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STUDENT NO.

: 11/009

Norman Manley Law School

Criminal Practice and Procedure


Assignment One

Lecturer: Terrence Williams 11/18/2011 Student No.: 11/009 Jurisdiction: Belize

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STUDENT NO.: 11/009

IN THE SUPREME COURT OF BELIZE

CLAIM NO. BSC2011/124 IN THE MATTER OF ERROL MOSS AND IN THE MATTER OF APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM BETWEEN : ERROL MOSS APPLICANT AND

THE COMMISSIONER OF POLICE RESPONDENT

NOTICE OF APPLICATION

I, JERMAINE COLE, acting on behalf of ERROL MOSS, of 14 Seashore Lane, Belize City, Belize, apply to the court for an order: 1. That he be immediately released from custody at Queen Street Police Station. 2. Alternatively, that a Writ of Habeas Corpus be issued against the respondent.

The grounds for the application are as follows: 1. 2. 3. 4. 5. that Mr. Moss has been unlawfully detained for a period of six days without being charged he has not been taken before a Magistrate he has not been advised of the reason for his arrest that he has been barred from any and all external communication there is no valid basis for his continued detention.

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STUDENT NO.: 11/009

DATED this 12th day of AUGUST, 2011

______________________________ JERMAINE COLE ATTORNEY-AT-LAW FOR THE APPLICANT

NOTICE

This application will be heard by the Judge in Chambers on Tuesday, 13th day of August 2011 at 9:30 a.m. at the Supreme Court. The court office is located at 2 Reagent Street, Belize City, Belize. Telephone number 227-2767, FAX 227-2478. The office is open between 8:00 .a.m. and 4:00 p.m. Monday to Friday except on Public and Bank holidays.

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STUDENT NO.: 11/009

IN THE SUPREME COURT OF BELIZE

CLAIM NO. BSC2011/124 IN THE MATTER OF ERROL MOSS AND IN THE MATTER OF APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM BETWEEN : ERROL MOSS APPLICANT AND

THE COMMISSIONER OF POLICE RESPONDENT

AFFIDAVIT

I, JERMAINE COLE, being duly sworn do make oath and state as follows: 1. I am an attorney at law in the firm of Ramsgate &Associates, with offices at 10 Freeman Avenue, Belize City, Belize. 2. Ramsgate and Associates has represented Errol Moss for the past 6 years. 3. Errol Moss is 40 years old and resides at 14 Seashore Lane, Belize City, Belize. 4. Mr. Moss currently has no other party willing to act on his behalf and is unable to do so himself owing to the fact that he has been banned from all outside communication as a condition of his detention.

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STUDENT NO.: 11/009

5. I was informed and do verily believe that Mr. Moss was taken into custody by police officers on the 6th of August, 2011. 6. On the 11th of August, 2011, I visited the headquarters police station in Belize City where I spoke to Superintendent Alvin Jameson, the investigating officer in the matter. 7. Superintendent Jameson notified me that my client is currently being investigated. 8. I also learned from Superintendent Jameson that my client has yet to be brought before a Magistrate despite his prolonged detention. 9. I asked the investigating officer if I could confer with my client but my request was refused. 10. To date my client has not been charged with any offence. 11. Given the current circumstances I am of the view that the police are not being expeditious in their investigations and believe that my client has been unlawfully detained. 12. In light of these reason, I respectfully request that this Honorable Court grant an order for my clients immediate release. 13. I make this affidavit freely and truly.

