Garth O'Brien v The Honourable Ivor Archie Chief Justice of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Joan Charles |
| Judgment Date | 28 May 2019 |
| Neutral Citation | TT 2019 HC 284 |
| Docket Number | CV 2018-00854 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
Before The Honourable Madame Justice Joan Charles
CV 2018-00854
In The Matter Of The Application By Garth O — Brien For Judicial Review Under Part 56 Of The Civil Proceedings Rules 1998 And The Judicial Review Act 2000
and
In The Matter Of The Decision Of The Chief Justice Ivor Archie Dated 14Th December 2017 To Issue The Practice Direction On Pre-Trial Disclosure Under The Criminal Procedure Rules 2016 As Contained In The Trinidad And Tobago Gazette Volume 56 No 138 Dated 15Th December 2017
For the Applicant: Mr. Joseph Sookoo, Mr. Wayne Sturge, Mr. Mario Merritt Instructed by Ms. Danielle Rampersad
For the Respondent: Mr. Keith Scotland
By Fixed Date Claim filed on the 20 th December 2018 the Claimant challenged the legality/constitutionality of the Practice Direction on Pre Trial Disclosure under the Criminal Procedure Rules 2016 (The Rules) issued by the Respondent 1.
The Applicant in 2005 was charged with an offence of assisting offenders for which he appeared before the Port of Spain Assizes.
On the 3rd January 2018, at a case management conference before the Honourable Mr. Justice Jack, the Applicant was ordered to file a Defence Statement by the 25th January 2018 pursuant to the Practice Direction issued on the 15th December 2017.
The Claimant sought the following reliefs:
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i. A declaration that the decision of the Respondent dated 14 th December 2017 to issue the Practice Direction on Pre Trial Disclosure under the Rules is ultra vires, unconstitutional, illegal, null, void and of no legal effect;
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ii. An Order of Certiorari to bring up into the Honourable Court and quash the decision;
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iii. A declaration that the directions contained in the Practice Direction are ultra vires, unconstitutional, illegal, null, void and of no legal effect;
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iv. Costs.
The grounds relied on by the Claimant are that:
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i. The Practice Direction defined a ‘Defence Statement’ as a written document signed and dated by the Accused and his attorney setting out 2:
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a. The nature of the Accused's defence including any particular defences on which he intends to rely;
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b. The matters of fact on which he takes issue with the Prosecution;
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c. In the case each such matter the reason he takes issue with the Prosecution; and,
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d. Setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence.
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ii. the Practice Direction purports to place a mandatory requirement upon a defendant to prepare and file a Defence Statement after disclosure has been made by the Prosecution;
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iii. the failure to file a Defence Statement on time or at all, or the existence of any inconsistencies within the Defence Statement itself or with the case for the Accused at trial, leads to sanctions. These sanctions are not limited to and include the making of adverse comments by the Court and/or Prosecution and the drawing of adverse inferences as to the guilt of an Accused by the Court and/or jury 3.
The requirement for the filing of a Defence Statement is not included in the Rules, the Rules Committee having failed to and/or deliberately omitted any such requirement. The Respondent's issue of this directive by
The Practice Direction, insofar as it creates a sanction for failure to comply with same and/or places a Pre Trial requirement on an Accused person to disclose his defence, is unconstitutional as infringing his Right to a fair trial and his Right to Silence.
The Practice Direction, if unconstitutional, is also ultra vires and unlawful as it attempts to bind Parliament without its oversight and infringes the provision for the passage of constitutionally inconsistent legislation under Sections 13 4 and or 54 5 of the Constitution of Trinidad and Tobago.
The Practice Direction, being procedural in nature, is null and void relative to any sanction since it reverses the law relative to the Right to Silence both under the Constitution and the Common Law.
The Claimant submitted that the Rules Committee is a Statutory Body created by Section 77 of the Supreme Court of Judicature Act (SCOJ) 6 and that the Respondent is one of the five members of that Committee. He submitted that the Rules Committee is empowered to create Rules of court by Section 78.1 of the SCOJ. Section 78.1 (f) of SCOJ provides that the Rules Committee may make Rules:
“for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given, in any proceedings or on any application in connection with or at any stage of any proceedings, including for providing for orders being made at any stage of any proceedings directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination and that he may be produced for that purpose”.
The Claimant also pointed out that Rules of Court made under the SCOJ are subject to negative resolution of Parliament 7.
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He went on to state that:
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a. Practice directions and their kin — practice notes and practice statements — and their ancestors — Regulae Generales and Memoranda — are not the same as rules of court made under statutory authority. They are made by the courts acting on their own
authority. Most are concerned with relatively minor points of practice, but many of the more recent ones go much further. 8 -
b. Since the rules have the force of delegated legislation, they cannot be altered by judgment or practice direction.
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The Claimant sought to distinguish the Privy Council decision of Sexius v The Attorney General of St. Lucia 9 which, in interpreting a St. Lucia statute which provided for the submission of a Defence Statement by an Accused, held that an Accused's Right to Silence is not infringed by the requirement to disclose his defence during case management of his criminal trial. He submitted that unlike the case in Trinidad and Tobago, an Accused in St. Lucia is only required to submit a defence statement which outlined his defence in general terms as opposed to the case in Trinidad and Tobago where such an Accused is required to give particulars of his defence pursuant to the Practice Direction.
The Claimant submitted further, that the requirement to file a Defence Statement and the sanctions for failure to do so deprived him of his constitutional and Common Law Right to Silence.
The Claimant argued that the Rules Committee, after consideration of the English Rules, declined to pass a provision requiring an Accused person to file a defence statement; the Rules implemented a Hearing Questionnaire by which the parties were mandated to indicate the issues between them. The Claimant asserted that in both the English and St. Lucian provisions the requirement for defence statements were specifically included in their Rules or Statutes unlike the present case. He further
The Respondent submitted that the issue for determination by the court was whether he was outwith the power granted him under the Criminal Procedure Rules 10 to issue the said Practice Direction.
He agreed with the Claimant's submissions with respect to the statutory powers of the Rules Committee as outlined in the latter's submissions 11; in particular, that the Chief Justice is empowered by the Rules Committee under Rule 20 of the said Rules to issue Practice Direction 12.
The Respondent argued that the Rules Committee vested him with a wide discretion to implement the Practice Direction in furtherance of the overriding objective of the Rules. He contended that it was always envisaged by the Rules that written requirements as stated by Rule 10.1(2)(g) may be necessary for the purposes of issue identification and the nature of the Defence as required by the provisions of active case management.
The Respondent submitted that the Practice Direction was intra vires, legal and valid since it was issued in furtherance of existing requirements for:
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a) the identification of real issues in the terms of active case management;
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b) powers of the Court to impose any direction in managing the case; and
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c) the fact that the Court may require issues to be identified in writing.
On the issue of the constitutionality of the Practice Direction the Respondent submitted that there is no absolute Right to Silence, and that in any event the Practice Direction does not abrogate the Right to Silence. Further, that the requirement for the Defence Statement only arises fifty six (56) days after the Prosecution has disclosed its evidence and other material in proof of the case against an Accused. He asserted that an Accused is not required to incriminate himself at any time nor is he compelled to answer questions which may incriminate him. His Common Law and constitutional Right to a fair trial is thereby preserved.
The Respondent submitted that the case of Sexius v The Attorney General of St. Lucia 13 and the principles enunciated therein by the Privy Council are applicable to this case since the provisions relating to the requirement for a Defence Statement in St. Lucia 14 are markedly similar to ours in Trinidad and Tobago. He submitted that it is plainly wrong to say that the...
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