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Trinidad and Tobago High Court |
] [Hide Context] IN THE HIGH COURT OF JUSTICE
SUB REGISTRY SAN FERNANDO
HCA No. S-395 of 2001
IN THE MATTER OF THE CONSTITUTION
OF THE REPUBLIC OF TRINIDAD AND TOBAGO
AND
IN THE MATTER OF AN APPLICATION BY
DHANRAJ SINGH FOR REDRESS PURSUANT TO
SECTION 14 OF THE SAID CONSTITUTION
OF TRINIDAD AND TOBAGO FOR CONTRAVENTIONS
OF SECTIONS 4(a), 4(c) OF THE SAID CONSTITUTION
TO THE APPLICANT
DHANRAJ SINGH
THE ATTORNEY GENERAL OF
TRINIDAD AND TOBAGO
THE DIRECTOR OF PUBLIC PROSECUTIONS
IN THE HIGH COURT OF JUSTICE
SUB REGISTRY SAN FERNANDO
No. S-475 of 2001
IN THE MATTER OF THE CONSTITUTION
OF THE REPUBLIC OF TRINIDAD AND TOBAGO
AND
IN THE MATTER OF AN APPLICATION BY
DHANRAJ SINGH FOR REDRESS PURSUANT
TO SECTION 14 OF THE SAID CONSTITUTION
OF TRINIDAD AND TOBAGO FOR CONTRAVENTIONS
OF SECTIONS 4(a) and 4(b) OF THE SAID CONSTITUTION
OF TRINIDAD AND TOBAGO FOR CONTRAVENTIONS
OF SECTIONS 4(a) and 4(b) OF THE SAID CONSTITUTION
IN RELATION OF THE APPLICANT
DHANRAJ SINGH
THE ATTORNEY GENERAL OF
TRINIDAD AND TOBAGO
THE DIRECTOR OF PUBLIC PROSECUTIONS
Before the Hon. Justice Nolan Bereaux
Appearances:
A.Newman Q.C., S. Persad, P. Ramadhar,
S. Gopaul Gosine and R. Rajcoomar for the Applicant
G Strachan Q C, B Busby and A Darmanie for 1 st Respondent
Mr Small, R Armour and D Mendes for 2nd Respondent
On 17 th January 2001, the Applicant, Mr Dhanraj Singh, a former Minister of Local Government was charged with twenty-seven offences under sections three and nine of the Prevention of Corruption Act No. 11 of 1987. By the twenty-seven informations laid against him, Mr Singh is charged with either corruptly soliciting or corruptly receiving, while being the Minister of Local Government, various sums of money from Karamchand Rampersad, as an inducement or reward to ensure that Mr Rampersad, a contractor who had supplied certain goods and services to the Government of Trinidad and Tobago, was paid by the Government of Trinidad and Tobago for the goods and services supplied.
A little over one month later, on 19 th February, 2001, Mr Singh was charged with murdering one Hansraj Sumairsingh who was shot and killed on December 31, 1999. In both cases the charges were laid at the direction of Mark Mohammed, the Director of Public Prosecutions after he reviewed, inter alia, statements from accomplices to the crimes. In case of the corruption charges, the Director had considered a statutory declaration made by Karamchand Rampersad. With respect to the murder charge, the Director considered a statement from one Elliott Hypolite which had been recorded under caution.
Mr Hypolite also had been charged for the murder of Mr Sumairsingh. That charge was formally discontinued by the Director who also granted to Mr Hypolite, immunity from prosecution subject to four conditions. In granting the immunity from prosecution the Director purported to act pursuant to his powers under section 90 of the Constitution of the Republic of Trinidad and Tobago “and all the powers in that behalf enabling.”
The formal grant expressly provides that the immunity may be withdrawn in the event of a deliberate breach of any of the four conditions.
In the case of the corruption charges against Mr Singh, no immunity has been granted to Mr Karamchanad Rampersad but the Director has expressed, by affidavit, his intention to grant one.
By these two constitutional motions Mr Singh (“the Applicant”) has challenged the power of the Director to grant immunity to Mr Hypolite and Mr Rampersad. That is the common ground between them which has caused me to hear both actions simultaneously. There are, however, areas of divergence.
The murder motion
HCA No. 395 of 2001, (“the murder motion”) was filed on 27 th March, 2001. The Applicant now seeks two declarations, in the following terms:
(1) that his right to liberty and security of person and the right not to be deprived thereof except by due process of law and his right to the protection of the law guaranteed to him by section 4(a) and (b) are being or likely to be contravened by the Director’s decision on 22 nd February, 2001 to grant immunity from prosecution to Elliott Hypolite subject to the condition that he testify against the Applicant.
(2) a declaration that his right to liberty and security of the person and the right not to be deprived thereof except by due process of law; his right to the protection of the law and his right to respect for his private and family life, guaranteed to him, by sections 4(a), 4(b) and 4(c) of the Constitution of Trinidad and Tobago are being or likely to be contravened by the actions of police officers under the control of the Commissioner of Police in procuring the Applicant’s arrest and prosecution upon the charge of murdering Hansraj Sumairsingh, when their true purpose for the same was, by means of such proceedings, to place improper pressure upon the Applicant to implicate Government ministers in the commission of serious crimes by assuring the Applicant that if the Applicant co-operated, the police officers would ensure that the charge was dropped.
(3) a stay of the murder proceedings.
(4) such further or other relief as may be appropriate.
A third declaration relating to the disclosure of unused material in the Prosecution’s possession was not pursued.
