by Rawlston Pompey
Even as the nation’s image may have been battered abroad, the populace, particularly, the law-abiding citizens, assert their allegiance to, and respect for the ‘Rule of Law.’ On foreign soil, a ‘Medical Student’ reportedly engaged the services of a ‘Non-bona fide Taxi Operator.’ That which shall be known is that the ‘Bona fide Taxi Operators’ are uniformed. Conspicuous and interactive, they are culturally friendly and pleasant; courteous and hospitable and cheerful and obliging. Little the unsuspecting Student may have known that his journey from a particular point to his apartment, was going to end with violence, shedding of his blood and wincing in pain.
It was alleged that the ‘Foreign Medical Student’ was savagely and senselessly attacked over a ‘Disputed Taxi Fare.’ He reportedly found himself at the receiving end of a ‘nail-studded piece of stick.’ Likened to merciless ‘Russian President Vladimir Putin’s Destructive War Machine,’ ordered to invade and destroy the ‘Ukrainian Nation,’ with ‘planes dropping bombs and tanks and submarines spitting out missiles like rain,’ likened to ‘Indian Fugitive from Justice Mehul Choksi [ANR: May 23, 20211], blows allegedly rein down on the body of Medical Student, ‘Indian national, Mahesh Kumar Sharma Indragnti 22’ [DNO: February 22, 2022].Their experiences may, at worst, be described as terrorizing, harrowing and traumatic.
This commentary looks at; (i) ‘…Plight of Foreign Students; and (ii) …The savage and senseless attack on the person of ‘Medical Student,’ Some details might be distressing, while some might be alarming. It also looks at the apparent ‘Prosecutorally Misguided’ offence of ‘Battery’ filed for ‘Summary Trial’ against the alleged offending ‘Taxi operator Nicholas Andrew 55.’ Moreover, it looks at (a) ‘…The keen observations of ‘Chief Magistrate Joanne Walsh; (b) …Magisterial Malpractice in some Courts.’ and (c) …Certain administrative aspects of the ‘Police Service.’ Author’s Advice: ‘This commentary is not a ‘Short Story,’ and therefore, not for ‘Story Book Children.’ Those wishing to hear or see babies cry, infants crawl or children talk, may go to a ‘Nursery.’
Dedicated to ‘Joanne Walsh’ and others within the Magistracy; ‘Kathy’ and all practicing attorneys- ‘Left, Right, Center and Quacks.’ It shall provoke no wrath and shall cause no anguish within the ‘Magistracy’ in commencing this commentary with now ‘Acting Director of Public Prosecutions (DPP) Joanne Walsh.’ Instructively, she previously functioned as ‘Senior Crown Counsel,’ and now positioned in the ‘Prosecutorial Capacity’ as ‘Acting Director of Public Prosecutions (DPP).’ Upon her ascension to the ‘Magistracy,’ she reportedly brought from the office of ‘Director of Public Prosecutions (DPP),’ some fourteen (14) years of ‘Prosecutorial Experience.’ Undeniably, she had brought value to the ‘Magistracy.’
Conversely, others fortuitously and expediently so elevated to perform as ‘Magistrates,’ reportedly brought only a ‘Legal Degree’ and experience from a ‘Legal Practice.’ Then among them, a small minority seemed to have emerged. Then by 9.30 in the forenoon, they reportedly projected from the ‘Bench’ a harbored belief of ‘Superiority and Power.’ Exhibiting their own ideologies, they have reportedly brought nothing, but ‘Procedural Tyranny to the Magistracy.’ Still, others were said to be polite, respectful and advisably helpful.
IMPRESSIONS AND FEELINGS
Among the minority, the ‘Unrepresented’ were said to have been more fearful of an identifiable few, than they were of the ‘Covid-19 AstraZeneca Vaccines’ of which international Tennis Star, ‘Novak Djokovic seems ‘Mortally Afraid,’ refused to take and deported from Australia’ [BBC: January 15, 2022]. This group has been described as being; ‘…Overly officious; …Obnoxiously crude; …Aggravatingly condescending; …Intimidating and humiliating; …Frighteningly threatening and …Vexatious to the human spirit.’ These were said to be the ‘Daily Impressions and Feelings’ of ‘…Complainants; …Defendants; …Litigants; and practicing attorneys.’
