BETWEEN AND HER WORSHIP SENIOR MAGISTRATE EJENNY ESPINET THE DIRECTOR OF PUBLIC PROSECUTIONS. Before the Honourable Mme Justice Jacqueline Wilson

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1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV BETWEEN NORTHERN CONSTRUCTION LIMITED MARITIME GENERAL INSURANCE COMPANY LIMITED AMRITH MAHARAJ ISHWAR GALBARANSINGH SADIQ BAKSH BRIAN KUEI TUNG STEVE FERGUSON TYRONE GOPEE Applicants AND HER WORSHIP SENIOR MAGISTRATE EJENNY ESPINET THE DIRECTOR OF PUBLIC PROSECUTIONS Before the Honourable Mme Justice Jacqueline Wilson Appearances: First Respondent Second Respondent Mr. Edward Fitzgerald, QC and Mr. Fyard Hosein, SC instructed by Mr. Robin Otway for the Applicants Mr. Douglas Mendes, SC and Mr. Michael Quamina instructed by Ms Avaria Niles for the First Respondent Mr. Gilbert Peterson SC and Ms. Elaine Greene for the Second Respondent The Application JUDGMENT 1. On 4 th October 2017 the Applicants amended application for leave to apply for judicial review and a stay of proceedings came on for hearing before me. The application was supported by the affidavits of Amrith Maharaj, John Smith, Brian Kuei Tung, Steve Ferguson, Ishwar Galbaransingh, Sadiq Baksh 1

2 and Tyrone Gopee sworn on 5 th May 2017 and the affidavits of Steve Ferguson, Sadiq Baksh and Ishwar Galbaransingh sworn on 4 th September The application seeks to challenge the following decisions made by the First Respondent, Her Worship Senior Magistrate Ejenny Espinet (the Senior Magistrate) in the preliminary enquiry (the enquiry and/or the committal proceedings) into charges laid against the Applicants in what is referred to as the Piarco No. 2 case: i. The decision of 10 th February 2017 to reject the Applicants submissions that there was no case to answer; and ii. The decision of 14 th July 2017 to reject the Applicants recusal applications. 3. The charges against the Applicants relate to the offences of conspiracy to defraud and corruption arising from the construction of the Piarco International Airport. 4. The application for leave to apply for judicial review was not challenged by the First Respondent. However, both the First Respondent and the Second Respondent, the Director of Public Prosecutions (the DPP), challenged the application for a stay of the enquiry. 5. On 4 th October 2017 I heard arguments on the application for the grant of leave to apply for judicial review and a stay of proceedings. On that date I granted leave to the Applicants to apply for judicial review on the basis that the threshold requirements were met and reserved my decision on the application for a stay of proceedings. On 19 th October 2017 I refused the application for the grant of a stay. The reasons for the refusal are now given. Background 6. The affidavit of the DPP, sworn on the 2 nd October 2017, sets out a detailed chronology of the history of the enquiry, the material elements of which are stated below. The history is relevant to explain the unusual circumstances giving rise to the protracted hearing of the enquiry. 7. Charges against the Applicants were first laid in May 2004 with additional charges being laid in July 2004 and February Delays in the hearing of the enquiry arose almost immediately due to objections by the parties on several issues, including the legality of an opening statement by the 2

3 prosecution and the application of the Indictable Offences (Preliminary Enquiry) (Amendment) Act 2005 (the Amendment Act) which, among other things, allowed for the tendering of evidence by means of written statements. 8. In September 2006, the Senior Magistrate ruled that the Amendment Act applied to the enquiry. The ruling was challenged in judicial review proceedings, pending the hearing and determination of which a stay of the enquiry was granted. The judicial review proceedings were ultimately dismissed in December Due to a series of requests for adjournments, hearings in the enquiry did not resume until May 2008, when the prosecution began to lead its evidence. Hearings were further interrupted by various requests for adjournments and in December 2008 two of the Applicants applied to the Senior Magistrate to recuse herself on the grounds of bias arising from her association with a charitable foundation and her father s involvement in a political party. 9. In February 2009, the Senior Magistrate dismissed the recusal application. The decision was challenged in judicial review proceedings which were dismissed by the High Court in June 2009 and by the Court of Appeal in January Hearings in the enquiry continued pending the hearing and determination of the judicial review proceedings, no order for a stay having been granted. 10. By 2010, hearings in the enquiry were reduced to one day a week due to administrative arrangements. The prosecution closed its case in May 2010 and from October 2010 to February 2011 the defence made submissions that there was no case to answer. The prosecution gave its reply in April 2011 and applied to re-open its case and call further evidence. The Applicants objected to the prosecution s application and the objections were overruled in May The Senior Magistrate then proceeded on leave for five months. Hearings in the enquiry resumed in November 2011 when witnesses for the prosecution were recalled for cross-examination. The prosecution closed its case in February 2012 and further submissions that there was no case to answer were made in June and July The enquiry was due to continue in September 2012 but was interrupted for more than three years as a result of constitutional proceedings brought by the Applicants challenging the retroactive repeal of section 34 of the 3

