The Director of Public Prosecutions v kevon nurse

• Jurisdiction: Trinidad & Tobago
• Judgment Date: 13 August 2021
• Neutral Citation: TT 2021 CA 044
• Docket Number: Civil Appeal App: C.A. No. 134 of 2021
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

Civil Appeal App: C.A. No. 134 of 2021

Claim No. CV 2020-03286

In the Matter of the Judicial Review Act 2000

And

In the Matter of the Constitution of the Republic Trinidad and Tobago

Between

The Director of Public Prosecutions

Appellant/Defendant

and

Kevon Nurse

Respondent/Claimant

Appearances:

Mr. Ian Benjamin SC for the Appellant

Instructed by Mr. Keston D. McQuilkin, Mr. Pierre Rudder, Mr. Nairob Smart

Mr. Shaun C. Morris for the Respondent

Interested Party: Public Defenders Department

Advocate Attorneys - Mr Raphael Morgan, Ms. Michelle Gonzalez

Instructing Attorneys – Mr. Michael Modeste, Ms. Tonya Thomas

RULING ON APPLICATION FOR A STAY OF EXECUTION

The Application:

1 The Appellant has applied to this Honourable Court pursuant to Part 64.10 and Part 64.18(b) of the Civil Proceedings Rules, 1998 (as amended) for Orders that:

(a) That the Appeal hearing be expedited and that the Court give such directions as are appropriate and in accordance with Part 64.12 and 64.13;

(b) The Appellant is granted a further stay of execution of the decision of the Honourable Madam Justice Donaldson-Honeywell made on 5 ^th July 2021, pending the hearing and determination of the appeal;

(c) Alternatively, that the Appellant is granted an interim stay of execution until this application can be heard; and

(d) That there be no Orders as to costs.

2 This Court has considered the Notice of Application accompanied by:

1) The Affidavit of Mr. Roger Gaspard S.C;

2) A draft of the orders sought.

BACKGROUND FACTS

3 This Court notes the following:

1) This Appeal concerns a challenge to the exercise of the applicant's constitutional power pursuant to s.90 of the Constitution.

2) The Respondent's application for Judicial Review concerned a decision by the Applicant to continue his prosecution for the charge of murder and which process of trials and retrials has gone on for 19 years.

3) On 5 ^th July 2021 the Honourable Madam Justice Donaldson — Honeywell delivered the following decision which was reduced into an order as follows:

“a. A Declaration that the failure of the DPP to discontinue the prosecution for the charge of murder against the Claimant is unreasonable and unfair;

b. An order of certiorari to remove into this Honourable Court the decision of the DPP pursuant to Section 90 of the Constitution of the Republic of Trinidad and Tobago, whether to discontinue the prosecution for the charge of murder against the Claimant; and

c. An Administrative order that the indictment filed against Kevon Nurse is quashed an of no effect;

d. The Defendant is to pay the Claimant's costs of the Claim in an amount to be assessed if not agreed.

e. Stay of execution for 28 days.”

4 On the 30 ^th July, 2021, the Appellant filed a Notice of Appeal against the Learned Judge's decision challenging:

a) the decision to grant permission to apply for judicial review on a without notice basis on 23 ^rd October 2020; and

b) the entirety of the decision whereby she substituted her decision on the merits for the Appellant's purported decision in relation to the prosecution of the Respondent for murder.

5 The Stay of Execution that the Learned Judge granted on the July 5, 2021 was for 28 days which expires on August 2, 2021.

6 The Notice of Appeal was served on the Respondent's Legal Representative.

GROUNDS

7 The grounds for this application are as follows:

The Appellant submitted that the Learned Trial Judge erred in fact and/or law by:

a) Substituting her decision on the merits for that of the Appellant and exercising his power under Section 90 of the Constitution of Trinidad and Tobago;

b) Usurping the common law power of the criminal trial judge to stay a prosecution and substituting her decision for that of the trial judge and effectively staying the prosecution of the Respondent for murder;

c) Wrongly applying the principles for establishing a stay of a prosecution as an abuse of process to the instant issue of whether there are sufficient grounds for the exceptional remedy of reviewing a prosecutorial decision;

d) Wrongly concluding that the Respondent's prejudice occasioned by his inability to produce proper evidence for the trial due to the delay is a sufficient ground to grant the highly exceptional remedy of reviewing a prosecutorial decision to continue with a prosecution;

e) Wrongly concluding in fact that the Appellant's omission to consider relevant factors;