The first declaration sought is set out in paragraph one of the notice of motion. Except for its reference to Eliott Hypolite, it is identical to the declaration sought in HCA No. 475 of 2001 (“the corruption motion”) at paragraph 3.
The grounds of the murder motion are:
(1) that upon a proper interpretation of section 90 of the Constitution, the Director of Public Prosecutions does not have the power to grant a witness immunity from prosecution (whether conditional or otherwise). At any stage prior to judgment he may discontinue criminal proceedings against any person, but such discontinuance does not operate as a bar to future prosecution.
(2) that the powers of the Director of Public Prosecutions under section 90 of the Constitution are subject to section 76(2) of the Constitution. Under section 76(2) the Attorney General is vested with responsibility for the administration of legal affairs in Trinidad and Tobago. A decision to grant immunity to a self-confessed accomplice to murder raises a serious issue of policy and requires that such decision be referred to, and taken by the Attorney General. Before any decision to grant immunity is taken by the Attorney General, he has a duty to acquaint himself with all relevant material. A failure to do so would amount to a dereliction of his responsibility for the administration of legal affairs in Trinidad and Tobago.
(3) that under section 87 of the Constitution the President is vested with power to grant a pardon, which he may exercise conditionally: Attorney General for Trinidad and Tobago v Lennox Phillip [1995] 1 AC 396. In the absence of a parallel power to grant an immunity from prosecution being expressly granted to the Director of Public Prosecutions by the Constitution, no such power vests in him.
(4) that it will always amount to an infringement of a Defendant’s rights under sections 4(a) and/or 4(b) of the Constitution to seek to secure his conviction on the evidence of an accomplice who has been granted a conditional immunity, where one of the conditions is that such immunity may be withdrawn if the accomplice fails to testify. This is particularly the case where the penalty upon conviction is capital punishment: R v Turner [1975] 61 Cr App R 67.
(5) The circumstances set out in the affidavits of the Applicant and in the affidavits of Sheila Roopnarine Singh, Indira Roopnarine Singh and Leela Singh indicate that the arrest of the Applicant was effected for an ulterior motive, namely to secure charges against former fellow Ministers of the Government of which the Applicant had been a member. The circumstances alleged amount to a flagrant abuse of process by the police officers involved. Such abuse of process amounts to a clear contravention of the Applicant’s right not to be deprived of his liberty except by due process of law, to the protection of the law, and to respect for his family life contrary to sections 4(a), 4(b) and 4(c) of the Constitution. In such circumstances, the rule of law is challenged, and it would be appropriate for the court to maintain the rule of law by staying the prosecution of the charge against the Applicant: R v Horseferry Road Magistrates Court ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42; R v Mullen [2009] EWCA Crim 483; [1999] 2 Cr App R 143; R v Beckford [1996] 1 Cr App R 94.
Ground six of the motion is no longer in issue, the relevant disclosures having been agreed during the course of trial. A stay of the preliminary enquiry into the murder charge was granted by Ventour J by way of a consent order on or about 4 th April, 2001.
Six affidavits were filed on behalf of the Applicant. In chronological order they are:
(1) Affidavit of Dhanraj Singh filed on 27 th March, 2001.
(2) Affidavit of Sunil Gopaul Gosine filed on 27 th March, 2001.
(3) Affidavit of Sheila Roopnarine Singh filed on 27 th March, 2001.
(4) Affidavit of Leela Singh filed on 27 th March, 2001.
(5) Affidavit of Indira Roopnarine Singh filed on 27 th March, 2001.
(6) A supplemental affidavit of Sunil Gopaul Gosine filed on 28 th March, 2001 attaching the notes of instructing attorney attending proceedings in the preliminary inquiry into the charges of murder of Mr Sumairsingh
In reply, six affidavits were filed on behalf of the Director. They are:
(1) Affidavit of Mark Mohammed, Director of Public Prosecutions, filed on 28 th May, 2001.
(2) James Philbert, Senior Superintendent of Police in charge of Homicide Bureau, filed on 5 th June, 2001.
(3) Affidavit of Mark Hernandez, Special Reserve Police Officer, filed on 5 th June, 2001.
(4) Affidavit of Larry Telesford, Police Officer, filed on 5 th June, 2001.
(5) Affidavit of Wayne Gilbert, Police Officer, filed on 5 th June, 2001.
(6) Affidavit of Suzette Martin, Police Officer, filed on 5 th June, 2001.
Five affidavits were filed in answer on behalf of the Applicant.
(1) A supplemental affidavit of Dhanraj Singh, filed on 29 th June, 2001.
(2) A supplemental affidavit of Sheila Roopnarine Singh, filed on 29 th June, 2001.
(3) A supplemental affidavit of Leela Singh, filed on 29 th June, 2001.
(4) A supplemental affidavit of Indira Roopnarine Singh, filed on 10 th July, 2001.
(5) An affidavit of Darryl Ali, filed on 10 th July, 2001.
With the exception of the Darryl Ali affidavit, they all take issue with matters raised in all of the affidavits filed on behalf of the Director except that of the Director himself.
The affidavit of Darryl Ali takes specific issue with the facts raised in paragraph 57 of the affidavit of Mark Hernandez.
There were two further affidavits filed by Sheila Roopnarine Singh and Leela Singh respectively on 13 th July, 2001 which corrected certain omissions and typographical errors made in their principal affidavits of 27 th March, 2001.
