Panday v Virgil
| Jurisdiction | Trinidad & Tobago |
| Judge | Warner. J.A.,Archie, J.A. |
| Judgment Date | 04 April 2007 |
| Neutral Citation | TT 2007 CA 13 |
| Docket Number | Magisterial Appeal No. 75 of 2006 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 04 April 2007 |
Court of Appeal
Warner, J.A.; Archie, J.A.; Weekes, J.A.
Magisterial Appeal No. 75 of 2006
Mr. R. Clayton, Q.C., Mr. R. L. Maharaj, S. C., Mr. R. Rajcoomar, Mr. J. Singh, Mr. A. Beharrylal instructed by Ms. M. Panday for the appellant.
Sir Timothy Cassel, Q.C. and Mr. W. Rajbansie for the respondent.
Criminal law - Fraudulent declaration — Appeal against conviction — Section 27(1)(b) of the Integrity in Public Life Act — Apparent bias — Whether bias of magistrate infected proceedings — Magistrate convicted appellant and sentenced him to 2 years imprisonment with hard labour on each offence and fined him $20,000 on each offence in default of which 3 years imprisonment on each offence — Forfeiture order of £111,814.72 was made — Discussions had been held with the Attorney General and the Chief Justice prior to rendering decision — Discussions were not disclosed to counsel or appellant — Confidence in administration of justice — Appeal allowed — Conviction and sentence set aside — No re-trial ordered.
On the 20th March, 2007 this Court delivered a short oral judgment for its finding of apparent bias on the part of the Chief Magistrate and undertook to supply fuller reasons at a later date. These reasons now follow.
) The appellant raised apparent bias. This Court was of the view that if that issue were decided in the appellant's favour, that indeed would determine the entire appeal. Accordingly, it was appropriate that it be heard as a preliminary issue. Apparent bias infected the entire trial process and attracted harsh consequences. As a result, this court quashed the convictions and sentences and set aside the order for forfeiture which the Chief Magistrate had imposed upon the appellant. This Court also ordered that the matter be retried by a different magistrate. That was just one of the measures authorised by law to ‘keep the streams of justice clear’.
) On the 24th April, 2006, the appellant was convicted of three offences which contravened section 27(1)(b) of the Integrity in Public Life Act 1987 (the 1987 Act). The appellant, as a member of the House of Representatives, was required by the 1987 Act to file with the Integrity Commission a declaration of his income, assets and liabilities, on or before 31st May in each year, relating to the year immediately preceding. The particulars of the charges were that he failed to include in his declaration of income, assets and liabilities for the years ending 1997, 1998 and 1999, respectively, money held in an account in England which he held jointly with his wife.
) The matters were heard by the Chief Magistrate in March, 2006 over a six day period. At the close of the case, the Chief Magistrate adjourned the matter to the 24th April, 2006 for decision. On that day, he sentenced the appellant to serve a term of imprisonment of two years with hard labour (the maximum term) on each offence, the sentences to run concurrently. In addition, he ordered the appellant to pay a fine of $20,000 for each offence – in default of payment, the appellant to serve a term of three years in respect of each offence. Further, the appellant was ordered to pay to the State “as a matter of forfeiture” the equivalent of €111,814.72.
) The controversy arose when the Chief Magistrate, who had been a party to a land transaction with a well-known company, received a cheque in the sum of $400,000 drawn in his favour by another company, with connections to the former, on the final day of the trial. The precise nature of the relationship between the two companies is not of importance to the decision. The Chief Magistrate was concerned about the timing and delivery to him of that cheque.
) The appellant's source of grievance is that after he was convicted, and by a circuitous route, he became aware that the Chief Magistrate had spoken to the Attorney General about the cheque and to the Chief Justice about matters related to the case against him, before he [the Chief Magistrate] handed down his decision. As events unfolded, it emerged that the Chief Magistrate had also concluded that the Chief Justice had attempted to influence his decision in this matter. The Chief Magistrate had not disclosed any of these developments to counsel.
