The Director of Public Prosecutions v Kevon Nurse

• Jurisdiction: Trinidad & Tobago
• Judge: Peter A. Rajkumar JA
• Judgment Date: 26 January 2022
• Neutral Citation: TT 2022 CA 2
• Docket Number: Civil Appeal App: No P134/2021
• Court: Court of Appeal (Trinidad and Tobago)
• Year: 2022

In the Matter of the Judicial Review Act 2000

and

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

Between

The Director of Public Prosecutions

Appellant/Defendant

and

Kevon Nurse

Respondent/Claimant

and

The Public Defender's Department

Interested Party

Panel:

Ivor Archie CJ

Nolan Bereaux JA

Peter A. Rajkumar JA

Civil Appeal App: No P134/2021

Claim No. CV 2020-03286

IN THE COURT OF APPEAL

Appearances:

Mr. Ian L. Benjamin S.C, Mr. Keston McQuilkin, Mr. Pierre Rudder instructed by Mr. Nairob Smart for the Appellant

Mr. Shaun C. Morris, Ms. Fayola Sandy for the Respondent

Mr. Raphael Morgan, Ms. Michelle Gonzalez, Mr. Michael Modeste, Ms. Tonya Thomas for the Public Defender's Department

I have read the decision of Rajkumar JA. I agree with it and have nothing to add.

…………………………………………………………………….

Ivor Archie

Chief Justice

I have read the judgment of Rajkumar JA. I also agree with it and have nothing to add.

……………………………………………………………………

Nolan Bereaux

Justice of Appeal

Delivered by Peter A. Rajkumar JA

Background

1 The respondent was charged with murder in January 2001. On an application filed on October 12, 2020 the Claimant sought, inter alia, a declaration that the failure of the DPP to forthwith discontinue the prosecution for the charge of murder against the Claimant is unreasonable and unfair and a consequential order quashing the indictment. (Emphasis added)

2 Constitutional reliefs were also sought. These were denied by the trial judge and were not pursued on appeal. This appeal arises from the decision of the trial judge on July 5, 2021 to permit judicial review of decisions of the DPP to continue the prosecution of the respondent (or the accused).

3 The trial was listed on five occasions. On one of those occasions, he was tried and convicted on June 2, 2003 but that conviction was overturned on appeal and a retrial was ordered. His second full trial on November 14, 2019 resulted in a hung jury. Earlier trials on June 8, 2008 and May 5, 2011 had been aborted.

4 Over the more than 20 years since January 2001 when he was charged there were several adjournments and recusals by various trial judges in the criminal proceedings. Some of the adjournments were caused by the accused changing attorneys, or terminating their representation, and insisting on representing himself — on a charge with the potential for a sentence of death if convicted.

5 Within that period, the accused had made two applications for a stay of proceedings based on an alleged abuse of process caused by delay before trial judges in the criminal proceedings. These were dismissed on May 3, 2010 and on May 27, 2015 respectively.

6 At the time the application was made to the trial judge for judicial review of the DPP's discretion and decision to continue the prosecution, the matter was being case managed by a Master with a view to its progress to a sixth trial. In or around July 13 2020, three months before filing the application for judicial review on October 10, 2020, lawyers for the accused had indicated to the Master that he intended to pursue such a remedy again.

7 The application for judicial review was based on the alleged unreasonableness of the DPP's decision to continue the prosecution despite 20 years delay, which allegedly resulted in the unavailability of witnesses, the fading of memories, and the deterioration of the evidence generally.

8 The trial judge granted leave and made the following orders:

However a stay was obtained and the accused remains in custody.

• 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 that 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.

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

Issue

9 Whether the decision of the DPP to continue the prosecution of the respondent after 20 years was so exceptional as to fall within the very rare category of decisions to prosecute that were amenable to the public law remedy of judicial review, rather than leaving the issue of his continued prosecution to the criminal trial process and the alternative remedies available therein.