The corruption motion
The corruption motion was filed on 11 th April, 2001. The Applicant seeks the following declarations:
(i) A declaration that the right of the Applicant to liberty and security of person and the right not to be deprived thereof except by due process of law and the right of the Applicant to the protection of the law guaranteed to him by sections 4(a) and 4(b) of the Constitution of Trinidad and Tobago have been, are being, or are likely to be contravened in relation to him by virtue of the fact that he has been charged with some twenty-seven offences of corruption contrary to the provisions of the Prevention of the Corruption Act No. 11 of 1987. The said Act contravenes the Constitution of Trinidad and Tobago and is null and void.
(ii) A declaration that the right of the Applicant to liberty and security of person and the right not to be deprived thereof except by due process of law and the right of the Applicant to the Protection of the law guaranteed to him by section 4(a) and 4(b) of the Constitution of Trinidad and Tobago have been, are being or are likely to be contravened in relation to him by the purported decision of the Director of Public Prosecutions to grant immunity from prosecution for corruption to Karamchand Rampersad subject to the condition ( inter alia ) that he testified against the Applicant.
(iii) A declaration that the right of the Applicant to liberty and security of person and the right not to be deprived thereof except by due process of law and the right of the Applicant to the protection of the law guaranteed to him by sections 4(a) and 4(b) of the Constitution of Trinidad and Tobago have been, are being or are likely to be contravened in relation to him in that the consents purportedly given by the Director of Public Prosecutions to the institution of the proceedings for the twenty-seven charges of corruption against the Applicant were null and void and of no effect.
The declaration sought at item (ii) above (para. 3 of the corruption motion) is identical to that sought at para. 1 of the murder motion except for respective references to Karamchand Rampersad and Elliott Hypolite and the grounds upon which it is based (grounds seven to ten) are identical to grounds one to four of the Murder Motion. Grounds 5 and 6 of the corruption motion are no longer relevant. The other grounds upon which the corruption motion is based are:
(1) The Prevention of Corruption Act No. 11 of 1987 (“the Act”) under the provisions of which the Applicant has been charged, is inconsistent with sections 4 and 5 of the Constitution: the Act so states in its preamble.
(2) In order for the Act to have legislative validity it must have been passed by both Houses of Parliament in accordance with the provisions of section 13(2) of the Constitution of Trinidad and Tobago.
(3) The Act was not passed in accordance with section 13(2) of the Constitution of Trinidad and Tobago in that final vote on the Act in the House of Representatives occurred on 24 th April, 1987, when certain Senate amendments were finally agreed by the House of Representatives. On that occasion no formal record was kept by the House of Representatives as to the precise votes cast, and no certification has been provided by the Clerk of the House of Representatives, as to compliance on that occasion with the requirements of section 13(2) of the Constitution of Trinidad and Tobago.
(4) On 2 nd January, 2001 the Director of Public Prosecutions, pursuant to his powers under section 11 of the Prevention of Corruption Act No. 11 of 1987, gave his separate consents to each of the twenty-seven informations laid against the Applicant alleging corruption offences.
(5) Before giving his consent to any charge, the Director of Public Prosecutions is obliged to look closely at the facts and circumstances of such charge, and has to exercise his powers in a manner which is not procedurally improper or Wednesbury unreasonable: re – Application of Shastri Moonan (unreported) (Civil Appeal No. 132 of 1988) (Court of Appeal Judgment 19 th Jul, 1991) . This will include the need to take into account all relevant considerations and not to take into account irrelevant considerations.
(6) Upon a comparison of the information which the Director of Public Prosecutions placed before the Honourable Mr Justice Baird on 19 th October, 2000 for the purpose of obtaining a search warrant (namely, the affidavit of Karamchand Rampersad dated 19 th October, 2000 and the affidavit of Superintendent Wellington Virgil dated 19 th October, 2000) with the wording of twenty-seven charges:
(i) the sums of money allegedly corruptly received by the Applicant on or between various dates set out in the charges do not match up with the evidence sworn to by Karamchand Rampersad.
(ii) the charges confuse Karamchand Rampersad personally, with companies with which he is connected, namely Oilfield and Marine Sales and Services Limited, Petromar Limited and Hardware Tree Limited.
(iii) there appear to be overlaps and duplications between some of the charges.
(iv) in a number of instances, the charges allege a time period during which the offence is said to have occurred which is too extended to make it possible for the Applicant fairly to defend the charge.
(v) in one instance, there appears to be an allegation of an offence contrary to section 9(1) of the Act which does not create any offence.
(7) In such circumstances, the consent of the Director of Public Prosecutions is null and void, and the Applicant has been deprived of the safeguards which section 11 Prevention of Corruption Act
Affidavits in support
Two affidavits were filed in support of the motion.
(1) The affidavit of Dhanraj Singh filed on 11 th April, 2001 by which he exhibits the twenty-seven charges preferred against him, as well as the affidavits of Wellington Virgil and Karamchand Rampersad sworn in support of an application by the Director under section 9 of the Prevention of Corruption Act (“the Act”) by which the Director sought disclosure of the contents of certain bank accounts of the Applicant and other documents.
(2) The affidavit of Sunil Gopaul Gosine filed on 11 th April 2001.
The Applicant complained of a lack of disclosure of certain relevant matters including the grant of immunity to Karamchand Rampersad. The disclosure issues were resolved during the hearing and the Director in his affidavit in reply indicates his intention to grant immunity to Karamchand Rampersad. Mr Rampersad in his affidavit sets out in detail his allegations of corruption against Mr Singh.
In response to the motion an affidavit was filed on behalf of the Director and two were filed on behalf of the Attorney General:
(i) the affidavit of Mark Mohammed filed on 5 th June, 2001 filed on his own behalf.
