Colin Simmons v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Bereaux J.A.
• Judgment Date: 29 April 2022
• Neutral Citation: TT 2022 CA 029
• Docket Number: Civil Appeal No. P215 of 2021
• Court: Court of Appeal (Trinidad and Tobago)

Between

Colin Simmons

Appellant

and

The Attorney General of Trinidad and Tobago

Respondent

PANEL:

N. Bereaux J.A.

P. Rajkumar J.A.

Civil Appeal No. P215 of 2021

Claim No. CV2019-00005

The Republic of Trinidad and Tobago

Appearances:

Mr. F. Hove-Masaisai instructed by Ms. A. Pierre, Attorneys-at-Law for the Appellant

Ms. K. Prosper instructed by Ms. H. Muddeen, Attorneys-at-Law for the Respondent

REASONS

Delivered by Bereaux J.A.

1 (1) This is an appeal from the decision of Lambert-Peterson J, in which she struck out the appellant's constitutional motion as an abuse of process. On 13 ^th April 2022 we dismissed this appeal and awarded the respondent costs in the sum of seven thousand dollars ($7000.00). These are our reasons.

Summary of Facts

2 (2) This appeal has its genesis in the arrest of Colin Simmons (“the appellant”) on 17 ^th July 2008 at the Crown Point International Airport in Tobago. He was charged with possession of a dangerous drug for the purpose of trafficking and attempting to export certain prohibited goods contrary to the Dangerous Drugs Act Chap.11:25. He was brought before the Scarborough Magistrates’ Court where the appellant opted for a summary trial and pleaded not guilty to both charges. He subsequently retained Mr. Subhas Panday to represent him in the criminal proceedings. The matter was adjourned on several occasions between July 2008 and June 2010 for various reasons but principally because the prosecution was not ready to proceed.

3 (3) In June 2010, the appellant was informed by Mr. Panday's office that Mr. Panday had been appointed a government minister and that someone else at his firm would take over conduct of the case. On the morning of 24 ^th June 2010 (which was latest adjourned date) Mr. Panday's office informed him that the attorney assigned to his case was unable to appear. The office advised him to either ask for an adjournment or obtain fresh representation.

4 (4) The appellant attempted to obtain the services of another attorney but was unsuccessful. When the matter was called before the magistrate on 24 ^th June, the appellant indicated that he was unrepresented and the circumstances which led to that state of affairs. The magistrate insisted on proceeding. The prosecution opened its case with the appellant being unrepresented. The trial was then adjourned to the following day.

5 (5) On the morning of 25 ^th June the appellant met with attorney at Law Mr. Chaitram Sinanan outside the Scarborough Court and Mr. Sinanan orally agreed to represent him. When the matter was called before the magistrate, Mr. Sinanan sought an adjournment to take proper instructions. The magistrate refused. She gave Mr. Sinanan leave to withdraw. She then directed that the trial continue and the appellant was required to cross-examine prosecution witnesses himself.

6 (6) At the close of the prosecution's case the magistrate ordered the appellant into the witness box without caution as to his rights to decline giving evidence. He was then subjected to cross-examination. At the end of the evidence the magistrate found him guilty on both charges and sentenced him to five (5) years in prison.

7 (7) Before he was taken to the Tobago Prison on 25 ^th June, a police officer at the courthouse told him that he had a right to appeal which he could only access from prison. On Monday 28 ^th June 2008 the appellant informed a prison officer at the Tobago Prison of his desire to appeal. The officer responded that the appellant was being transferred to Trinidad and he would be able to appeal from that prison.

8 (8) On 5 ^th July 2010, the appellant was taken to the Port of Spain Prison. Almost immediately upon his arrival, he requested that he be allowed to appeal. The prison officer documenting the new arrivals told him that he was “too busy” to consider his request at that time and advised the appellant to return to the office the following morning. On the morning of 6 ^th July the appellant (at his request) was escorted to the officer so that he could get his appeal filed. He was told by the prison officer on duty that he could not appeal since he was an ‘outsider’. The appellant is and has always been a citizen of Trinidad and Tobago but spoke with Barbadian accent, having grown up in Barbados. The appellant made several subsequent requests to appeal but no action was taken by the prison authorities.

