Justice Jones to rule Monday

MADAME Justice Judith Jones on Monday refused to exclude deputy Director of Public Prosecutions (DPP) Carla Browne-Antoine as a defendant in the judicial review case brought by the Chief Justice (CJ) Sat Sharma of a decision to institute criminal proceedings against him.

This means the injunction which prohibits the deputy DPP from instituting criminal proceedings and the subsequent similar ones stopping TT’s 7,000 strong Trinidad and Tobago Police Service remain in force. Following is the complete text of Jones’ judgment:

On a without notice application made on the 10th July 2006 leave was granted by me to the Claimant, the Chief Justice of Trinidad and Tobago, to apply for judicial review of the decision of the First Defendant, the Deputy Director of Public Prosecutions, made on or about the tenth day of July 2006 to institute and/or advise the police to institute criminal proceedings against the Chief Justice in respect of allegations made against him annexed to the Defendant’s letter of the 8th June 2006 and to seek the reliefs set out in the application for leave to apply for judicial review filed on the tenth day of July 2006 under part 56.3 of the Civil Proceedings Rules 1998 as amended or such other reliefs as to the Court may seem just.

By a notice dated the 12th July 2006 the Defendant applied for an order that the leave granted to the Claimant be set aside on the grounds that:

(1) The Defendant made no decision to institute criminal proceedings against the Chief Justice nor did she advise the police to do so. The police came to the conclusion, independent of the Defendant, that a charge had been made out and that a prosecution should be brought against the Chief Justice.

(2) The Defendant did not direct the Police to prosecute the Chief Justice.

(3) The police are free to initiate any prosecution independent of the Director of Public Prosecutions, (“the DPP”) except in circumstances where by law the consent of the Director of Public Prosecutions is required and this was not such a case.

(4) At no time during the Defendant’s consideration of and/or participation in this matter, did anyone, at any stage, attempt to influence her in her actions and/or advice. The Defendant has never met Mr Patrick Manning, the current Prime Minister of Trinidad and Tobago, nor has she ever had a conversation with him. The Defendant has spoken to Mr John Jeremie SC, the current Attorney General only once since the beginning of January 2006 on an administrative matter and no time whatsoever has the Defendant spoken to either the Attorney General and/or the Prime Minister in relation to any of the issues which are in any way connected with the allegations made by the Chief Magistrate, Mr Sherman Mc Nicolls against the Chief Justice.

(5) There is no evidence of dishonesty or mala fides or an exceptional circumstance that exists in the present circumstances in relation to any action, participation and/or consideration of the Defendant which would make the actions, participations and/or consideration of the Defendant amenable to judicial review and accordingly the Claimant’s application is bound to fail.

In essence the Defendant’s submission is that:

(i) There are limited circumstances in which a challenge to the institution of a prosecution can be mounted and the instant situation is not one of them; and

(ii) There is no evidence in support of the grounds or any of the reliefs sought by the Claimant and in particular, given the evidence placed before the court by the First Defendant there is no evidence of any decision made by her; in the circumstances, therefore, the application is bound to fail.

In their respective submissions it has been accepted by the parties that, for the instant purposes, the law with respect to the requirements to mount a successful challenge to the institution of a criminal prosection by a DPP is as stated in the case of Matalulu v DPP (2003) 4 LRC 712 and endorsed by the Privy Council in the case of Jewan Mohit v DPP Privy Council Appeal No 31 of 2005. In the context of these particular proceedings the statement of the law made at pages 735 and 736 of the Matalulu case and adopted by the Privy Council in the Mohit case merits repeating:

“It is not necessary for the present purposes to explore exhaustively the circumstances in which the occasions for judicial review of a prosecutorial decision may arise. It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function or the practical competence of the courts to assess their merits. This approach subsumes concerns about the separation of powers.

The decision of the DPP challenged in this case were made under powers conferred by the 1990 Constitution. Springing directly from a written constitution they are not to be treated as a modern formulation of ancient prerogative authority. They must be exercised within constitutional limits. It is not necessary for the present purposes to explore these limits in full under either the 1990 or 1997 Constitutions. It may be accepted, however, that a purported exercise of power would be reviewable if it were made:

1. In excess of the DPP’s constitutional or statutory grants of power — such as an attempt to institute proceedings in a court established by a disciplinary law...

2. When contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion — if the DPP were to act upon a political instruction the decision could be amenable to review.

3. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.

4. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.

5. Where the DPP has fettered his or her discretion by a rigid policy — eg one that precludes prosecution of a specific class of offences.

There may be other circumstances not precisely covered by the above in which judicial review of a prosecutorial discretion would be available. But contentions that the power has been exercised for improper purposes not amounting to bad faith, by reference to irrelevant considerations or otherwise unreasonably, are unlikely to be vindicated because of the width of the considerations to which the DPP may properly have regard instituting or discontinuing proceedings. Nor is it easy to conceive of situations in which such decisions would be receivable for want of natural justice.”

