Rajcoomar v McNicholls et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Tiwary-Reddy, J. |
| Judgment Date | 29 November 2006 |
| Neutral Citation | TT 2006 HC 106 |
| Docket Number | HCA No. 315 of 2005 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 November 2006 |
High Court
Tiwary-Reddy
HCA No. 315 of 2005
Mr. Karl Hudson-Phillips Q.C., Mr. Theodore Guerra S.C. and Mr. Peter Rajkumar instructed by Mr. Darryl Allahar for the applicant.
Mr. Russell Martineau S.C., Ms. Petal John and Ms. Anushka Ramsaran instructed by Ms. Grace Jankey and Ms. Tricia Bhagwandeen for the respondent.
Mr. Israel Khan S.C. and Ms. Debra James instructed by Mr. Ulric Skerritt.
Judicial review - Magistrate's decision — Attorney ordered to give evidence at inquest — Whether the coroner had the jurisdiction to issue a summons — Whether the question of privilege arose — No privilege for facts patent to the senses — Coroner had the authority to summon any person requiring them to give evidence — Application dismissed.
Legal profession - Privilege — Whether an attorney at law could be compelled to give evidence at a coroner's inquest — Attorney at law was retained to act on behalf of the family of the deceased — Privilege was waived by client.
On 4.2.05 leave was granted to the applicant to file for Judicial Review (JR) of inter alia, the decision of the Chief Magistrate dated 28.1.05 to order the applicant, a practising attorney at law, to give evidence in the matter of the inquest touching the death of Galene Bonadie.
By summons filed on 28.2.05 pursuant to section 14 of the Judicial Review Act, 2000, Brian Phillips (the intervener) sought and obtained leave to intervene and to be joined as a party.
On 2.4.04 Galene Bonadie (the deceased) was shot and killed by the police at Vegas, Second Caledonia Road in Morvant. Some 2 to 3 days later, the applicant was retained by the deceased's common-law husband, Sean Francis and his brother Glen Francis (the clients) to represent the interest of the Bonadie family in the death of the deceased.
During the ensuing fortnight the applicant interviewed the client and several other persons (the witnesses). The applicant took statements in his own writing from the witnesses and passed same on to his secretary, Ms. Delores Alexander who typed and stored them in the computer.
Meanwhile on 7.4.04 Assistant Superintendent of Police Nadir Khan (ASP Khan) requested that the applicant provide him with the said statements. The clients instructed the applicant to provide the said statements to ASP Khan provided the witnesses affixed their respective signatures on the statements in the presence of the police and that the police attach the normal certificates thereon.
On 6.4.04 Ms. Alexander recorded a statement from Elsie Francis (Elsie). And on 16.4.04 Patrick St. John brought his own prepared statement which he handed to the applicant. On 20.4.04 Rudy Welch (Rudy) gave a statement to Ian Ibrahim, a junior attorney in the applicant's chambers. Rudy indicated that he had already given a statement to ASP Khan.
On 16.4.04 the applicant sent copies of all the unsigned type-written statements to ASP Khan. Thereafter on the instructions of ASP Khan the applicant caused all the statements to be reprinted and signed individually and handed to each of the makers to be taken by hand to the Police where the statements were read over to them individually and each witness certified and confirmed the correctness of his statement.
The witnesses included Cecelia Ferguson also called Cecelia Francis (Cecelia), Elsie, Ronnie Dental Phillip (Ronnie) and Shorn Reid (Shorn). Cecelia and Elsie are the older and younger sisters respectively of the client.
The inquest commenced before the respondent in January, 2005. The applicant represented the interest of the deceased family while Mr. Israel Khan, S.C. (Mr. Khan) represented the interest of the police, including the intervener.
During the course of the inquest Mr. Khan questioned certain alleged similarities in the statements of Cecelia and Elsie and allegations by Ronnie and Shorn that certain matters dictated by them were not included in their respective statements. During his cross-examination of these witnesses Mr. Khan alleged that the applicant was part of a conspiracy to tailor the statements to pervert the course of public justice and to “set up” his clients. The applicant strongly refuted this allegation.
