Pittiman et Al v Benjamin et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Warner, J.A.,Kelsick, C.J.,Warner, J.,Braithwaite, J.A. |
| Judgment Date | 03 April 1985 |
| Neutral Citation | TT 1985 CA 8 |
| Docket Number | No. 183/84 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 03 April 1985 |
Court of Appeal
Kelsick, C.J., Braithwaite J.A.; Warner, J.A
No. 183/84
R.L. Maharaj for appellants Pittiman, Dharmoo and Parsanlal U.R. Martin for appellant Arnold L. Jones
Solicitor General Miss S. Christopher and Miss H. Simonette for respondents
Judicial review - Court Martial — Application for judicial review — Whether Director of Public Prosecutions or his officers can appear for the prosecution at a Court Martial — Whether member of staff of D.P.P.'s Department can be Judge Advocate while other members of that staff are prosecutors, all still performing their duties in the D.P.P.'s Department — Proceedings in breach of rules of natural justice.
On 20th September, 1984, the four appellants, all members of the Defence Force, were on trial before a court martial of which the first respondent Mr. Aldric Benjamin was judge advocate, Major Hugh Vidal the second respondent was President, and the other respondents Major Selandy, Lieutenants Maunday and Penny and Sub Lieutenant Mohammed were members. Mr. Clyde Constantine and Miss Cheryl Charles, State counsel appeared as prosecutors before this court martial.
The court martial had been convened to hear certain charges against the applicants for the alleged commission of a number of civil offences and breaches of the Defence Act.
At the hearing on 20th September, 1984, Mr. R.L. Maharaj for the first three appellants followed by Mr. U.R. Martin for the four appellant took the objection that the trial was a nullity on the ground that the Director of Public Prosecutions was precluded by sections 90 and (3) (1) of the Constitution of Trinidad & Tobago from instituting or undertaking any criminal proceedings before a court martial, the submission being that Mr. Constantine having stated in effect that he was appearing on behalf of the Director of Public Prosecutions, the prosecution had been undertaken by the Director. The submission, it appears, was overruled by the court. The hearing was adjourned to 2nd October, 1984.
On 4th October, 1964 leave was granted to the appellants to apply to the High Court for judicial review and the motion for judicial review was heard from 18th October, 1984 to 22nd October, 1984. This motion was dismissed by Collymore, J. and against this dismissal the appellants have appealed. The appeal has been taken as a matter of urgency inter alia because the appellants are detained under close arrest and an undertaking has been given on behalf of the respondents that the Court martial hearing will not be proceeded with before the determination of the appeal.
For the purpose of obtaining leave to apply for judicial review two main grounds of objection to the jurisdiction of the Court martial were stated:
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(1) that the prosecution had been undertaken by the Director of Public Prosecutions in breach of Sections 90 and (3) (1) of the Constitution;
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(2) that it was contrary to fundamental justice that the judge advocate and the prosecuting counsel should all be members of the staff of the Director of Public Prosecutions, who at times when the court martial was not in session were engaged in work at the office of, and who were all responsible to, the Director of Public Prosecutions.
Both submissions were rejected by the learned judge who heard the motion.
Before us Mr. Maharaj for the first three appellants submitted that the appeal raised matters of great constitutional importance:
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(i) whether the Director of Public Prosecutions or any of his officers can appear for the prosecution at a court martial; and
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(ii) whether (at the same court martial) a member of the staff of the Director of Public Prosecutions can be judge advocate while other members of that staff are prosecutors.
On the first question he relied on section 3(1) of the Constitution the relevant part of which read as follows:
“In this Constitution ‘Court’ means any court of law in Trinidad and Tobago other than a court martial and shall be construed as including the Judicial Committee.”
and on section 90(3) which reads as follows:
“The Director of Public Prosecutions shall have power in any case in which he considers it proper to do so:
(a) to institute and undertake criminal proceedings against any person before any court in respect of any offence against the law.
