IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO. CV IN THE MATTER OF THE APPLICATION BY WINSTON SUTTON (THE SUBJECT OF A WARRANT OF ARREST) FOR JUDICIAL REVIEW UNDER PART 56 OF THE CIVIL PROCEEDINGS RULES (1998) AND THE JUDICIAL REVIEW ACT 2000 AND IN THE MATTER OF THE DECISION OF HER WORSHIP ADIA MOHAMMED MADE ON 19 TH JANUARY, 2018 IN INFORMATION NUMBER OF 2014 TO DISMISS AN APPLICATION TO WITHDRAW A WARRANT ISSUED ON THE 7 TH NOVEMBER, 2017 FOR THE ARREST OF WINSTON SUTTON BETWEEN WINSTON SUTTON AND Claimant HER WORSHIP LEARNED MAGISTRATE ADIA MOHAMMED Before the Honourable Mr Justice Frank Seepersad Appearances 1. Mr. J. Sookoo and Ms. D. Helwig-Robertson for the Claimant. 2. Mr. R. Persad, Mr. B. James, and Ms. J. Joseph for the Defendant. Defendant Date of Delivery: 7 th August, Page 1 of 9

2 DECISION 1. Before the Court for its determination is the fixed date claim form dated 9 th May, 2018 by virtue of which the Claimant challenged the decision of the Defendant dated 19 th January, 2018 to dismiss his application to withdraw a warrant issued for his arrest ( the said decision ). The Claimant alleged, interalia, that the said decision was fundamentally flawed in that the Defendant took into account irrelevant and/or immaterial considerations and was irrational, and the said decision was premised upon an error of law. Undisputed facts 2. The Claimant failed to attend court and a warrant was issued for his arrest on 7 th November, Approximately two days later, he appeared in court. An application was subsequently made to withdraw the warrant, the Magistrate determined same and the said decision was issued by the Defendant. The Evidence 3. A Transcript of the hearing on the 20 th December, 2017 in support of the Application was exhibited as A.M.3 to the Affidavit of the Defendant filed on the 15 th March, 2018 (hereafter called the Transcript ). 4. Having read the transcript the Court noted that same revealed as follows: a. It was conveyed to the Magistrate that there was an evident mix up by the Claimant and his lawyer, Mr. Sturge, in relation to the adjourned date of the matter and they both turned up to Court on the 9 th November, 2017 as opposed to the 7 th November, By virtue of the Claimant s non-attendance on the adjourned date, the Defendant issued a warrant on the 7 th November, 2017 and that decision was well within her remit. b. When the Defendant heard the application for the withdrawal of the warrant, she appreciated that the application fell under the provisions of the Criminal Procedure Page 2 of 9

3 Rules and she enquired as to how the rules worked in relation to the substantive law, in other words, and was there any conflict between the rules and substantive law? c. At the end of Mr. Sturge s submissions on this issue, he accepted that the substantive law was silent on the withdrawal of warrants. d. The Defendant further enquired of Mr. Sturge, What are the circumstances which would trigger the Court exercising its discretion to withdraw the warrant or not withdraw that warrant? Mr. Sturge accepted that (1) there was nothing written in stone, (2) it was a matter for the Court s discretion which had to be exercised reasonably in the Wednesbury sense. e. Mr. Sturge further suggested that the factors which the Court should consider are factors similar to those in setting bail and that the Court should take into account the explanation for the Claimant s non-appearance on the appointed date. f. The Defendant also raised questions as to how the Court was to deal with an application to withdraw a warrant where a person appeared subsequent to the date on which the warrant was issued and enquired as to the parameters of the Court s discretion. g. The Defendant outlined that there existed safeguards to ensure that the Claimant appeared in compliance with bail obligations and addressed her mind to the purpose of bail as well as the responsibility of the bailor. She also considered the issue as to the administrative challenges in relation to the recall of a warrant and the possibility that the recall of a summons to show cause also had to be addressed. h. The Defendant acknowledged that prior to the Criminal Procedure Rules, the Court recalled warrants but noted that such a practice may not have been correct. Page 3 of 9