4 Administration of Justice (Indictable Proceedings) Act 2011 (the section 34 proceedings). 1 Section 34 came into effect on 31 st August 2012 and was repealed with retroactive effect some two weeks later. It imposed a ten-year limitation period on the institution or continuation of criminal proceedings and would have applied to several ongoing prosecutions, including Piarco No. 2. In dismissing the section 34 proceedings the High Court held that the retroactive repeal of section 34 did not amount to an unconstitutional violation of the Applicants rights. The decision was upheld by the Court of Appeal in June 2014 and by the Privy Council in January The enquiry resumed in March 2016 with the cross examination of a prosecution witness and, following further hearings on the no-case submissions in April, May and September 2016, was adjourned for the Senior Magistrate to deliver her ruling. 14. The Senior Magistrate gave her ruling on the no-case submissions over a three-day period in January and February In giving her ruling, the Senior Magistrate explained that she would give a detailed review of the evidence before stating her findings as she considered it important that the evidence on which her findings were based should be a matter of record. The Senior Magistrate found that a prima facie case had been made out on some of the charges while other charges were dismissed on the basis that the prosecution failed to establish a prima facie case. 15. Immediately upon the conclusion of the ruling, the Applicants requested the Senior Magistrate to recuse herself from the further conduct of the enquiry as it was unlawful for her to find that a prima facie case had been made out against them and to make adverse findings of guilt before hearing their defence. The Senior Magistrate heard submissions on the recusal application in March, April, June and July 2017 before dismissing the application on 14 th July 2017, indicating that reasons would be given at a later date, as and when required. The Applicants Case 16. The Applicants challenge the legality of the Senior Magistrate s ruling on the no-case submissions on the basis that the Senior Magistrate did not limit herself to determining whether, having heard the prosecution s evidence, 1 Ferguson and Ors v the Attorney General of Trinidad and Tobago and the Director of Public Prosecutions, CV Nos. 85, 98, 106 of

5 there was a case for the defendants to answer, but prematurely made findings that there was a prima facie case to justify committal for trial and findings of guilt. 17. The Applicants contend that the Senior Magistrate s repeated and emphatic adverse findings and conclusions provide overwhelming evidence of apparent bias by way of predetermination and that it would offend the rule of law and undermine confidence in the administration of justice for her to proceed with the enquiry. 18. The Applicants allege that the Senior Magistrate s refusal to recuse herself from the further hearing of the enquiry was unlawful having regard to her premature determination of guilt and the failure to give reasons for the nonrecusal. 19. Counsel for the Applicants submitted that the function of an enquiring magistrate is ministerial and not judicial, therefore the magistrate is not required to make findings of fact but simply to consider the whole of the evidence and decide whether a prima facie case has been made out: Narine J, Reynold Makhan v His Worship Mr. Sherman Mc Nicolls HCA No. 562 of Counsel submitted that unless a stay was granted, the Applicants would be required to disclose their defence and give evidence before a magistrate who has predetermined their guilt in a series of adverse findings and that it was wrong in principle and unfair for them to do so in circumstances where their intention to give evidence and call witnesses was known for a number of years. 21. Counsel submitted further that allegations of bias and those which go to jurisdiction constitute special circumstances that warrant immediate intervention: Warner JA, Steve Ferguson and Ishwar Galbaransingh v the Attorney General of Trinidad and Tobago and the Chief Magistrate CV No. 60 of 2007 and that it would be wrong in principle to leave the Applicants to challenge an adverse decision on the ground of bias and predetermination after committal: Jones J, as she then was, Basdeo Panday v Her Worship Ejenny Espinet and the Director of Public Prosecutions, CV Counsel for the Applicants relied on the dicta of Mendonca JA in the section 34 proceedings where, in granting a stay pending the hearing and determination of the Applicants appeal, the learned Justice of Appeal held 5

