Steve Ferguson v The Director of Public Prosecutions

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Devindra Rampersad
• Judgment Date: 19 May 2022
• Neutral Citation: TT 2022 HC 125
• Docket Number: Claim No.: CV2021- 00986
• Court: High Court (Trinidad and Tobago)

Between

Steve Ferguson

Claimant

and

The Director of Public Prosecutions

Defendant

Between

Steve Ferguson

Claimant

and

The Director of Public Prosecutions

First Defendant

The Attorney General of Trinidad and Tobago

Second Defendant

Before

The Honourable Mr. Justice Devindra Rampersad

Claim No.: CV2021- 00986

Claim No: CV2021-00978

THE REPUBLIC OF TRINIDAD AND TOBAGO

Appearances:

Claimant: Edward Fitzgerald Q.C., Fyard Hosein S.C. leading Joseph Middleton and Aadam Hosein and instructed by Annette Mamchan

First Defendant: Gilbert Peterson S.C. leading Elaine V. Green

Second Defendant: Douglas Mendes S.C. leading Michael Quamina and instructed by Amrita Ramsook and Hillary Muddeen

Table of Contents

Introduction	4
The 2018 Proceedings	5
The Current Proceedings	7
The Judicial Review Reliefs	8
The Constitutional Motion Reliefs	9
Issues	9
The Claimant's Submissions	10
The Legal Framework	10
Submissions in the claim for judicial review	11
Res judicata doctrine and the effect of the DPP's decision not to appeal against the earlier Part 56 ruling	12
Whether the DPP can prefer indictments in ‘Piarco 2’ now	12
Whether the court is being invited to unlawfully fetter the DPP's discretion	14
The claimant's submissions in the claim for constitutional relief	14
Abuse of Process - The First Defendant's Position	17
The claimant's submissions in reply to the first defendant	18
The consequences of the retirement of Senior Magistrate Espinet	20
Further observations on whether a new preliminary enquiry has already begun	20
The Second Defendant's submissions	23
Is the section 23(8)(d) power exercisable?	24
The claimant's reply submissions to the Second Defendant	26
Further submissions of the Second Defendant	28
Discussion	30
The Prior Proceedings	30
Resolution	32
Application of an Order	32
The Application of Section 23(8)(d)	36
The Constitutional Claim – Abuse of Process?	37
The Order	41

Introduction

1 The claimant has filed two claims. One for judicial review against the Director of Public Prosecutions (“the DPP”) (CV2021-00986) and the second, a claim for Constitutional relief against both the DPP and the Attorney General of Trinidad and Tobago (CV2021-00978).

2 In both matters, the claimant has challenged the lawfulness of the DPP's proposed decision to prefer indictments against him, and the other defendants in the so–called ‘Piarco 2 preliminary enquiry’ who are not parties to this claim, in the light of this court's ruling in CV2018-02524 Steve Ferguson v Director of Public Prosecutions (“the 2018 proceedings”).

3 Both the Judicial Review application and the Constitutional claim concern the prosecution of charges of fraud and corruption laid against the claimant pursuant to the Indictable Offences (Preliminary Enquiry) Act Chap 12:01 in connection with his involvement in the New Terminal Development Project at Piarco, Trinidad.

4 The preliminary enquiries into these charges which commenced before former Senior Magistrate, Ms. Ejenny Espinet, now retired, have come to be known as ‘Piarco 2’ following the conclusion of an earlier preliminary enquiry. That earlier preliminary enquiry was dealt with by the late former Chief Magistrate Mr Sherman Mc Nicholls into other fraud and corruption charges also arising from the airport project in which the claimant and others were committed to trial.

5 The parties agreed that the Judicial Review application be dealt with as a “rolled up hearing 1” and that it also be dealt with together with the Constitutional claim by this court.

The 2018 Proceedings

6 In 2018, the claimants filed a fixed date claim form pursuant to Part 56 of the Civil Proceedings Rules 1998 and the Judicial Review Act, Chapter 7:08 against the DPP seeking the following reliefs:

6.1. A declaration that the defendant cannot lawfully exercise the power to prefer an indictment under section 23(8) of the Act because the Preliminary Enquiry has begun before 15 September 2005 and as such, the exercise of powers conferred by section 23(8) is expressly barred by section 23H of the Act.

6.2. A declaration that the claimants can only be lawfully committed to a trial for the offences, first inquired into in the Preliminary Enquiry after the institution and conduct of a fresh preliminary enquiry before a new Magistrate.

