Dr Rowley cleared

Following is the full statement by the Director of Public Prosecutions Geoffrey Henderson on the matter between MP Chandresh Sharma and MP Dr Keith Rowley:

1. Receipt of your memorandum dated 26th ultimo is acknowledged. I have reviewed the statements obtained by Acting Superintendent Morrain who conducted investigations into the allegations under reference.

Summary of Facts
2. At about 1 pm on Wednesday September 15, 2004, Dr Keith Rowley, Dr Roodal Moonilal, Stanford Callender, Kelvin Ramnath and Chandresh Sharma, all sitting members of the House of Representatives, were in the Members’ Lounge. Also in the room was Ms Prabha Singh, a Food and Beverage Hostess employed by the Clerk of the House. While in the Members’ Lounge an argument ensued between Mr Sharma and Dr Rowley. Mr Sharma has alleged that Dr Rowley struck him with his left hand on the right side of his face and chest. Additionally, Mr Sharma has alleged that Dr Rowley threw two remote controls, a cordless telephone and a teacup and that the teacup struck him on his hand, fell and broke. Mr Sharma’s allegation receives support from Dr Roodal Moonilal and Kelvin Ramnath.
3. At around 3.30 pm on September 15, 2004, Mr Sharma made a report at the Central Police Station to No 16573 Police Constable Mitchell. As a result of this report, investigations were conducted, and the attached statements submitted by the Investigator were obtained.
Also submitted was a medical report dated September 15, 2004, which certifies that Chandresh Sharma was medically examined at the Accident and Emergency Department, Port-of-Spain General Hospital and that he was found to be suffering from soft tissue injury to his face, chest and right hand. The aforementioned soft tissue injuries were probably inflicted with mild to moderate force.
4. On September 23, 2004 Dr Rowley was interviewed under caution and denied the allegation. Dr Rowley’s denial receives direct support from Stanford Callender and circumstantially from Prabha Singh.
5. It is an offence to assault a member within the precincts of the House Section 10(b) of the House of Representatives (Powers and Privileges) Act, Chap 2:02 (hereinafter referred to as “the Act) provides inter alia-
“10 Any person who-
(b) assaults, obstructs, molests or insults any member coming to, being within, or going from the precincts of the House... is liable on summary conviction to a fine of two thousand dollars and to imprisonment for twelve months.

