Thursday 3rd August 2006

 

CJ’s case dismissed

 
 
 
 
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Court of Appeal

Law Report

Mark James Morgan

Attorney-at-Law

Civil Appeals 91-93 of 2006

Deputy DPP, Assistant Commissioner of Police and Commissioner of Police v The Chief Justice

Before the Honourable Justices of Appeal; M Warner, I Archie and P Weekes JJA

Judgment delivered July 31, 2006

In March 2006, the Chief Magistrate complained that the CJ had attempted to influence him in his decision in the prosecution of former Prime Minister, Basdeo Panday under the Integrity In Public Life Act, 1987.

In May 2006, the AG sent a copy of the Chief Magistrate’s statement to the DPP and the Acting Commissioner of Police. The DPP passed the statement to the Deputy DPP with instructions to make her own independent decision in the matter while the CoP assigned the investigation to the ACP.

The Deputy DPP and ACP interacted with each other in their investigations. The Deputy DPP also interacted with the CJ’s attorneys, allowed him to make written representations and considered submissions made by his attorneys with respect to the obligation to disclose information.

On July 10, without notice to the Assistant DPP, the CJ applied for leave to begin Judicial Review against her decision to institute or to advise the police to institute criminal proceedings against him.

His main complaint was that the Prime Minister and/or the AG had unduly interfered in the prosecutorial process. Jones J granted the leave and ordered a stay of the decision—in effect preventing the Deputy DPP from acting on any decision to prosecute the CJ.

On July 13, without notice to him, the CJ applied to have the ACP joined in the judicial review proceedings.

On July 14 a warrant was issued for the CJ’s arrest which police attempted to serve at his home.

In response, on the CJ’s application without notice, Jones J joined the CoP and granted an injunction against the police force in essence preventing them from taking any steps to arrest the CJ on July 16 on a further application by the CJ without notice, Jones J made further orders against the CoP, the ACP and the police force.

On July 17, Jones J dismissed the Deputy DPP application to have the judicial review set aside on the ground that she had not instituted criminal proceedings against the CJ nor had she advised the police to do so.

On July 24, Jones J dismissed the applications of the CoP and ACP to have the injunctions against them discharged.

The deputy DPP, CoP and ACP appealed.

In a joint judgment, the Court of Appeal held as follows;

In the case of the Deputy DPP

1. It being common ground that there was no direct evidence in the form of any conversation or written directive passing between the PM or the AG and the Deputy DPP, the Court’s duty was to determine whether there was any evidence capable of giving rise to the inferences suggested by the CJ In doing so, though the Court was not to engage in a minute weighing and testing of the evidence to determine its veracity, it had to ensure that it rose to a certain minimum standard.

2. Where, as was the case here, the exercise of a discretion to prosecute was being challenged, a closer look is required than would be the case in an ordinary judicial review application and the discretion to grant leave to apply for judicial review of such a decision should be exercised sparingly.

3. No analysis having been given by Jones J as to why she gave leave, the Court of Appeal was entitled to undertake a fresh examination of the evidence to see if there was any material upon which she could reasonably have come to the conclusion that she did.

The Court of Appeal then identified the evidence that the CJ had relied upon as follows;

That in April 2006, the PM had told a retired judge that the CJ must go because he was attempting to influence the Chief Magistrate in the Panday case.

That on May 8 the AG had told the CJ that he had received statements that the CJ had interfered in the administration of justice and that this time they were not going to try to remove him using s.137 of the Constitution and that he should resign rather than face a criminal prosecution.

That on May 9 the PM had expressed sentiments to the CJ that were similar to those expressed the previous day by the AG.

That in a report by a judge there were hearsay details of a possible motive for the Chief Magistrate to make a false allegation against him as well as the means by which the PM and the AG could have exercised leverage over the Chief Magistrate.

Having considered the evidence, the Court concluded that in order for the Jones J to have given leave to apply for judicial review on the ground of political interference, there would have to be some evidence from which it could be inferred that there was some pressure coming “from the top down” but there was none.

In the case of the CoP and the ACP

The Court held that the case against the CoP and the ACP was even weaker as there was no evidence of any specific misconduct in the CoP’s decision to prosecute the CJ and no allegations of the ACP succumbing to political interference.

Public interest

The Court of Appeal noted Jones J’s concern that irreparable harm would have been caused to the CJ if his arrest were carried out, but expressed the view that it was difficult to see how any significant harm beyond that which had already been caused would have ensued since any damage to his reputation and career would have already occurred by the charge being laid and the accusations being in the public domain and bail having been set, he was likely to suffer only the briefest deprivation of liberty.

They therefore expressed the view that the Judge’s concern with respect to the irreparable harm should not have assumed overriding importance and that the maintenance of public confidence in the fair and impartial administration of justice required all persons, whatever their status to submit to judicial process.

The order of the Court of Appeal

Accordingly the Court of Appeal ordered that the leave granted against the Assistant DPP, the CoP and the ACP and all the consequential orders of Jones J be set aside.

The undertakings given to the Privy Council

The Court having been informed that certain undertakings had been given before the Privy Council in the event that they had made a finding that was adverse to the CJ, expressed concern that the jurisdiction of the Privy Council had been invoked while the Court was still seised of the case. They stated that it would have been more appropriate for any undertakings to have been sought and obtained before them and concluded;

“Attorneys have an obligation to promote and maintain public confidence in the administration of justice. The wrong signal is sent when attorneys do not appear to have the confidence that this Court, in the event that it does not rule in favour of a litigant, would do what is necessary to preserve his rights until the final determination of the matter.”Historical note: The suggestion by various commentators that this is the first time that a Trinidad and Tobago CJ has been investigated is inaccurate. In Law, Justice and Empire: The Colonial Career of John Gowrie, 1829-1892 –U.W.I. Press (1992) @ Chap.9 –“The storm that Burst: Trinidad 1889-92, Professor Brereton describes how Trinidad and Tobago’s CJ Sir John Gorrie’s populist reforms in the late 19th century led to the appointment of Judicial Enquiry Commission, the adverse findings of which led to him being asked to resign and then being interdicted from performing his duties when he refused.

 

 

 

 

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