As it affects the ‘Magisterial Procedure,’ it has been the cry that the ‘Unrepresented Defendants,’ have invariably been called upon by particular adjudicators to offer ‘Explanations,’ even after they had ‘Entered Pleas of Not Guilty.’ Past paralegal students in the persona of ‘Chanlah Codrington and Nathaniel ‘Paddy’ James,’ know this as being procedurally wrong. They also know that it could be deemed a ‘Magisterial Malpractice.’ Research has shown that in ‘Papua New Guinea,’ Legal authorities have produced a ‘Magistrates’ Manual -Safeguard in the Law and Practice.’
PRESUMPTION OF INNOCENCE
Most instructively, was the authority that places a duty upon ‘Magistrates.’ It therefore, states; ‘…Magistrates have a duty to ensure that Defendants understand the elements of the offence’ [Authority: 1971: Aikabi v Ephraim Tami: PNG: Law Review: 1550]. Here in this jurisdiction, every defendant and every accused person enjoys the ‘Constitutional Presumption of Innocence.’ Thus, for any adjudicator seeking to exploit the innocence of those lacking familiarity with that which the ‘Constitution’ provides, would have been in breach of the ‘constitutional provision’ [ANU: CO: 1981: Section 15 (2) (a)].
SUBTLE – DECEPTIVE – COERCIVE
While statutory powers reside with ‘Magistrates’ [Magistrate’s Code of Procedure Act (MCPA): Chapter 255], no power resides with an adjudicator, to call upon any ‘Defendant’ to offer ‘Explanation.’ Neither has it been lawful for adjudicators to threaten ‘Conviction,’ of any person not responding to ‘Guilty Prompt,’ no matter how; (a) ‘…Subtle; (b) …Deceptive; or (c) …Coercive.’ For fear of rendering ‘Perverse Decisions and ‘Miscarriages of Justice,’ adjudicators indulging in such ‘Malpractice,’ always run the risk of being asked to ‘Recuse’ themselves from trials.
Magistrates, therefore, could be deemed reckless not to know ‘Defendants’ lacking knowledge of the law and Court procedures,’ need ‘Magisterial Guidance.’ Such ‘Manual’ contains ‘Guidelines’ purposefully intended to curb improper ‘Magisterial Procedures’ and ‘Behavioral Malpractices.’ In some jurisdictions, reasonable inferences might be drawn that some ‘Magistrates’ some ‘Magistrates’ with ulterior motive or sheer laziness, may have engaged themselves in an unwelcomed practice, such as ‘Prompting Guilty Pleas.’ It has never been considered proper for adjudicators to prompt ‘Guilty Pleas.’
Ensuring that such was discontinued, the ‘Guinean Authorities’ produced the ‘Magistrates Manual’ for procedural guidance of those that are appointed to adjudicate. The ‘Guidelines’ states, ‘…When defendants enter ‘Guilty Pleas,’ they are in fact waiving their constitutional right to require the Prosecution to prove the charges against them’ [CO: 1975: PNG: Section 37 (10)]. Thus, when adjudicators reportedly asked for ‘Explanations,’ then threateningly speaks to what penalties loom to descend upon the convicted, such appears ‘Grossly Improper.’
COMMENCEMENT OF TRIAL
From professional prosecutorial experience and knowledge of that which correctly obtains in some Courts, the duty of the ‘Adjudicator’ is to call upon the ‘Prosecution’ for ‘Commencement of Trial.’ It follows that the duty of the Magistrate is to call upon the ’Police Court Prosecutor’ to call the first ‘Witness’ to the ‘Stand’ to be ‘Sworn or Affirmed’ to give evidence.’ That which resides with ‘Magistrates,’ is a discretionary power to adjourn with satisfactory reasons. This shall end ‘Magisterial Tyranny’ and any behavior not procedurally not consistent with that reasonably expected of ‘Magistrates’ or enhancing to the ‘Magistracy.’
Conversely, there is a power to ‘Strike out For Want of Prosecution’ where inordinate Court delays have resulted from ‘lengthy Prosecution-allowed adjournments.’ Parties that have reportedly experienced such ‘Magisterial Tyranny,’ became timid and driven to tears and despair. In stark contrast, observed for her ‘Exemplary Attitude,’ showing respect for the dignity of those appearing before the Court. Those seen as being guilty of ‘Tyrannical Magisterial Behavior,’ may wish learn from ‘Chief Magistrate Joanne Walsh.’