6 that there is no public interest in continuing committal proceedings that may be unconstitutional. Indeed to do so, would normally be against that interest. Counsel for the Applicants argued that to procced with committal proceedings that were flawed by fundamental bias was a denial of the Applicants right to due process and the right to a fair trial. The Senior Magistrate s Case 23. The Senior Magistrate s evidence is set out in her affidavit sworn on 2 nd October The Senior Magistrate confirms that she would attain the compulsory age of retirement on 13 th May 2018 and that her pre-retirement leave is due to begin on 17 th January She states that this was drawn to the attention of the parties on 30 th June 2017 when hearings in the enquiry resumed so that it could be considered in the scheduling of future hearings. 24. The Senior Magistrate states that she is prepared to sit as often as needed to ensure that the enquiry is completed before her pre-retirement leave begins and expresses concern that if a stay is granted it may not be possible to complete the enquiry before that date or in advance of her retirement. 25. Counsel for the Senior Magistrate submitted that in deciding whether a stay of proceedings should be granted the Court must determine where the balance of justice lies and identified the following factors as relevant for consideration: i. As a general principle, committal proceedings should be interrupted only in exceptional circumstances (Yates v Wilson [1989] HCA 68) as the delays consequent upon fragmentation of the criminal process were so disadvantageous that they should be avoided unless the grant of relief by way of judicial review could clearly be seen to provide a discernible benefit (Australian Broadcasting Tribunal v Bond [1990] HCA 33). ii. iii. If the preliminary enquiry were stayed and the judicial review application failed, it would be impossible to complete the enquiry before the Senior Magistrate s pre-retirement leave took effect and improbable to do so before she attained retirement age, even if her entire leave entitlement was deferred. If the enquiry was not completed before the Senior Magistrate s retirement, the enquiry would either commence de novo or, alternatively, the DPP could prefer an indictment against the 6

7 Applicants under section 23(8) of the Indictable Offences (Preliminary Enquiry) Act. Neither option was satisfactory as the former would entail the commitment of judicial time, inconvenience and expense whereas the latter would prevent a judicial determination on whether there was sufficient evidence to commit the Applicants to trial in circumstances where the whole of prosecution s case had been advanced before a judicial officer. iv. It was in the public interest for the enquiry to be completed by the Senior Magistrate to avoid the waste of judicial time, the time of witnesses and legal costs that a stay of proceedings was likely to cause if the Applicants were not successful on the judicial review application. v. If the stay was refused and the Applicants were successful in the judicial review application, they would have suffered the inconvenience and expense of putting forward their defence in the enquiry and the anxiety of a possible committal. vi. Given the advanced stage of the enquiry and the Senior Magistrate s imminent retirement, the balance of justice favoured the refusal of a stay: Christian v R [2004] 5 LRC, Counsel argued that the Senior Magistrate s imminent retirement was not a factor for consideration by the Court of Appeal or the Privy Council in the section 34 proceedings as the Courts did not then have to consider the possibility that the grant of a stay could bring the enquiry to a premature end. 27. Counsel submitted that the section 34 proceedings resulted in the suspension of the enquiry for approximately three years in circumstances where the Applicants failed before the Courts at every level and that, if similar developments were to unfold in these proceedings, the Senior Magistrate would have retired when the lawfulness of her decisions was finally determined. Counsel submitted that the Applicants were, in effect, asking the Court to embark upon a course of action that was likely to render the committal proceedings academic and that the solution was for the Court to refuse the grant of a stay and hear the judicial review proceedings as expeditiously as possible. 7

8 The Director of Public Prosecutions Case 28. Counsel for the DPP adopted the arguments advanced by Counsel for the Senior Magistrate and submitted that when the relevant considerations were weighed in the balance, the application for a stay should be rejected and the enquiry allowed to proceed. 29. Counsel for the DPP submitted that it was not in the public interest to grant a stay of proceedings having regard to the advanced stage of the enquiry, the length of time it took to get to there, the fact that the Senior Magistrate was approaching retirement age and the indication by the Applicants that they would challenge the institution of fresh proceedings before a new Magistrate or the preferment of an indictment by the DPP if the enquiry came to a premature end. 30. Counsel for the DPP submitted that the refusal of a stay would not render the judicial review proceedings nugatory if the Applicants were to succeed - as the enquiry could begin afresh before a different Magistrate - notwithstanding that time would be expended and costs incurred in the continuation of the enquiry. 31. Counsel submitted that if the Senior Magistrate were to commit the Applicants for trial, it would be open to the Applicants to challenge the committal on the grounds advanced in the judicial review proceedings as well as any other available grounds, and that challenges should be mounted at the end of committal proceedings and not during them. 32. Counsel submitted that it was open to a magistrate to make findings of fact in committal proceedings to establish that a prima facie case exists (Woods v Director of Public Prosecutions (NSW) (No.2) [2016] N.S.W.C 448) and asserted that the Applicants who were the beneficiaries of a favourable ruling by the Senior Magistrate when she discharged some of the charges against them were artificially segregating the ruling by rejecting what they considered to be unfavourable and accepting what they considered to be beneficial. Stay of Proceedings 33. The factors in favour of and against the grant of a stay of proceedings were carefully identified and analysed by Counsel in their submissions. 8

