  a  girl under  the  age  of  16  years,  sexual  exploitation  of  persons  under  the  age  of  18  years contrary to  section  141(1)(a) and  conduct  for the  purposes  of  sexual  exploitation of  a  girl under the age of 18 years contrary to section 141(1)(d).

At that hearing Brandt applied to have the charges dismissed arguing that the charges were defective and bad both in law and in substance and form. The chief magistrate denied the application on the ground that the court had no jurisdiction to dismiss the charges, and he appealed.

In his appeal Brandt argued that the chief magistrate erred in finding that he did not have the power to determine the validity of the charges at an initial hearing, and that his constitutional right to a fair hearing had also been infringed.

On November 6, 2017 the Appeal Court comprising the The Hon. Mde. Gertel Thom Justice of Appeal, the Hons. Mr. Paul Webster and Mr. John Carrington, QC. both Justice of Appeal [Ag.] provided a judgment which dismissed the appeal, affirmed the decision of the chief magistrate and remitted the case to the High Court.

The appeal was heard on July 13 with Dr. David Dorsett and Mr. Karl Markham for the Appellant and Miss0 Anesta Weeks, QC and Miss Dee Connolly for the Respondent.

In dismissing the appeal, the judges held that:

1.The magistrate does not have the power to dismiss charges against a defendant at an initial hearing. Neither section 22 of the Magistrate’s Act nor section 67(3) of the Criminal Procedure Code affords a magistrate such power. In relation to initial hearings, the magistrate’s powers are limited to the matters listed in section 67(3) of the Criminal Procedure Code.

Section 22 of the Magistrate’s Act, Cap. 2.02, Revised Laws of Montserrat 2013 applied; Section 67 of the Criminal Procedure Code, Cap. 4.01, Revised Laws of Montserrat 2013 applied.

  1. The Magistrate’s Court does not have jurisdiction to grant constitutional relief under section 7 of the Constitution of Montserrat. Any redress for alleged breaches of the Constitution must be sought in the High Court.
  2. The Court of Appeal does not have original jurisdiction to hear applications for breaches of the Constitution. The Court can only address breaches of the Constitution on appeal from the High Court.

According to the decision the judges said that “just  before  the  hearing  of  the  appeal  the  respondent  withdrew  the  charges  of unlawful  sexual  intercourse  and  conspiracy  ((a)  and (b)  in  paragraph  1  above) leaving the five charges of sexual exploitation , four of them contrary to sub- section (a)  of section 141(1)  of the Penal  Code and  one  contrary  to  sub-section  (d)  of section  141(1).”

Since the judgment Mr. Brandt has declined to pronounce much, but believes without elaborating, that the appeal court was wrong in some aspects. Mr. Brandt will have the opportunity to address some of the issues at the start of his sufficiency hearing, if he opts not to go further and appeal to the Privy Council. He could then be laying the foundation for an eventual plea to the court of appeal, again.

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A Moment with the Registrar of Lands

Attorney-at-Law David S. Brandt, a former chief minister of Montserrat was arrested and charged on Monday, September 21, 2015, on sexually related charges allegedly involving minors dating back to 2010. On the matter being sent from the magistrate’s court to the high court for sufficiency hearing, Brandt appealed and lost.

The man known as ‘the man of the people’ and still popularly referred to politically as, ‘The Heavy Roller’ is second to former Premier Reuben T Meade who served for 25 years non stop from 1991 – 2014, and he for 23 years as the longest serving legislators alive. He was elected in 1983 until he opted not to contest the elections 2001 under a new system in 2001; then again from 2006 to 2009 when Chief Minister Dr. Lowell Lewis asked for elections to give the government a new start.

In January this year, the practising prominent lawyer David S. Brandt, faced charges in the Magistrate’s court under the Penal Code of Montserrat with the offences  of  sexual  intercourse  with  a  girl  under  the  age  of  16  years  contrary  to  section 122(1);  conspiracy with  persons  unknown to  have  unlawful  sexual  intercourse  with  a  girl under  the  age  of  16  years,  sexual  exploitation  of  persons  under  the  age  of  18  years contrary to  section  141(1)(a) and  conduct  for the  purposes  of  sexual  exploitation of  a  girl under the age of 18 years contrary to section 141(1)(d).

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At that hearing Brandt applied to have the charges dismissed arguing that the charges were defective and bad both in law and in substance and form. The chief magistrate denied the application on the ground that the court had no jurisdiction to dismiss the charges, and he appealed.

In his appeal Brandt argued that the chief magistrate erred in finding that he did not have the power to determine the validity of the charges at an initial hearing, and that his constitutional right to a fair hearing had also been infringed.

On November 6, 2017 the Appeal Court comprising the The Hon. Mde. Gertel Thom Justice of Appeal, the Hons. Mr. Paul Webster and Mr. John Carrington, QC. both Justice of Appeal [Ag.] provided a judgment which dismissed the appeal, affirmed the decision of the chief magistrate and remitted the case to the High Court.

The appeal was heard on July 13 with Dr. David Dorsett and Mr. Karl Markham for the Appellant and Miss0 Anesta Weeks, QC and Miss Dee Connolly for the Respondent.

In dismissing the appeal, the judges held that:

1.The magistrate does not have the power to dismiss charges against a defendant at an initial hearing. Neither section 22 of the Magistrate’s Act nor section 67(3) of the Criminal Procedure Code affords a magistrate such power. In relation to initial hearings, the magistrate’s powers are limited to the matters listed in section 67(3) of the Criminal Procedure Code.

Section 22 of the Magistrate’s Act, Cap. 2.02, Revised Laws of Montserrat 2013 applied; Section 67 of the Criminal Procedure Code, Cap. 4.01, Revised Laws of Montserrat 2013 applied.

  1. The Magistrate’s Court does not have jurisdiction to grant constitutional relief under section 7 of the Constitution of Montserrat. Any redress for alleged breaches of the Constitution must be sought in the High Court.
  2. The Court of Appeal does not have original jurisdiction to hear applications for breaches of the Constitution. The Court can only address breaches of the Constitution on appeal from the High Court.

According to the decision the judges said that “just  before  the  hearing  of  the  appeal  the  respondent  withdrew  the  charges  of unlawful  sexual  intercourse  and  conspiracy  ((a)  and (b)  in  paragraph  1  above) leaving the five charges of sexual exploitation , four of them contrary to sub- section (a)  of section 141(1)  of the Penal  Code and  one  contrary  to  sub-section  (d)  of section  141(1).”

Since the judgment Mr. Brandt has declined to pronounce much, but believes without elaborating, that the appeal court was wrong in some aspects. Mr. Brandt will have the opportunity to address some of the issues at the start of his sufficiency hearing, if he opts not to go further and appeal to the Privy Council. He could then be laying the foundation for an eventual plea to the court of appeal, again.