FINANCE AND VIOLENCE
As it affects Students pursuing academic studies, it was universally known that whether or not on or off ‘College compounds’ or ‘University Campuses,’ life in these learning institutions has never been without challenges and difficulties. While some are embarrassed by the lack of ‘Finance,’ others are stricken by ‘Violence.’ Even so faced, students of whatever disciplines, shall also know their ‘Financial Limitations’ as well as their obligations to service providers, or others indebted. Not infrequently, many have found themselves with innumerable problems. From these two perspectives, none shall make life more difficult and painful than that with which many have encountered, or likely to encounter
. Given their dependence on ‘Bursaries’ granted by Governments, with no other financial source, the impact upon health, wellness, comfort and studies most devastating. It was to the knowledge that to the indigent ‘Foreign Students,’ when ‘Bursaries’ were not disbursed and dispatched in a timely manner, grave difficulties often arise. Their voices are heard. There is unease and frustration. Their situations are real; …the circumstances bring upon them despair; their cries are real; and their financial burdens become painfully unbearable. Many knew not from where supper was coming.
STUDENTS ON FOREIGN SOIL
Such have been the experiences of many Students on ‘Foreign Soil.’ They never knew when the next ‘Disbursements’ will be made, let alone received. As they await word from struggling families, many are made to ‘Scrounging.’ The experiences of Students from the nation of ‘Antigua and Barbuda’ pursuing studies abroad know all about financial hardship. Likened to students from ‘Nigeria,’ those that have been, or underwent studies overseas, be it in ‘Cuba to Jamaica to China,’ when funds were completely expended, they have all found themselves in desperate situations.
STRAPPED FOR CASH
As necessity invariably dictates, in any part of the globe one pursues academic or degreed studies, the self-disciplined though not necessarily in a miserly way, Students shall always endeavor to ‘Balance a Budget.’ Thus, as far as practicable, they shall expend whatever, and however limited finance they possess, prudently and sparingly. It is the knowledge that for a good number, many have found themselves in ‘Dire Financial Straits.’ Likened to ‘LIAT’ and its shareholder Governments, many Students are often ‘Strapped for Cash.’ The case of the recent ‘800 de-registered Students’ (Mona Campus: Jamaica), vividly makes the point [ANR: October 29, 2018].
STEALING FOR SURVIVAL
Research has shown that some ’16 Nigerian Students’ pursuing ‘Medical Studies’ on the Caribbean Island of St. Vincent and the Grenadines have been ‘Stealing for Survival.’ Further research has revealed the painful experiences of ‘three female Nigerian Students.’ As fate sometimes has it, the trio, ages ‘25, 23 and 19,’ caught ‘flagrante delicto’ (in the act or red handed) [December 25, 2021]. Whether they had yielded to temptation or ‘Forced by Necessity,’ unsuspectingly, they had been monitored at a Supermarket. The researchers revealed that an established ‘Rivers State Scholarship Scheme’ appeared to have encountered ‘Grave Financial Difficulties.’
SADDEST OF STORIES
The ‘Saddest of Stories’ might be seen from researched information contained herein. For many students pursuing studies abroad, running short or out of money, has often been as difficult as it has been challenging. They were said to have been feeling the effects of a great financial squeeze. Though the concept is right, Sociologists have argued that humans must develop ‘Survival Strategies.’ Likened to a ship in stormy weather, it has been widely accepted that shelter shall be sought at any port.
HAND OF MERCY
Even though they had not ‘Lifted’ the entire Supermarket, they had reportedly ‘Lifted Groceries’ to the value of just over ‘EC$900.00’ [Loop Caribbean News: December 29,2021]. They were nabbed, charged and remanded to prison for six days, including ‘Christmas Day.’ Notwithstanding the transgression, seemingly recognizing the distance away from home, and inferentially considering their personal circumstances and ‘Financial Plight,’ Senior Magistrate Rickie Burnette’ reportedly extended a ‘Hand of Mercy,’ thereby placing the convicted students on a ‘One-year Bond.’ As ‘Fortune’ sometimes favors the indigent Students, they were allowed to continue their ’Medical Studies.’
