Menhennet v Magistrate Mc Kenzie

• Jurisdiction: Trinidad & Tobago
• Judge: Jamadar, J.
• Judgment Date: 01 December 2006
• Neutral Citation: TT 2006 HC 113
• Docket Number: CV 638 of 2006
• Court: High Court (Trinidad and Tobago)
• Date: 01 December 2006

High Court

Jamadar, J.

CV 638 of 2006

Menhennet

and

Magistrate Mc Kenzie

Appearances:

Mr. B. Dabideen for the applicant/intended claimant.

Ms. K. Jodhan and Ms. L. Gray for the intended defendant.

Judicial review - Magistrate's decision — Criminal conviction and sentence — Possession of cocaine for purpose of trafficking — Sentenced to imprisonment for six years at hard labour — Attempting to export cocaine — Sentenced to a fine of $20,000 or in default three years imprisonment with hard labour — Appeal not filed within the time limit — Judicial review was not filed within the statutory period — Alternative procedure — Magistrate exceeded jurisdiction in allowing guilty plea — Whether court should exercise discretion to extend time for making the application for leave — Particular circumstances providing good reason for extending time — impugned decision was wrong at law — No abuse of power or unfairness in the procedure — Alternative remedy existed — Action deemed an abuse of process — Action dismissed.

Jamadar, J.

INTRODUCTION

1 On the 22nd September 2005 the applicant, a South African national, appeared before the Senior Magistrate in the Scarborough Magistrates’ Court, Tobago, charged with two offences:

• (i) No. 2936 of 2005 – possession of cocaine for the purpose of trafficking on the 08.09.05 at the Crown Point International Airport, Tobago, contrary to section 5(4) of the Dangerous Drugs Act (No. 38 of 1991); and

• (ii) No. 2937 of 2005 – attempting to export 5 kilograms of cocaine on the 08.09.05 at the Crown Point Airport, Tobago, contrary to section 154 of the Customs Act (Chapter 78:01).

2 The applicant was unrepresented but ready to proceed and after the charges were duly read in the order stated he pleaded guilty to both. The applicant then advanced on his own behalf a short plea in mitigation. He was then sentenced by the Senior Magistrate as follows: On the charge of possession of cocaine for the purpose of trafficking, for a term of imprisonment of 6 years with hard labour and on the charge of attempting to export cocaine, to pay a fine of $20,000.00 or in default to serve a term of 3 years imprisonment with hard labour (to run concurrently with the first sentence).

3 The applicant did not appeal within the statutory time limit of 7 days (section 130(2) of the Summary Courts Act). The applicant claimed that he did not appeal because, inter alia, he “was advised that there was nothing that could be done since the sentences imposed were lenient and lawful” (paragraph 8 of the applicant's Principal affidavit).

4 However, on the 14th March 2006, almost 5 ¹/₂ months after conviction and sentencing, the applicant sought leave of this Court to proceed by way of judicial review to declare illegal, unlawful, irrational and/or unreasonable and to quash the decision of the Senior Magistrate to proceed with the trial, and accept a plea of guilty in, and convict and sentence him on charge No. 2937 of 2005. Damages and costs were also claimed.

5 The basis of this review and for the relief sought is that for all practical purposes and in fact both charges arose out of exactly the same conduct by the applicant, and that the applicant was convicted twice for what was substantially one offence arising out of one incident, and that this was contrary to the common law principle that a person ought not to be punished twice for the same offence and its statutory embodiment in section 62(1)(a) of the Interpretation Act. [See Cr. Appeal No. 52 of 1999 Jokhan v The State, per de la Bastide, C.J., at pages 10–11].

INTER PARTES HEARING

6 On the 3rd March 2006 this Court ordered that the application for leave be heard inter partes and that the issues of delay and available alternative remedies be addressed.

7 Sections 9 and 11 of the Judicial Review Act, 2000 (IRA) provide as follows:

9

The Court shall not grant leave to an applicant for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal that decision, save in exceptional circumstances. 11.(1) An application for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (2) The Court may refuse to grant leave to apply for judicial review if it considers that there has been undue delay in making the application, and that the grant of any relief would cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration. (3) In forming an opinion for the purpose of this section, the Court shall have regard to the time when the applicant became aware of the making of the decision, and may have regard to such other matters, as it considers relevant. (4) Where the relief sought is an order of certiorari in respect of a judgment, order, conviction or other decision, the date when the ground for the application first arose shall be taken to be the date of that judgment, order, conviction or decision.

8 Clearly, in this case the statutory right of appeal constituted an alternative procedure to question, review or appeal the impugned decision. Equally clearly, this application for leave was made outside of the general statutory three month period within which applications for judicial review ought to be made.

9 The intended defendant filed no affidavits in opposition. However, the intended defendant issued a notice dated the 28th April 2006 asking the Court to refuse leave on the grounds of undue delay and/or the availability of an alternative procedure to challenge the decision of the Senior Magistrate.

10 Skeleton submissions and replies were eventually filed in support of and in opposition to the intended defendant's said notice. Significantly, the reply of the intended defendant stated: “It is not doubted that the High Court has jurisdiction to deal with this matter and t pronounce the applicant's conviction and sentence on the customs charge a nullity”.

11 Thus, in this case there is no dispute that the Senior Magistrate exceeded her jurisdiction and was wrong in allowing a guilty plea to be accepted and to have convicted and sentenced the applicant on the customs charge having already accepted a guilty plea, convicted and sentenced the applicant on the trafficking charge, as this amounted to prosecuting, convicting and sentencing the applicant twice for what was one offence arising out of a single incident.

DELAY

12 The first relevant question is whether this Court should exercise its discretion to extend the time for making the application for leave. If time is so extended, then an additional discretion falls to be exercised. That is, if there is undue delay whether to refuse leave because the grant of any relief would cause substantial hardship or prejudice to the rights of any person or would be detrimental to good administration. [See Nelson EA, in...