THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Cv. #2010-04494 BETWEEN P.C. CURTIS APPLEWHITE Claimant AND THE POLICE SERVICE COMMISSION BASDEO MULCHAN LLOYD CROSBY Defendants BEFORE THE HONOURABLE MADAM JUSTICE M. DEAN-ARMORER APPEARANCES Mr. K. Sagar attorney-at-law for the Claimant. Mr. L. Lalla attorney-at-law for the Defendant. JUDGMENT Introduction 1. The claimant had been charged with discreditable conduct contrary to Regulation 163 (2) the Police Service Amendment Regulations 1990. In the course of hearing charges against him, the Standing Disciplinary Tribunal of the Police Service Commission overruled a no case submission which had been made on behalf of the claimant. In this application for judicial review, the claimant seeks orders of certiorari and mandamus in respect of that decision of a disciplinary tribunal. 2. In these proceedings, the Court considered whether there existed an alternative remedy and whether the application for judicial review should be dismissed as being premature. Page 1 of 13
Procedural History 1. By a Notice filed pursuant to Part 56 of Civil Proceedings Rules 1998 the claimant sought leave to apply for judicial review seeking the following orders: a. An Order of Certiorari against the first defendant and/or second and third defendants quashing the decision made by the Police Service Tribunal comprising of the second and third defendants and collectively acting on behalf of the first defendant on the 22 nd September, 2010 overruling the no-case submission in the matter of the Disciplinary charge against Curtis Applewhite P.C. No. 13220 for Discreditable Conduct contrary to Regulation 163 (2) of the Police Service (Amendment) Regulations 1990. b. An Order of Mandamus against the first defendant and/or the second and third defendant directing them to dismiss the Disciplinary Charge against Curtis Applewhite P.C. No. 13220 for Discreditable Conduct contrary to Regulation 163 (2) of the Police Service (Amendment) Regulations 1990. c. An Order that a Fixed Date Claim Form be issued. d. An Interim Order preventing the defendants or each of them from continuing the hearing of the disciplinary matter pending the determination of these proceedings. e. An Order that the Affidavit of Curtis Applewhite filed together with this Application be read and used in support of the Fixed Date Claim Form. f. Such further and or other reliefs. g. Costs. 2. The Court granted leave to apply for judicial review by an Order dated the 25 th November, 2010 and the claimant filed his Fixed Date Claim form and his supporting affidavit on 28 th January, 2011. Page 2 of 13
3. On 31 st May, 2011, Basdeo Mulchan, Chairman of the Standing Disciplinary Tribunal of the Police Service Commission swore an affidavit in opposition to this claim. The affidavit of Mr. Mulchan was filed herein on 31 st May, 2013 and was the sole affidavit filed on behalf of the defendants. 4. The claimant Curtis Applewhite swore an affidavit in reply on 30 th June, 2011. This affidavit was filed on the same date. 5. Parties relied entirely on written submissions filed by the claimant and the defendant on the 6 th October, 2011 and the 15 th November, 2011 respectively. Further submissions were filed on behalf of the claimant on 31 st January, 2012. Facts 1. The claimant, Curtis Applewhite was at all material times a police constable of the Trinidad and Tobago Police Force regimental number 1322. The first defendant is the Police Service Commission. The second defendant is the Chairman of the Standing Disciplinary Tribunal of the Police Service Commission, and third defendant sits on the Standing Disciplinary Tribunal. 2. By letter dated 7 th March, 2008, the claimant was informed that the following disciplinary charge had been brought against him: Discreditable conduct contrary to Regulation 163 (2) of the Police Service (Amendment) Regulations, 1990. 3. The claimant received notice of the disciplinary charge by way of a letter dated 7 th March, 2008 from the Service Commissions Department. The letter contained a statement of the Particulars of Charge, which in effect alleged that on Saturday 19 th March, 2005, P.C. Applewhite acted in a disorderly manner prejudicial to discipline when he sexually assaulted W.P.C. Andrews regimental number 4811. 4. Hearing of the disciplinary charge began on 5 th August, 2009 before the Standing Disciplinary Tribunal of the Police Service Commission and continued until September, Page 3 of 13
