Commissioner of Police v Erdine Luzette King

• Jurisdiction: St Vincent and the Grenadines
• Judge: Ventose JA
• Judgment Date: 10 July 2025
• Judgment citation (vLex): [2025] ECSC J0710-3
• Year: 2025
• Court: Court of Appeal (Saint Vincent)
• Docket Number: SVGMCRAP2023/0003

Between

Commissioner of Police

Appellant

and

Erdine Luzette King

Respondent

[2025] ECSC J0710-3

Before:

The Hon. Mde. Margaret Price Findlay Justice of Appeal

The Hon. Mr. Eddy D. Ventose Justice of Appeal

The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]

SVGMCRAP2023/0003

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Magisterial criminal appeal — Abuse of process — Exercise of judicial discretion — Appeal against the learned Chief Magistrate's decision to grant the respondent's application for a stay of proceedings for abuse of process — Whether the learned Chief Magistrate acted ultra vires in granting a stay application by the respondent — Whether the ruling that there was an abuse of process was not properly grounded in law — Whether the learned Chief Magistrate erroneously pointed to the suitable of charges brought against the defendant when addressing the fact that the defendant was not charged with a breach of Public Health Act — Whether the learned Chief Magistrate erred in law by ruling that the defendant having been barred from clearing Immigration and Customs, the charges brought for contravention of these seem spurious — Whether the learned Chief Magistrate failed to address her mind to another recourse of adjourning the proceedings and referring the case to the High Court

This appeal arises out of an incident at the Argyle International Airport on 30 ^th January 2021, of which the facts are somewhat disputed. The respondent's version is that on that day she, a citizen of Saint Vincent and the Grenadines, arrived in Saint Vincent and the Grenadines but was later placed on a flight back to the United States of America where the flight originated following an incident on the airport. A week later she returned to Saint Vincent and the Grenadines and was subsequently arrested, unlawfully detained and charged, under the Immigration (Restriction) Act for entering the state by air and failing to present herself to the nearest Immigration Officer and, the Customs Control and Management Act for failing to present her bags and impeding the carrying out of any search for anything which is liable to search (“Immigration and Customs Offences”).

The respondent claimed that the charges emanated from the incident that took place on 30 ^th January 2021 and that the State had the option to charge the respondent at the material time for any alleged offence but failed to do so. The respondent was of the view that the proceedings against herself should be stayed permanently for abuse of process in circumstances where she was deported from Saint Vincent and the Grenadines without due process because of an incident and subsequently charged for matters arising from the same incident.

The appellant's version is that the respondent contravened the Public Health Regulations and was therefore subject to a charge under the Public Health Act, but that the respondent was not charged for the public health offence. The appellant stated that the Immigration Department is the first authority to determine whether a person can enter Saint Vincent and the Grenadines, but this did not apply as the respondent never presented herself to an Immigration Officer for such a determination to be made. Therefore, the appellant was of the view that rather than being deported from Saint Vincent and the Grenadines, the respondent was prohibited from proceeding to clear with the Immigration and Customs officials in accordance with the authority vested in the Public Health Officers for non-compliance with their stipulations to safeguard the nation from the Covid-19 virus. The appellant stated that the respondent ran past the Immigration and Customs officials reaching outside the airport. She was then brought back inside the Argyle International Airport premises after which she was denied lawful entry into Saint Vincent and the Grenadines, placed on a flight and returned to the United States of America.

On 26 ^th October 2021, the learned Chief Magistrate gave her decision on the respondent's application for a stay of the criminal proceedings for an abuse of process. The learned Chief Magistrate found that the respondent, who according to the prosecution, breached health protocols of the State, was not charged for having so breached. She was only charged for Immigration and Customs violations. After considering the facts before the court, the learned Chief Magistrate granted the application to stay the proceedings before the court on account of abuse of process as she found the charges brought in contravention to the Public Health Act section 72(2) to be spurious.