9 34. Whereas Counsel for the Applicants placed strong reliance on the dicta of Mendonca JA in the section 34 proceedings, Counsel for the Senior Magistrate identified the imminent retirement of the Senior Magistrate and the potential for the enquiry to thereby become academic as important developments justifying a departure from the decision of the Court of Appeal. 35. I accept the submission by Counsel for the Applicants that, the Senior Magistrate s imminent retirement, although relevant, is not determinative of whether a stay should be granted as her retirement would have been known for some time and the potential concerns for the enquiry to come to a premature end are not insurmountable having regard to the legal options that are available for the grant of an extension. Section 8A of the Judicial and Legal Service Act, Chapter 6:01 provides that a Magistrate may with the permission of the [Judicial and Legal Service] Commission and in the interest of the service continue to serve as such for a period of not more than three years after he has reached the prescribed age of retirement. 36. In my view, although the Senior Magistrate has not signalled her intention to seek the Commission s permission to continue to sit after reaching retirement age if the enquiry is not yet complete, and accepting that she cannot be compelled to do so, it is possible that her commitment to completing the enquiry would prevail and that the Commission s permission, if requested, would not be unreasonably withheld. 37. In addition, the decision of the Court of Appeal in the section 34 proceedings requires careful consideration, the Court of Appeal having granted a stay of this very enquiry at any earlier stage of the hearing. 38. In the section 34 proceedings Mendonca JA observed that the challenge facing the Court in deciding whether to grant or refuse interim relief, is to choose the course that offers the best prospect that injustice would be minimised. The learned Justice of Appeal, having summarised the wellknown principles adumbrated by Lord Diplock in American Cyanamid v Ethicon 2 regarding the grant of interlocutory injunctions and having followed the approach taken by the House of Lords in Factortame 3 where the general AC [1992] QB 680 9

10 principles in American Cyanamid were adopted with modifications appropriate to public law cases, affirmed that: i. The Appellants challenge should amount to more than a serious issue to be tried, it should be firmly based; ii. iii. In public law cases the adequacy of damages would not generally be determinative of whether a stay should be granted; and Notwithstanding whether the term used was balance of advantage, balance of convenience or balance of justice, the Court, in the exercise of its discretion, must weigh all the relevant factors and decide whether the balance favoured the grant or refusal of a stay. 39. The relevant public interest considerations were found by the Court of Appeal to include the constitutional basis of the Appellants challenge, the allegation of infringement of fundamental rights, the duty to uphold the law and to give effect to a valid law, the duty to enforce the law and to prosecute persons charged with serious offences and the need to prevent undue delay in criminal proceedings. 40. Having weighed the relevant considerations, the Court of Appeal determined that the balance was tilted in favour of granting a stay having regard to the apparent futility in continuing with the committal proceedings, before the hearing and determination of the appeal. The Court of Appeal considered it significant that pending before the Senior Magistrate was an abuse of process application which raised many of the same issues as the appeal, and that the parties had agreed previously that the committal proceedings should be adjourned pending the hearing and determination of the constitutional proceedings in the High Court. 41. It is also relevant that in granting the stay of proceedings the Court of Appeal anticipated that the enquiry would be interrupted for a relatively short period that would not amount to a significant interference with the criminal process or undermine the prosecution s ability to pursue its case. 42. In the circumstances, there are important distinguishing factors in the context in which the stay was granted by the Court of Appeal in the section 34 proceedings and the present judicial review application. First and foremost, the judicial review application does not raise the same concerns as the section 34 proceedings regarding the apparent futility of continuing the enquiry. Whereas the enquiry would have come to an end if the Applicants 10

11 were successful in the section 34 proceedings, it may be ordered to begin afresh if they were to succeed herein, subject to a successful challenge on the ground of abuse of process or other legal basis. 43. In my view, this distinguishing factor alone is sufficient to justify a departure from the approach taken by the Court of Appeal in granting an earlier stay of the committal proceedings. However, another relevant consideration is that the delay in the hearing of the enquiry has been exacerbated and some fourteen years have now elapsed since the enquiry first began. Irrespective of the underlying reasons therefor, the delay by any standard must now be considered as sufficiently excessive to warrant action to avoid irreparable harm to the continued hearing of the enquiry. 44. The delay factor, considered with the possibility for the enquiry to begin afresh if the Applicants were to succeed, tips the scale against the grant of a stay of the proceedings. 45. It was for the above reasons that the Applicants application for a stay pending the hearing and determination of the judicial review proceedings was refused. Dated this 12 th day of January Jacqueline Wilson Judge 11