9 (9) Sometime between the 8 ^th and 9 ^th July 2010, the appellant was transferred to the Carrera Convict Prison. On arrival he spoke to one Superintendent Morgan who advised him that the time for filing of his appeal had expired and that he would need legal assistance to obtain an extension of time. Between 28 ^th July 2010 to November 2013 the appellant wrote numerous letters to the Legal Aid and Advisory Authority, the Ombudsman and the Attorney General in an effort to obtain legal representation to prosecute his appeal. He received no responses.

10 (10) On 31 ^st October 2013, the appellant was released from prison and made enquiries of the Legal Aid and Advisory Authority as to why he was never accepted for representation. A few days later on 7 ^th November 2013, the appellant was informed that attorneys Bindra Dolsingh and Chris Selochan had been appointed to represent the appellant for the purposes of the criminal appeal. On 11 ^th May 2014, the appellant was granted an extension of time to file an appeal against conviction and sentence. The appeal came up for hearing on 22 ^nd January 2016 whereupon the Court of Appeal allowed the appeal and quashed the appellant's conviction.

11 (11) The appellant then filed three constitutional motions between 2018 and 2019 in respect of his detention in the custody of the Prison Service. In the first motion, CV 2018-00006, the appellant sought declarations that:

The second constitutional motion is the subject of this appeal. It was filed on 4 ^th February, 2019 approximately one year after the first motion. By this second motion the appellant sought a declaration that he was denied his right to equality of treatment as guaranteed to him by section 4(d) of the Constitution of the Republic of Trinidad and Tobago (“the Constitution”), as a result of the neglect, failure or refusal of the prison authorities to give him remission of this sentence under rule 285 of the Prison Rules. He claims had he been given remission he should have been released from prison on 24 ^th October 2013, but was instead released on the 31 ^st October 2013. This relief had not been sought in the first motion.

The third action, CV 2018-02503 was docketed to Rampersad J. The case details are not contained in the Record of Appeal.

• a. The failure of the prison authorities to allow him to file his notice of appeal within the statutory time period breached his rights under sections 4 (a) and (b) of the Constitution;

• b. The failure of the State to provide Legal Aid/ with an attorney at law to assist him in applying for an extension of time to file his notice of appeal breached his rights under section 4(a)(b) and (d) of the Constitution;

• c. An order for monetary compensation as a result of the State's failure to deliver the notice of appeal; and

• d. An order for monetary compensation for the distress and inconvenience that the appellant suffered during the period of unconstitutional detention and loss of earnings;

12 (12) All three claims were initially docketed to Gobin J who held CMCs regarding the conduct of these matters simultaneously. Gobin J was transferred to another jurisdiction and the three motions were re-docketed to separate judges. Neither the Attorney General nor the appellant applied to have them consolidated or heard together before a single judge. Directions were given with view to moving the instant claim to trial. The Attorney General complied with all of the directions until he made the July 2021 application to strike out. This was twenty-nine months after the filing of the claim by the appellant.

13 (13) On the 5 ^th March 2021, Margaret Mohammed J in CV 2018-00006 made the following award in the appellant's favour:

(i) twenty thousand dollars ($20,000.00) as compensation for the breach of the appellant's constitutional rights;

(ii) nine hundred thousand dollars ($900,000.00) as compensation for the appellant's deprivation of liberty suffered during the unconstitutional detention including an uplift for aggravating factors. Interest on this sum at the rate of 2.5% per annum from the date of service of the claim to the date of judgement;

(iii) sixty thousand dollars ($60,000.00) as vindicatory damages;

(iv) a declaration that the failure of the Prison Service to allow the Claimant to file his notice of appeal within the statutory time limit breached the Claimant's right under sections 4(a) and 4(b) of the

Constitution .

The period of unconstitutional detention referred to was the period 25 ^th June 2010 to 31 ^st October 2013.

14 (14) On 2 ^nd July 2021, the Attorney General applied to Lambert-Petersen J for the instant claim to be struck out as an abuse of process on the grounds that:

• (a) the Claimant was awarded damages for distress and inconvenience for the requested period in the matter of CV 2018-00006 Colin Simmons v AG.

• (b) the Claimant failed to raise these specific issues which were the live issues in the related matter of CV 2018-00006 Colin Simmons v AG.

• (c) In the alternative that there be a stay of proceedings pending the determination of the substantive appeal .

Decision of the Judge

15 (15)...