Director of Public Prosecutions v Murray (her Worship) and Panday
| Jurisdiction | Trinidad & Tobago |
| Judge | Aboud, J. |
| Judgment Date | 11 April 2014 |
| Neutral Citation | TT 2014 HC 168 |
| Docket Number | CV 3883 of 2012 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 April 2014 |
High Court
Aboud, J.
CV 3883 of 2012
Mr. Ian L. Benjamin and Ms. Anju Bhola instructed by Ms. Nalini Jagnarine for the claimant.
Mr. Avory Sinanan SC leading Mr. Larry Lalla and Ms. Cherisse Nixon instructed by Ms. Leah Thompson of the Chief State Solicitor's Department for the first defendant.
Mr. Rikki A. Harnanan instructed by Ms. Mickela Panday for the second defendant
Civil practice and procedure - Application to set aside leave to apply for judicial review — Audi alterem partem — Decision — Whether magistrate's decision amounted to a final disposition of the prosecution against a party — Whether magistrate's reasons for staying an abusive prosecution were unreasonable and injudicious — Alternative remedies — Whether claimant had an alternative remedy under SupremeCourt of Judicature Act, Chap 4:01 section 36 and Summary Courts Act, Chap 4:20 sections 128 and 132 — Lack of promptness — Whether claimant should have been given leave to apply for judicial review — Whether delay would have caused hardship to a party who was not a party to the judicial review action — Application granted.
I heard and determined an application by the claimant for leave to apply for judicial review of a decision of Her Worship Marcia Murray (“the magistrate”) given on 26 June 2012. The leave application was tiled on 21 September 2012 and determined on 26 September 2012. The application was heard without notice to the defendants. Leave to apply for judicial review was granted. Directions were givenfor the filing of a Fixed Date Claim Form, and a date was set aside for the case management conference. On that day the defendants, having been served with the Fixed Date Claim Form, appeared. Mr. Harnanan, who represents the second defendant (“Mr. Panday”), indicated his intention to apply to set aside the leave on the grounds of delay, the availability of alternative remedies, and non-disclosure. Mr. Panday's set-aside application was tiled on 9 November 2012 and what followed thereafter were a series of hearings beginning on 19 July 2013, in which the parties' written submissions were orally presented. Three hearings were rescheduled due to counsel's professional and personal engagements. In one case, the court had a scheduling conflict.
I now decide whether the leave granted on 26 September 2012 should be set aside.
The claimant contends that the magistrate made an error of law when she stayed the prosecution of Mr. Panday on certain criminal charges. The charges arose out of Mr. Panday's alleged failure, as a person in public life, to disclose certain funds held in the name of himself and his wife at the National Westminster Bank in the United Kingdom. It is alleged that his declarations of Income Assets and Liabilities for the years 1997, 1998 and 1999 were false and offended the Integrity in Public Life Acts, 1987 and 2000 (“the Integrity Act”).
The claimant's CPR Part 56.3 Notice of Application sets out the grounds for judicial review of the magistrate's decision. In a nutshell it is said that she wholly misconstrued the provisions of the Integrity Act and wrongfully interpreted the powers of the claimant to independently prosecute Mr. Panday for offences under the Integrity Act. The magistrate impugned the conduct of the Integrity Commission and the decision of the Director of Public Prosecution (DPP) to prosecute Mr. Panday. She therefore came to the conclusion that the prosecution was abusive. She stayed the proceedings and discharged him.
The matters raised on the leave application deal exclusively with the unreasonableness of the magistrate's decision to stay the proceedings. The affidavit in support sets out in greater detail what transpired in the Magistrates' Court:
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(a) The magistrate commenced the hearing of the matter Senior Superintendent Virgil v. Basdeo Panday on 13 June 2011. It was described as the second re-trial. The charges were laid by summary complaint, not by information. The magistrate was therefore not an examining magistrate. She had jurisdictionto dispose of the proceedings by making findings of law and fact.
