Gangarr v Espinet
| Jurisdiction | Trinidad & Tobago |
| Judge | Bereaux, J. |
| Judgment Date | 28 July 2006 |
| Neutral Citation | TT 2006 HC 66 |
| Docket Number | CV 00687 of 2005 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 July 2006 |
High Court
Bereaux, J.
CV 00687 of 2005
F. Hosein S.C., R. Persad with him.
D. Mendes S.C, B. Primus with him.
Judicial review - Magistrate's decision — Certiorari — Limitation of criminal action — Magistrate decided that criminal action was not statute barred — Nothing illegal, irrational or unreasonable about the decision — Magistrate decided to sever charges — Claimant entitled to have matters heard together — Matters arose form same state of facts — Strong elements of commonality — Decision was illegal and irrational.
Mr. Finbar Gangar (“the applicant”) is a former Member of Parliament and a former Minister of Government. He has sought judicial review of two decisions of the respondent, Her Worship Ejenny Espinet (“the respondent”) by which she ruled that:
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(1) two criminal charges preferred against him were not statute barred; and
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(2) both charges will be heard separately.
As a Member of Parliament and Minister of Government during the years 1995 to 2000, Mr. Gangar was deemed by section 2 of the Integrity in Public Life Act, 1987, to be a person in public life and was required by section 13 to file annually, a declaration of his income, assets and liabilities with the Integrity Commission. Declarations were to be filed on or before 31st May in each year, in respect of the year immediately preceding. Failure to furnish a declaration or the making of a false declaration, constituted an offence punishable on summary conviction by a term of imprisonment of two years, a twenty thousand dollar fine, or both, pursuant to section 27.
By section 28 of the Integrity in Public Life Act 1987, it was provided that no prosecution for an offence under the Act was to be instituted after five years from the date when the person, in respect of whose declaration or financial affairs the offence was alleged to be committed, ceased to be a person in public life. The applicant submitted his declarations for 1998 and 1999 on 23rd September, 1999 and 9th October, 2000 respectively both of which were accepted by the Commission.
The Integrity in Public Life Act, 1987 was repealed and replaced by the Integrity in Public Life Act No. 83 of 2000. The latter Act was itself amended by Act No. 88 of 2000. Both Acts came into effect on the same day.
By Act No. 83 of 2000, new offences were added. Fines were increased to two hundred and fifty thousand dollars and the term of imprisonment increased from two years to ten. The limitation period of five years which had been provided by section 28 of the Integrity in Public Life Act 1987 was retained by section 21(5). However, that provision was repealed by Act No. 88 of 2000 and no other limitation period was substituted.
I shall refer to the original Act as the 1987 Act, to Act No. 83 of 2000 as amended as the 2000 Act and, when necessary, to Act No. 88 of 2000 as the 2000 Amendment Act.
On 4th June, 2004, the two criminal charges were laid summarily against the applicant under the 1987 Act, to the effect that he knowingly made false declarations for 1998 and 1999, by failing to include money held in certain local and foreign bank accounts.
The applicant appeared before the respondent at the Port-of- Spain Magistrate's Court where it was contended on his behalf that:–
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(a) the five year limitation period (set out in section 21(5) of the 2000 Act) having been repealed, the appropriate period within which to lay the charges was now six months from the time when the matters giving rise to the complaints first arose, this, by the conjoint effect of section 29(2)(c) and section 67 of the Interpretation Act and section 33(2) of the Summary Courts Act;
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(b) the charges were in fact laid outside of the six month period and accordingly, the respondent did not have jurisdiction to proceed with the complaints;
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(c) in the alternative, the charges should be heard together since they relate to “the same matter” pursuant to section 64(2) of the Summary Courts Act.
On October 10th 2005, the respondent, in a short oral ruling, rejected the claimant's submission holding instead:
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(a) that the applicable limitation period was a period of five years from the date that he ceased to be a person in public life which had not expired at the time the criminal proceedings were commenced; and
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(b) that because of the seriousness of the offences they ought to be tried separately.