WRATH OF THE DEVIL
Flying by Night,’ and plying a solicitous trade around a particular off-shore University, ‘Taxi operator Nicholas Andrew 55,’ found himself on the wrong side of law. A reportedly demanded and denied ‘Double the Fare,’ saw ‘Hell broke loose.’ That which reportedly unfolded, not only speaks to an attempted act of fleecing, but also associated with acts of savagery. In a violent attack, a male student, reportedly pursuing academic studies at an off-shore ‘Medical School’ saw the ‘Wrath of the Devil,’ descended upon him.
BATTERED – BRUISED – BLOODIED
Reports suggested that the student had been brutally ‘Battered, Bruised and Bloodied.’ Fellow-students of the attacked, reportedly viewed the injuries. The sustained injuries speak to ‘multiple punctured wounds’ to: (a) ‘…The head: (b) …Chest: (c) …Hand: (d) …Elbow: (e) …Rib cage; and (f) …Back.’ The injuries, though not necessarily life threatening, were reportedly confirmed by a physician who clinically attended to the student at the registered ‘Medical School.’ That which the ‘Taxi Operator’ apparently could not have received from the hand of the student/passenger, in the form of violence, delivered by hands that speak to sheer brutality.
The assailant identified as ‘Nicholas Andrew,’ was said to have been operating as a ‘Non-bona fide Taxi Operator.’ Graphically, a ‘Videographed Documentary’ of that which had physically transpired, showed an irate male mercilessly reigning down blows upon his body, more than ‘Covid-19 Vaccines’ to jab the unvaccinated. Social media reported that there had been disagreement over the ‘Fare’ charged and not paid. From the video that went viral on social media and news portals, blows were seen reigning down on the unarmed, defenceless and helpless student.
TECHNOLOGY – EVIDENTIAL VALUE
Even as the advent of technology has been seen as universally helpful to Law enforcement, criminal investigators in some jurisdictions, seemed to have ignored the ‘Evidential Value’ to ‘Criminal Investigation and Crime Detection.’ In the most vicious and brutal way, video footage showed an apparent ‘irate and raging male person,’ wielding it forcefully and mercilessly against the body of the said student [ANR: February 17, 2022].
By any stretch of imagination, it could never be said that in the minor charges of ‘Assault or Battery,’ contains therein, the more serious offence of ‘Causing Grievous Bodily Harm.’ Therefore, to speak of ‘Upgrading a charge’ from ‘Battery to ‘Causing Grievous Bodily Harm,’ speaks to sheer ‘Professional Ignorance.’ For no offence of ‘Battery’ could be ‘Upgraded’ to ‘Manslaughter, nor Murder.’ Should this be accepted, then the offence of ‘Indecent Language,’ may as well be up-graded to ‘Disorderly Conduct.’
RULE OF LAW
As it affects the ‘Rule of Law,’ those that are charged with responsibility for ‘Law Enforcement,’ shall know that much is desirous of them. They shall always be mindful that they are forever under the scrutiny of a suspicious citizenry. Therefore, they shall at all material times, be seen as efficient as they are considered intelligent and knowledgeable of the law. Most importantly, whether or not in the eyes of the citizens or before the Courts, they shall be seen as sufficiently familiar and conversant with the elements that constitute the various criminal offences. Their function is not only unique, but also separate and apart from (a) ‘…Those that are responsible for public prosecutions; (b) ‘…Those appearing as Practicing Attorneys; and (c) …Those acting in a judicial capacity, adjudicating criminal trials and interpreting law.’
Even more separate and apart from these, those constitutionally appointed to; (i) …Make promotions; and (ii) …Making transfers within the Police Service.’ No ‘Police Service’ can be effective and/or productive, if for reasons of ‘Cronyism, Nepotism or Favoritism,’ if its members dashed the hope and aspirations and reasonable expectations, are killed by those with a mentality that speaks to ‘Retardation of Progress.’ The incompetent is said to be favored with promotion and are either ‘Sheltered or Ordered’ where they shall be transferred and deployed. This situation appeared not to be working for current ‘Commissioner of Police, Atlee Rodney QPM.’ If ‘Claudette, Cosmas and James (CCJ),’ feel that the incompetent shall be ‘Elevated’ and the competent shall remain ‘Stagnated,’ then that is so.