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(b) At the close of the prosecution's case the defence counsel made two applications. The first was a submission that there was no case to answer. The magistrateoverruled that submission. The second application was one seeking a stay of the proceedings on the grounds that they amounted to an abuse of process. The magistrate upheld that submission. Briefly put, the magistrate felt that the Integrity Commission had a duty under the Integrity Act to have advised the President of Trinidad and Tobago to appoint a tribunal and, in the absence of that step, the decision of a former DPP (the claimant's predecessor) to initiate the prosecution was abusive of Mr. Panday's rights and offended the court's sense of justice and propriety.
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(c) On 26 June 2012 the magistrate stayed the proceedings and delivered a written decision, comprising 19pages, fully setting out her reasons. A copy was attached to the claimant's supporting affidavit.
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(d) “[he claimant says, in his supporting affidavit, that “as far as [he is] aware there isno alternative form of redress that exists to challenge the decision.” Ile further says that he has made no complaint to the magistrate: “In my view the Learned Magistrate is functus and no such complaint can be made. Furthermore no appeal can be made to the Court of Appeal against the magistrate's decision.”
The application forleave to apply for judicial review was filed three days short of three months after the magistrate's decision.
In the CPR Part 56.3 Notice a number of statements are made In response to the standard form question: “Whether an alternative form of redress exists and if so why judicial review is more appropriate or why the alternative has not been pursued,” the claimant succinctly stated, “No alternative and/or equally efficacious form of redress exists.” In response to the question: “Whether the time limit for making the application has been exceeded and if so. why.” the claimant stated, “No time limit has been exceeded. This application has been made promptly following receipt and consideration and advice of the decision.” (sic)
I granted leave to apply for the reliefs set out in the Notice. These reliefs were:
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(a) A declaration that the decision is unlawful, illegal, irrational and/or unreasonable, disproportionate, and/or is or amounts to an unreasonable, irregular, or improper exercise of a discretion, is invalid, null, void, and of no effect;
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(b) An order of certiorari to bring into this court and quash the decision.
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(c) Such other orders, directions or writs as is just in the circumstances;
It is to be noted that no writ of mandamus was specifically sought to direct that the matter should be remitted to the magistrate for the conclusion of the trial, orto another magistrate for a third re-trial. It seemed tome that the issues raised on the leave application were concerned solely with the matters of law that the magistrate took into account in deciding to stay the proceedings.
On the basis of the papers then before me, I felt that there were good grounds to question the reasonableness of the decision. My mind was not directed to the question of promptness in making the application (save that the application was not made later than three months alter the decision). I was not asked to consider the potential hardship to Mr. Panday, nor supplied with adequate material to properly evaluate it. The existence of alternative remedies by way of appeal was dealt with in a summary or concise manner. In granting leave I noted the absence of an order of mandamus as one of the reliefs. In hindsight I have come to the realization that every application made without notice offends the maxim audi (therein partem, and I now rarely grant leave without notice to the parties named in the suit. Of course, hindsight has been even further magnified under the microscope of Mr. Panday's application.
The grounds of Mr. Panday's application
the grounds of the application can be conveniently summarized like this:
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(a) The alternative remedies argument - the claimant has a right of appeal to the Court of Appeal under sections 128 and 156 of the Summary Courts Act, Chap. 4:20 and section 36 of the Supreme Court of Judicature Act, Chap. 4:01;
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(b) The lack of promptness argument - The claimant did not give any explanation why it took almost three months to apply for leave and that this unexplained delay will cause substantial hardship or prejudice to Mr. Panday and be detrimental to good administration; and
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(c) the non-disclosure argument - The claimant failed to put the long history of these proceedings against Mr. Panday before the court, or to set out any explanation for the delay, or disclose the availability of alternative remedies.
Mr. Panday tiled an affidavit on 9 November 2012. The claimant filed two affidavits on 29 November 2012, one by himself and one by Anju Bhola, an attorney-at-law at the office of the Director of Public Prosecutions.
Mr. Panday provides a long history of the criminal prosecution beginning with the laying of the charges on 18 September 2002. This evidence was not before me at the leave application. At the first trial before then Chief Magistrate Sherman Mc Nicholls in 2003. an allegation was made that the charges infringed his constitutional rights and he was advised to file a constitutional motion. It was dismissed in the High Court and the Court of Appeal. On 16 February 2006 the Judicial Committee of the Privy Council refused leave to appeal.
The trial before the Chief Magistrate began on 20 March 2006. It concluded on 24 April...
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