2010, when the Tribunal overruled the claimant s no case submission and the claimant instituted these proceedings for judicial review. Between August, 2005 and September, 2010 the hearing of the disciplinary charge had been adjourned several times for several different reasons. On the 5 th of August 2009 the prosecution led evidence of one Corporal Nagassar and W.P.C. Harriett Andrews. Hearing was adjourned to 12 th August, 2009. 5. On the 12 th of August 2009, owing to the absence of Mr. Cloyd Crosby, one of the members of the Standing Disciplinary Tribunal, the Tribunal comprised two members only, that is to say Mr. Mulchan and Mrs.Alaka Atiba. W.P.C. Andrews was not crossexamined and hearing of the disciplinary charge was adjourned to the 7 th of September 2009. On 7 th September, 2009, Mr. Sagar, learned attorney for the claimant presented a written submission to the Tribunal. The submission of Mr. Sagar was forwarded to the Police Service Commission for their decision as to whether the cross-examination of W.P.C. Andrews should be reserved in order to facilitate further research into charges against the claimant. 6. Thereafter the matter was adjourned a number of times pending a decision by the Police Service Commission. 7. On the 8 th of February, 2010, the Tribunal received the decision of the Police Service Commission. The Commission advised that the Tribunal should proceed with the matter to completion. 8. On the 14 th of April, 2010, Mr. Sagar, representing P.C. Applewhite began crossexamination of W.P.C. Andrews before the Tribunal. On this occasion all three members of the Tribunal were present that is to say: Mr. Crosby, Mrs. Atiba and Mr. Mulchan. 9. On the 12 th of May when the tribunal reconvened they received information that W.P.C. Andrews was hospitalised. Hearing was adjourned to 2 nd June, 2010. 10. On the 2 nd of June 2010, the Tribunal comprised of Mr. Crosby, and Mr. Mulchan, Mrs. Atiba being absent. W.P.C. Andrews did not appear and the prosecution proceeded to lead evidence from the Investigating Officer Jimmy Marcano. Mr. Marcano was then Page 4 of 13
cross examined by learned Counsel for P.C. Applewhite. Hearing was adjourned to 28 th June, 2010. 11. On the 28 th of June 2010, Mr. Sagar learned attorney-at-law for P.C. Applewhite made a submission to the effect that Mrs. Atiba s presence was prejudicial to the principle of natural justice since she had been absent during several hearings. This submission was forwarded for the decision of the Police Service Commission. 12. The Tribunal reconvened on 28 th July, 2010. On this occasion the tribunal consisted of Mr. Crosby and Mr. Mulchan. Mr. Sagar learned counsel for P.C. Applewhite was absent. The Tribunal indicated that the Police Service Commission had upheld Mr. Sagar s submission. 13. On the 2 nd of September 2010, when the Tribunal reconvened, the prosecution sought an adjournment on the ground that W.P.C. Andrews was still interested in the matter but could not attend the hearing because her son had contracted dengue and had to be monitored at home. Mr. Sagar strongly objected on behalf of the claimant to the application for the adjournment. The application for the adjournment was refused. The prosecution closed its case. Mr. Sagar then made a no case submission and the prosecution responded. The matter was adjourned to the 22 nd of September 2010. 14. On the 22 nd of September 2010, the Tribunal overruled the no case submission and P.C. Applewhite was called upon to make his defence. Mr. Sagar, on behalf of the claimant applied for an adjournment to file an application for Judicial Review. The matter was adjourned to 1 st November, 2010. 15. Since that date the hearing of the disciplinary charge has been adjourned on a number of occasions but has not yet been resolved. Issues The following issues arise for the Court s consideration: i. Whether the claimant s application for judicial review is premature. Page 5 of 13
ii. If the issue at (i) is answered in the negative, whether the tribunal made a substantial error in law leading to demonstrable injustice in overruling the no case submission made on behalf of P.C. Applewhite, in light of the fact that his attorney was not afforded an opportunity to complete the cross examination of the main witness. Law Prematurity 16. On the issue of prematurity in applications for judicial review, the learned authors of, Lewis Judicial Remedies in Public Law (3 rd 2004 ed) 1 wrote at paragraph 11-013: English Law is beginning to develop a concept of prematurity. There are numerous dicta indicating that premature challenges should not normally be allowed, although the courts have often found exceptional reasons why an otherwise premature application should be allowed. The courts have primarily dealt with the concept of premature challenges in the context of attempts to seek judicial review of interlocutory decisions, particularly ones concerning the disclosure or use of evidence or other procedural matters, made during a decisionmaking process. The courts have indicated that it is only in exceptional circumstances that the court will grant judicial review of a decision taken during the course of a hearing before that hearing has been concluded. 