6.3. Costs and such further direction and or orders as the court considers just and as the circumstances warrant.

7 The legislative event which led to the filing of this 2018 claim by the claimants took place on 15 September 2005 when the Government of the Republic of Trinidad and Tobago brought into force the Indictable Offences (Preliminary Enquiry) ( Amendment) Act 2005 (“the Amendment Act), which amended, inter alia, section 23 of the Indictable Offences (Preliminary Enquiry) Act, Chapter 12:01 (“the IOPEA”).

8 Section 23(8) of the IOPEA provides, as follows:

“Notwithstanding subsections (5),(6) and (7), the Director of Public Prosecutions or the Deputy Director of Public Prosecutions may prefer an indictment whether or not a preliminary enquiry has been conducted only in the following instances:

• (a)

• (b)

• (c) where a Magistrate has heard evidence and the depositions taken before him disclose a prima facie case and he is unable to complete the preliminary enquiry because of his:

  • (i) physical or mental infirmity;

  • (ii) resignation;

  • (iii) retirement; or

  • (iv) death;”

9 The Amendment Act restricted the retrospective effect of section 23(8) by virtue of section 23H, which provides:

“Sections 16, 16C, 16D, 17, 17A, 18, 23(8) and 23A to 23G shall not apply to a preliminary enquiry that began before 15 September 2005.”

10 The Magistrate presiding over the preliminary enquiry (Piarco No.2), in which the claimant was one of the accused, retired without having completed the preliminary enquiry. The claimants in the 2018 Proceedings were seeking a declaration that the defendant be prevented from exercising the power under section 23(8) of the IOPEA.

11 The central issue for determination in those proceedings was whether the preliminary enquiry, which was the subject of those proceedings, began before 15 September 2005.

12 The court made the following declarations and orders in its judgment dated 14 November 2019 (the “ 2019 Order”):

12.1. It is declared that the defendant cannot lawfully exercise the power to prefer an indictment under section 23(8) of the Indictable Offences (Preliminary Enquiry) Act Chap 12:01 because the Preliminary Enquiry in the Piarco No. 2 proceedings had begun before the 15 September 2005 and as such, the exercise of powers conferred by section 23(8) is expressly barred by section 23H of the Act.

12.2. It is declared that the claimants can only be lawfully committed to trial for the offence, first inquired into the Preliminary Enquiry, after the institution and conduct of a fresh preliminary enquiry, pursuant to the Indictable Offences (Preliminary Enquiry) Act Chap 12:01 before a new Magistrate.

12.3. The defendant shall pay to the claimants their prescribed costs of the claim to be assessed by the Assistant Registrar pursuant to Part 67.12 of the CPR in default of agreement.

The Current Proceedings

13 The first set of proceedings in the instant matter – the Judicial Review claim - engages a discussion of the powers of the Director of Public Prosecutions to prefer an indictment under section 23(8)(d) of the Indictable Offences (Preliminary Enquiry) Act. The application for leave to apply for Judicial Review was filed on 17 March 2021 and the fixed date claim form was filed on 21 April 2021.

14 The relief claimed by the claimant in the Judicial Review application seeks preemptively to prohibit the DPP from making any decision to indict him otherwise than in accordance with the Order made in the 2018 Proceedings.

15 The ground for relief is that such a decision would be contrary to law, and that any decision by the Director to indict the claimant can only be made after “ a fresh evidential hearing before a different Magistrate” has been conducted to determine whether there is a prima facie case for him to answer. Further, the term “ fresh evidential hearing before a new Magistrate” is taken to refer to a new preliminary enquiry.

16 The second claim in the instant matter – the Constitutional claim - is an originating motion for Constitutional relief. It was filed on 17 March 2020 and in it the claimant contends that unless he is committed for trial at a preliminary enquiry conducted in accordance with the order, any decision by the DPP to indict him would amount to a violation of his rights under section 4(a), 4(b) and 5(2)(d) and (f)(ii) of the Constitution of Trinidad and Tobago.

17 Both applications concern the prosecution of charges of fraud and corruption laid against the claimant and other persons pursuant to the IOPEA in connection with their involvement in the New Terminal Development Project at Piarco.

The Judicial Review Reliefs

18 On 17 March 2021, the claimant filed his application seeking leave for judicial review against the DPP seeking the following reliefs:

18.1. A declaration that any decision by the Director of Public Prosecutions on whether to prefer an indictment against Mr. Ferguson for the offences inquired into in the so called “Piarco 2” preliminary enquiry (Information Nos. 6406-26 of 2004, 7861-65 of 2004 and 1874-78 of 2005, Deputy Commissioner of Police v Steve Ferguson & ors) must be made in accordance with the Order of Rampersad J as to the further conduct of Piarco 2 in CV2018-02524, Steve Ferguson & ors v Director of Public Prosecutions;

18.2. A declaration that any such decision that is not in accordance with the said Order will be unlawful, null and void;

18.3...