REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV 2012-00707 IN THE HIGH COURT OF JUSTICE Between ALVIN And AHYEW Claimant HER WORSHIP SENIOR MAGISTRATE MRS. INDRA RAMOO-HAYNES Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES APPEARANCES: Mr. R. L. Maharaj S.C. instructed by Ms. N. Badal and Ms. V. Maharaj for the Claimant. Mr. D. Byam instructed by Ms. D. Dilraj-Batoosingh for the Defendant. JUDGMENT 1. This is an application for judicial review. Alvin Ahyew ( the Applicant ) was on the 20 th of January 2009 charged with the possession of a firearm and 20 rounds of ammunition contrary to section 6(1) of the Firearm Act. On that date he appeared in the Magistrate's Court and upon the recommendation of the prosecution elected a summary trial, pleaded guilty and was convicted and sentenced to imprisonment for 36 months. On 24 th June 2009 the Court of Appeal allowed his appeal, ordered his sentence and conviction be set aside and that he be tried before Page 1 of 15
another Magistrate. The date for the retrial was fixed for 7 th August 2009. The retrial has not yet been heard. 2. On 17 th February 2012 the Applicant sought leave to apply for judicial review seeking declarations of illegality with respect to the Defendant s: (i) refusal on the 1 st December 2011 to dismiss or stay the continuation of the prosecutions against him; (ii) decision to adjourn the said prosecutions to the 4 th June 2012; (iii) decision not to consider the legal authorities offered in support of his submissions to have the proceedings halted for abuse of process; and (iv) continuation of the said prosecutions. The Applicant also sought orders of certiorari and an interim stay of the said prosecutions. 3. In the proceedings before me the Defendant ( the Magistrate ) was represented by Attorneys employed by the State. After hearing submissions on behalf of the Applicant and the Magistrate leave was granted on 13 th March 2012 for the Applicant to pursue this judicial review application. At that time the Applicant s request for an interim stay of execution was refused on the basis that it was possible to have the matter heard and completed by 4 th June. With this date in mind directions were given for the filing of affidavits and the 8 th May fixed for the first case management conference. Despite these directions the affidavit of the Magistrate was only filed on 8 th May 2012 and on that date an order for the cross-examination of the Magistrate was made and the 24 th May fixed for the cross-examination. 4. On the 21 st May by way of an application filed on the 15 th May 2012 the Magistrate Page 2 of 15
sought to set aside the order for cross-examination. This application was dismissed on the said date. Thereafter Attorneys for the Magistrate indicated their intention to attempt to have the matter resolved or at least to involve the DPP in the process as was the usual procedure. In the interim, there being no stay of the proceedings, the Applicant was required to attend the hearing of the matter fixed before the Magistrate for 4 th June. The judicial review application was then adjourned to 28 th June 2012 for another case management conference. 5. By an affidavit filed on the 27 th June the Applicant advised that on 4 th June he attended the Couva Magistrate s Court. The Magistrate was not in attendance. The public was advised by the clerk of the peace that the Magistrate was not coming to court on that date and that the clerk of the peace had been instructed to adjourn the matters listed for hearing. When the Applicant s cases were called the Prosecutor informed the clerk of the peace that the Complainant was not present. The clerk of the peace then adjourned the matter to 25 th June 2012. The Applicant again attended the court on 25 th June. Again, the Magistrate was not present. Once again the clerk of the peace presided and indicated that the Magistrate would not be attending court on that date and that she had been instructed to adjourn the matters. The Prosecutor advised that the Complainant was not in attendance and there had as yet been no disclosure of the prosecution material. 6. On 28 th June I ordered a stay of the magisterial proceedings until the determination of this action. Thereafter the matter was adjourned to a date in September to allow Attorneys for the Magistrate a further opportunity to involve the DPP and to resolve the matter. By the next date of hearing, the 11 th October, the matter had not been resolved nor had any attempt been made by Page 3 of 15
