Clarke v Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Myers, J.
• Judgment Date: 30 July 2008
• Neutral Citation: TT 2008 HC 224
• Docket Number: 2508 of 2003
• Court: High Court (Trinidad and Tobago)
• Date: 30 July 2008

High Court

Myers, J.

2508 of 2003

Clarke

and

Attorney General of Trinidad and Tobago

Appearances:

Mr. Ian Stuart Brook for the applicant.

Mr. Ramrekersingh instructed by Miss Bunsie for the respondent.

Constitutional law - Fundamental rights and freedoms — Right to equality of the law and protection of the law — Whether failure by prison authorities to deliver Notice of Appeal within the requisite period was unconstitutional.

I. INTRODUCTION

Myers, J.

1 On 17th April 2000, Orville Clarke pleaded guilty to a charge of possession of cocaine for the purpose of trafficking and was convicted by Her Worship Magistrate Thomas-Felix and sentenced to 36 months at hard labour.

2 Arriving at prison on the same day, he completed and signed a Notice of Appeal against sentence. As he was unrepresented, he depended upon the Prison Authority to deliver it to the Clerk of the Peace within the then-statutory seven-day limitation period (See Summary Court Act, Laws of Trinidad and Tobago Ch 4:20, §130(2) and Interpretation Act, Laws of Trinidad and Tobago Ch 3:01, §25(5). Happily now amended). Despite its best efforts (and a commendable system which the Prison Authority had put in place to process new prisoners and assist them), the Prison Authority failed him. It processed his Notice of Appeal by 1st May 2000 and delivered it to the Clerk of the Peace, St. George West by Prison Courier, where it appears to have been received on the 16th May 2000, long after the limitation period had expired.

3 This emerged after these proceedings were filed because of Mr. Ian Stuart Brook's sterling efforts on Mr. Clarke's behalf. For present purposes, I record the Clerk of the Peace's initial position in July 2002 was his office had received neither verbal nor written Notice of Appeal from Mr. Clarke, not that they had received such Notice, whether verbal or written, but after the statutory limitation period for appealing. This information Mr. Brook received after corresponding with the Clerk of the Peace and the Chief Magistrate.

4 Mr. Brook wrote to the Commissioner of Prisons on 29th July 2002 passing on the information, and enclosing copies of his correspondence with the Chief Magistrate. As, so far as the appeal system was concerned, Mr. Clarke had filed no Notice of Appeal (inferentially rendering his status that of convicted prisoner rather than of individual on remand). Mr. Brook went on to say with remission, Mr. Clarke should have been released on 18th April 2002, unless he was being detained on other warrants.

5 Correspondence ensued (I return to this in greater detail later on). Eventually, on the 27th November 2002, the Commissioner of Prisons wrote to Mr. Brook pointing out the following:

Orville Clarke was received into prison custody on April 17, 2000 after being sentenced to serve a term of thirty-six (36) months at Hard Labour. On aforementioned date, Clarke gave Notice of Appeal and is now awaiting the hearing of his appeal.

In the circumstances, the rules in respect of remission, cannot be applied to him as he is not serving a sentence.

6 Mr. Brook responded (Letter, 6 ^th December 2002) disputing the Commissioner of Prisons' stance and inviting him to provide a copy of “any valid Notice of Appeal … which is capable of demonstrating that it was served on the Clerk of the Peace in conformity with s. 130 Summary Courts Act, or any receipt/acknowledgment for any Notice, served upon the Clerk, received from him.”

7 Having received no response, on 11th December 2002 (HCA No. 3886 of 2002), Mr. Brook filed an application on Mr. Clarke's behalf for a Writ of Habeas Corpus. The thrust of this application was that, under current practice, with good behaviour a prisoner only serves eight months out of every twelve months of his or her sentence. Mr. Clarke had been convicted and sentenced on 17th April 2000. Hence, applying remission, he should have been released on 17th April 2002. In the habeas corpus proceedings, it appears the State took the position remission only applied when a defendant was actually serving his or her sentence. Mr. Clarke was on remand awaiting appeal (or so they felt and said) and, by their reasoning, had not yet begun serving his sentence.

8 The time line is a little confusing but, ultimately, my brother Bereaux, J., a leading judicial practitioner in this among other areas, declared Mr. Clarke “having been sentenced to 36 months hard labour by Her Worship Debra Thomas-Felix in the Fourth Court in Port of Spain on 17 April 2000, began to serve that term of imprisonment on that same date, that is, 17 April 2000.” The effect was, absent further considerations which did not arise (e.g. existing warrants or bad behaviour), Mr. Clarke had been entitled to be released by 18th April 2002. He was eventually released on 23rd December 2002.

9 On the face of the record, counsel for the Attorney General who appeared in front of my brother conceded the conviction and that the Clerk of the Peace, St. George West had not received Mr. Clarke's Notice of Appeal by 28th April 2000 (the last day for appealing), in fact the concession made appears to be the Clerk of the Peace had never received it. In fact, as this matter unfolded in front of me, it emerged this concession had been wrongly made, as the Notice of Appeal had actually been received by the Clerk of the Peace, but very much out of time. It is in this context, Mr. Clarke brought the present proceedings using the process I describe below, seeking multiple and varied relief.

II. AMENDED NOTICE OF MOTION, 28TH NOVEMBER 2003

10 On 15th September 2003, Mr. Clarke filed a Notice of Motion (which was amended on 28th November 2003) under §14 of the Constitution which provides as follows:

(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion. (2) The High Court shall have original jurisdiction:– (a) to hear and determine any application made by any person in pursuance of subsection (1); and (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.

• 14 (3) The State Liability and Proceedings Act shall have effect for the purpose of any proceedings under this section.

11 It is this Amended Notice of Motion which is before me. In it, Mr. Clarke seeks the following relief (I have summarised and reformulated the relief Mr. Clarke sought in his Amended Notice of Motion. In addition, it is important to keep in mind the relevant portion of §5 of the Constitution, which should be read together with those portions of §4 in respect of which Mr. Clarke complains of breaches:

5

(2) Without prejudice to subsection (1), but subject to this chapter and to section 54, Parliament may not- (h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms): 1. A declaration, having assumed responsibility for delivering his Notice of Appeal to the Clerk of the Peace, St. George West, the failure of the Prison Authority to deliver it to the Clerk of the Peace, St. George West within the seven day limitation period provided in §130 of Summary Courts Acts (Above) by delivering it only on 16th May 2000, was unconstitutional and illegal and deprived him of the protection of the law as guaranteed by §4(b) of the Constitution, which provides: 4. It is hereby recognised and declared that in Trinidad and Tobago here have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely- (b) the right of the individual to equality before the law and the protection of the law [my emphasis];

2 A declaration the refusal of the Prison Authority to treat him as a convicted prisoner and not as an appellant awaiting appeal and apply the rules of remission to him once the Prison Authority was, ought to have been, became aware his Notice of Appeal was invalid as received out of time by the Clerk of the Peace, St. George West constituted inequality of treatment contrary to §4(d) of the Constitution, which provides:

4

It is hereby recognised and declared that in Trinidad and Tobago here have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely- (d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;

3 A declaration his detention from the 16th April 2002 to the date of his eventual release 23rd December 2002 was a denial of his right to liberty guaranteed by §4(a) of the Constitution, which provides:

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It is hereby recognised and declared that in Trinidad and Tobago here have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:– (a) the right of the individual to life, liberty [my emphasis], security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law [my emphasis];

4 An Order for monetary compensation including punitive and/or exemplary and/or aggravated damages be assessed for damage and loss...