17. The issue of prematurity was extensively considered by the Alberta Court of Queens Bench in Montgomery v Edmonton Police Service et al 2. In Montgomery, the applicant Detective Montgomery filed an application for judicial review in respect of pending disciplinary proceedings. Sullivan J. had this to say at paragraph 18 of his decision: 1 Lewis Judicial Remedies in Public Law (3 rd ed. 2004). 2 Montgomery V Edmonton Police Service et al 1999 A.R. Lexis 1427. Page 6 of 13
The issue of whether judicial review should be permitted prior to the conclusion of an administrative hearing has been the subject of much discussion in the common law. Although the courts have a broad discretion to grant prerogative remedies such as prohibition, they have traditionally been reluctant to exercise this discretion if to do so would interfere with the administrative proceedings. At paragraph 21 of his judgment, Justice Sullivan compared the Courts approach in judicial review to the practice adopted by appellate courts: This approach is closely related to the practice in the judicial system which discourages an appellate court from hearing matters which arise during trial, after the trial has started. Rather than having piecemeal appeals on issues as they arise, the trial is allowed to run its course, and contested issues which arise during the trial are dealt with all at once at the appeal. That this principle applies to the administrative law context was confirmed by Veir J. In Stirrat Laboratories Ltd. V. Health Sciences Assn. (Alberta) (1996, 1 Admin. L.R. (3d) 200 (Alta. Q.B.). 3 Justice Sullivan continued at paragraph [22]: While the dominant view is that the court should decline to intervene in an administrative proceedings on interim or interlocutory matters, the courts have exercised their discretion to intervene in an administrative proceedings in exceptional circumstances, for instance, where judicial review is the only remedy available in the circumstances. 4 3 Ibid at paragraph 21. 4 Ibid at paragraph 22. Page 7 of 13
Alternative of appeal to the Public Service Appeal Board 18. Section 6 of the Constitution Amendment Act 2006 provides: The Constitution is amended by repealing section 123 and substituting the following:... (10) Notwithstanding section 132, no appeal shall lie to the Public service Appeal Board in respect of a decision made by the Police Service Commission under this section. 19. Mohammed v the Police Service Commission, and the Public Service Appeal Board 5 was a judgment of Boodoosingh J. on an application for judicial review. The Police Service Commission (the Commission) purported to dismiss the claimant Abzal Mohammed by a letter dated 6 th August, 2008. On 13 th April, 2006, Parliament had passed the Constitution (Amendment) Act 2006. In the dismissal letter, the claimant was told that he did not have a right to appeal to the Public Service Board, since the latter was of the view that it had no jurisdiction to hear an appeal from the Commission following the enactment of the Constitution Amendment Act 2006. Boodoosingh, J considered whether the Public Service Appeal Board was invested with jurisdiction to hear appeals from the decision of the Commission. The learned Judge concluded: The Public service Appeal Board had no jurisdiction to hear an appeal from his dismissal and they correctly declined to do so 6. Judicial Review of Magisterial Decision to Committals 24. Reynold Makhan v Sherman Mc Nicolls 7, was an application for judicial review of the decision of the respondent/magistrate to overrule a no case submission made on behalf of the applicant and to commit him to stand trial for the larceny of $1,635,840.00 being the property of the North West Regional Health Authority (NWRHA). The magistrate found 5 Abzal Mohammed v Police Service Commission and the Public Service Appeal Board Cv. 2008/04646. 6 Abzal Mohammed v Police Service Commission and the Public Service Appeal Board Cv. 2008/04646 at page 15 of 15. 7 In the matter of an application by Reynold Makhan for leave to apply for judicial Review HCA 562/2003. Page 8 of 13