Attorneys for the Magistrate to involve the DPP. The matter was then fixed for the crossexamination of the Magistrate on 24 th October 2012. By a notice filed on the 23 rd October 2012 Attorneys for the Magistrate indicated their intention not to rely on the affidavit of the Magistrate filed in the proceedings. On the 24 th October directions were given for written submissions to be filed. Despite the directions given no written submissions have been filed on behalf of the Magistrate. 7. The facts as revealed by the affidavits of the Applicant are not in dispute and are in the main confirmed by the endorsements contained at the back of the Informations, certified copies of which were before me. 8. The facts reveal that on the 7 th August when the re-trial first came up for hearing the charges were adjourned to 12 th November 2009. On that date both cases were adjourned to the 4 th February 2010. On 4 th February 2010 there was no appearance by the police complainant ( the Complainant ) and the case adjourned to 4 th May 2010. On that date the Complainant did not appear, and the Court was informed that there had been no disclosure of the witness statements and other prosecution material by the police prosecutor ( the Prosecutor ). Disclosure was ordered and the matter adjourned to 14 th July 2010. 9. By 14 th July 2010 when the matter was called there had been no disclosure by the prosecution nor did the Complainant appear. Disclosure was once again ordered and the matter adjourned to 30 th August 2010. By letter dated 14 th July 2010 the prosecution was advised by the Applicant s Attorneys of what has occurred in Court on that date and specifically requested to Page 4 of 15
provide certain documents. By a letter dated 6 th August 2010 from the Applicant s Attorneys the prosecution was once again reminded that the matter was coming up for hearing and that disclosure had not yet been made. 10. By 30 th August 2010 when the matter was called no disclosure had been made neither did the Complainant appear. Disclosure was again ordered and the cases adjourned to 9 th February 2011. This time the cases were fixed for trial. By 9 th February 2011 there had still been no disclosure of the prosecution material. When the case was called the Complainant was not present. On that occasion the Prosecutor informed the Court that he had received a note from the chief clerk at the San Fernando Police Station to the effect that the Complainant had abandoned his job and he could not be reached. The Prosecutor also advised the Magistrate that he did not have the file. The Magistrate then requested the Prosecutor to send an official letter to the Court indicating the position and once again ordered disclosure. The cases were adjourned to 11 th July 2011. 11. By 11 th July 2011 there was still no disclosure of the prosecution material. Nor did the Complainant appear. On that date submissions were made by the Applicant s Attorney that the prosecutions ought to be dismissed on the grounds of an abuse of process. The presiding magistrate then advised the Prosecutor that he was being given a final chance to get the file ready and to make the necessary disclosure. While this advice is not revealed by the endorsements, there is endorsed on both Informations notations that the Prosecutor had no file. The cases were adjourned to 1 st December 2011. Page 5 of 15
12. On the 1 st December 2011 the cases came up before the Magistrate. Disclosure had still not been made. As well the Complainant was absent from Court. Again the endorsements on the back of the Informations indicate that the Prosecutor had no file. On that date Attorney for the Applicant again submitted that the Magistrate either dismiss or stay the proceedings on the ground that the continuation was an abuse of the process. As the Applicant's Attorney was about to refer to legal authorities in support of his submissions the Magistrate stated that the charges were serious charges and that she was not going to dismiss them. The Magistrate then enquired of the Prosecutor whether it had complied with the order for disclosure and the Prosecutor admitted his failure to comply with the orders. Thereafter the Magistrate informed the Applicant's Attorney that he could produce the legal authorities on 4 th June 2012 and make his submissions then. Upon the Attorney for the Applicant insisting that the Magistrate hear the submissions and dismiss or stay the prosecutions the Magistrate stated that she was not dismissing the prosecutions and adjourned the cases to the 4 th of June 2012. 13. As related earlier by reason of the Magistrate s absence the Magistrate did not hear the Applicant s submissions on the 4 th June. Nor, for the same reason, did she hear the submissions on the adjourned date the 25 th June. 14. In these proceedings and in these circumstances the question for my determination is whether in refusing to consider the Applicant s application to dismiss the prosecutions as being an abuse of the process and adjourning the said prosecutions the Magistrate s decision making process was flawed in that she failed to take into account all the relevant considerations. Page 6 of 15