Conclusion

10 As to the prosecution of the respondent after more than 20 years there were always available to him an equally effective and timely alternative remedy in the court exercising criminal jurisdiction, in the form of an application to stay the proceedings against him on the ground of inordinate delay resulting in an abuse of process and the inability to obtain a fair trial.

11 This is especially so when his matter was already being case managed before a Master attached to the criminal court and he therefore had available to him that remedy on a timely basis. The application for judicial review failed to take into account that a case management Master is partnered with a judge, who can hear such an application without having to await the recommencement of jury trials, and without full preparation for such a trial being completed.

12 Further if such an application were to have failed there were other matters within the criminal trial process that also provided additional safeguards. The existence of those additional safeguards in fact make the criminal trial process a potentially more effective, but equally timely alternative remedy, than the very rarely granted judicial review of the DPP's wide discretion to prosecute. On such an application in the criminal proceedings, the only matter to be taken into account is whether it is possible for the accused to get a fair trial. Unlike on a judicial review application the reasonableness of the exercise of the DPP's discretion to prosecute on such an application would be irrelevant.

13 The invocation of a public law remedy, based on reviewing the discretion of the DPP to continue the prosecution, requires the exercise of assessing the evidence, its possible deterioration over time, and its impact on a fair trial. However that is the same exercise that a judge exercising criminal jurisdiction, in the alternative well-established procedure available on an application for a stay of proceedings, would there be required to conduct with a view to determining the same issue. However, that is only one element required to determine the unreasonableness of continued prosecution.

14 The discretion to prosecute is based on matters additional to those that must be considered on an application for a stay within the criminal trial process. The additional elements on an application for judicial review of the exercise of the DPP's discretion include the public interest and public policy considerations taken into account in deciding to maintain the prosecution for murder. However, these are not usually suitable for consideration, or readily reviewable, by a court. Therefore, (apart from the existence of equivalent, and potentially more effective, alternative remedies), a finding of unreasonableness in the exercise of that discretion, which involves review of such considerations of public policy, would be rare.

15 It has not therefore been demonstrated that, despite extraordinary delay, this is such an exceptional case that it requires bypassing the equivalent but specialised jurisdiction of the court before which the matter had already been listed. That trial court was equipped on an application before it to consider the issue of whether a fair trial was still possible in light of the extensive delay. That is because the exercise of judicial review of the DPP's discretion to continue the prosecution necessarily included both i. mirroring the very exercise that the trial court in the criminal jurisdiction could be called upon to conduct on the alternative remedy of an application for a stay and, ii. reviewing matters of policy unsuited to review “ because they are within neither the constitutional function nor the practical competence of courts to assess their merits” 1.

16 Therefore, while in principle the possibility exists of exceptions in exceptional cases, in the instant case:-

all demonstrate conclusively that it was not appropriate for the respondent to seek remedies under the guise of judicial review, moreso three months after it had been indicated to the Master case managing his matter his intention to actually seek a stay in the criminal proceedings.

• a. the availability to the accused of equally, if not more effective, and timely alternative remedies within the criminal trial process,

• b. the extraordinary inefficiency involved in judges exercising civil jurisdiction duplicating the criminal jurisdiction of the Assizes if required to examine and assess the entirety of the evidence in a

  criminal matter, consider its possible deterioration over time, and substitute their own discretion, both for that of the DPP, (on whether to continue a prosecution), and for that of a judge at the criminal Assizes (as to whether, despite such delay as has elapsed, a fair trial is possible),

• c. the inappropriateness in most cases of a court's reviewing a partially policy and public interest based decision of the DPP, (which is necessarily an additional element inherent in the DPP's prosecutorial discretion),

• d. the possibility of encroachments by judges exercising civil jurisdiction upon the exercise of jurisdiction of judges in the criminal courts,

17 The above matters should have precluded judicial review being granted in his case as a matter of law. Nothing that is said here should be taken as an indication of what the outcome should be of any application for a stay if, or when, made before a court exercising criminal jurisdiction.

Or...