The applicant now challenges these decisions by judicial review proceedings.
The applicant contends that the respondent's decision as to the limitation period is unlawful, unreasonable and procedurally improper. He seeks certiorari to quash it, a declaration that the decision is illegal and an order prohibiting any further hearing of the two summary complaints.
In the alternative, he contends that the respondent's refusal to hear the complaints together is unlawful and seeks certiorari to quash it and a declaration in similar terms to the first declaration sought.
It is curious however, that he has not sought any order directing the respondent to hear both charges together.
The grounds of the application are the same as that contended before the respondent. I have already set them out at paragraph 7. It will readily be seen that the application and the grounds upon which the application is based are identical to those made before the respondent; that is to say, the same applications have been renewed before me. The issue which necessarily arises is whether they should have been pursued before the Court of Appeal in a substantive appeal against conviction. I shall say from the outset that, as to the limitation question, the short answer is yes, such an appeal should have been pursued before the Court of Appeal. As to the joinder question, I consider that the applicant is not only entitled to seek judicial review of the respondent's decision, but he is also entitled to have the two charges heard together and must succeed on this ground.
Mr. Hosein for the applicant submitted in effect that the charges were laid out of time, the requisite period being six months from the time when the matters, giving rise to the complaints first arose. The declarations having been filed in September 1999 and October 2000 respectively and the charges having been laid in June 2004, they are statute barred. He relied on section 67 of the Interpretation Act, section 33(2) of the Summary Courts Act and section 29(2)(c) also of the Interpretation Act, the provisions of which respectively provide -.
Section 67 of the Interpretation Act -
“Where in a written law an offence is declared to be punishable on summary conviction, the procedure in respect of the trial and punishment of the offence and the recovery of the penalty, and all matters incidental to or arising out of the trial and punishment of the offence or the recovery of the penalty shall be in accordance with the Summary Courts Act.”
Section 33 of the Summary Courts Act:–
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“(1) Every proceeding in the Court for the obtaining of an order against any person in respect of a summary offence or for the recovery of a sum by this Act or by any other written law recoverable summarily as a civil debt shall be instituted by a complaint made before a Magistrate or Justice.
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(2) In every case where no time is specially limited for making complaint for a summary offence in the Act relating to such offence, the complaint shall be made within six months from the time when the matter of the complaint arose, and not after.”
Section 29(2)(c) of the Interpretation Act:–
“Where a written law repeals or revokes a written law (in this subsection and subsection (3) called the “old law”) and substitutes another written law therefore by way of amendments, revision or consolidation-
(c) “…all proceedings taken under the old law shall be prosecuted and continued under and in conformity with the written law so substituted, so far as consistently may be.”
I must also refer to section 27(1)(c), (d) and (e) of the Interpretation Act which provide:–
Where a written law repeals or revokes a written law, the repeal or revocation does not, except as in this section otherwise provided, and unless the contrary intention appears:–
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(a) …
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(b) …
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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the written law so repealed or revoked;
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(d) affect any offence committed against the written law so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof; or
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(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as mentioned above, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the written law had not been repealed or revoked.
In summary Mr. Hosein submitted that the clear purport of section 29(2)(c) is to establish that all proceedings taken under the 1987 Act are to be prosecuted and continued under and in conformity with the 2000 Act so far as consistently done. The words “so far as consistently may be” import a requirement that the prosecution must be consistent with the new law, namely the 2000 Act. Since there is no provision in the 2000 Act which preserved the five year limitation, the limitation period was six months by virtue of section 33(2) of the Summary Courts Act and section 67 of the Interpretation Act, Chap.3:01. Consequently, section 29(2)(c) of the Interpretation Act required that a prosecution under the 1987 Act should be continued under and in conformity with the 2000 Act which now has a limitation period of six months.
Mr. Hosein's reliance on a six month limitation flies in the face...
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