IN THE HIGH COURT OF JUSTICE BETWEEN SANJEEV RAMGARIB AND HER WORSHIP MAGISTRATE REHANNA HOSEIN

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN SANJEEV RAMGARIB Applicant AND HER WORSHIP MAGISTRATE REHANNA HOSEIN Respondent Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Jagdeo Singh leading Mr Michael Rooplal and Ms Saira Lakhan instructed by Ms Karina Jailal for the Applicant Mr Russell Martineau SC leading Mr Roshan Harracksingh and Mr Stefan Jaikaran instructed by Ms Lesley Almarales and Ms Rishma Ramrattan for the Respondent Dated: 2 November 2015 JUDGMENT Page 1 of 14

2 1. This is an application for leave to apply for judicial review, filed 23 January 2015, of the failure of the respondent to provide reasons for her decision. The Applicant seeks, among other things, the following relief: i. A declaration that he is entitled to reasons for the respondent s decision to commit the applicant to the High Court for the offence of causing death by dangerous driving. ii. A declaration that the failure and/or refusal of the respondent to provide the applicant with the reasons for her decision to commit him to stand trial is illegal, unreasonable and procedurally unfair. iii. An order of mandamus to compel the respondent to provide reasons for her decision to commit the applicant. Factual Background 2. The applicant was the subject of a preliminary inquiry. During said preliminary inquiry, the State produced sworn statements from witnesses, some of whom were cross examined by the applicant s attorney. After the State closed its case against the applicant, an oral no case submission was made on behalf of the applicant by his attorneys. 3. On 28 October 2014, the respondent overruled the no case submission made on behalf of the applicant, stated that the State had established a prima facie case, and committed the applicant to stand trial for the offence of causing death by dangerous driving. 4. On the 27 November 2014, the respondent was informed by the Clerk of the Peace that there was a letter dated 13 November 2014, from the applicant, requesting her to provide reasons for her decision. Page 2 of 14

3 5. The applicant now seeks leave to apply for judicial review in order to challenge the alleged failure and/or refusal of the respondent to provide the applicant with reasons. The critical issue for decision is whether the respondent in performing her role as a Magistrate hearing and determining whether a person should be committed to stand trial for an indictable offence under section 23 of the Indictable Offences (Preliminary Enquiry) Act, Chap 12:01 is under a general duty under statute or the common law to provide reasons for her decision. The Law 6. The test to be applied on an application for leave to apply for judicial review was stated in the case of Sharma v Browne-Antoine & Ors [2006] UKPC 57: (3) Under section 5(1) of the Judicial Review Act 2000 judicial review lies against a person acting in the exercise of a public duty or function. Section 5(3) lists a number of familiar grounds, which include an improper exercise of discretion, taking account of irrelevant considerations and acting on instructions from an unauthorised person. Leave to apply for judicial review must be obtained: section 6. The court may not, save in exceptional circumstances, grant leave for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal the decision: section 9. (4)The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is Page 3 of 14

4 a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, para 62, in a passage applicable mutatis mutandis to arguability: " the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities." It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to "justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen": Matalulu v Director of Public Prosecutions [2003] 4 LRC 712, Whether the ground is arguable cannot be judged without reference to the nature and the gravity of the issue to be argued. 8. It is first necessary to consider whether there is in fact a common law duty to provide reasons. Counsel for the respondent has provided this court with several authorities for consideration which strongly support the contention that there is no common law duty on magistrates to provide reasons, particularly in these circumstances. Page 4 of 14

5 9. In the case of Regina v Worthing Justices, Ex parte Norvell and Another [1981] 1 WLR 413 it was held, on an application for an order of mandamus requiring the justices to issue a summons, that, although the justices could give reasons for their decision, it was neither usual nor obligatory for a magistrates' court to do so. 10. Additionally, the case of Moran v Director of Public Prosecutions [2002] EWHC 89 addresses the magistrate s role regarding the provision of reasons in a case where the no case submission was refused. The learned Justice Kay stated the following: [8] I deal first with the question concerning the refusal to give reasons for deciding that the Appellant did have a case to answer. It is to be observed that I am not being asked to consider whether the justices erred in law in finding that there was a case to answer in relation to all three informations. There is no reason to suppose that the justices adopted an erroneous approach to the question they had to decide. They were referred to the Galbraith test in terms. The question simply relates to the refusal to give reasons. It seems that following the ruling there was a case to answer, counsel for the Appellant requested the judges to give reasons but they declined. [9] In the case of Harrison v Department of Social Security [1997] COD 220, a Divisional Court, comprising Lord Justice Rose and myself, held that magistrates are not obliged to give reasons for rejecting a submission of no case to answer. The headnote to that report states: There is no duty on the magistrates to give reasons in relation to a trial of an information where there are subsequent routes of complaint both by way of appeal to the Crown Court, by way of case stated to this court, or in some circumstances, by way of an application for judicial review. Page 5 of 14

