DPP Appellant v Patrick John Malcolm Reid Julian David Dennis Joseph Respondents [ECSC]
| Jurisdiction | Dominica |
| Judge | ROBOTHAM, J.A., |
| Judgment Date | 28 September 1982 |
| Judgment citation (vLex) | [1982] ECSC J0928-1 |
| Date | 28 September 1982 |
| Court | Court of Appeal (Dominica) |
| Docket Number | CRIMINAL APPEAL NO. 5 of 1982 |
IN THE COURT OF APPEAL
The Hon. Sir Neville Peterkin—Chief Justice
The Honourable Mr. Justice Berridge
The Honourable Mr. Justice Robotham
CRIMINAL APPEAL NO. 5 of 1982
Elliott Mottley Q.C., Lloyd Barnett and Sylvia Bertrand for the Appellant.
Berthan MacCauley Q.C., Randolph Williams and Margaret MacCauley for the Respondents.
delivered the Judgment of the Courts:
This is an appeal by the Director of Public Prosecutions for the State of Dominica in the exercise of a right conferred by Sections 36 and 37 of the West Indies Associated States Supreme Court (Dominica) Act No. 10 of 1969, as amended by the West Indies Associated States Supreme Court (Dominica) (Amendment) Act No. 16 of 1981.
The four respondents were on May 12, 1981 jointly arraigned before Mitchell J. and a jury on two counts of an indictment. The first count charged that they on divers days between September 19, 1980 and April 29, 1981, in the Commonwealth of Dominica and elsewhere, conspired together with Michael Perdue and Wolfgang Droege and with other persons unknown to overthrow the lawfully constituted government of Dominica by force of arms. The second count which was framed as an alternative to count one charged them with conspiring together with Michael Perdueand Wolfgang Droege and other persons unknown, to assault police officers in the execution of their duties of guarding the Police Headquarters at Roseau, Dominica.
The trial continued until May 19, 1981 when, the State having closed its case, a submissions of "No Case" was made in respect of each of the four accused. On May 20, 1981 Mitchell J. upheld the submissions and directed the jury to return a formal verdict of not guilty in respect of each of the accused. They were all duly discharged on both counts, and on that same day, the Director of Public Prosecutions lodged this appeal. The right of appeal is given in the amendment in these terms:
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"37 – (2) Where during the trial of person on indictment the trial judge decides on a point of law or evidence, the Director of Public Prosecutions, if dissatisfied with the trial Judge's decision may appeal by way of special case to the Court of Appeal for a determination of the point in issue: Provided that where a jury has deliberated and returns a verdict of Not Guilty there shall be no appeal against such a verdict."
The conduct of the case for the State would have necessitated the calling of two expert witnesses on handwriting, to prove that a document found in the possession of Michael Perdue when apprehended in the United States of America, was signed by the accused Patrick John, and that other documents were in the handwriting of the accused Malcolm Reid. Towards this end, it was sought to put in evidence passport application forms alleged to have been written up and signed by Patrick John, so as to form the basis of the comparison with the disputed waiting found in the possession of Michael Perdue. The learned trial Judge however, refused to admit these documents in evidence on the ground that they had not been proven to his satisfaction, (in accordance with Section 19 of the Evidence Act Cap. 64) to be in the genuine writing of Patrick John. In respect of Malcolm Reid the State sought to put in a diary alleged to have beenwritten by him, but this attempt met with a similar fate. It might here be mentioned that Section 19 of Cap. 64 is in identical terms with Section 8 of the Criminal Procedure Act 1865.
The effect of these rulings precluded the State from putting the evidence of the handwriting experts before the jury and, as counsel for the State puts it, whilst it did not demolish their case in the light of the evidence remaining, yet it substantially strengthened the no case submission. The questions therefore which the learned Director of Public Prosecutions is asking this Court to answer are:
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(1) Did the learned trial Judge err and misdirect himself in law in refusing to admit the comparative documents in respect of (a) John and (b) Reid and
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(2) Did he err and misdirect himself in law in upholding the No-Case submission on the ground that the evidence for the prosecution was manifestly unreliable and it was unsafe that the case should be left to the jury?