It is not without significance that both sides seek to rely on this statement of the law in support of their respective submissions since, while identifying a limit to attempts to review the exercise of a prosecutorial discretion, the statement also suggests that the categories as set out are not exhaustive. The submission the Claimant submits that on the facts ground two arises. The Defendant’s response is that there is no evidence to support a claim under that heading and refers to the fact that there is no evidence of any political instruction given to the First Defendant. In further reliance of the above statement the Defendant submits that those grounds which seek to challenge the decision of the DPP based on unreasonableness or want of natural justice are bound to fail.

In my opinion the above statement does no more than accept that the exercise of a prosecutorial discretion, in the context of a written constitution, can be subject to review; accepts that the categories identified are not exhaustive and theorises that it would be difficult to conceive of circumstances where unreasonableness, in the Wednesbury sense of the term, or want of natural justice would be successful.

What cannot be disputed is that these are unusual circumstances. It is not in dispute that what the Claimant is required to show at this stage is that an arguable case exists. The purpose for leave is to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error. Permission should be granted where a point exists which merits investigation on a full inter parties basis with all the relevant evidence and arguments on the law. In my opinion given the state of the law it is open for the Claimant to argue that the grounds as framed present a situation in which the exercise of a prosecutorial discretion can be reviewed.

With respect to the evidence the First Defendant submits that on a totality of the evidence, including the evidence of the Defendant that she made no decision, the Claimant’s case must fail.

In considering the evidence I propose to deal with the evidence with respect to the decision first since a determination in the favour of the First Defendant effectively puts an end to the proceedings as against the First Defendant.

The First Defendant submits that the basis of the Claimant’s case is that there has been a decision made by her to prefer charges against the Claimant. The submission is that at the leave stage the Court was asked to make such a conclusion based on inferences to be drawn from facts placed before it. There is now, the First Defendant submits, evidence before the Court that no such decision was made by her which evidence it is open to the Court to consider at this stage. In any event the First Defendant submits under the Constitution the DPP has no power to direct the police to institute a prosecution.

The Claimant on the other hand submits that the Court is not at this stage called upon to consider the evidence of the First Defendant what the court has to determine at this stage is — on the evidence placed before the Court by the Claimant on the application for leave, does the Claimant have an arguable case? In any event, he submits, in this jurisdiction the DPP never institutes prosecutions but rather merely recommends the institution of proceedings.

While I accept that the First Defendant has placed before the Court evidence which she says supports her assertion not to have made a decision and the Court has no option but to look at that evidence. However attractive the evidence, this is a question of fact which in my opinion is not appropriate to be determined at this stage. At the end of the day this court will have to determine on the facts raised whether as claimed by the Claimant such a decision can be inferred or whether the evidence of the First Defendant is to be accepted. Similarly the question of the powers of the DPP with respect to the institution of or advice to institute criminal charges is one that, in my view, in the context of our jurisdiction and in the light of section 90 of the Constitution begs further examination and consideration by the Court.

The question here is whether the Claimant has placed before the Court sufficient evidence to allow for such an examination.

In examining the evidence therefore I must constantly bear in mind that however attractive the arguments of the First Defendant may be at this stage it is only necessary for the Claimant to show an arguable case and that since I am not at this stage a fact finder I must for the purpose of ascertaining whether there is an arguable case assume that the facts as raised by the Claimant are true.

I do not propose here to go into a detailed examination of all the evidence placed before the Court by the Claimant. The first Defendant submits that there is no evidence to show that the first Defendant was influenced by politicians or that there was any communication between the DPP and the Prime Minister and the Attorney General. In my opinion that part of the statement in the Matalulu case that refers to acting on political instruction is merely used as an example of one of the circumstances in which it could be said that there was a failure to exercise an independent discretion. The question that I have to answer is therefore on the evidence as presented by the Claimant is it arguable that the First Defendant acted under the control and direction of another person or body and failed to exercise her independent discretion? The Defendant says that there is absolutely no evidence to support the allegation. The Claimant submits that on the totality of the evidence placed before the Court there is sufficient evidence for a Court to come to such a conclusion.

In my opinion on the totality of the evidence raised by the Claimant the Claimant has presented an arguable case to the Court and by so doing has discharged the burden placed upon him at this stage of the proceedings. In any event, to my mind, the evidence apart, there has been raised important questions of constitutional law that in my opinion demand further consideration and a determination by the Court.

In the circumstances the first Defendant’s application is dismissed. I will hear the parties at the case management conference fixed for the 21st July on the question of costs.

STATEMENT

There has over the weekend been a most unfortunate turn of events that has been widely reported in the media.