SWORN to by the said AT 12 Euphrates Avenue, Belize City, THIS 12th day of August, 2011

) ) ) ---------------------------------------JERMAINE COLE

Before me:

---------------------------------------------------------------Justice of the Peace

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STUDENT NO.: 11/009

IN THE SUPREME COURT OF BELIZE

CLAIM NO. BSC2011/124 IN THE MATTER OF ERROL MOSS AND IN THE MATTER OF APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM BETWEEN : ERROL MOSS APPLICANT AND

THE COMMISSIONER OF POLICE RESPONDENT

WRIT OF HABEAS CORPUS AD SUBJICIENDUM

To: The Commissioner of Police and Station Manager of Queen Street Police Station, Belize City, Belize You are required to produce to the Supreme Court on the day of ,2011 at the body of Errol Moss by whatsoever name that person is called, said to be detained in your custody, and be prepared to state the day and cause of that persons being taken and detained so that the court may then and there examine whether such cause is legal. TAKE NOTICE that if you fail to produce the body of Errol Moss before the court on the date and the time stated above the court may commit you to prison for your contempt in not obeying the order.

Dated the

Day of August 2011

[SEAL]

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STUDENT NO.: 11/009

This Writ was issued by Ramsgate & Associates of 10 Freeman Avenue, Belize City, Belize. Attorneys-at-Law for the claimant

The court office is located at 2 Reagent Street, Belize City, Belize. Telephone number 227-2767, FAX 227-2478. The office is open between 8:00 .a.m. and 4:00 p.m. Monday to Friday except on Public and Bank holidays.

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STUDENT NO.: 11/009

IN THE MAGISTRATES COURT OF BELIZE CRIMINAL DIVISION Case No: BMC2011/432 BETWEEN: ERROL MOSS Applicant -and-

THE QUEEN Respondent

RESPONDENTS SKELETON ARGUMENT

BACKGROUND
Mr Errol Moss, a senior officer in the Ministry of Youth and Culture, was charged with failure to disclose his private interests in Dainty Electronic Imports contrary to section 35 of the Anti-Corruption Act hereinafter The Act. The applicant objects to the legitimacy of the charge against him on the grounds that: a) the information was unsigned; b) the D.P.P. did not give written permission before the charges were instituted; c) the matter is statute barred, as the contract between the Ministry and Dainty Electronic Imports was concluded over a year ago; and d) there was no reference to the mental element of the offence.

SUBMISSIONS IN RESPONSE GROUND A


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STUDENT NO.: 11/009

The information though lacking a signature was nevertheless in conformity with the requirements set out by law. The relevant provisions of the Summary Jurisdiction (Proceedure) Act do not mandate the presence of a signature on an information. Indeed section 21 (4) simply requires a statement of the specific offence and such particulars as is necessary to inform the accused of the nature of the charge. The Court of Appeal discussed the institution of summary conviction proceedings at length in Itza v Lino BZ (2006) CA 29 and observed, albeit in a slightly altered context, that a simple defect in form should not defeat an information. The purpose of an information as learned Chief Justice Wooding pointed out in Gould v Williams (1962) 5 W.I.R. 122 at p. 124 para. 1 is to inform an accused person of the nature of the offence which he is being charged with having committed. CJ Wooding went on to admonish slavish adherence to particular forms or technical requirements. Such rigid devotion to form may undeniably lead to unbounded disruption which was clearly not the intent of the legislature. The legislatures intent to prevent frivolous claims against the validity of proceedings is clearly evident in section 127 (2) which bars objection to a complaint on the basis of an alleged defect in substance or in form, so long as the defendant has not been deceived or misled.

GROUND B
The course adopted by the D.P.P. was neither in breach of the relevant provision nor at variance with the mischief against which the section is aimed. The written permission of the D.P.P. is not a requirement of The Act, which merely stipulates that proceedings be instituted by or with the consent of the D.P.P. The prosecution was instituted by the D.P.P. as evidenced by the issuance of his fiat to charge, thus the Applicants disputation to consent is without foundation.

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STUDENT NO.: 11/009

Section 43 of the Interpretation Act addresses the issue of provisions which require consent or authorisation of the D.P.P. In that section it is plainly indicated that the fiat is to be taken as evidence of consent unless there exists some proof to the contrary. Section 63 of the Interpretation Act designates that so long as the fiat is tendered before the commencement of trial, it shall not prevent the laying of any information for an offence. This same principle was also expressed in R. v Whale Times (1991) Crim. L.R. 692.