These questions are inter-related and will of necessity involve an examination of the evidence adduced on behalf of the State. The two preliminary objections raised on behalf of the respondents will also have to be dealt with in due course. For completeness we state them at this stage. They are:—
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(1) That the purported special case does not raise a question of interpretation or construction of a point of substantial law, nor any point of adjectival law relating to the evidence.
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(2) The amendment giving the Director of Public Prosecutions the right of appeal is unconstitutional null and void.
The Facts of the State's Case:
On July 23, 1980 after the due holding of elections the Honourable Mary Eugena Charles was sworn in as Prime Minister of Dominica. Prior to the elections, an interim government was functioning headed by the Honourable Oliver Seraphin, and immediately before Seraphin took office the accused Patrick John was the Prime Minister. Malcolm Reid was a Captain in the Dominica Defence Force, and second in command.
The first witness put forward by the State was Algernon Maffie, who gave his occupations as that of seaman and farmer. He was known to be a notorious character and on his own admission had nine previous conviction, six of which involved the use of violence. In August 1980, there was a charge of Murder pending against him, but he was not then in custody as he was one of those who took leave of the prison when it was destroyed by hurricane Daved in August 1979. He was never retaken into custody, "but the charge against him was not formally discontinued by the Director of Public Prosecutions until December 14, 1981. It will be seen therefore that between September 1980 and April 1981, the relevant dates in the indictment, the charge of Murder was still so to speak hanging over his head.
Maffie testified that he knew the accused Malcolm Reid for the past year and seven months, and ever since December 1980, had been to his home on more than one occasion. On the first visit in mid-December 1980 he went there with one Henry Esprit, who introduced him to Reid as the one who would represent "the Dreads" in the operation of the "coup plot". When asked, Reid told him that they would be getting help from friends outside of Dominica, (naming the United States of America_ and that the help would take the form of finance, arms, amunition and some mercenaries, the purpose being to take over the Dominica Police Force, and to overthrow the Dominica Government. Reid also told him he had plans drawn up, end that he wanted him to study those plans. Maffie said he told Reid hewould have to study the plans before making any decision. He then left.
Subsequent to this, Reid paid several visits to the hone of Maffie, most of all for the purpose of using the telephone to make collect overseas calls to Michael Perdue in Houston, Texas, United States of America.
On a Sunday in January 1981 Maffie went to Reid's home, and whilst there the accused, Patrick John and Julian David arrived. John went and spoke privately to Reid at first, and then he heard John say to Reid that he (John) would like to use more locals than foreigners, and that between sixty to eighty men "Would be good enough for the operation". Reid then asked John "what about if we meet stiff resistence" and John's reply was "you will have no choice but to use two hundred (200) mercenaries". Reid then asked Maffie if he could mobilize at least twenty dreads, and Maffie said he could try. Maffie then suggested that they should get a Suzuki jeep for transportation and John's rejoinder was that he did not think they could raise that amount of money to buy a new jeep, but he could promise to get a good second hand land rover or Volkswagon with which to make his movements. The accused Julian David then said "I think we have that kind of bread (meaning money) in our possession". John and David left but before Maffie himself left Held gave him a small slip of paper with a phone number and the name "Michael Perdue, Houston, Texas" written on it, and asked him to telephone Perdue, collect. He told him what to say to Perdue, and as soon as Maffie got home he placed the call to Texas, spoke with Perdue and delivered the message.
In the course of this conversation Perdue asked Maffie to meet him in Texas, as he could not say on the telephone what he would like to say. Texas was not agreeable to Maffie, neither was Toronto, so it was agreed between them that they should meet in Antigua. When Maffie asked Perduoabout the fare, Perdue told him that he would send Three hundred ollars U.S. ($300.00 U.S.) through the Royal Bank of Canada in Dominica in case of Julian David. The date agreed for the meeting in Antigua was January 30, 1981, and the place was the Castle Harbour Hotel Club and Casino. This information was relayed to Malcolm Reid on the following day when Reid came to Maffie's house.
On January 27, 1981 and again on January 28, Maffie went to the office of the accused Julian David to enquire if the money Perdue was supposed to be sending had arrived. It had not. He returned on the January 29, when David called the Bank and was told that the money had arrived. Mario Toulon, an officer of the Royal Bank of Canada gave evidence of the cable transfer of Four hundred dollars U.S. ($400,00 U.S.) from the United States of America, the proceeds of which were paid to Julian David a customer of the Bank. The slip...
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