(ii) the affidavit of Christophe Grant dated and filed 6 th June, 2001 appending the relevant extract of the official report of Hansard dealing with the passage of the Act and with the agreement of the House of Representatives to certain amendments made in the Senate on 24 th April, 1987.
(iii) the affidavit of Jacqueline Sampson, Clerk of the House of Representatives, filed on 20 th July, 2001 deposing to the procedure adopted by the House relative to the passage of legislation and appending copies of certain standing orders and the certificate of the Clerk of the House, issued in respect of the Act, pursuant to section 6 of the Statutes Act, Chap. 302. Also exhibited to her affidavit were certificates of other Acts passed in similar circumstances.
An affidavit in answer was filed by Mr Gopaul Gosine on 24 th July, 2001.
A stay of the preliminary enquiry into the corruption charges was granted by Ventour J on or about 23 rd April, 2001 also by consent.
The Director was added as a respondent to both proceedings without objection or consent by the Applicant or the first Respondent.
Mr Strachan at the outset took the preliminary objection that none of the issues raised any question as to the breach of the Applicant’s rights under sections 4 & 5. Mr Small on behalf of the Director did not join in the objection. He submitted that ex abundante cautela, the better approach would be for me to hear the entire motion and address all the issues raised in my judgment. That approach is in keeping with the practice which has been adopted for some time in our courts but which, in terms the use of judicial time, is becoming increasingly difficult to justify. Nevertheless, that is the approach I chose to adopt in this case. It will be seen from the conclusions to which I come with regard to the preliminary issue, that I consider the question of the legislative validity of the Act to be the only issue which touches on the Applicant’s rights under section 4 and 5. However I shall proceed to address the other issues raised in the motion in the event that I have come to a wrong conclusion on the preliminary question, since this allows for a full ventilation of the issues and saves costs.
I shall deal with the issues raised in the motions in the following order:
(1) Whether the declarations sought raise constitutional issues.
(2) Whether the charge of murder is an abuse of process.
(3) Does the Director of Public Prosecutions have power to grant immunity under section 90 of the Constitution?
(4) The legality of the Director of Public Prosecutions consent to the bringing of the twenty corruption charges against the Applicant.
(5) Does the Prevention of Corruption Act have legislative validity?
Whether constitutional issues raised
The Applicant alleges that his right under sections 4(a) and 4(b) i.e. his right to liberty and the right not to be deprived thereof except by due process of law and, his right to the protection of the law, are being or are likely to be contravened because his arrest and prosecution on the murder charge are an abuse of process having been procured by the police officers with the ulterior motive of implicating Government ministers in the commission of crime and of ultimately bringing down the Government of Trinidad and Tobago.
He alleges that those same rights will also be contravened by the purported decision of the Director to grant immunity from prosecution to Messrs Hypolite and Rampersad (“the accomplices”)subject to the condition that they testify against the Applicant because:
(i) the Director has no express constitutional power to grant immunity whether conditional or otherwise.
(ii) a decision to grant immunity must be taken by the Attorney General pursuant to section 76(2) of the Constitution.
(iii) the grant of a conditional immunity where one of the conditions is that the immunity will be withdrawn if the accomplice fails to testify will always amount to an infringement of those rights.
With specific reference to the corruption motion, the Applicant contends that his rights under sections 4(a) and (b) are likely to be contravened because:
(i) the Act is inconsistent with sections 4 and 5 of the Constitution and does not have legislative validity it not having been passed in accordance with section 13(2) of the Constitution.
(ii) the Director in giving his consent to the initiation of charges under the Act exercised his powers in a manner which is procedurally improper or wednesbury unreasonable and a close examination of the wording of twenty-seven charges having regard to the affidavits of Karamchand Rampersad and Wellington Virgil reveal inconsistencies, overlaps and duplications as well as an offence not created under the Act. “In such circumstances” the consent of the Director is null and void.
In my judgment, except for the question as to the legislative validity of the Act, the allegations raise no breach of the Applicant’s rights under sections 4(a) and (b) of the Constitution.
The due process provision in section 4(a) and the protection of the law clause under 4(b) have been adjudicated upon in three decisions of the Judicial Committee of the Privy Council which are relevant to the issues in this case. They hold that complaints of the nature raised by the Applicant can be appropriately dealt with at the criminal trial which is itself a manifestation of “due process of law.”
In Boodram v Attorney General of Trinidad & Tobago 1996 A.C. 842 the Applicant who was charged with murder, sought declarations that his rights under sections 4(a) and (b) had been infringed by the publication, during the preliminary inquiry and after his committal, of a series of reports in the press and other media that he was a known criminal who had been involved in witness intimidation in order to secure an acquittal of a previous murder charge and who had been implicated in an attempt to kill the main prosecution witness in the pending murder proceedings. He also alleged that his rights were infringed by the failure of the Director of Public Prosecutions to stop the publication of the reports. The Board in dismissing the appeal and affirming the decisions of the High Court and Court of Appeal, held that the protection given by sections 4(a) and (b) and 5(2)(e) of the Constitution related to the existence of the right to a fair trial and the mechanism employed by the criminal courts to secure fairness. It did not extend to the exercise of the right or operation of the mechanisms in a particular case and, save for the exceptional case where all chance of a fair trial had been destroyed, the proper forum for a complaint about adverse publicity in pending criminal proceedings was the trial court where the judge could at the start of proceedings, or in advance, take appropriate action to meet particular circumstances. Lord Mustill delivering the judgment of the Board said at page 853G:
“Their Lordships now turn to the second and more substantial argument for the Applicant, which stripped of elaboration comes to this. By its use of the expression ‘is likely to be contravened’ section 14(1) contemplates both that the power of the High Court can and in suitable cases should be exercised to avert a threatened breach of constitutional rights, and also that the jurisdiction exists in cases short of absolute certainty that what is feared will come to pass. In the present case the impropriety was so gross that unless more time is allowed to elapse before the trial it must at the very least be likely that the minds of the jury will be poisoned, however hard the trial judge may try to put the damage right. Why wait for the trial, with all the stress for the Applicant and uncertainty for those responsible for preparing the case which this will involve, when the High Court in its constitutional role can immediately nip the abuse in the bud?