(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority.
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person”.
The argument is that in the light of the definition of “court” in section 3(1), section 90(3)(a) empowers the Director of Public Prosecutions to institute and undertake criminal proceedings against any person before any court other then a court martial and that the Director is therefore precluded from instituting or undertaking criminal proceedings against any person before a court martial. Further, it is contended for the appellant that the Director is himself precluded from appearing for the prosecution at a court martial and that officers of his Department are precluded from so appearing as well.
At one stage counsel went on to contend that there was excluded from functions of officers of the Department of the Director any work not included in his functions by section 90 of the Constitution so that, for example, a Commission of Enquiry before which an officer of the Department of the Director appeared to lead evidence would be null and void. That the scope of argument is based on a misconception of the scope section 90, which gives certain powers to the Director but does not preclude him or his officers from doing other lawful acts.
It is clear that the power of the Director to institute and undertake criminal proceedings under section 90 of the Constitution does not apply to criminal proceedings before a court martial. In the instant case the question which arises is whether the Director instituted or undertook the proceedings within the meaning of section 90. The evidence establishes that the proceedings were instituted by Lieutenant Colonel Brown. It is his signature which appears at the foot of the charge sheet, and it was he who requested the convening of the court martial to hear the charge. The Director of Public Prosecutions did not institute the court martial proceedings of which judicial review was sought.
Did the Director of Public Prosecutions “undertake the proceedings?” The affidavit of Commodore Mervyn Williams, Chief of Staff of the Defence Forces shows that he requested the Director to make available the services of persons to act as judge advocate and prosecutors and that it was he who appointed the two State Counsel as prosecutors and the first respondent Benjamin as Judge advocate. The case for stating that the Director has instituted or undertaken the proceedings is mainly built on the answer made by Mr. Constantine to a question by counsel for the soldiers during the sitting of the court martial. The answer was that he was appearing before the court martial in the same capacity as that in which he appeared in the High Court and the Court of Appeal, adding that he had not been privately retained.
In practice State counsel from the Department of the Director of Public Prosecutions appear at the Criminal Sessions of the High Court as counsel for the State on indictments brought by the Director, and appear before the Court of Appeal again as counsel for the State which is respondent in criminal appeals. They also appear before the Court of Appeal as counsel for the respondent or for the appellant in summary appeals against magisterial decisions on complaints brought by the police or other public officers and sometimes they appear before the Court of Appeal as counsel for appellants who have been convicted by magistrates, e.g. when the appellant is a public officer and became involved in the matter in the course of his duties. At the criminal sessions the Director of Public Prosecutions is identified with the State and so counsel appearing for the State is appearing for the Director of Public Prosecutions. The Criminal Procedure Act contemplates that there will be counsel appearing for the prosecution. The Director of Public Prosecutions may, but need not, appear personally at any one hearing.
The Director of Public Prosecutions is clearly a party to the proceedings in indictments by him which am before the Criminal Sessions and the proceedings can with accuracy, be described as instituted and undertaken by him and State Counsel can be said to be appearing for him, even though strictly speaking it is for the State that he appears. On the other hand when State counsel appears before the Court of Appeal representing, for example a Police appellant in a magisterial appeal against refusal to convict, the Director of Public Prosecutions is no party to the proceedings, State counsel is there appearing for the appellant whose personal appearance is required notwithstanding his being represented by counsel.
It will be seen from the last example that the mere appearance of State counsel in a matter does not convert the Director of Public Prosecutions into a party to that matter.
The Director of Public Prosecutions can be said to have instituted and undertaken criminal proceedings in the High Court, because he has made himself a party and has continued to hold himself out as a party.
A distinction must be drawn between an officer of the Department of the Director appearing as counsel for the Director where the Director is, has become, or has assumed the role of the party prosecuting and an officer of the Department appearing as counsel for a prosecuting party other than the Director.
Mr. Constantine's answer that he...
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