f) Wrongly substituting her opinion on the weighting of factors of public interest against the Respondent's prejudice in the Appellant's decision whether to continue the prosecution;

g) Failing to consider all of the Respondent's alternative remedies in the criminal trial process (e.g.) a no case submission in addition to an application for a stay of the trial on grounds of abuse of process and appeal;

h) Failing to direct herself properly or adequately to the law that an application seeking an administrative order in circumstances where a parallel remedy exists in the criminal proceedings was itself an abuse of process;

i) Wrongly concluding that the Appellant's decision to prosecute the Respondent was unreasonable and unfair; and

j) Wrongly concluding that the criminal proceedings were inadequate to deal with issues of delay and prejudice so as to ensure that the Respondent has a fair trial.

LAW AND REASONING

TEST FOR A STAY TO BE GRANTED

8 In Civ. Appeal No. 48 of 2011 National Stadium (Grenada) Ltd v NH International (Caribbean) Limited and others, the Honourable Madam Justice of Appeal Weekes (as she then was) set out the test for obtaining a stay of execution as at paragraphs 7 and 8:

“(i) The test in this jurisdiction for whether a stay of execution should be granted is

(ii) whether the appeal has a good prospects of success and additionally whether there are any special circumstances which would justify exceptionally the grant of a stay.”

9 In the recent case of Civ. App. 242 of 2020 The Commissioner of Police v Denyse Renne, the Honourable Justice of Appeal Yorke Soo — Hon stated as follows:

“a) The test is whether the appeal has good prospects of success and whether there are any special circumstances which would justify the stay. Whether the court grants a stay depends upon all the circumstances of the case, but the essential factor is the risk of injustice.”

10 These requirements were summarized as in the case of Civ Appeal No. S375 of 2018 Robert Gormandy and Shaun Sammy v The Trinidad and Tobago Housing Development Corporation, where Madame Justice of Appeal Pemberton stated at paragraph 8:

“(i) Relevant factors to be considered in this application for a stay of execution are:

1. Good prospects of success on appeal;

2. Special circumstances justifying the stay of execution;

3. Risks of injustice to either party;

4. Should the stay be refused and the Appeal succeeds, what are the risks to the Appellant.”

Appellant Submissions

11 It is trite law that for the Appellant to succeed in its application for a stay it must be demonstrated, not only good prospects of success on the appeal and/or additionally, whether there are any special circumstances that would justify the grant stay where for example the appeal would be rendered nugatory if the stay is not granted.

12 The Appellant submitted that this application meets and exceeds those principles clearly enunciated in the decisions of this Honourable Court. 1

13 Further, the evidence affidavit in support of the application for the stay of execution of the Order does unequivocally set out good and substantial reasons. 2

Good Prospects of Success on the Appeal

14 Their Lordships in the Judicial Committee of the Privy Council in the case of Sharma v Brown-Antoine and Others [2006] UKPC 57, provided guidance on whether the decision of the Director of Public Prosecution to prosecute an accused person was amenable to judicial review.

15 Lord Bingham delivering the leading decision of the Board stated at paragraph 14(5) stated the general principle as follows:

‘(5) It is well established that a decision to prosecute is ordinarily susceptible to judicial review, and surrender of what should be an independent prosecutorial discretion to political instruction (or, we would add, persuasion or pressure) is a recognised ground of review; Matalulu, above, at pp 735, 736, and Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20 at paras [17] and [20].

It is also well established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy. The language of the cases shows a uniform approach: ‘rare in the extreme’ ( R v Inland Revenue Commissioners, ex parte Mead [1993] 1 All ER 772 at 782), ‘sparingly exercised’ ( R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App Rep 136 at 140), ‘very hesitant ( Kostuch v Attorney-General of Alberta (1995) 128 DLR (4th) 440 at 449), ‘very rare indeed’ (R (on the application of Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin), [2004] Imm AR 549 at para [49]), and ‘very rarely’ (R (on the application of Bermingham) v Director of the Serious Fraud Office [2006] EWHC

200 (Admin), [2006] 3 All ER 239 at para [63]. In R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 at 371, Lord Steyn said:

‘My lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review.’

With that ruling, other members of the House expressly or generally agreed; see pp 362, 372, 376. We are not aware of any English case in which leave to challenge a decision to prosecute has been granted..” Emphasis added

16 Lord Bingham continued at the same paragraph:

“Decisions have been successfully challenged where the decision...