It would be irresponsible of me not to use this opportunity to seek to put some clarity with respect to the orders of the Court some of which may not as yet have been brought to the attention of the relevant parties.

By an application made by the Claimant without notice on the 13th July 2006 I ordered that the second defendant Wellington Virgil, Assistant Commissioner of Police, be joined as a party to these proceedings among the other orders that I made were the following:

1. The said application for leave be treated as an application by the Claimant for judicial review of the decision of the Assistant Commissioner of Police Wellington Virgil made on or about the tenth day of July 2006 (hereinafter called “the said action”) to institute criminal proceedings against the Claimant in respect of allegations made against him annexed to the first Defendant’s letter of the 8th June 2006 (hereinafter called “the allegations”);

2. that all action or proceedings consequential upon the said decision or the implementation of the said decision be stayed and there be and is hereby granted a stay of the implementation of the said decision pending the hearing and determination of the application for judicial review.

3. that this order granting leave to apply for judicial review of the said decision is conditional upon the Claimant filing and serving and amended fixed date claim form in accordance with this order on the Defendants on or before 4.00 pm on the 14th July 2006 in accordance with Part 56.4 of the Civil Proceedings Rules as amended.

By an application made by the Claimant without notice at 2.45 pm on 14th July 2006 I extended the time for the filing of the amended fixed date claim form to 4 pm on Monday the 17th July 2006 and ordered that the service of the said amended claim form be effected on the second named Defendant by leaving same with the secretary to the Commissioner of Police at his offices at the Police Administration Building Corner Edward Street and Sackville Streets, Port-of-Spain.

After approximately 4.00 pm of the said 14th July 2006 I made the following orders varying the order referred to above:

(i) At approximately 5.55 pm: that the service of the amended fixed claim form be effected on the second named defendant by service on Mr Reyes.

(ii) At approximately 6.20 pm: that service of the above mentioned order on the second named defendant be effected by service on Inspector Romany or any other police officer attempting to execute any warrant on the Claimant.

(iii) At approximately 10.05: that the Commissioner of Police be joined as a defendant in these proceedings and that an injunction be granted, pending the hearing and determination of the Claim herein, restraining him by himself his officers and/or agents from taking any decisions consequential upon the decision of the first named and/or second named defendant made on or about the 10th July 2006 to institute criminal proceedings against the claimant in respect of or on the basis of the allegations made against him annexed to the first named defendant’s letter of the 8th June 2006 (hereinafter referred to as “the said decision”). The order also provided for the method of service on the Commissioner of Police.

By an application made without notice on the 16th July 2006 I granted two injunctions:

(I) Against the second named and third named defendants whether acting by themselves their servants and/or agents or any other police constable or howsoever otherwise from taking any action, steps or proceedings to institute or cause to be instituted or to continue criminal proceedings against the Claimant in respect of or on the basis of allegations made against him annexed to the first named Defendant’s letter of the 8th June 2006 (“the said allegations”) and from taking any action, steps, or proceedings or serving or causing to be served any process in relation to any criminal proceedings already instituted in respect of the said allegations, and

(ii) Restraining each and every member of the Police Service of Trinidad and Tobago and every other person empowered by law to exercise the powers of a police constable or to lay or cause to be laid criminal charges from taking any action, steps or proceedings to institute or cause to be instituted or to continue criminal proceedings against the Claimant in respect of or on the basis of the said allegations and from taking any action, steps or proceedings or serving or causing to be served any process in relation to any criminal proceedings already instituted in respect of the said allegations; pending the determination of a notice fixed for hearing on Tuesday the 18th July 2006.

These are the orders on the Court proceedings.

The instant situation is one that is unprecedented in our jurisdiction.

It is in this context and bearing in mind the publicity that the situation has attracted that I take the unusual step of making this public statement. No one is above the law.

Our Constitution, however, provides that every citizen is entitled to the protection of the law and access to the Court to determine the extent of that protection. In the heat of the moment let us not forget that what we do here will affect the lives of each and every citizen of Trinidad and Tobago now and in the years to come. Let us not act in haste.

I urge all the parties involved, while not in any way compromising their respective roles as established by the Constitution and the law of Trinidad and Tobago, to remember that the end of the day unless we are to descend into anarchy the rule of law must prevail.

The country has been bombarded by comments and opinions which have been given full reign in the media. All the parties before the Court have their respective positions as they are entitled to do. Similarly every citizen in our country is entitled to their personal opinion. It is however important to keep in mind that whatever your personal opinion this matter is now before the Court. Our legal system provides a tried and tested procedure for the resolution of disputes such as this. We must allow the system to work.

We, as a people and as a nation, have too much at stake not to do so.

I urge restraint on all the parties involved, members of the public and the media.

Dated this 17th day of July 2006

Justice Judith Jones

Judge