Punishingly, humiliatingly, frustratingly and demoralizingly, some personnel are transferred to ‘Divisional precincts, departments and Units’ and under Superiors that lacked professional knowledge and competence; supervisory, managerial, leadership and communication skills. A recent ‘Police Service Commission (PSC)-made Transfers’ speak to such truths. A ‘Special Force Order, No. 1 of 2022’ states; ‘…The undermentioned promotions within the Royal Police Force of Antigua and Barbuda, were duly made by the ‘Police Service Commission.’ [No. 1 of 2022: February 9 & 18, 2022].
From professional knowledge, experience and administrative practice, transfers were normally recommended by the ‘Commissioner of Police’ who, statutorily, has responsibility for superintendence of the Police Service [Section 6: Police Act: Chapter 330]. Such were contingent upon discussional inputs from an internally-established his administrative ‘Promotion/Transfer Board.’ Such ‘Board,’ then consisted of the Commissioner of Police, who ex officio chaired the administrative proceedings. Incidentally, the ‘Board’ recommends and the ‘Police Service Commission (PSC), humiliatingly and disappointingly rejects.
DEVELOPMENT AND ADVANCEMENT
Those that are charged with ‘Service to the nation and Protection of the population,’ shall know that personnel shall be so deployed where their ‘professional competence, ability and skills’ are not only best suited, but also most needed. In so doing, they shall provide opportunities for; (a) ‘…Career and professional development; and (b) …Advancement up the chain of command.’ Thus, a ‘Commissioner of Police’ shall endeavor to create an enabling environment, whereby the deeply committed, devoted and loyal personnel, shall not harbor feelings of neglect, but as an integral part of the ‘Police Service.’
SQUARE PEG – ROUND HOLE
Inferentially, their discussions may have been considered a ‘Farce’ and recommendations deemed to have no administrative value, thus deemed ‘Futile.’ Whether or not a ‘Commissioner’ harbors a farfetched belief, framers of the ‘Constitution Order’ , could never have intended that the ‘Commissioner of Police’ was subordinate to the ‘PSC.’ Whether or not it brings frustration or humiliation, a ‘Commissioner of Police’ shall always endeavor to show personnel that their interest and welfare are no different to the Commissioner. Even so, none shall be positioned to be seen as a ‘Square Peg in a Round Hole.’
MERIT – ABILITY – INTEGRITY
It has been regularly seen that elevation to higher ranks of many subordinates, have been the result of either ‘Cronyism, Nepotism or Favoritism.’ Research has revealed that the officer concerned has been the beneficiary of a ‘non-consultative and non-recommended promotion.’ Besides, had it been left to the recommendation and duly referred and approved by the ‘Police Service Commission (PSC),’ then that body may have had good reasons to question the judgment of ‘Commissioner of Police Service, Atlee Rodney QPM.’ Even so, such recommendation would have been well-informed, and based upon ‘Merit; Ability and Integrity.’
GREATER – LESSER
Should anyone denied that ‘Square Pegs’ have never been placed in ‘Round Holes,’ manifestations of this may have been evident in the incident involving a ‘Medical Student’ and a ‘Taxi operator.’ Moreover, if anyone denies that from professional Law enforcement training, in some offences, the ‘Greater’ includes the ‘Lesser.’ For instance, personnel know that in the heinous crime of ‘Murder,’ contained therein is the ‘Lesser Charge of Manslaughter.’ A clear blunder may have been made by a newly promoted ‘Acting Sergeant of Police.’
That which ‘Arresting officers, Police Court Prosecutors’ and some Supervisors’ shall know, is that ‘Chief Magistrate Joanne Walsh’ was not elevated to the ‘Magistracy’ from the last ‘Shower of Rain.’ The properly trained personnel shall know the ‘Classification’ of each offence. As it affects the handling of the ‘Savage Attack’ on the ‘Medical Student,’ much is left to be desired of the professional competence of criminal investigators.
