Ravi Arjoonsingh v Her Worship Magistrate Cherril Anne Antoine
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 07 May 2021 |
| Neutral Citation | TT 2021 HC 96 |
| Docket Number | Claim No: CV2020-00036 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
San Fernando (Virtual Hearing)
Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No: CV2020-00036
Mr. Prakash Ramadhar and Ms. Kavita Sarran, Attorneys at Law for the Applicant
Mr. Gilbert Peterson SC, Ms. Keisha Prosper and Ms. Andella Ramroop, Attorneys at Law for the Respondent
This Ruling determines an application for leave to apply for judicial review whereby the Applicant seeks to challenge the decision of the Respondent, a Magistrate, to commit him to stand trial for offences relating to fraud. The Applicant was Accused No.2 in preliminary enquiry proceedings heard on 4 October 2019 by Magistrate Cherril Anne Antoine (“the Respondent”). His first co-accused was Vicky Boodram. They were both directors of Boodram's Travel and Ship Ahoy Cruises Ltd, which was Accused No. 3.
By judicial review application and Affidavit filed on 3 January 2020, the Applicant sought the following relief:
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a. A declaration that the decision of the Proposed Respondent/Defendant made on the 4 th day of October 2019 ordering that the Applicant/Intended Claimant be committed to stand Trial at the High Court (hereinafter referred to as “the decision”) is biased, unlawful, illegal, null and void;
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b. A declaration that the Applicant/Intended Claimant was treated unfairly contrary to the principles of natural justice;
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c. An order of certiorari to remove into this Honourable Court and quash the decision of the Proposed Respondent/Defendant made on the 4 October 2019 ordering that the Applicant/Intended Claimant be committed to stand Trial at the High Court;
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d. An Order remitting the matter to the San Fernando Magistrates' Court pursuant to Section 21 of the Judicial Review Act Chapter 7:08 with the directive to consider it and reach a decision in accordance with the findings of the Court; and
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e. An order of mandamus to compel the Proposed Respondent/Defendant to provide the Applicant/Intended Claimant with the Notes of Evidence and a copy of the proceedings between Police Officer Bassarath and Ravi Arjoonsingh within seven (7) days.
At the hearing of the application inter partes on 21 July 2020, the Court granted a joint request by the parties that the decision whether leave should be granted be made on a “rolled up” basis with a determination of the substantive merits of the proposed judicial review claim. Orders were made inter alia for the filing of the substantive judicial review claim, followed by the Respondent/Defendant's affidavit in response and written submissions by both parties.
The Applicant filed no substantive claim. The Respondent annexed the Notes of Evidence of the proceedings in question to her Affidavit in Response filed on 25 August 2020. This satisfied the relief requested by the Applicant at paragraph C.5 of the initial application for Leave.
Having had sight of the requested Notes of Evidence, the Applicant applied on 14 October 2020 to amend his pleadings. The proposed amendment removed the relief claimed at C.5 and included an additional relief. The additional relief sought was:
“A declaration that the Proposed Respondent/Defendant did not have sufficient evidence before her to commit the Applicant/Intended Claimant to stand Trial at the High Court”
The supporting ground for the new relief claimed was that “the Proposed Respondent/Defendant did not have sufficient evidence before her to commit the Applicant/Intended Claimant to stand Trial at the High Court of Justice.”
The Court's initial position was that the application to amend the leave application would be determined with the decisions to be made on the initial application. Accordingly, the Applicant sought additional time to file submissions. The submissions filed on 23 October 2020 addressed all relevant issues in the initial and proposed amended leave applications as well as the substantive merits of the proposed claim.
At a Case Management Conference on 14 December 2020, the Claimant was granted permission to file the amended leave application and did so on 4 January 2021. There were directions for additional submissions to be filed by the Claimant, if necessary, and for submissions by the Respondent/Defendant. Only one set of submissions was filed thereafter, the Respondent's dated 31 March 2021.