6 [16] Having regard to all that authority, what then is the position in relation to a refusal by magistrates to accede to a submission of no case to answer? In my judgment, even after 2 October 2000, there is still no legal obligation on magistrates to give reasons for rejecting a submission of no case. It is now usual for justices to give reasons following a finding of guilt, and that has been done in this case. If a Defendant is concerned about the conduct or outcome of a summary trial, he has a number of procedural options: in particular, (1) an appeal by way of rehearing in the Crown Court; (2) an appeal to this court by way of case stated, in which case the justices may be required to explain in the case stated the route by which they reached a particular conclusion; or (3) in some circumstances, on application for judicial review. Summary trial is a highly specific procedure. In my judgment, it would not be in the interests of justice if magistrates were required to give detailed reasons for their current assessment of the evidence and the witnesses at the end of the prosecution case. It is important that if, on applying the Galbraith test, they conclude that there is no case to answer in respect of a particular allegation, the Defendant should there and then be acquitted of that allegation so that he no longer remains in jeopardy in relation to it. 11. Counsel for the applicant cited several cases addressing the point that the provision of reasons in a situation such as the instant case is an integral component of the requirement of procedural fairness. I find that the cases cited by the respondent are too general and the factual circumstances of those cases are distinguishable from this instant case. Further to this, I note that Counsel for the respondent has sought to distinguish some of the cases relied on by Counsel for the applicant. 12. More specifically, in the case of Francis Jones v SGT Sheldon David #11730 Mag. App. No. 64 of 2014, Mohammed J.A. in delivering the judgment of the Court of Appeal clearly expresses the view that there is no legal obligation on the part of magistrates to Page 6 of 14

7 give reasons, and that the need to provide reasons is triggered when the person affected is given that right by statute or when an appeal is lodged. The learned judge also examined the cases of Alexander v Williams (1984) 3 WIR 240 and Aqui v Pooran Maharaj (1983) 34 WIR 282 (all of which were relied on by Counsel for the applicant); and stated the following: 17. There exists, at common law, a duty for magistrates to furnish reasons for their decision where an appeal has been lodged in relation to that decision. This common law position is applicable to Trinidad and Tobago. In the case of Aqui v Pooran Maharaj, the Court of Appeal examined the evolution of the duty of a magistrate to give reasons at common law and considered that the proper administration of justice required that magistrates provide reasons for their decisions where an appeal has been lodged. At page 289 Bernard J.A. said: It is quite true that a magistrate is a creature of statute and that there is no statutory enjoinder in the Act which requires him to state any reasons for any decision that he gives. However, in this jurisdiction the necessity for a magistrate to give reasons for his decision in the first place where an appeal has been lodged in the matter and, secondly, to do so in such a manner that his reasons reflect a basis for consensus that there has been a proper adjudication of the matter by him has been echoed from time to time by this court. In my opinion, this practice is a salutary one and has everything to commend it, for failure to do so (particularly where the evidence is of a complex nature) could and in most cases would have the opposite effect, since it deprives an appellate court of the benefit of the assistance of the person who saw and heard the witnesses and thereby is a hindrance to the due and proper administration of justice. 13. What was said in that case was said in relation to a summary conviction of a defendant. The present case is a finding on a preliminary enquiry that there was a prima facie case Page 7 of 14