15. Under the common law the Court has an inherent jurisdiction to safeguard its authority and to prevent its processes from being undermined by disruptive, oppressive, or otherwise inappropriate use of court procedures. That this power extends to a court sitting in its criminal jurisdiction has been confirmed in this jurisdiction time and time again. Indeed it forms the basis of the judgments by Baroness Hale of Richmond, Lord Carswell and Lord Mance in the case of Sharma v Antoine 1. 16. This inherent jurisdiction also applies to proceedings in the Magistrate s Court albeit in a more limited form. I can do no better than adopt the statement of Lord Griffiths in the case of R. v Horseferry Road Magistrates Court, ex p Bennett 2, where he said: I would accordingly affirm the power of magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures. Neither can it be disputed that in the exercise of its supervisory jurisdiction this court has the power to prevent a continuation of a prosecution where to do so will be an abuse of the process of the court. 3 17. On the facts as presented to me it is clear that on 1 st December 2011 the Magistrate 1 [2006] UKPC 57 2 [1994] 1 AC 42 at page 64 paragraphs B and C. 3 Reg. v Telford JJ., Ex parte Badham[1991]2 QB 78. Page 7 of 15
refused to entertain the Applicant's submission to have the matter dismissed as being an abuse of the process and adjourned the charges despite the fact that the Informations before her and the endorsements thereon revealed that: (a) the charges had been brought since January 2009; (b) in June 2009 the Court of Appeal had ordered a re-trial of the charges; (c) the charges had been called and adjourned some 8 times over a period in excess of two years since that date; (d) the Complainant had never attended any of the hearings since at least 4 th of February 2010; (e) the Prosecutor had by the 9 th February 2011 indicated that the Complainant had abandoned the job and could not be reached; (f) numerous orders for disclosure had been made since the 4 th May 2010 and the Prosecutor had failed to comply with any of them; and (g) since the 15 th November 2010 the Prosecutor had indicated that he had no file. 18. The only reason given by the Magistrate for not hearing the submission and for continuing the prosecutions was given by her on the 1 st December and was that the charges were serious charges and she was not going to dismiss them. Further it is clear that despite the Magistrate s indication that she would hear the application to halt the prosecution on the 4 th June 2012 on that date the Magistrate did not hear the submissions. Neither did she hear them on the 25 th June 2012, the last date of hearing before the grant of the interim stay of the proceedings. 19. While it cannot be disputed that the charges were serious charges the issue here is whether the circumstances of the delay, the continued absence of the Complainant, the indication at least one year earlier that the Complainant had abandoned his job and could not be found and the failure of the Prosecution to disclose the material relied upon by it were facts which directly affected the fairness of continuing the prosecution and, if they were, whether the refusal of the Page 8 of 15
Magistrate to consider these facts and the application by the defence made on 1 st December 2011 and her decision to continue the prosecution in the circumstances amounted an illegality 4. 20. That a failure to disclose material relied on by the Prosecution could in certain circumstances amount to a defendant being unfairly prejudiced in the preparation or conduct of his defence was accepted by the Judicial Committee of the Privy Council in the cases of Franklin and Vincent v R 5. In those cases no requests for disclosure had been made. Their Lordships, however, were of the opinion that, given the manner with which each case had proceeded, even if such requests had been made the defendants and their legal advisers had ample opportunity to deal with any matters of which they were unaware at the commencement of the trials. In the circumstances on the facts of those particular cases the Lordships were of the view that there was no risk of unfairness or injustice to either appellant. 21. In this jurisdiction, the existence of the common law duty of disclosure was confirmed in the cases of Ferguson v the Attorney General 6. Again, in that case, the issue for the determination of the court was whether the consequences of the failure to disclose the witness statements to be used by the prosecution at the preliminary enquiry infringed the applicant's constitutional guarantees to a fair trial. In a manner similar to its determination in Franklin and Vincent the Judicial Committee of the Privy Council was satisfied that had the statements been handed over the order for committal would have been exactly the same and, in the circumstances, the failure to disclose did not hamper the fairness of the trial. 4 CSSU v Minister for the Civil Service [1984] 3 All ER 935 at page 950. 5 (1993) 42 WIR 262. 6 (2001)58 WIR 446 Page 9 of 15