) In May 2006, both the Attorney-General and the Chief Justice gave separate statements to the press for publication. By a statement dated 5th May, 2006 the Chief Magistrate gave details of his conversations with the Chief Justice which led him [the Chief Magistrate] to believe that the Chief Justice had tried to influence his decision in this matter. The Chief Magistrate's and the Chief Justice's statements were divergent in all material respects.
The appellant appealed his conviction on the following grounds:
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(i) That events which occurred both during and after the appellant's trial demonstrate actual or apparent bias on the part of the learned Chief Magistrate, and undermine the safety of the conviction.
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(ii) That they cannot be supported and/or are unreasonable having regard to the evidence; and/or
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(iii) That they contain incorrect directions and/or applications of the relevant law.
) It is to be noted that during the arguments, counsel for the appellant did not pursue the allegation of actual bias. Lest the focus of this judgment be misunderstood, I think it is important to emphasise at the outset that I made no finding of actual bias against the Chief Magistrate.
) The issues were all interwoven:
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(i) There were issues related to the cheque and the Chief Magistrate's concerns about it;
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(ii) There were issues related to the propriety of the Chief Magistrate's conversations with the Attorney General and the Chief Justice;
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(iii) There were issues related to the failure of the Chief Magistrate to inform counsel and the parties of all his concerns;
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(iv) There were issues ultimately about the manner in which the Chief Magistrate dealt with these matters and whether it gave rise to apparent bias.
) As a result of the complaint made by the Chief Magistrate that the Chief Justice had tried to influence his decision in the instant case, criminal proceedings alleging that the Chief Justice attempted to pervert the course of public justice were set in motion. Those proceedings were intituled ( Romany v. Sharma Magisterial Case No 10907/06).
) On the 25th January, 2006, after we heard arguments in this appeal, we adjourned the matter for decision. No further hearings were scheduled. However before we were able to deliver judgment, certain events intervened which led us to recall counsel, out of an abundance of caution, to hear their submissions on the impact, if any, of those events on this case.
) The intervening events were these: On the 5th March, 2006, the date on which the Chief Magistrate was scheduled for cross-examination in the Romany v. Sharma, matter counsel for the State informed the magistrate who was hearing the matter that the State was not proceeding any further with the prosecution “having regard to the position indicated by the Chief Magistrate”. As it turned out, the Chief Magistrate was unwilling to testify. He indicated his position in a media release dated 6th March, 2007. It was in those circumstances that we recalled the matter and heard further submissions from counsel.
) The fundamental legal principles upon which the law now rests are not in dispute. The relevant test for determining apparent bias was clarified by the House of Lords in the case of Porter and Another v. Magill [2002] A.C. 357. The question to be determined is whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Prior to Porter v. Magill, the formulation of the test had been considered by the Court of Appeal in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 W.L.R. 700, where the court indicated that ‘the real danger test’ expressed in R v. Gough [1993] A.C. 646 had to be reconsidered to bring it in harmony with Strasbourg jurisprudence.
) In R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) [2000] 1 A.C. 119, the House of Lords extended the category of automatic disqualification to include non-pecuniary interests. The circumstances were “very unusual”. Their Lordships made some useful pronouncements about the requirement to maintain public confidence in the administration of justice, which I considered to be of relevance to the instant case. These issues will be discussed later in this judgment.
) This principles of law propounded in those cases mentioned above were all discussed by the Privy Council in Meerabux v. A.G. Belize [2005] 2 A.C. 513. This was a case which concerned a former justice of the Supreme Court of Belize and his removal from office on the advice of the Belize Advisory Council after complaints from the Bar Association and Attorneys-at-law. He was unsuccessful in proving bias on the part of the Chairman of the Council who was also a member of the Bar Association.
) The appellant contended that the Chief Magistrate had placed himself in a position which would lead a fair-minded and informed observer, having considered the relevant facts, to conclude that there was a real possibility that he was biased against him.
) The appellant in his written arguments stated that the following matters showed a reasonable apprehension of bias:
“a) Prior to giving the judgment the Chief Magistrate privately and secretly had discussions with the Attorney-General (the A-G, who is a party politician with no formal role in relation to criminal prosecutions) and the Chief Justice; and canvassed the views he formed on the evidence...
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