Dissatisfied with the ruling, the appellant lodged an appeal on 8 ^th November 2021 contending that the learned Chief Magistrate erred in granting the application by the respondent for a stay of proceedings for abuse of process. The sole issue that therefore arises on this appeal is whether the learned Chief Magistrate erred in the exercise of her discretion to stay the criminal proceedings against the respondent as an abuse of process.

Held: allowing the appeal against the decision of the learned Chief Magistrate, setting aside her decision staying the prosecution of the respondent on the Immigration and Customs Offences and making no order as to costs, that:

• 1. The principles summarized in The Attorney General's Reference No. 17 of 2021 governing the court's approach on abuse of process are as follows: (1) It is not the function of the court to determine whether a prosecution should be commenced and if commenced whether it should continue or be terminated; (2) Abuse of process arises where the court's process is used not in good faith and not for proper purposes, but as means of vexation or oppression or for ulterior purposes or simply, where the process is misused; (3) The court has an inherent jurisdiction and duty to prevent its process from being abused; (4) The court can stay criminal proceedings if it is satisfied that there has been an abuse of process; (5) The court's wide power to stay proceedings can also be exercised where the court concludes that a defendant cannot receive a fair trial or that it would be unfair for the defendant to be tried; (6) The court has the power to stay proceedings where it offends the court's sense of justice and propriety to be asked to try an accused in the circumstances of any particular case.

  The Attorney General's Reference No. 17 of 2021 MNIHCVAP2022/0009 (delivered 6th November 2023, unreported) followed; Vynette A. Frederick v Commissioner of Police SVGMCRAP2014/0009 (delivered 3rd August 2017, unreported) followed; Henry Liu et al v Attorney General of the Commonwealth of Dominica et al DOMHCVAP2006/0001 (delivered 22nd September 2008, unreported) followed.

• 2. An appeal against a judgment given by a trial judge in the exercise of a judicial discretion will not be allowed unless the appellate court is satisfied that in exercising his or her judicial discretion, the judge erred in principle either by failing to take into account or giving too little or too much weight to relevant factors and considerations or by taking into account or being influenced by irrelevant factors and considerations and that as a result of the error, the trial judge's decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong.

  Dufour and Others v Helenair Corporation Limited and Others (1996) 552 WIR 188 applied.

• 3. The charges brought against the respondent for the Immigration and Customs Offences were the result of the action of the respondent in bypassing the Immigration and Customs officers on her way outside of the Argyle International Airport. It had nothing to do with the fact that the public health officials had prevented the respondent from proceeding to the Immigration and Customs officers because she had not yet complied with the requirements of the public health officers.

  Therefore, the learned Chief Magistrate's finding that the charges brought against the respondent to be spurious since the respondent was barred from clearing Immigration and Customs, appears to be a misunderstanding. This misunderstanding led the learned Chief Magistrate into error and that consequently the decision of the learned Chief Magistrate exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong. Additionally, the learned Chief Magistrate had not properly identified the undisputed facts and circumstances that would warrant her conclusion that the charges in respect of the Immigration and Customs Offences would be an abuse of process. In so doing, the learned Chief Magistrate erred in principle by not considering all the relevant circumstances in arriving at her decision. It must be of relevance to an application for a stay of a prosecution whether the facts are disputed or not. Those undisputed facts are the only ones that are material to the exercise of discretion.

• 4. Considering the undisputed facts of the case, it cannot be concluded in all of those circumstances that there has been an abuse of process in charging the respondent with the Immigration and Customs Offences for the following reasons. First, the action of the respondent that resulted in those charges in respect of the Immigration and Customs Offences, was her action of proceeding to the outside part of the Argyle International Airport without first clearing the Immigration and Customs officials. The respondent did not dispute that she had done so. Second, there is no evidence before this Court that the decision to return the respondent to the United States of America was in any way related to the charges brought in respect of the Immigration and Customs Offences. Third, it cannot be said that the time of 7 days between the alleged commission of the Immigration and Customs...