The Respondent's supplemental affidavit, filed on 4 February 2021, has attached the transcripts from the challenged paper committal proceedings with all witness testimony recorded. The reasons for the committal decision are included at pages 2-line 33 to 4-line 41 of day 4 October 2019 of the transcript.
The Applicant was charged with one hundred and nine (109) offences of fraud contrary to S10 (A) Forgery Act, Chap. 11:13 together with his two co-accused.
A preliminary enquiry was held in relation to these charges. The matter was dealt with by way of paper committal. During the proceedings, both civilian witnesses and one police officer were cross-examined.
The Notes of Evidence attached to the Respondent's affidavit include her reasons given during the proceedings. At that time, the Respondent outlined the ingredients of the offences to be proven as follows:
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a. That the Accused had an intention to defraud, use a forged instrument or document; and
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b. Received or obtained money or other property by virtue of that forged instrument.
At the conclusion of the committal proceedings on 4 October 2019, the Respondent delivered her decision that a prima facie case was made out against the Applicant.
The issues to be determined are as follows:
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a. Whether the Applicant ought to be granted leave to apply for judicial review; and
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b. If so, whether the Applicant's substantive claims in the judicial review proceedings should be granted.
The Court will refuse leave for judicial review unless it is satisfied there is (i) an arguable ground for judicial review having a realistic prospect of success and (ii) no discretionary bar such as delay and/or an alternative remedy – PCA No.75 of 2006 The Honourable Satnarine Sharma v Carla Brown-Antoine, Wellington Virgil & Trevor Paul.
The Applicant's initial application was filed within three months of the decision being made. Therefore, there is no issue of delay on those grounds – Section 11 Judicial Review Act. The Applicant states at paragraph (F) of his Notice of Application for Leave to apply for judicial review that there is no alternative remedy available to the Applicant to challenge the decision of the Respondent.
However, it has been determined in several Court Rulings that an alternative recourse available to an applicant challenging a committal would be to make a request to the Director of Public Prosecutions (DPP) that the evidence be reviewed and that proceedings be discontinued – Ramgarib v Her Worship Magistrate Hosein CV2015-00266 citing para. 1–324 Archbold Criminal Pleading, Evidence & Practice (2012); Burke v His Worship Deputy Chief Magistrate Wellington CV2013-05041; Marcano & ors. v His Worship Magistrate Wellington CV2012-02870; Castillo v Her Worship Magistrate McKenzie CV2013-01427.
As submitted by the Respondent, the DPP is not bound by the decision of a Magistrate to commit or not to do so — Duval v District Magistrate of Flacq and Another (No.2) [1990] LRC (Crim) 245. In the present case, there is no evidence presented by the Applicant to suggest that such a request was made to the DPP.
Further, the Respondent has submitted that the Applicant could apply by motion to quash the indictment. The Applicant's arguments as to insufficiency of evidence could have been dealt with in that process — See The State v. Brian Gayapersad Indictment No. 69 of 2008, paras. 35 to 37.
The Court, in both Ramgarib and Burke, was of the view that the lengthy period of time it takes for trials to be completed did not constitute exceptional circumstances necessitating the grant of leave for judicial review. In Burke, however, the Court went on to consider whether, on the Applicant's case, there existed an arguable ground that had a realistic prospect of success.
Lord Diplock, in R v Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 at page 643–44, considered the issue of arguability:
“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the courts think that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
The Applicant submits that (i) insufficiency of evidence and (ii) apparent bias in the Respondent's decision are arguable grounds for judicial review that have a realistic prospect of success.
The Court, in Ramdhan v Her Worship Senior Magistrate Ragoonanan HCA No. 1381 of 2004, cited Neil v North Antrim Magistrates' Court (1992) 1 WLR 1220 (H.L.) and R v Bedwellty Justices Ex P. Williams (1996) 3 WLR 361 (H.L.)) for the proposition that it is only in the case of a “really substantial error leading to demonstrable injustice” that a Court should allow a decision in committal proceedings to be successfully challenged. In that case, the Court was satisfied...
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