The Decision to Prosecute
6. There are general principles that apply to the way in which a prosecutor must approach every case in which a decision to prosecute must be made. The application of general principles will ensure consistency in the decision making process. However, each case is unique and must be considered on its own facts and merits. Consistency does not mean rigidity.
7. There are two stages in the decision to prosecute. The first stage is the evidential test. If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be. If the case does meet the evidential test, it must be decided whether a prosecution is needed in the public interest. The second stage is the public interest test. (See Code for Crown Prosecutors, UK, para 4.2-4,2).
8. A prosecution should not be instituted unless there is a prima facie case against the accused. By this it is meant that there is admissible and reliable evidence that a criminal offence known to law has been committed by the accused. The evidence must be such that a tribunal of fact, properly instructed on the relevant law, can conclude beyond a reasonable doubt that the accused is guilty of the offence charged. The evidential test is a separate test from the one that the criminal courts themselves must apply. A jury or a Magistrates’ Court should only convict if satisfied so that it is sure of an accused’s guilt. It therefore follows that criminal charges (based on witness’s statements) do not always result in convictions (based on witness’s evidence that has been tested on oath).
9. Having directed my mind to Section 10(b) of the Act and having considered the statements of Chandresh Sharma, Dr Roodal Moonilal and Kelvin Ramnath, I am satisfied that this case passes the evidential test.
10. The public interest must be considered in each case where there is sufficient material to pass the evidential test. Sir Hartley Shawcross QC, then Attorney General, stated to the House of Commons (in the United Kingdom)on January 29, 1951 — “It has never been the rule in this country — I hope it never will be — that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first Regulations under which the Director of Public Prosecutions worked provided that he should ‘prosecute whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the pubic interest.’ That is still the dominant consideration.” (HC Debates Vol. 483, Col 681, January 29, 1951).
This statement is equally applicable to the position in Trinidad and Tobago.
11. The factors which can properly be taken into account in deciding whether the public interest requires a prosecution, will vary from case to case. While many public interest factors militate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution (for example, the seriousness of the offence and the need for deterrence).
In this regard, generally speaking, the more serious the offence the more likely that it will be that the public interest will require that a prosecution be pursued.
A prosecution is likely to be needed if, inter alia -
a) a conviction is likely to result in a significant sentence;
b) the offence was committed against a person serving the public;
c) the defendant was in a position of authority or trust;
d) the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of these characteristics. (See Code for Crown Prosecutors para 6.4)
On the instant facts, the maximum sentence that may be imposed is a fine of two thousand dollars ($2,000.00) and twelve (12) months imprisonment. Factors in favour are that Mr Chandresh Sharma is a member of Parliament and that Dr Keith Rowley, as a Minister of Government holds a position of authority. With respect to what motivated the alleged assault the statements suggest that the assault occurred after Dr Rowley was accused of being racist and he being offended by that accusation, (as opposed to the assault itself being racially or politically motivated).
12. There exist several public interest factors against prosecution. A prosecution is less likely to be needed if, inter alia —
a) the Court is likely to impose a nominal penalty;
b) the loss or harm can be described as minor and was the result of a single incident;
c) the availability and efficacy of any alternatives to prosecution: (see Code for Crown Prosecutors para. 6.5; Statement of General Guidelines for Prosecutors, Ireland, para. 4:18; and Commonwealth Director of Public Prosecutions, Australia, para 2:10).
Regarding a likely penalty in the event of a conviction, the unreported case of Assistant Superintendent Trim vs Edward Hart, 2002 may provide assistance. In that case, the accused was found guilty and was reprimanded and discharged. The accused was convicted of Assault by Beating. The facts were that the accused, a Member of Parliament struck another public figure, a Mayor. The incident took place in an electoral office, a public place. In sentencing the Member of Parliament, the presiding magistrate would no doubt have taken into account that the defendant had no previous convictions, the harm was minor and result of a single incident.
13. Parliament possesses disciplinary powers over its members in the conduct of its affairs and it is the availability and efficacy of these powers as an alternative to prosecution that I consider to be a compelling public interest factor against prosecution. The disciplinary powers of Parliament are part of the control exercised by Parliament over its own affairs. By use of its disciplinary powers, Parliament is enabled to safeguard and enforce its authority without the delay to which recourse to the ordinary Courts could give rise. Through the Committee of Privileges, Parliament has the power to summon and examine witnesses. The Committee of Privileges may then make a special report to Parliament setting out its findings and making recommendations.
14. It is a matter of public record that on September 17, 2004 the Honourable Barendra Sinanan, MP, the Speaker of the House of Representatives ruled inter alia, that a prima facie case of privilege had been made out against Dr Keith Rowley MP, and referred the matter to the Committee of Privileges for its full investigation and report.
15. It is clear that Parliament has a concurrent jurisdiction to deal with the allegation under reference as a breach of Parliamentary Privilege. This of course is not to say that once the Committee of Privileges is seized of the matter, this can have the effect of ousting the jurisdiction of the Criminal Courts. The learned editors of Erskine May’s Parliamentary Practice, 22nd Edn said at pp 98-99 — “The Privileges Committee concluded in 1987 that there was no precedent for the House’s affording Members any privilege on the sole ground that their activities were within the precincts of the Palace.... Moreover, though the Bill of Rights will adequately protect a Member as regards criminal law in respect of anything said as part of proceedings in Parliament, there is more doubt whether criminal acts committed in Parliament remain, within the exclusive cognizance of the House in which they are committed.”
“In the judgement of the House of Lords in Eliot’s case (see pp 70-71), it was deliberately left an open question whether the assault on the Speaker might have been properly heard and determined in the King’s Bench. The possibility that it might legally have been so determined was admitted by one of the Managers for the Commons in the conference with the Lords which preceded the writ of error. In Bradlaugh v Gosset, Stephen J said that he ‘knew of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice.’ Since he went on immediately to refer to Eliot’s case and accepted the proposition ‘that nothing said in Parliament by a Member, as such, can be treated as an offence by the ordinary courts’ it must be supposed that what the learned judge had in mind was a criminal act as distinguished from criminal speech.”
16. There appears to be no recent criminal proceedings instituted against a Member in respect of criminal acts committed within the precincts of Parliament. “Apart from Eliot’s case over 350 years ago, no charge against a Member in respect of an allegedly criminal act in Parliament has been brought before the Courts. Were such a situation to arise, it is possible that the House in which the act was committed might claim the right to decide whether to exercise its own jurisdiction. In taking this decision, it would no doubt be guided by the nature of the offence, and the adequacy or inadequacy of the penalties, somewhat lacking in flexibility, which it could inflict.” (my emphasis): (see Erskine May Parliamentary Practice, 22nd Edn P.99, under the rubric: Proceedings, Precincts and Criminal Acts.)
17. The alternative to a criminal prosecution was pursued when a member of the House of Commons assaulted another person. In 1947 Mr Piratin, a Member of the British House of Commons exchanged blows with Mr Lucey, a member of the press gallery. This incident took place within the precincts and while the House was sitting. No criminal proceedings were instituted and instead, the matter was referred to the Committee of Privileges.
The Committee of Privileges reported that an assault within the precincts while the House was sitting by whosoever committed, must be regarded as a serious offence against the dignity of the House. Both persons were admonished. (HC 36 (1946-47), (UK) referred to in Parliamentary Privilege in Canada Second Edn P166-167)
18. A further example is provided by the approach taken in Zimbabwe. On Tuesday September 14, 2004, Roy Bennett, a Member of Parliament in the Zimbabwe Opposition Movement for Democratic Change is reported to have floored and kicked two Cabinet Ministers, Patrick Chinamasa and Didymus Mutasa. This matter was referred to a Parliamentary Committee. No criminal proceedings were instituted: [reported in newzimbabwe.com].
19. Having balanced the factors for and against prosecution carefully and recognising that an alternative course of action has already been engaged, in my view it is not in the public interest that criminal proceedings should be instituted. This is unlike the case of Assistant Superintendent Trim v Edward Hart where there was no available alternative mechanism to a criminal prosecution. I therefore will not provide my consent as is required under Section 12 of the Act.
20. You should know that I have copied this memorandum to both Mr Sharma and Dr Rowley for their necessary information. I have done so on the basis that any decision taken in this matter may generate strong political sentiments on either side of the fence. I have therefore set out how I arrived at the decision and in particular my observation that in matters of Parliament, the approach is one of self-regulation.

G HENDERSON
Director of Public Prosecutions