Recent developments at the ‘Magistrate’s Court’ suggested that personnel appeared not to have been able to distinguish offences of a ‘Summary Nature’ from those triable only by impaneled Juries, under legal directions of adjudicators (Judges). In the ‘Chief Magistrate’s previous capacity, she had, and still has no difficulty differentiating a ‘Magisterially triable Summary offence’ from an Indictable offence. When the Defendant ‘Nicholas Andrew’ appeared before her, sensing a ‘Charge Glitch,’ clearly the result of improper classification of the offence and ‘File Perusal she obligingly provided an opportunity for correction the glaring mistake.
CHARGE OF BATTERY
She had ‘Saved the Day’ for the equally astonished female ‘Police Court Prosecutor,’ by allowing the craving of the ‘Court’s Indulgence,’ not to read the Complaint to the Defendant for a plea to the single ‘Charge of Battery.’ Possessing such knowledge positions such well trained personnel in making informed decision regarding the ‘Serving of Charges’ and ‘Filing of Complaints’ at the appropriate ‘Magisterial Jurisdiction- A, B, C.’ Before such procedures, arresting officers shall know what is (a) ‘…An Assault: (b) …Battery; and (c) … Assault to do Grievous Bodily Harm (GBH).’
Police trainees will have been taught that ‘Assault’ is defined as ‘…An attempt to inflict force to the body of another person. The main ‘Element’ constituting such offence is ‘putting a person in fear’ [Section 13: Small Charges Act: Chapter 405]. The offence of ‘Assault,’ would have been committed when the person apprehended fear of being violently attack. The offence of ‘Battery,’ speaks to the actual and unlawful ‘Application of Force’ to the person of another. This may be applied with or without a weapon.
GRIEVOUS BODILY HARM
The provision states; ‘…Any person who shall assault or beat any other person, shall be liable to a fine not exceeding EC$500. Or for a term not exceeding 2 months’ [Section 13: Small Charges Act: Chapter 405]. Thus, ‘Bail’ was reportedly fixed to reflect the ‘Nature and Gravity’ of the injuries sustained as contained the ‘Medical Report. ‘Such would have been consistent with the offence, ‘Assault Occasioning Grievous Bodily Harm.’ It was obvious that when Taxi operator ‘Nicholas Andrew’ inflicted blows with the ‘nail-studded stick, there was mens rea of the intention to ‘Cause Grievous Bodily Harm’ to the ‘Medical Student Mahesh Kuma Sharma Indragnti.’
The ‘Act’ states; ‘…Whosoever inflicts any grievous bodily harm upon any other person with or without any weapon or instrument, is guilty of a misdemeanor, and being convicted, shall be liable to be imprisoned for a term not exceeding five years’ [Offences Against the Person Act: Chapter 300: Section 22]. The Court has determined that ‘…Grievous Bodily Harm’ means no more or no less than ‘really serious’ bodily harm [Authority: LawTeacher:1961: DPP v Smith].
Anticipating that a serious charge under the ‘Offences Against the Person Act’ will be filed, ‘Chief Magistrate, Joanne Walsh’ reportedly fixed Bail the sum of ‘EC$10, 000,’ with a cash component of ‘EC$ 5, 000.’ Such reflects the seriousness of the offence and ensuring that the ‘Defendant Nicholas Andrew 55,’ submits to the Court’s jurisdiction on the ‘Fixed Date’ [March 2, 2022]. While it may have appeared that something was amiss, the offence of ‘Battery,’ triable only by ‘Magistrates,’ is one that the ‘Form 1 Students’ of the ‘Baptist Academy’ could easily comprehend.
A Commissioner of Police shall always endeavor to provide ‘Incentivized Motivation,’ for all members. Their professional competencies shall be so evident, that personnel shall be fully knowledgeable, as to be able to differentiate between the ‘Summary offence of Battery’ and the more ‘Serious offence of Assault Occasioning Grievous Bodily Harm.’ Should it be shown again that ‘arresting officers can make no distinction, then now ‘Acting Director of Public Prosecutions (DPP) Joanne Walsh’ may have no difficulty in saying to those that are not so daft, ‘It is not So.’ While in the enjoyment of the novelty of the position of ‘Commissioner,’ he/she allows a ‘Police Service Commission (PSC)’ continuing imposition of its will upon the ‘Police Service,’ dictating transfers and making ‘non-consultative promotions, that ‘Square Pegs’ can fit in ‘Round Holes,’ such a ‘Commissioner’ would be foolish in ‘Leaving and believing it to be so.’ ***