4 5. Part 5.4(2) of the Criminal Procedure Rules 2016 provides that a warrant may be withdrawn by the Court even without giving the parties an opportunity to make representations and without a hearing, or at a hearing in public or in private. 6. The rule vests in the Court a discretion to withdraw a warrant without a hearing. This general power involves a wide discretion which has to be exercised in accordance with the overriding objective as outlined at Part 3 of the Criminal Procedure Rules and in the furtherance of the mandate to deal with cases efficiently and expeditiously with an adequate allocation of the Court s resources. 7. The Criminal Procedure Rules do not outline the circumstances under which a warrant should be recalled nor are any threshold standards or criteria set out thereunder in relation to the relevant considerations to which a Court ought to address its mind in the exercise of its discretion. In dismissing the Application to withdraw the warrant, the Defendant outlined that: a. The Claimant on the 24 th November, 2014 was granted bail and signed a recognizance along with his bailor. b. The recognizance required him to appear at any time and place that the inquiry was adjourned. c. The Claimant, his Attorney nor his Bailor appeared on the 7th November, 2017 and a warrant was issued. d. The Claimant and his Attorney appeared on the 9 th November, 2017 and formally requested that the warrant be withdrawn. Page 4 of 9

5 e. Once a person did not attend on the day stipulated and no reasonable explanation was simultaneously advanced for his non-attendance, then a warrant would be issued and the accused person would have to be arrested and bought back to Court. f. A person who failed to attend Court on the stipulated date could not, after the said date, turn up to Court and have the Court recall the warrant. g. The Defendant also noted that it was important for a person who was granted bail to appreciate the significance of the obligation to attend Court. h. It was her view that section 5.4 (2) of the Criminal Procedure Rules should be applied in situations where the warrant was issued ultra vires or as a result of an administrative error or where the accused arrived late on the stipulated day on which the warrant was issued. 8. The Magistrate explained in her reasons that the factors advanced by Mr. Sturge would have allowed the Claimant to be granted his own bail when he was arrested on the warrant. 9. The Magistrate also formed the view that if she allowed any warrant to be withdrawn after the day on which it was issued that such an interpretation or application of the rule would open the floodgates and occasion abuse to the administration of Justice. She further stated that a Defendant s failure to surrender affected not only the case in which he is concerned but the Court s ability to administer justice generally and negatively impacted upon the confidence of victims, witnesses, as well as the public and their perception as to the effectiveness of the Court system and the Judiciary. 10. During her consideration of the application, the Defendant further considered, interalia, the English Criminal Procedure Rules and the learning in relation to the failure to surrender to bail. Page 5 of 9

6 11. Having considered the Magistrate s decision, it is evident that she made a distinction between a late appearance on the date on which a warrant was issued and a subsequent appearance and felt that the former was a circumstance which enabled the Court to recall a non-attendance warrant. 12. The Defendant concluded that bail considerations were not relevant in the determination of the application and her conclusion on this issue cannot be criticised. 13. Mr. Sturge articulated that the provisions under the Criminal Procedure Rules allowed for a withdrawal of a warrant in a circumstance where an accused person, having failed to attend Court on the appointed day, subsequently appeared. 14. Prior to the institution of the Criminal Procedure Rules, a Magistrate had no statutory authority to recall a warrant although such a practice was engaged. The purport of the Criminal Procedure Rules sought to change the approach to criminal matters and mandated that judicial officers had to engage the task of actively managing matters so as to give effect to the overriding objective as articulated under Rule 3. The insertion of the Magistrate s ability to recall a warrant therefore has to be considered against this backdrop and in the context of the objectives associated with the enactment of the Rules. 15. It appears that the Magistrate paid inadequate regard to the overriding objective and curtailed her case management authority as she interpreted Rule 5.4 in an overtly limited manner. 16. In her ruling, the Magistrate opined that the circumstances under which a warrant could be withdrawn were limited and she found that the withdrawal of a warrant applied to circumstances where the accused appeared on the very day on which the warrant was issued or where the issue of a warrant was ultra vires or was the result of an administrative error. Such an interpretation of the rule was myopic, restrictive, did not accord with the overriding objective of the Criminal Proceedings Rules 2016 Page 6 of 9

