By Bennette Roach
Updated: December 18, 2020
As ZJB Radio report begins, “More interesting developments in the court matter involving attorney at law and former Chief Minister David S. Brandt.”
The question being asked more frequently now and in the face of other judicial areas where money would be better served, “Why is the local government allowing the UK to expend the amount of money on a trial that may have gone wrong ‘at’ the overdue time and the way it started? For another consultation and discussion.
We have referred to this ongoing matter as historical and it seems there is little end in sight for the matter to come to a conclusion. And, whereas by virtue of the nature of the case, which we believe has other motives involved, the public seems now to have lost interest in it.
The following was noted in the ruling/decision: “Several trial dates have been set and subsequently vacated on account of supervening litigation at the instance of the appellant over the past five years. To date, Mr. Brandt has not been tried,” Chief Justice the Hon. Dame Janice M. Pereira, DBE wrote.
The latest is the decision of the East Caribbean Court of Appeal dismissing appeals brought by the Attorney General (AG) and the Director of Public Prosecutions (DPP) against a decision by His Lordship Justice Rajiv Persaud, who ruled that consistent with his constitutional rights, Mr. Brandt could not be prevented from cross-examining any witness at his pending criminal trial.
The background of the appeals came from: “…the DPP’s application’
Dr. Dorsett, who appears for Mr. Brandt in these appeals, was appointed by Persad J [Ag.], the learned judge of the High Court presiding over the criminal proceedings… to represent Mr. Brandt for the purpose of cross-examining the prosecution witnesses.
[4] Mr. Brandt and Dr. Dorsett were equally aggrieved by the learned judge’s decision. Dr. Dorsett challenged his appointment as counsel for Mr. Brandt by way of CPR Part 56 proceedings, and Mr. Brandt, being desirous of cross-examining the prosecution witnesses himself, raised an objection to Dr. Dorsett’s appointment before the learned judge. Mr. Brandt’s position was that any restriction on his ability to cross-examine prosecution witnesses without the assistance of counsel, runs afoul of his rights to defend himself and to cross-examine witnesses under sections 7(2)(d) and 7(2)(e) of the Constitution of Montserrat2 (“the Constitution”).
Mr. Brandt therefore urged the judge not to apply sections 287, 288, and 291 of the Criminal Procedure Code, on the basis that they are incompatible with his rights under the Constitution.
On 28th September 2020, the judge rendered an oral decision which was later reduced to writing, by which he concluded that sections 287, 288, and 291 of the Criminal Procedure Code infringe Mr. Brandt’s constitutional rights… and vacated his earlier orders limiting Mr. Brandt’s ability to cross-examine in person and appointing Dr. Dorsett for the purpose of doing so.
The DPP also applied under the provisions of the Criminal Procedure Code to have special measures adopted for the taking of evidence from certain prosecution witnesses (“the special measures application”). In relation to the special measures application, the learned judge was satisfied on the evidence that the application ought to be granted and, on 5th October 2020, made orders permitting the Crown to lead evidence from three prosecution witnesses, who are complainants in the matter, through a video recording to be played in court as the evidence in chief pursuant to… the Criminal Procedure Code. The learned judge also granted leave to have the said three prosecution witnesses appear remotely from another location, outside the court, when they are required to be cross-examined on their evidence… and to have another prosecution witness, give evidence by video link.
Then came the Appeals.
The Attorney General and the DPP by way of appeal against the judge’s 28th September 2020 decision, in essence, challenged the correctness of the judge’s analysis and conclusions, and his order vacating Dr. Dorsett’s appointment as legal representative for Mr. Brandt.
The CPC Appeals were launched as civil appeals and not criminal appeals even though they do not originate from a constitutional motion or civil claim in the court below, and notwithstanding that they arise from a ruling by the learned judge within the context of the pre-trial case management hearing of Mr. Brandt’s criminal trial.
Mr. Brandt, at the same time, launched a criminal appeal challenging the learned judge’s 5th October 2020 decision in relation to the DPP’s special measures application (“the Special Measures Appeal”). The Special Measures Appeal challenges the judge’s orders sanctioning the prosecution’s use of special measures for the protection of certain prosecution witnesses.
Following the filing of these appeals, Mr. Brandt applied also on 15th October 2020 to strike out the CPC Appeals.
In similar vein, the DPP moved the Court to strike out the Special Measures Appeal, in essence on several grounds:
(i) The Special Measures Appeal does not fall within the scope of permissible appeals under section 38 of the Supreme Court Act as it is not an appeal against conviction or sentence;
(ii) There is no legal basis to mount an appeal to the Court of Appeal against a trial judge’s ruling on a pre-trial issue in a criminal trial…
(iii) The issue before the trial judge was well within the competence of a trial judge without there being any reliance upon or invocation of any section of the Constitution.
In the final decision, the Appeal Court ruled “on 11th November 2020 this Court unanimously dismissed three appeals brought respectively by the Attorney General, the Director of Public Prosecutions (“the DPP”) of Montserrat and Mr. David Brandt, following the consideration of submissions by the parties on this Court’s jurisdiction to entertain the appeals.”
First – “We are satisfied that the Attorney General in the circumstances has no standing as an appellant in this matter and, on that basis alone, it is sufficient to dismiss…”
In the circumstances, the Special Measures Appeal is clearly not permitted by the Supreme Court Act, is a nullity and must be dismissed…Agreed with Mr. Brandt “that this Court has no jurisdiction to hear either of the CPC Appeals. He argues that the appeals are caught by section 31(2)(a) and must be dismissed.”
And finally, “It is for all the above reasons [in the 50-clause decision] that the Court dismissed the CPC Appeals and Special Measures Appeals.”