Although this argument was made to seem very attractive their Lordships believe it to be misconceived, for the reasons already given by the courts in Trinidad and Tobago. The flaw can perhaps be seen most clearly in relation to section 5, and in particular to sections 5(2)(e) and (f) upon which the Applicant based an important part of his argument. In the opinion of their Lordships those provisions have no bearing on the appeal. The purpose of subsection (2) is to make clear that certain fundamental rights which would otherwise exist in law are not taken away. Here, neither Parliament nor any other body is seeking to take away the Applicant’s right to the fair trial which is part of the due process of law guaranteed by section 4(a). That right is undisputed, and the Applicant has no need for recourse to the High Court in order to establish it. Properly analysed, the real gist of the Applicant’s complaint is that the adverse publicity will prejudice, not the existence of the right, but the exercise of it. Whether this complaint is well founded is a matter for decision and if necessary remedy by the ordinary and well-established methods and principles of criminal procedure which exist independently of the Constitution, and which the newspapers and broadcasts could not even purport to abrogate. Provided that the safeguards remain in place, and are made available to the Applicant in the trial court, and if necessary on appeal, he has the benefit of the fair trial process to which he is entitled.
A similar flaw vitiates the arguments based on section 4. The ‘due process of law’ guaranteed by this section has two elements relevant to the present case. First, and obviously, there is the fairness of the trial itself. Secondly, there is the availability of the mechanisms which enable the trial court to protect the fairness of the trial from invasion by outside influences. These mechanisms form part of the ‘protection of the law’ which is guaranteed by section 4(b), as do the appeal procedures designed to ensure that if the mechanisms are incorrectly operated the matter is put right. It is only if it can be shown that the mechanisms themselves (as distinct from the way in which, in the individual case, they are put into practice) have been, are being or will be subverted that the complaint moves from the ordinary process of appeal into the realm of constitutional law.
The approach in Boodram was followed in Director of Public Prosecutions of Trinidad & Tobago v Tokai [1996] UKPC 2; [1996] A C 856. The Applicant in that case sought redress under section 14(1) alleging breaches under sections 4(a) and (b) of the Constitution, the quashing of his indictment on a charge of wounding with intent to do grievous bodily harm and the prohibition of further criminal proceedings on the ground, inter alia, of undue delay. The Board held that the issue for decision was whether the Applicant could be afforded a fair trial in the circumstances. In determining whether a trial would be fair, common law principles had to be applied and that was primarily for the trial judge to decide and not a court in constitutional proceedings. The Board also endorsed the dictum of de la Bastide C.J. to similar effect in Sookermany v The Director of Public Prosecutions Civil Appeal #153 of 1995. The speech of Lord Keith, who delivered the judgment of the Board is instructive. At pg. 870D he said:
“Their Lordships are of opinion that the approach favoured by the Board in Boodram v Attorney General of Trinidad and Tobago [1996] A.C. 842 is appropriate for the purpose of dealing with cases where the complaint is one of undue delay as well as cases such as Boodram v Attorney General of Trinidad and Tobago where the complaint relates to adverse publicity. The question in both categories of cases is whether the circumstances are such that the procedures available to the trial judge are obviously and inevitably going to be insufficient to secure that the trial will be a fair one. Unless that is so a constitutional motion under section 14(1) must be dismissed. In Sookermany v Director of Public Prosecutions (unreported), 1 May 1996; Civil Appeal No. 153 of 1995, in which the Court of Appeal of Trinidad and Tobago dismissed an appeal against refusal of constitutional relief claimed on the ground of undue delay, de la Bastide C J said:
‘As there are admittedly measures available to a trial judge to negative the prejudicial effect on the defence of delay, there would seem to me to be no reason why a court following the lead given by the Board in [Boodram] should not in all but the most exceptional circumstances refuse to stay criminal proceedings on a constitutional motion brought for that purpose, and leave it for the trial judge to determine what measures he should take to counteract the prejudicial effect of the delay and if he should conclude that no effective counteraction is possible, himself to order the proceedings stayed.’
Their Lordships would respectfully endorse that statement of the position.”
The third decision to which I shall refer is Ferguson v Attorney of Trinidad & Tobago , (unreported) Privy Council Appeal #11 of 2000 which was cited by Mr Strachan. In Ferguson the Board held that a breach by the prosecution of its common law duty to disclose to the defence the statements of four witnesses prior to the preliminary enquiry did not result in the infringement of the accused’s right to liberty by his committal and consequent imprisonment on a charge of murder. Lord Steyn who gave the decision of the Board said that in so far as appropriate orders could be sought from trial judges and in the High Court, there were effective remedies available for any breach for that duty.