22. In the case of The DPP v Chief Magistrate Sherman McNicolls 7, referring to the judgment of Kangaloo J. in the case of Reyes v The AG 8, de la Bastide CJ acknowledged that with respect to the effect of a failure to disclose in criminal matters there was an important difference between a summary trial and a preliminary enquiry into a charge laid and being taken indictably. Although not required to determine this point in the appeal before him de la Bastide CJ was satisfied that: in a summary trial for the defence to become aware of the evidence against the accused only in the course of the trial may in certain circumstances render the trial unfair. 9 23. It is clear therefore that a failure to disclose the prosecution material will only result in a dismissal of the cases against the accused if the failure causes the trial to be unfair. And while, because of the manner in which evidence is received, the failure to disclose may more likely result in unfairness in a summary trial than in a preliminary enquiry the fact that the non disclosure occurs in a summary trial does not necessarily result in unfairness sufficient to abort the prosecution of the charges. 24. It cannot be disputed that there was delay in the hearing of the charges. The question of whether delay in the prosecution of a preliminary enquiry amounted to an abuse of process was considered by the Court of Appeal in the case of Hardeo Sinanan v Her Worship Senior Magistrate Mrs Marcia Ayers- Caesar 10. In that case the refusal of the magistrate to stay the 7 Mag App No 13 of 1999 8 HCA No Cv 868 of 1999 9 Page 5 of the judgment 10 Civil Appeal No 137 of 2006 Page 10 of 15
proceedings on the basis of an inordinate delay amounting to an abuse of the process of the court was the subject of an application for judicial review. In that case the Court of Appeal was satisfied that by the time the application to dismiss as being an abuse had been made before the magistrate the case had been adjourned on 84 occasions and nine years and eight months had elapsed. Despite that period of time the Court of Appeal was satisfied that the decision of the magistrate to continue the prosecution of the case could not be impeached. In that regard the Court of Appeal agreed with the trial judge s decision that the magistrate asked the right questions and did not take into account any improper considerations. 25. Of note is the statement of Warner JA with respect to the duty of the magistrate in dealing with the adjournments. There was before the trial judge some dispute as to who caused a number of the adjournments. While Warner JA accepted that the statistics with respect to the adjournments may have been relevant she was of the opinion that they ought not to weigh heavily on either side because the matter came on for hearing from time to time before different magistrates upon whom the duty fell to manage the court and to take appropriate steps if the rules were being flagrantly ignored by either side. According to Warner JA the proper approach to the question would be to examine the total period of delay in the context of all the circumstances of the case. 26. While accepting that the court has a discretion to grant a stay of criminal proceedings on the ground that to continue them would be an abuse of the process the Court in Sinanan recognised that this was a exceptional remedy and, in particular with respect to proceedings before a magistrate, was a power to be sparingly exercised and confined to matters Page 11 of 15
directly affecting the fairness of the trial of the accused. In this regard the Court of Appeal followed the position taken by Lord Griffiths in the Horseferry Road Magistrates case. 27. The instant case is not a case of the reason for the delay being attributed to the delays inherent in the overcrowding of the lists in the magistrate s court or the lack of resources available to magistrates. Neither is there any question but that in the instant case the cause of the adjournments lay squarely on the Prosecutor. That said I think that I am entitled to take judicial notice of the heavy lists in the magistrate s courts. Ironically, it would seem to me, had the Magistrate dealt with the application on the 1 st December its determination may have resulted in one less case having to engage the Magistrate s attention in the future. At the end of the day however the only concern expressed by the Magistrate was to the seriousness of the charges. 28. In this regard it cannot be doubted that these were serious charges. Against this however must be weighed the position of the Prosecution. I am satisfied that the endorsements on the Informations revealed that neither the Complainant nor the prosecution file could be located. I am satisfied that on the facts before me this position had been made clear since the 9 th February 2011. It is clear that in the absence of the Complainant and the prosecution file the prosecutions could not get off the ground. 29. On the 1 st December the Magistrate would have been in a position to obtain confirmation of the facts relied on by the Applicant from either of two sources: the court record, found at the back of the Informations, and the Prosecutor. Both of which were available to her on that date. Indeed the reason given by the Magistrate was not that the confirmation of the factual Page 12 of 15