8 that an indictable offence had been committed. The Magistrate s function in committal proceedings must be considered as being central to this issue. It is quite different to the Magistrate s function in the summary trial of a case. A magistrate at the preliminary inquiry is required to take depositions from witnesses and then to consider all of the evidence contained in the depositions and any submissions which are made and to decide if there is sufficient evidence that any indictable offence has been committed before making a committal order. 14. Further, it is important to consider the effect of a committal order. The effect of a committal order is that the proceedings are sent to the Director of Public Prosecutions so that the DPP may consider, in light of all of the depositions, whether there is sufficient evidence that any indictable offence has been committed, what offence or offences were committed, and whether an indictment is justifiable considering the evidence and other relevant public interest factors. The Magistrate makes no findings on guilt. Nor does the DPP. 15. The applicant is left with all of the options available in criminal proceedings to challenge a decision. He may write to the DPP pointing out the deficiencies in the prosecution case and request that the DPP exercise his powers to enter a notice of discontinuance or nolle prosequi. If an indictment is filed, the defendant can apply to the judge to have the indictment quashed. If unsuccessful in that application, the defendant can advance his defence fully before the jury or can choose to sit back and say nothing and insist on the prosecution proving its case to the standard of making the jury sure of his guilt. All of this is pointed out to put the Magistrate s function in its proper context. The Magistrate s role is to see, taking the prosecution case at its highest, if there is a prima facie case made out of any indictable offence. The magistrate has to be careful to not rule out evidence of which there may be fair argument on whether it is admissible. A magistrate, for example, would be wrong to rule out a confession without there being some exceptional basis for doing so. The magistrate s function is more in the nature of a filtering mechanism to Page 8 of 14

9 weed out those cases where no prima facie case is made out. It is essentially to filter out those clear cases where there is no case to answer. 16. To require a Magistrate to have to furnish reasons for such decisions is likely to be unnecessarily burdensome on Magistrates and likely to slow down an already slow criminal justice process even more. It may impose extra costs and lead to template-style reasons where a familiar formula is used. 17. The purpose of giving reasons would be for the applicant to know why he has been committed but, additionally, it would be to know them for the purpose of seeking to challenge the efficacy of the committal in judicial review proceedings. While it is clear that the High Court has the jurisdiction to review the decisions of Magistrates, save in exceptional circumstances, the judicial review court should have little business in evaluating decisions of magistrates to commit accused persons to stand trial. The criminal process provides mechanisms for that kind of analysis to be undertaken. 18. What follows is that the imposition of a general duty of committing magistrates to provide reasons for their decision to commit an accused person is not part of the law. Where, however, leave has been granted to challenge a magistrate s decision based on the factors set out at section 5 (3) of the Judicial Review Act, Chap 7:08, the reasons of the magistrates will generally be helpful to the court to making a proper determination of the matter. The trigger for the reasons being provided will be the judicial review proceedings alleging breach of one of the accepted grounds for challenging the decision and not the other way around that the reasons or lack of reasons should be the trigger for bringing judicial review proceedings. Page 9 of 14

10 19. I note further that there is no statutory duty under the Indictable Offences (Preliminary Enquiry) Act Chap 12:01 for a magistrate to provide reasons. This is the specific legislation relating to the conduct of preliminary enquiries. 20. The Judicial Review Act Chap. 7:08 ( the Act ) outlines the process where a person may request a statement of reasons where a decision is made which adversely affects the applicant. More specifically, section 16 states: 16. (1) Where a person is adversely affected by a decision to which this Act applies, he may request from the decision-maker a statement of the reasons for the decision. (2) Where a person makes a request under subsection (1), he shall make the request (a) on the date of the giving of the decision or of the notification to him thereof; or (b) within twenty-eight clear days after that date, whichever is later, and in writing. (3) Where the decision-maker fails to comply with a request under subsection (1), the Court may, upon granting leave under section 5 or 6, make an order to compel such compliance upon such terms and conditions as it thinks just. 21. Section 16 (1) provides that where a person is adversely affected by a decision, he may request from the decision maker a statement of the reasons for that decision. However, this section must be read in the context of the Act as a whole and in particular to sections such as sections 5, 9 (alternative remedies), 15 and 20 and also in relation to other written law. It must also be read in the context of the qualifying words to which this act applies and the words in 16 (3) upon granting leave under section 5 or 6. Both of Page 10 of 14

11 these qualifications show that this section is facilitative of applications made under sections 5 and Thus section 16 does not give a free standing right to bring judicial review proceedings for breach of section 16 but allows for reasons to be given to further a challenge under section 5 or any other recognised ground. Leave must be sought on a recognised ground and section 16 can then be used for those reasons to be provided as part of the leave application. That is the purpose of section 16 (3). What this means is that the request can be made for reasons as was done here, but a failure to give those reasons will not give an applicant a right to bring an application for judicial review for the exclusive breach of section 16. Rather section 16 (3) will allow the court to make an order for reasons to be given as a relief within the leave application on a section 5 ground. 23. Section 16 must further be considered in light of the ever expanding common law which defines who may be called upon to give reasons, and in what circumstances. There must first be a duty to provide reasons before section 16 can be triggered as a relief which may be sought to compel the production of those reasons. Thus what section 16 does is to give an applicant who is entitled to reasons a mechanism by which to have those reasons provided in a timely manner. This section gives force to the right where there is a duty to give reasons, but it does not give a stand-alone right to a person adversely affected by a decision to require reasons from any or all decision makers. 24. In this aspect I disagree with the extract from the textbook, Commonwealth Caribbean Administrative Law (2013) by Dr Eddie Ventose, cited by the respondent. It could not be that a new stand-alone right to reasons in every case could be established just like that. While I accept that one of the purposes of giving reasons is so the person concerned will know why the decision has been made, that cannot be a rationale by itself to require every decision maker to have to supply reasons in every case where a decision has been Page 11 of 14