At page 7 he said:
“In the context of the Constitution of Trinidad and Tobago there is a close link between the three guarantees of due process, protection of the law and fair hearing since the fundamental concept of a fair trial is common to them all: compare Frank v Mangum (1915) 237 U S 309, 347, cited with approval in Thomas v Baptiste [2001] 2 A.C.1, at 22C. There is therefore no reason to doubt that the issue whether there has been a breach under any of these guarantees must be judged on a realistic assessment of the proceedings considered as a whole. This view does not undermine those guarantees. On the contrary, the cause of human rights is served by concentrating on matters of substance and approaching with scepticism technicalities and causally irrelevant breaches.”
The concerns of the Applicant, in my judgment, are directed at his right to a fair trial. The “due process” and “protection of the law” provisions relate to the issue of fairness of the process and the availability of mechanisms which enable the trial judge to protect the fairness of the trial. The mechanisms available to the trial judge will adequately address the concerns of the Applicant in this case for the following reasons:
(a) If the arresting officers were guilty of an abuse of process the Applicant can apply at the opening of the trial for the proceedings to be stayed on that ground and the trial judge may stop the trial if he considers that there is a sufficiently serious abuse.
(b) There is the safeguard of a preliminary inquiry in which a basis for the prosecution must be established.
(c) In so far as the accomplices may give evidence at the criminal trials the use of their evidence goes to the issue of admissibility which is a matter for the trial judge.
(d) In so far as their immunity is conditional upon their giving evidence in accordance with their written statement or deposition., the credibility of the accomplices’ evidence can be tested in cross-examination by defence counsel. There is the further safeguard of the trial judge giving to the jury the appropriate warnings as to the manner of reliance.
(e) If the corruption charges reveal inconsistencies, overlaps and duplications and if there is a non-existent offence, those are matters also raised at the trial or even at the preliminary inquiry. In so far as a non-existent offence is referred to in the charges, the Director has already signalled his intention to amend the charges to reflect the appropriate offence.
There are two additional points. Firstly, any failure of the grant of immunity for lack of legal authority has no bearing on the Applicant or his constitutional rights. It would affect only Mr Hypolite and Mr Rampersad who take the benefit of the grant. But any undertaking given on behalf of the State not to proceed against them will, as a matter of policy, bind the State.
Moreover, the question of the rationality, reasonableness or the basis upon which the Director of Public Prosecutions gave his consent to the charges may be a matter for judicial review under order 53. However, any such application must overcome the fact that an alternative remedy is available during the trial.
As to the legislative validity of the Act, Mr Strachan submitted that no question of a breach of the Applicant’s rights arises therein and it was open to the Applicant to apply by originating summons for a declaration that the 1987 Act is void under section 2 of the Constitution or to contend at the criminal trial that it is unconstitutional.
No doubt it is correct that the Applicant had this option open to him. It is also correct that the Applicant’s incarceration has nothing to do with the corruption charges. But there is provision under section 6 of the Act for the imposition of custodial sentences which can result in the Applicant’s incarceration. Section 14 of the Constitution by which a person may apply for constitutional relief refers both to existing and impending breaches of the human rights provisions. In those circumstances it is not inappropriate for the Applicant to invoke section 14 on the basis of a likely breach of section 4(a) because, if the Act does not have legislative validity, it will be a breach of his right to liberty to have him incarcerated under its provisions. The decision of the Board in Attorney General of Trinidad and Tobago v Mc Leod [1984] 1WLR 522 is distinguishable since there was no threatened breach of the liberty and the consequences to the respondent in that case were not as grave.
Moreover, section 14(4) of the Constitution provides in effect for a referral to the High Court by a Magistrate during a preliminary inquiry of any allegation of a breach of sections 4 and 5 of the Constitution provided it is not frivolous and vexatious.
On these bases alone the murder motion should be dismissed and the only issue to be decided on the corruption motion is the legislative validity of the Act. I shall however proceed to examine the issues in the order I have indicated, in the event that I am wrong.
Abuse of process – The murder motion
The court has inherent power to stay a prosecution on the ground of abuse of process. In Civil Appeal #131/86 Ramesh Maharaj v Her Worship Mrs. Eileen Clarke and Clebert Brooks, the Director of Public Prosecutions , the Court of Appeal had to consider a similar question. In my judgment, the law therein stated still represents the state of the law today and the principles that I deduct from it are:
(1) The court will not allow its function as a court of law to be misused and will summarily prevent its machinery from being used as a means of vexation or oppression in the process of litigation (cited by Bernard J A in Rudyard Alexander v ASP Hubert Williams Mag. App. #3 of 1984 from Master Jacob’s article entitled “ The Inherent Jurisdiction of the Court (1970) Current Legal Problems, Volume 23 at pages 40-41.”
(2) It is an abuse of process for the prosecution to manipulate the process of the Court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality; or on a balance of probability, the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable. The ultimate objective of this discretionary power to stop a prosecution is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution.
Per Sir Roger Ormrod in Reg v Derby Crown Court ex parte Brooks (1984) 80 Cr App. R. 164 at 168-169.
(3) The power of the court to stay a criminal proceeding on the ground of abuse of process should only be exercised in the most exceptional of circumstances – per Viscount Dilhorne in Director of Public Prosecution v Humphreys [1977] A.C. 26.
(4) The categories of abuses of process are not to be regarded as closed but are to be found on a case by case basis. The gravity of the matter alleged to constitute the abuse is an important consideration, as is the duty of the court to balance the interest of the accused and the interest of the public.
