Moonan v The Director of Public Prosecutions et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Ibrahim, J.A. |
| Judgment Date | 19 July 1991 |
| Neutral Citation | TT 1991 CA 25 |
| Docket Number | Civil Appeal No. 132 of 1988 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 19 July 1991 |
Court of Appeal
Davis, J.A.; Ibrahim, J.A.; Gopeesingh, J.A.
Civil Appeal No. 132 of 1988
Mr. Turner Samuels Q.C. and Mr. S. Parsad for the appellants
Mr. E. Thorne Q.C. and Mrs. Deane-Armorer for the respondents
Judicial review - Second information alleging bribery by appellant of public officials in award of contract laid under the Prevention of Corruption Act, 1980 Rev. Ch. 11:11 (1921 Act) after dismissal of first information — Validity of second information challenged — Proceedings not an abuse of process — Information creates no offence known to law as the company which the appellant allegedly sought to bribe was not a public body under the 1921 Act.
Courts - Second information alleging bribery by appellant of public officials in award of contract laid under the Prevention of Corruption Act, 1980 Rev. Ch. 11:11 (1921 Act) after dismissal of first information — Validity of second information challenged — Proceedings not an abuse of process — Information creates no offence known to law as the company which the appellant allegedly sought to bribe was not a public body under the 1921 Act.
By an information laid in the Port of Spain Magistrates Court on September 28,1987 (the first information), Shastri Moonan (the appellant) was alleged to have corruptly given to Rudy Brown a Toyota Royal Saloon motor car as a gift, loan fee, reward or advantage as an inducement or reward for favorable consideration to be given by the said Rudy Brown to the appellant in respect of contracts between Republic Telecommunications Company Limited (R.T.C.) And Trinidad and Tobago Telephone Company Limited (Telco.). The information further alleged that Telco was a state enterprise and the offence was committed between November 11, 1986 and December 29, 1986 contrary to section 3(1) of the Prevention of Corruption Act, No.11 of 1987(the1987 act).
Section 3(1) of the 1987 Act creates an offence where the person “corruptly solicits or receives or agrees to receive “the bribe whilst section 3(2) creates the offence where the person “corruptly gives, promises or offers” the bribe. The essence of the charge, however, is that the bribe must be given “as an inducement to or reward for, or otherwise on account of an agent doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the state or a public body is concerned…” There was no reference in the information as to who was the “agent” involved in the transaction. By section 11 of the 1987 Act, “a prosecution for an offence under the this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions,”(the D.P.P.).
At the preliminary inquiry on the first information before the examining magistrate, attorney for the appellant made certain submissions, in limine, and requested the magistrate to discharge the appellant. The magistrate, on the 21 st December, 1987, upheld the submissions made and discharged the appellant. On the very day that the appellant was discharged by the magistrate another information (the second information) was laid in ths same court charging the appellant with the same offence in almost identical terms, the only difference being that in the second, Telco. was described as “a public body” whilst in the first it was described as “a state enterprise” and the second was laid under section 3(2) of the Prevention of Corruption Act, Chapter 11:11 of the 1921 Act, whilst the first was laid under section 3(1) of the 1987 act. Again the consent of the D.P.P. was given as required by the 1921 Act.
The 1987 Act was assented to on May 18, 1987, some five months after the date of the commission of the alleged offence. It repealed the 1921 Act. If any offence was committed on the allegations disclosed in the first information or in the second information, such an offence had to be committed, if at all, pursuant to the provisions of the 1921 Act and in particular to section 3(2) thereof. See section 27(1) of the Interpretation Act Ch.3:01. It matters not that the information were laid after the 1921 Act was repealed. What matters is, whether the offence was committed against the 1921 Act, that is during its currency, and if so, then proceedings may be instituted under the 1921 Act even though it was subsequently repealed. The ingredients of the offence included the requirements, inter alia, that the gift should be given “as an inducement to or reward for or otherwise, on account of any member, officer, or servant of …any public body doing or forbearing to do anything.” There is no allegation in either information that Rudy Brown or any other person was such a member, officer or servant of Telco.