In the case of Jagessar v The State; Nandlal v The State TT (1989) CA 32, which bears unmistakable similarities with the instant case, the court considered the purport and intent of a provision virtually identical to that which is found in the instant case. There at pages 20 to 27, the Court expressed the view that the purpose of the provision was obviously to prevent the abuse of the right of private prosecutions and ensure careful examinations of the particular case where the institution of proceedings would cause irremediable harm. In the case at hand, as it was also found in Jagessar, there was no contravention of the spirit and intendment of the section.

GROUND C
Although the contract was concluded over a year ago the offence is not hinged on the creation of the contract but rather on an obligation to disclose. The offence created under The Act was a continuing one, which continued to be committed so long as the applicant failed to disclose his interest. Continuing offences are generally not subject to periods of limitation. Moreover the period of limitation does not begin to accumulate until the discovery of the offence. Section 27(1) of the Limitation Act which speaks specifically to Limitation actions brought against public authorities, providing that where the act or default is a continuing one the, no cause of action shall be deemed accrued until the act or default has ceased. The British Courts considered the intricacies of continuing offences in British Telecommunications plc v Nottinghamshire County Council [1998] All ER (D) 478. There, Lord Chief Justice Bingham Page 10 of 12

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methodically deliberated the issue of determining whether a statutory provision creates a continuing offence. Lord Bingham concluded that one must look at the duty or obligation created to determine whether the offence was in fact continuing. In British Telecommunications the duty created was reinstatement and this duty continued until such time as proper reinstatement occurred, comparatively in the instant case the duty created is to disclose ones interest in any private company with which the Ministry deals or proposes to deal, a duty which continues until such time that such interest is disclosed. Furthermore section 10 of the Prevention of Corruption Act stipulates that proceedings may be commenced at any time within six months of the first discovery of the offence by the prosecutor.

GROUND D
The omission of the word knowingly does not vitiate the information as it gave the applicant reasonable and sufficient particulars as to the nature of the charge against him. As stated in the response to Ground A, section 21 (4) of the Summary Jusrisdiction (Procedure) Act delineates the necessities of each information. An information is sufficient if it contains a statement of the specific offence and any particulars necessary to give reasonable information as to the nature of the charge. The precise phraseology is not of paramount importance; the criterion is simply that the gravamen of the accusation is clearly indicated. The statement of the offence need not contain all the essential elements of said offence, certainly the use of ordinary language and the avoidance of technical terms are expressly provided for in subsections (5) and (6). It is submitted that in the instant case the word knowingly is a technical term which speaks to the mens rea of the accused. The ordinary man would not likely apply any weight to the word as would a learned judge or legal practitioner. Wooding CJ contemplated the matter in William v Daniel and Bobb a 1968 Trinidad and Tobago Court of Appeal judgement, and concluded that the omission of the words knowingly and wilfully were not required in order to communicate the necessary particulars of the offence to the accused. Page 11 of 12

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Additionally, section 22 of the Summary Jurisdiction (Procedure) Act affords that where an offence contains a condition, such as that of knowingly in the present case, the condition need not be specified or negatived in the complaint.

CONCLUSION
The grounds advanced by the applicant do not succeed in negating the validity of the charges against him. The information is satisfactory under the prescription of the law and the D.P.P consent was duly acquired. While the Summary Jurisdiction (Procedures) Act limits the time for making a complaint for a summary jurisdiction offence to six months, the offence in issue is indeed a continuing one and as such the limitation does not begin to accrue until the offence is remedied. In any event the relevant legislation explicitly provides that in offences such as this, the date of discovery of the offence is to be taken as the date at which time begins to ensue. Finally, the applicants objection to the precise expression of the offence in the information is baseless as it has long been established that the particular phrasing is irrelevant so long as the accused is made reasonably aware of the nature and essence of the charges against him.

In total, nothing put forward would suggest that the charge against the Applicant should not proceed. The proceedings therefore, ought to be continued with accordingly.

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