This last statement of legal principle is best illustrated by the decision of the House of Lords in R v Horseferry Road Magistrate’s Court Ex parte Bennett [1993] UKHL 10; [1994] 1 A C 42, where the abuse of process was found to be the wrongful exercise of executive action which threatened the rule of law. The defendant in that case, a citizen of New Zealand was alleged to have committed criminal offences in England. He was traced to South Africa and forcibly returned to England. The Divisional Court held that it had no power to inquire into the circumstances under which a person appearing before it had been brought into the jurisdiction. On appeal the House of Lords held that the High Court in the exercise of its supervisory jurisdiction did have power to inquire into the circumstances by which a person had been brought within the jurisdiction and if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant.
Lord Griffiths said at page 61.
“Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it….
The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.
In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party.
Lord Lowry added at page 76(b):
“The philosophy which inspires the proposition that a court may stay proceedings brought against a person who has been unlawfully abducted in a foreign country is expressed, so far as existing authority is concerned, in the passages cited by my noble and learned friend, Lord Bridge of Harwich. The view there expressed is that the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused. Therefore, although the power of the court is rightly confined to its inherent power to protect itself against the abuse of its own process, I respectfully cannot agree that the facts relied on in cases such the present case (as alleged) ‘have nothing to do with that process’ just because they are not part of the process. They are the indispensable foundation for the holding of the trial.”
In this case the contention of the Applicant is more orthodox in the sense that it suggests a conspiracy by the police officers to use the process of the court to obtain evidence of other committed offences by Ministers of Government, by using the criminal proceedings to bring pressure to bear on him to reveal what he may know and by assuring him that they would ensure that the charges were dropped, if he co-operated.
The question is whether that amounts to an abuse of process. I have no doubt that the use of the court’s process in the way contended can be an abuse if there is no proper evidential foundation for preferring the criminal charges against the accused or, as Mr Strachan submitted, where there is no intention, at the outset, of bringing the proceedings to a conclusion. The decision of the High Court of Australia in Williams v Spautz [1992] HCA 34; (1991-1992) 174 C.L.R. 509 provides some support for the latter view. In that case a lecturer commenced an action against a university for wrongful dismissal. He later laid informations against various officers of the university alleging a number of offences including criminal conspiracy to defame and conspiracy to injure him. Some of the persons affected by the prosecutions applied for declarations that the prosecutions were an abuse of process. It was held on a five to two majority that proceedings which are brought for an improper purpose will constitute an abuse of process if the purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. The majority also held that it was not necessary, before the granting of stay, for the court to satisfy itself that an unfair trial will ensue unless the prosecution is stopped. (See pgs. 519 and 522 of the judgment of the majority).
In this case the notice of motion and the affidavits in support make no express allegation as to the lack of bona-fides of the evidence in the criminal trial. It is a major deficiency. The allegation of abuse of process is not directed at the Director, who instructed that the charge be brought, but at the police officers, some of whom were involved in the investigations into the murder of Mr Sumairsingh. There is an undertone of political ulterior motive for bringing the charges by the police officers under the jurisdiction of the Commissioner of Police. It is not an expressly pleaded ground of the motion but forms some basis of the declaration and is buttressed by allegations in the supporting affidavits of the Applicant and his deponents.
No bad faith or mala fides is alleged against the Director. The Director has given evidence which has not been challenged by the Applicant or any of his supporting deponents. As Mr Newman conceded, there was also no challenge to the authenticity of the statement of Mr Hypolite upon which the Director acted.
Mr Newman did seek, belatedly, to confine his concession as to the authenticity to the fact only of signature by Mr Hypolite and not to the circumstances under which the statement was obtained. But it is more than a little odd that if the circumstances of the execution of the statement were in question, nothing thereon has been set out in the grounds of the motion or in the supporting affidavit of Mr Gopaul Gosine.
In my judgment there is no basis whatever to the allegation of abuse of process in this case for the following reasons:
(1) The allegations of the Applicant and his deponents even if they were to stand unchallenged prove no abuse of process because they do not meet or overcome the unchallenged evidence of the Director that the arrest and charge of the Applicant were effected pursuant to his instructions.
(2) There is nothing in the evidence and nothing emerged during cross-examination, which showed any manipulation of the Director in his decision to arrest and charge the Applicant. The lack of challenge to the authenticity (in its fullest sense) of the statement rendered any such manipulation highly unlikely.
(3) Such evidence as I have seen in this case discloses a proper and sufficient basis for the arresting and charging of the Applicant. The question as to his guilt or innocence will be a matter for the trial.
(4) Even if it were true that the police may have arrested the Applicant with the motive of seeking to obtain from the Applicant information about other crimes committed, that is not in itself improper, given that there is a sufficient basis for the arrest and the charge. It must be shown that there is no intention of bringing the criminal proceedings to a conclusion. There is no evidence before me of any such intention. Mr Mohammed’s evidence also negates any inference of such an intention.
(5) In any event it is my finding of fact having had the benefit of cross-examination that the allegations against the police officers are untrue.
In my judgment, to establish an abuse, it was incumbent upon the Applicant to show either an insufficient or improper evidential basis for the laying of the charge or, a lack of intention to bring it to finality. There was always a heavy burden on the Applicant given that the unchallenged evidence of the Director was that the arrest and charging of the Applicant was done on his instruction, after he had reviewed the evidence including the statement of Mr Hypolite and other available circumstantial evidence. Indeed, it was an instruction he said he gave after “careful deliberation” and in the public interest.
The fact that it was Mr Mohammed who gave the instructions for the arrest and charging of the Applicant undermines any allegation of ulterior motive by the police officers.
I have found the allegations against the police officers to be untrue and I shall now seek to demonstrate why. To do so requires that I refer to the evidence in some detail. In so far as the evidence of the Director is concerned however and, mindful of the fact that the Applicant’s trial is still to be heard, I shall make as minimal a reference to the contents of the Director’s evidence as possible.
