Kevon Nurse v The Director of Public Prosecution
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 05 July 2021 |
| Neutral Citation | TT 2021 HC 155 |
| Docket Number | Claim No. CV 2020 – 03286 |
| Year | 2021 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
Port of Spain [Virtual Hearing]
the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No. CV 2020 – 03286
Mr. Shaun C. Morris, Attorney at Law for the Claimant
Ms. Mary Davis and Mr. Nairob Smart, Attorneys at Law for the Defendant
This is a fixed date claim for judicial review of the Defendant's continuing decision to prosecute the Claimant for a charge of murder in a process that has gone on for nineteen years with multiple trials/re-trials.
The Claimant filed an application for leave to apply for Judicial Review and affidavit in support on 12 October 2020. The Claimant's ground for judicial review is that the decision is unfair.
The Claimant seeks the following reliefs:
Declaratory Relief
a. A Declaration that the Claimant's right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof, except by due process of law, as well as the right of equality before the law and the protection of the law enshrined by Sections 4(a) and (b) of the Constitution of Trinidad and Tobago have been infringed.
b. A Declaration that Section 5 (2) (e) and (f) of the Constitution, which affords the Claimant the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations and to a fair and public hearing by an independent and impartial tribunal being a person charged with a criminal offence, have been infringed.
c. A Declaration that the continuing prosecution of the Claimant in the circumstances is illegal and in breach of his fundamental rights as enshrined by the Constitution.
d. A Declaration that the failure of the DPP to forthwith discontinue the prosecution for the charge of murder against the Claimant is unreasonable and unfair.
Substantive Relief
e. An order of Certiorari to remove into this Honourable Court the decision of the DPP, pursuant to Section 90 of the Constitution of the Republic of Trinidad and Tobago, whether to discontinue the prosecution for the charge of murder against the Claimant.
f. An Administrative order that the indictment filed against Kevon Nurse is quashed and of no effect.
g. Costs.
h. Any other relief and/or order that the Honourable Court may deem fit, just and appropriate in the circumstances.
Leave was granted by this Court to apply for judicial review on 23 October 2020. The Claimant, thereafter, filed a fixed date claim and affidavit in support on 6 November 2020. The Defendant filed his Affidavit in Response on 13 January 2021. Thereafter, an Affidavit in Reply was filed by the Claimant on 12 April 2021 together with his legal submissions. The Defendant filed written submissions on 10 June 2021. The Claimant filed no submissions in reply.
In the Claimant's Affidavit in support of his Application filed 12 October 2020, the history is summarised as follows:
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a. The first trial was held on 4 July 2002 and was aborted;
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b. The second trial was held on 2 June 2003. The Claimant was convicted and the conviction was subsequently quashed on appeal with a retrial ordered;
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c. The third trial was held on 8 January 2008 and was aborted;
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d. The fourth trial was held on 5 May 2011 and was aborted;
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e. The fifth trial was held on 14 November 2019 and resulted in a hung jury. The matter is currently before a Master for case management as the state is proceeding with the view to a sixth trial being held.
The history of the Claimant's five trials is outlined in detail in both his affidavit and in the affidavit of the Defendant with overall consistency.
The Claimant was arrested and charged in January 2001 for the murder of his uncle, Lester Ash, which was alleged to have occurred on 25 December 2000. Thereafter, he was indicted for murder on 15 October 2001.
The Claimant's first trial was held on 4 July 2002 before the Honourable Mr. Justice Narine. This trial was aborted six days later when a material irregularity occurred with regard to the taking of evidence from a child witness.
The second trial commenced on 2 June 2003 before the Honourable Madame Justice Weekes. This trial resulted in a conviction on 18 June 2003. The Claimant appealed and three years later, on 17 March 2006, the Court of Appeal quashed the conviction on grounds of misdirection by the learned trial Judge. A retrial was ordered.
On 27 March 2006, the matter was listed on the cause list for hearing. The Claimant at this stage had expressed that he wished to represent himself at trial and had no intention of applying for legal aid.