7 and amounted to an abdication of the obligation to effectively and efficiently engage the management of the matter. The Magistrate ought to have considered all the criteria outlined at Rule 3 and should have considered that the reason for nonattendance was an important and relevant factor. The Magistrate should have also considered the possibility that non-attendance may have been occasioned by a circumstance which was outside the individual s control, as he/she may have been ill or lawfully detained. The reason for non-attendance was a material consideration and an unbiased and reasoned consideration of the explanation was necessary, as it could have assisted the Court in determining whether there was a wilful violation of the bail obligations. If, through genuine human error and/or due to unforeseen and/or uncontrolled circumstances, there was non-appearance on the appointed date, then justice and fairness may favour the recall of the warrant, the administrative issues associated with the recall of the warrant notwithstanding. The Magistrate should have considered that the recall of a warrant, once satisfied that there was no wilful default in relation to court attendance, would be consistent with the obligation to deal with the matter efficiently, as the Court would be able to retain its control over the matter rather than to wait for the warrant to be executed. The views adopted by the Defendant of the administrative hurdles with respect to the recall of warrants which had left the court office and that a withdrawal of the warrant would impact negatively upon the administration of justice, were flawed. Ultimately, the Magistrate erred in law when she failed to recognise that the rule enabled her to consider the recall of a warrant where the accused appeared on a date subsequent to the date on which the warrant was issued. 17. Administrative constraints are relevant but must always be assessed against the ultimate obligation of ensuring a just determination of matters by the adoption of a course of action characterised by fairness, efficiency and efficacy. Such an approach is consistent with the ethos of good administration and is mandatory under the new regime. The Defendant adopted a guarded approach and erroneously curtailed the parameters of the Court s jurisdiction as created under the Criminal Procedure Rules. The recall of a warrant is not a matter of right and the Court must always Page 7 of 9

8 guard against an abuse of its process. It is therefore imperative that in the exercise of its discretion as to whether a warrant should be recalled, that a court satisfies itself as to the bona fides of the reason advanced for non-attendance on the appointed date. Once it is accepted that there was good and rational explanation for the nonattendance, the Court should consider the criteria outlined at Part 3 of the Rules and ultimately ask itself how should I manage this issue and how best would the interest of justice be served? 18. The Criminal Procedure Rules should be amended as a matter of urgency and/or a practice direction in relation to the recall of warrants should be issued as clarity is required when dealing with provisions which regulate the Court s process. 19. In the circumstances, the decision of the Magistrate dated 19 th January, 2018 is hereby quashed and the Defendant shall be directed to reconsider the application by the Claimant for the withdrawal of the warrant issued on the 7 th November, Accordingly, the Court hereby issues the following orders: a. The Court declares that the decision of the Defendant dated 19 th January, 2018 to dismiss the Claimant s application seeking the withdrawal of the warrant for his arrest issued on the 7 th November, 2017 with respect to the matter of information No /2014 failed to take into account relevant and/or material considerations and the decision was arrived at by virtue of an interpretation of Rule 5.4(2) which was fundamentally flawed and restrictive and which paid insufficient regard to the overriding objectives of the Criminal Procedure Rules b. An Order of Certiorari is hereby issued to bring up into this Honourable Court and quash the said decision of the Defendant. Page 8 of 9

9 c. An Order of Mandamus is hereby issued to the Defendant to re-hear the application for the withdrawal of the warrant on such date as the Court may determine. d. The parties shall be heard on the issue of costs.... FRANK SEEPERSAD JUDGE Page 9 of 9