that a prima facie case had been made out against the applicant, and committed him to stand trial. Counsel for the applicant submitted inter alia that there was no evidence before the respondent to support the charge of misbehaviour in public officer. Narine J. (as he then was) held: [T]he Respondent committed an error of law in finding that a prima facie case of the offence of misbehaviour in public office had been made out against the applicant, when the evidence did not disclose an essential element of the offence. 8 24. More recently, the House of Lords examined the circumstances in which the Divisional Court could quash an order for committal. Williams v Bedwellty Justices 9 was a decision of the House of Lords, in which their Lordships considered the jurisdiction of the Divisional Court to quash committal proceedings. The appellant had been charged with perverting the course of justice. The Magistrate committed the appellant to stand trial on the basis of inadmissible evidence. Their Lordships allowed the appeal, holding that the committal was fatally flawed by the reception of inadmissible hearsay evidence. 25. Lord Cooke of Thornton delivered a judgment, with which the other four Law Lords agreed. In the course of his decision Lord Cooke had this to say: The authorities now establish that the Queen s Bench Division of the High Court has normally in judicial review proceedings jurisdiction to quash a decision of an inferior court, tribunal or other statutory body for error of law, even though the error is neither apparent on the face of the record nor so serious as to deprive the body of jurisdiction in the original and narrow sense of power to enter on the inquiry and to make against persons subject to its jurisdiction the kind of decision in question. 10 27. Lord Cooke in Williams v Bedwellty Justices 11 approached the question in this manner: 8 Cv. 562 of 2003 Reynold Ma Khan v Sherman Mc Nicolls page 27 of 29. 9 [1996] 3AllER 737 10 Williams v Bedwellty Justices [1996] 3 All ER 737 at page 742-3 11 Ibid Page 9 of 13
My Lords, in my respectful opinion it would be both illogical and unsatisfactory to hold that the law of judicial review should distinguish in principle between a committal based solely on inadmissible evidence and a committal based solely on evidence not reasonably capable of supporting it. In each case there is in truth no evidence to support the committal and the committal is therefore open to quashing on judicial review. 12 Role of the Disciplinary Tribunal 28. The disciplinary tribunal is provided for at Regulation 89 of the Police Service Commission Regulations Ch. 1:01 13. By regulation 96, the Tribunal is charged with the obligation of reporting its finding of fact to the Police Service Commission. By Regulation 98 the Tribunal is also required report to the Commission when it is of the view that the evidence is insufficient. 29. The issue of punishment and penalties to be imposed prior to 2006, fell to the Police Service Commission. By the Constitution Amendment Act 2006, disciplinary control of officers below the rank of Deputy Commissioner of Police now falls to the Commissioner of Police. The structure of the Regulations however appear to remain in the same 14. Reasoning and Decision 1. The claimant seeks to set aside, by way of judicial review, a decision of a standing Disciplinary Tribunal of the Police Service Commission to overrule his no case submission and to call upon him to present his defence. 2. Learned attorneys-at-law for the defendants have argued that the Court ought to exercise its discretion to dismiss the application for judicial review on the ground that it is premature. 12 Ibid at p. 746j 747a 13 Police Service Commission Regulations (updated to 2011). 14 See the Constitution Amendment Act 2006 at section 6. Page 10 of 13