On 6 April 2006, the matter was called before Mr. Justice Carmona who transferred it to another judge. According to the Defendant, on 8 May 2006, the matter was called before Mr. Justice Lalla who indicated to the Claimant that he must be represented by an attorney or have one to assist him. The matter was adjourned to await the Notes of Evidence of the previous trial. It was called on 22 June 2006 and again adjourned due to unavailability of the Notes of Evidence as well as the state's main witness who was abroad.
On 3 August 2006, the matter was called before Mr. Justice Devan Rampersad who recused himself as he had prosecuted the Claimant at his first trial. The State also indicated at this stage that it was arranging for the attendance of its main witness.
On 22 September 2006, the matter was called before Mdme. Justice Joan Charles who recused herself having represented the Claimant at his first trial. On 3 October 2006, the matter was called before Mr. Justice Volney. The Defendant avers that the Claimant still indicated he wished to represent himself despite Mr. Justice Lalla's previous indication. The matter was then set for trial on 9 January 2007.
On 9 January 2007, the matter was called before Mdme. Justice Soo Hon. According to the Defendant, the Claimant was still unrepresented and did not want a lawyer so the matter was adjourned. The Claimant alleges, however, in the hearings between April 2006 and June 2007, the trial could not begin due to no fault of his own.
According to the Defendant's notes, on 1 June 2007 the matter came up again before Mdme. Justice Joan Charles who could not hear the matter for the reason outlined above. However, according to the Claimant, it came up before Mr. Justice Rampersad who recused himself.
On 5 June 2007, the matter was heard by Mr. Justice Rampersad who could not hear the matter for reasons outlined above and the matter was transferred to another court. On 2 July 2007, the Claimant's matter was called before Mr. Justice Moosai. According to the Defendant, at this hearing the Court inquired if the Claimant could be examined by a prison doctor as he still maintained he wished to represent himself. The Claimant, however, indicates that the prosecution was not ready to proceed as their witnesses were unavailable.
The Claimant states that in the time between this adjournment and the next hearing he made efforts to prepare for the trial and to have his witnesses ready. At the Claimant's request, the Claimant's cousin Tee Jay Nurse wrote to the Defendant pleading to ensure a fair trial within a reasonable time. According to the Claimant, the response from the Defendant indicated that there were a number of reasons why the matter had not begun, including that the Claimant refused legal representation. This correspondence is not attached to the Claimant's affidavits.
On 1 October 2007, the matter came up before Mr. Justice Mohammed who recused himself as he had signed the Claimant's indictment. On 8 October 2007, it was called before Mr. Justice Boodoosingh who made orders for disclosure of relevant documents to the Claimant and the matter was adjourned to 10 October 2007. The Defendant avers that the State was ready at this point and the Claimant indicated at this hearing that he was still self-represented and did not want any attorney to assist him.
On 10 October 2007, the matter was called again and the Claimant signalled his intention to make an application to quash the indictment. The matter was adjourned for the Claimant to reflect on his options. On 18 October 2007, the matter was adjourned again to 8 November 2007. According to the Defendant, the Claimant was still self-represented and the State was ready to proceed.
The Claimant claims that he wrote to the acting Chief Justice at this time and asked that his matter be given some priority as a witness essential to his defence, one Ricardo Duncan, intended to migrate in December 2007. This correspondence is not attached to the Claimant's affidavits.
On 8 November 2007, the Claimant's matter was called before Mr. Justice Brook. The Claimant was still self-represented but had not been brought from the prison and the matter was adjourned. According to the Defendant, on 16 November 2007, Mr. Justice Brook indicated he could not hear the matter and recused himself. The matter was adjourned to be transferred to another judge. According to the Claimant, however, the adjournment was due to the State requiring one more month for their witness to be present. On 21 November 2007, the Claimant's matter was again called before Mr. Justice Brook and according to the Defendant, the matter was again transferred to be heard by another court. According to the Claimant, however, the State sought the adjournment at this hearing.
The third trial of the Claimant commenced on 3 January 2008 before Mdme. Justice Soo Hon. The Claimant was self-represented. After arraignment of the Claimant and empanelling of the jury, on 4 January, the trial judge informed the Claimant he ought to have been represented before being arraigned on a...
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