Appeal judges blank Sharma

The next step for Sharma is the Privy Council which indicated last week that it will hear this appeal during the vacation period (August or September). An undertaking was given before the Law Lords that Sharma will not be arrested pending the hearing and determination of the judicial review case, which according to the Court of Appeal, is no longer sustainable.

After winning every step of the way in the High Court since July 10, the embattled Chief Justice was on the losing end yesterday. The Court of Appeal comprising Justices Margot Warner, Ivor Archie and Paula Mae Weekes were unanimous in their 36-page judgment.

It was the first time that the Court of Appeal was able to hear an appeal on a Friday, write a 36-page judgment and deliver it by the following Monday.

Carla Brown-Antoine, deputy Director of Public Prosecutions, Assistant Commissioner Wellington Virgil and Commissioner of Police Trevor Paul, appealed against the decision of Madame Justice Judith Jones, who between July 10 and 24 granted six injunctions to Sharma preventing every member of the 7,000 strong police service from arresting him on a charge of attempting to pervert the course of public justice.

Warner, who read the last two pages, dealt with each appellant. She said Brown-Antoine’s appeal was allowed with costs certified fit for Senior Counsel. She said Jones’ grant of leave on July 10 for Sharma to file for judicial review was set aside.

With respect to the appeal by Virgil, Warner said the investigating officer remains a party to the proceedings and he has a locus standi for the purposes of the appeal. Sharma is to pay half of the costs to Virgil.

Warner said the appeal brought by the Commissioner of Police was allowed and that the Chief Justice will pay the full costs. Warner said because the judicial review proceedings were no longer sustainable, no useful purpose would be served by remitting the matter to the High Court.

She added, “we would therefore have been minded to order that the leave granted against the second (Virgil) and third (Paul) appellants be set aside in any event and all subsequent or consequential orders be vacated.”

Warner said the court was advised that certain undertakings were given before the Privy Council in the event that her court made a decision that was adverse to Sharma.

“We do not know on what basis the jurisdiction of the Privy Council was invoked while this court was still seized of the matter. Some intimation was given before the start of this appeal that, in the event of a certain outcome, there would be a further appeal.”

Warner said it would have been more appropriate for any undertakings to be sought and obtained before the Court of Appeal. She said attorneys have an obligaton to promote and maintain public confidence in the administration of justice.

Warner added, “the wrong signal is sent when attorneys do not appear to have confidence that this court, in the event that it does not rule in favour of a litigant, would do what is necessary to preserve the rights until the final determination of the matter.”

Alvin Fitzpatrick SC, the lead attorney for the Chief Justice, asked for the injunctions to continue pending the hearing and determination before the Privy Council. But Warner said no. Fitzpatrick then sought to formally request an order despite the undertakings in the Privy Council. Warner said the court saw no need to make the order. “We expect that they (the State) would abide by the ruling,” she added.

Fitzpatrick then made a formal application for leave to appeal to the Privy Council which the court granted. The hearing was over within seven minutes.

The Appeal Court, in the judgment, dealt with a burning issue of the relevance of the public interest in this case. Warner said that in cases involving the public interest where a party is a public body or authority performing public functions, the balance of convenience must be looked at widely, taking into account the interest of the public to whom the duties are owed.

Warner said Jones was mindful of the need to consider the public interest in exercising her discretion whether to grant any injunctions. “In doing so, however, her overriding concern appeared to be that the third defendant (Paul) may have been intending to arrest the respondent (Sharma) in defiance of the spirit and intent of the stays that were already in place.”

Warner said Paul was aware of the order of July 10 that no criminal proceedings should be commenced. She said it was wrong for him to take action without recourse to the court even though he was not named in the order.

Warner said the real issue was whether there was any evidential basis to grant any stays or injunctions. She said the court could not see how any significant harm could have come Sharma’s way merely from his surrender to the warrant.

“Any damage to his reputation and career would have already have occurred by reason of the fact that the charge was already laid and the accusations were in the public domain. Provision was made for bail on the warrant and the respondent was likely to suffer only the briefest deprivation of liberty.”

Warner concluded, “he (Sharma) remains entitled to all the protection and safeguards of the law. The maintenance of public confidence in the fair and impartial administration of justice requires that all persons, whatever their status, to submit to judicial process.”

Douglas Mendes SC, Stuart Young, Grace Jankey and Rehanna Hosein, appeared for Brown-Antoine; Ian Benjamin and Kerwyn Garcia, and Nirmala Bansee for Virgil; and Gilbert Peterson SC and Colin Kangaloo for Paul. Fitzpatrick, Rajiv Persad, and Ravi Heffes-Doon, represented Sharma.