On December 21, after the second information was laid, the appellant by way of judicial review proceedings sought, inter alia the following reliefs:
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(a) an order prohibiting the Attorney General, D.P.P., or the Commissioner of Police (the Commissioner) from taking any steps on the second information other than to seek or consent to an adjournment of the hearing thereof until later judgement or further order of the court;
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(b) a declaration that any charge or further charge or information or any fresh charge based on the same or substantially the same facts as alleged in the second information is oppressive, unfair, and/or constitutes an abuse of the process of the court;
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(c) a declaration that the purported consent given by the Attorney General, D.P.P. to the laying of the second information is null and void and of no effect;
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(d) an order of certiorari to have the second information removed into the High Court and quashed;
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(e) an order staying the proceedings in the second information until the determination of the High Court proceedings for judicial review or until further order of the court;
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(f) an order prohibiting the laying afresh the same charges particularised in the second information against the appellant.
The issues before the trial court were:
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(a) whether the second information was defective;
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(b) whether the proceedings purported to be commenced by the second information are additionally an abuse of the process of the court; and
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(c) if issue(a) and (b) was established in favour of the appellant the trial judge ought to quash the second information.
Concerning the issue relating to the validity of the second information, the appellant's case was based on two grounds namely:–
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(a) that the consent to the laying of the second information was not given by the D.P.P. in accordance with the requirements of the law with the result that the proceedings purported to be founded thereon are null and void; and
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(b) that the second information discloses no offence known to the law as Telco. is not a public body within the meaning of the 1921 Act(the Telco issue).
It was submitted that on either ground the second information is defective and invalid and is open to be quashed on ground simpliciter as an abuse of process. It will be observed, therefore, that the substance of each ground relied upon is abuse of process. Abuse of process was not advanced in its general form but was relied upon to meet the allegations of fact and the law separately argued on the grounds separately submitted. I will now consider the question of consent of the D.P.P.
The Consent of the D.P.P.
Section 10 of the 1921 Act reads thus:–
“10. A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.”
The submission of the appellant's attorney is that the consent of the D..P.P. was not given in accordance with the requirements of law and, accordingly, is an abuse of process. The trial judge in his judgement referred to several authorities and concluded that the applicant in those cases had challenged the discretion of the authority concerned by stating the grounds and setting out the matters on which they relied. The matters set out were the evidence in that case. Then he said:–
“I must therefore ask myself whether in this case, the applicant has challenged that fact. To do so he must set out evidence to that effect…Attorney for the applicant submitted what he considered are necessary matters which the D.P.P. should have considered before giving her consent. To merely do so in his submissions is not enough, in my view, to put the D.P.P. on guard that a challenge had been made. The challenge is a matter of fact-is the fact that she failed to consider the circumstances which is to be challenged in order to evoke a response from her. To submit at the hearing that a challenge is being made, is therefore not sufficient. The respondent must be made aware that such a challenge is being made and the facts relied upon to support such challenge must be set out in order to rebut it. There is no before me to indicate that the discretion of the D.P.P. was being challenged and in those circumstances there was no need for the D.P.P. to reply. The submission therefore, fails.”
The appellant relied on six propositions of law in support of this submission. These are:
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(a) unless the consent of the D.P.P. is given as required by law the information is invalid and consequently the magistrate has no jurisdiction to hold the inquiry to commit the appellant for the trial;
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(b) due consent will be presumed unless the person charged raises objection, whereupon it is for the D.P.P. to show valid consent
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(c) Objection to the validity of the consent, going as it does to jurisdiction, can be taken away at any time up to and including the appeal.
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(d) The, or a main purpose of section 10, is to protect the public from improper, unnecessary, undesirable or frivolous prosecutions. It is a deliberate safeguard against injustices that may arise from the operation of...
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