On 10.1.05 Mr. Khan requested that the respondent issue a summons to the applicant requiring him to attend and give evidence at the inquest. The applicant opposed this application. On 21.1.05 after hearing submissions from the applicant's attorney and a representative of the Criminal Bar Association the respondent granted the request. To date neither the clients nor any of the witnesses has waived his privilege to permit the applicant to disclose the instructions which he received from the client or the witnesses.
In his affidavit filed on 13.4.05 the respondent deposed that he had issued the summons to the applicant pursuant to section 46 of the Summary Courts Act and section 21 of the Coroners Act to attend court and to explain the similarities in the statements of Cecelia and Elsie. Further, since the applicant was not being summoned to give evidence as to what was communicated to him by his clients nor as to any advice given to his clients or instructions from his clients for advice, the respondent ruled that the objection raised by the applicant's attorney at law was premature.
The intervener deposed that he had heard Rudy, Ronnie and Cecelia tell the coroner that he (the intervener) had raised his forearm at the deceased and shot her. The intervener had been informed by his attorneys at law that the applicant's evidence was therefore crucial in determining the credibility of these witnesses and thereby assisting the respondent in his determination of the facts. Consequently the intervener concluded that his rights, interest and personal liberty may be affected by the outcome of the inquest.
The applicant's attorney submitted that there were two issues to be determined namely, whether the coroner had jurisdiction to issue such a summons- and whether the question of privilege arose.
The applicant's attorney submitted further that a summons may only be issued in order to require someone to attend court and give relevant evidence. The only person, who can explain any differences in the testimony of a witness, is that witness himself. Thus whatever a third person may say by way of explanation of the testimony of any witness would be totally irrelevant. He concluded that the summons was intended to require the applicant to give evidence of what the witnesses had actually told him, which evidence would be privileged. In the circumstances the applicant was in no position to give relevant evidence and so should not be called as a witness.
The applicant's attorney also queried whether the decision of the respondent to issue a summons to compel the applicant to testify was vitiated for illegality or irrationality. The said attorney queried further whether evidence may lawfully be led to explain and/or to contradict the testimony of witnesses on questions of credit and whether or not the issue of the summons offends the law that answers going to credit are final and evidence in rebuttal is inadmissible.
The applicant's attorney raised another issue namely, whether the alleged similarities between statements is a legitimate purpose for the issue of a summons by a coroner and/or whether or not the summons issued by the coroner was intended to elicit evidence which is irrelevant to the circumstances surrounding the death of the deceased.
On behalf of the respondent it was noted that judicial review is a discretionary remedy. Further the applicant's client had waived any privilege in relation to the statements given to ASP Khan. In any event the applicant, a lawyer, could be called to give evidence in a matter on “facts patent to the senses”, that is, any thing which could be seen with the eyes or heard with the ears as there is no privilege for same. Consequently the applicant could not and should not be allowed to invoke lawyer-client privilege or use it for his own benefit if the clients had waived it.
The respondent submitted further that there was no intimation that the evidence to be given by the applicant involved communications subject to attorney-client privilege. However, until the applicant was questioned, one did not know what evidence he would be asked to give. At that stage, objections could be taken on the ground of privilege. Accordingly the application was premature.
Counsel for the intervener endorsed the respondent's submissions on privilege and prematurity and on the coroner's right to summon persons to give evidence which might assist the coroner in making a finding as to whether anyone was guilty of an offence.
At the end of the day the respondent and the intervener insisted that the applicant must first answer to the summons and later invoke privilege if appropriate, while the applicant's case was that he should not be required to answer the summons since it was made clear by Mr. Khan that the answers to the questions which Mr. Khan intended to ask the applicant would involve a breach of attorney-client privilege.
The applicant's attorney relied heavily on the concept of legal professional privilege as explained by the House of Lords in Three Rivers District Council and Others v. Governor and Company of the Bank of England (No. 5) [2004] All E.R. (D) 176 (Three Rivers). The respondent's attorney accepted the concept of legal professional privilege but maintained that the applicant's clients had waived privilege in respect of the statements which were given to ASP Khan and cited several authorities where a lawyer had been called to give evidence. Mr. Khan accepted the submissions of the applicant's attorney on privilege but contended that all the...
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