position was not available to her or that either she needed the opportunity to confirm the facts relied on by the Applicant but solely related to the seriousness of the charges. Further the Applicant's attorneys were prepared to provide the Magistrate with authorities in support of their submission on that date. In the circumstances it would seem to me that on the evidence before me there was no logical reason for the matter to be adjourned or for the application to be carried over to 4 th June for the production of legal authorities. 30. Had the Magistrate considered the facts she would have been satisfied that the Prosecutor was unable to proceed with the prosecutions because the Complainant was not present, had left the job and could not be found; he had no file and there had as yet been no disclosure of the prosecution material. Further she would have been satisfied that this had been the position since at least February 2011. In those circumstances, it would seem to me that had the necessary enquiries be made it would have been clear to the Magistrate that the prosecutions were doomed to fail. In my opinion on these particular facts it is not simply that a fair trial was no longer possible but it was that it was clear that no trial was possible. To my mind to continue the prosecution in these circumstances is not only unfair but is an improper use of the court s process. 31. Although not raised by the Magistrate the fact that this was the first time that the charges had come up before the Magistrate is in my opinion irrelevant. The charges were before her, all the relevant information was contained in the Informations which were before her and the submission was made and authorities in support proffered. At issue here was the validity of the Page 13 of 15
process: whether by continuing the prosecutions in these circumstances the Prosecution was guilty of unfairly manipulating the court s process. 32. To quote from Lord Blackburn in Metropolition Bank Ltd v Pooley 11 : the court had inherently in its power the right to see that its process was not to be abused by a proceeding without reasonable grounds so as to be vexatious and harassing- the court had the right to protect itself from such abuse;... In those circumstances despite the fact that the charges were serious ones the Magistrate had a duty to consider the application. The seriousness of the charges would have been only one factor in such a consideration. 33. In this regard, to adopt the words of Warner JA in Sinanan s case, the duty fell upon the Magistrate, and indeed each magistrate before whom the cases were listed, to manage the court and to take appropriate steps if the rules were being flagrantly ignored by either side. Merely stating that they were serious charges and that she would not dismiss them and then adjourn the charges for six months is in my opinion not the proper approach to the situation before her and the application by the Applicant s attorneys. There was a duty on the Magistrate to take the appropriate steps in the circumstances of a flagrant disregard of the rules by the prosecution and the unfair manipulation of the court s process. 34. In these circumstances I am satisfied that in arriving at the decision to continue the prosecution of the charges against the Applicant the Magistrate ought to have considered more 11 (1885) 10 App. Cas. 210 pages 220-221 Page 14 of 15
than the seriousness of the charges. In this regard the Magistrate ought to have also considered the facts as revealed on the Informations before her and whether the continuation of the prosecution in circumstances where it was doomed to fail amounted to an unfair manipulation of the court process by the Prosecutor resulting in an abuse of the process of the court. In the circumstances the decision of the Magistrate to continue the prosecutions despite the application by the Applicant to dismiss on the grounds that to continue the prosecutions was an abuse of the process was an illegal and an improper exercise of her discretion. 35. Accordingly I am of the opinion that a declaration that the refusal of the Magistrate on the 1 st December 2011 to dismiss or stay the continuation of the prosecutions of Information Nos. 171 and 172 of 2009 against the Applicant was unlawful will meet the justice of this case. Accordingly the Applicant is entitled to the said declaration; an order of certiorari quashing the said decision and an order staying the continuation of the said prosecutions. Dated this 6 th day of May, 2013. Judith Jones Judge Page 15 of 15