3. Learned attorneys-at-law for the defendants have argued further that even if the disciplinary tribunal makes a finding against the claimant, it remains open to the Police Service Commission nonetheless to dismiss the complaint against the claimant and that even if the Police Service Commission sees it fit to impose a penalty, the claimant would have at his disposal an adequate alternative remedy by way of an appeal to the Public Service Appeal Board. 4. Before considering the issue of prematurity, it is necessary in my view to address the possibility of an adequate alternative remedy by way of appeal to the Public Service Appeal Board. In my view, the possibility of an appeal to the Public Services Appeal Board does not arise on these facts. Prior to 2006, an aggrieved police officer was entitled to appeal to the Public Service Appeal Board from a decision of the Police Service Commission. There was no corresponding right of appeal from a finding of a disciplinary tribunal. It was therefore never possible for an aggrieved officer to appeal to the Public Service Appeal Board from a decision of a disciplinary Tribunal. Since the year 2006 however, with the enactment of the Constitution Amendment Act 2006 it is no longer possible to lodge an appeal even in respect of a decision of the Police Service Commission. See the decision of the Honourable Justice Boodoosingh in Cv. 2008/04646 Mohammed v Police Service Commission 15. Accordingly it is my view that there is no possibility of appeal to the Public Service Appeal Board. 5. I therefore turn to consider whether in the face of the unavailability of access to the Public Service Appeal Board, the application is nonetheless premature. 6. Learned Attorneys-at-law for the Defendants have provided authority to support their contention that as a general rule, the Court will not hear a premature application except in exceptional circumstances. As a general rule an application in respect of a decision made in the course of a hearing will be regarded as premature. 7. Learned Counsel for the defendants relied on the Canadian Case of Montgomery v Edmonton Police Service 1999 A.R. Lexis 1427. Full Reference is made thereto earlier in this decision. In that case, as in these proceedings, the claimant had been facing 15 Mohammed v Police Service Commission Cv. 2008/4646. Page 11 of 13
disciplinary charges for discreditable conduct. Detective Montgomery had filed an application for judicial review claiming that the disciplinary tribunal in question was biased. 8. In Montgomery, Sullivan J observed at paragraph 22: While the dominant view is that the court should decline to intervene in administrative proceedings on interim or interlocutory matters the courts have exercised their discretion to intervene in an administrative proceedings in exceptional circumstances for instance where judicial review is the only remedy available... 9. I therefore proceeded to consider whether any exceptional circumstances arise in these proceedings which will require the Court to depart from the general rule that the Court should be reluctant to intervene in the course of administrative proceedings. 10. Learned Counsel for the claimant has relied on cases concerning judicial review of committal orders. In my view the instant case is distinguishable from cases such as Makhan v Mc Nicolls 16, where the Court exercised its discretion to quash the order of committal. In the latter type cases, judicial review proceedings were brought after the Magistrate had made a decision to commit. 11. By contrast in the matter before me, the tribunal has not made a finding of fact and has only ordered that the defence present its case. According to the facts of this case, it would be open to the claimant either to proceed with the fact finding exercise to completion or to seek an order that the virtual complainant be recalled for crossexamination. 12. It is clear from the record however that the claimant has not even attempted to seek an order that W.P.C. Andrews be recalled for further cross-examination, or even attempted to submit that the value of her testimony is negated by her failure to show for crossexamination. 16 Makhan v Mc Nicolls H.C.A. #562 of 2003. Page 12 of 13
13. Moreover, even if there were a finding by the disciplinary tribunal as to the guilt of the claimant, the issue of punishment is determined not by the tribunal but by the Police Service Commission 17. 14. It would still open to the Police Service Commission to decide against the imposition of punishment. Should proceedings be determined against the Applicant he may at that stage probably seek judicial review. 15. In my view, there are no exceptional circumstances in this case. In my view the application for judicial review is premature and ought to be and is hereby dismissed. 16. My finding on the issue of prematurity renders it unnecessary to consider the other issues identified supra. I will therefore not express any views on those issues. Dated this 1 st day of July, 2013. M. Dean-Armorer Judge 18 17 Following the Constitutional Amendment Act 2006 the issue of punishment now is determined by the Commissioner of Police. 18 Judicial Research Assistant Ms. Jendy Jean. Judicial Secretary Mrs. Irma Rampersad. Page 13 of 13