12 made adversely affecting a person. It would mean that every public official will routinely, on request, be required to supply reasons, which, if not done, would potentially allow an aggrieved party to file a judicial review claim seeking reasons. This section must be seen in the context of the entire Act as a whole and the underlying the common law which has progressively developed the law of judicial review over the years. 25. While the following does not affect the ultimate decision, it is necessary to comment on one aspect of the applicant s case. In the affidavit filed in support of the application it is stated that the respondent was first made aware of the request for reasons on 27 November 2014, thirty (30) days after the date of the decision. This fell outside of the time limit as prescribed by statute. However, the applicant, according to the affidavit in support, had tendered the letter to the Clerk of the Peace at the San Fernando Magistrates Court on 24 November This was the correct course for the applicant to adopt. Even though the Magistrate was no longer assigned there, that was the place of her decision. The Clerk of the Peace ought to have accepted the communication and forwarded it to the Magistrate. Nothing turns on this, however, since, in my view, section 16 was not operational in these circumstances. 26. An argument was mounted that the failure to give sufficient reasons is the same as giving no reasons and that in this case even if it can be argued that the Magistrate s short statement were in fact reasons, the court should consider that they amounted to no reasons at all. While I accept that in an appropriate case, such as where the decision maker recites a general formula or restates a statutory-prescribed conclusion (see De Smith, Judicial Review, 7 edition), the failure to provide sufficient reasons can be seen as being comparable to giving no reasons, this is not such a case. I do not see that there is a duty to provide reasons in the circumstances of this case. Page 12 of 14

13 27. In this particular case, the applicant s arguments relative to the broader functions of reasons and the resulting positive effect on good administration and on the administration of justice, while they are well said and salutary, they do not extend in law to imposing a duty on a magistrate to provide reasons for overruling a no case submission in committal proceedings. Therefore, I find that in these circumstances there is no arguable ground for judicial review having a realistic prospect of success. 28. Further, section 9 of the Act provides: 9. The Court shall not grant leave to an applicant for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal that decision, save in exceptional circumstances. 29. The applicant contends that there are no alternate forms of redress available to him. On the contrary, the applicant may elect to write to the Director of Public Prosecutions and request that the evidence be reviewed and that the proceedings be discontinued: paragraph of Archbold Criminal Pleading, Evidence and Practice (2012). The DPP is not a rubber stamp of the magistrate and it would be a failure in duty to not undertake a proper assessment of the depositions to determine whether an indictment should be filed. The applicant can also make an application to quash an indictment, if one is in fact filed. 30. Section 9 of the Act also provides that even where there are alternative forms of redress available, judicial review may be possible where there are exceptional circumstances. Counsel for the respondent has cited Luis Castillo v Her Worship Annette Mc Kenzie CV , where Pemberton J reiterated the definition of exceptional circumstances ; and stated: Page 13 of 14

14 exceptional circumstances def(ies) definition, (they) would include when the pursuit, or where there is a great need for immediate judicial relief or the alternative procedure will serve no useful purpose. The party seeking leave bears the persuasive burden to show that the exception applies. 31. The applicant in this case raises the issue of the lengthy period of time it takes for trials to be completed. This is a matter for legitimate concern by this applicant as it is for other accused persons who await trial for many years. Often, accused persons are unable to access bail or are denied bail or are disentitled to bail because of the nature of the crime. Waiting for a long time for a trial date in a criminal High Court case is regrettably more the norm rather than the exception. While this places the applicant in an unfortunate position of being in limbo for some time, this is not, in my view, an exceptional circumstance to necessitate the grant of leave for judicial review. ORDER 1. The application for leave to apply for judicial review is denied. 2. The application filed on 23 January 2015 is dismissed with costs to be paid by the applicant to the respondent to be assessed in default of agreement before a Registrar. Ronnie Boodoosingh Judge Page 14 of 14