Evidence on behalf of the Applicant
Dhanraj Singh
The Applicant in his principal affidavit makes a number of allegations against Mark Hernandez, Special Reserve Police and Mr James Philbert, Senior Superintendent of Police. In effect, the Applicant contends that Mr Hernandez sought to win his confidence and exerted psychological pressure on him to provide information on corruption by ministers of government. When those efforts were exposed by his attorneys in the Mayaro Magistrate’s court Mr Hernandez then menaced him with a gun after the proceedings had been adjourned.
The Applicant said that he arrived at Police Headquarters, after his arrest, around 8.00 am on Monday 19 th February, 2001. He was placed in a cubicle with one chair in which he sat where SRP Hernandez subsequently introduced himself, sat near to him and proceeded to make “small talk” . Mr Hernandez kept his company for the entire day and sought to win his confidence. He told the Applicant he had been abandoned by the UNC Government and that his lawyers could not give him good legal representation because their loyalties are to the Government and would report to “the party”; that the Government wanted to kill him and his family. Mr Philbert also told him that the UNC had abandoned him and gave him the impression that he (the Applicant) would be the means by which the Government is toppled. The initials “UNC” are an abbreviation for the United National Congress, the party which now forms the government of Trinidad and Tobago.
The core of the allegations are set out in paragraph 20 to 37 of the Applicant’s principal affidavit in these terms:
“He said he has information about this Government being very corrupt. He told me he knew that I was innocent of the charge (of murder) that they do not want to get at me but at ‘the bigger fish’.
He said I should say all that I know about the (present) Government and Government ministers and that will cause a public outcry which will bring down the Government.
Hernandez had told me that the President would take action when the public rises up, that when I make my statement naming all the corrupt things the Government and its ministers were doing the public will rise up and the President will take action and I will get protection, and that I should speak out against the Government ministers.
Hernandez had said his boss had connection with outside agencies in the United States of America who wanted to see this Government fall because it is too corrupt.
Philbert gave me the assurance that I had nothing to fear, that he would try to help me. He is the one who told me that if the public rises up against this Government and they expect the police to shoot the people or take action the police will not do that.
He kept talking to me to see if I would say anything. I did not say anything. He said he would leave his phone number with Hernandez so I could phone him any time with information as to the corruption of the Government.
He told me that I should say about the corruption I know about certain ministers and about voter-padding. He also mentioned to me about what he referred to as “the Sumairsingh letter” and “that the Prime Minister had lied when he said he did not know about it, that the Prime Minister had spoken to you (meaning me) and shown you (again meaning me) the letter.
He kept saying over and over that I should speak out and make a statement to the Press and that I should give him the information and he would help me and my family, that we would be protected. The President would intervene and we would be taken out of the country.
Philbert said to me that I would be the one to bring down this Government. He gave me the impression that I would be the instrument to bring the Government down. He said he was an honest man and not corrupt and that if I did not speak out my life and those of my family would be in danger. There was a knock on the door and someone said my lawyers were there. Philbert left the room. Both Philbert and Hernandez told me not to tell my lawyers what they were speaking to me about.
…. Whilst my lawyers were there I was constantly surrounded by police officers so I could not speak to them or hint to them what had happened.
I was afraid that in the same way they offered to help if I said the things they wanted me to say that if I told my lawyers about it whilst in their custody they could do me harm.
After the fingerprinting, which took a long time my parents, brother and sister were allowed upstairs and they were told that they could stay as long as they wanted. My lawyers left shortly after. My relatives remained a long time. Hernandez told my relatives in my presence ‘Dhanraj was the best thing out early last year and then Panday come and cut him up in little pieces.’ I don’t like that. I don’t agree with this and neither my boss. We don’t intend to be used as their toys and just told what to do for their own agenda. Dhanraj knows what he has to do. He has to choose to do the right thing. He has to stand up to this unless he wants to suffer and go down alone.
Mr Hernandez then took me aside and spoke with me for about another half an hour before my family left and after my family left he continued to talk to me.
He held my hands again telling me when I go I would have to make a press statement and I would have to say I am not going down alone, that I am being made a scapegoat….
He continued along those lines for about an hour after which I was taken to CID for the night. I was taken by Hernandez who told me when I was ready to talk I could call him anytime and we would talk.”
At para 40 the Applicant alleges that on the morning of 20 th February, 2001 he was taken from Police Headquarters by police vehicle but they disembarked at the corner of Knox and St Vincent Streets, and both officers walked him north on St Vincent Street along the entire front of the Magistrate’s Court towards the press corps gathered at the entrance. He was being held by either arm by each officer. When they got to the entrance of the court, he was held back and delayed in front of members of the press corps so as to permit their questioning of him. The questions asked of him seem designed to elicit from him the very answers he had been asked to give. At the end of proceedings he was forced by Hernandez to walk along the same route through reporters who were waiting to ask the same questions again.
The last allegation made against Mr Hernandez related to removal of the Applicant from the Mayaro Magistrate’s Court after the adjournment of the preliminary inquiry on the morning of 21 st February, 2001. He said that during the course of the hearing his attorneys had raised the allegations against the police officers that the charges were politically motivated and Mr Hernandez was present when the allegations were made.
After the matter was adjourned the police “jostled” him into the rain and across the road to the Mayaro Police Station which was about 150 feet away even though the van which had brought him was in close proximity. While they were taking him from the courtyard, Mr Hernandez who was dressed in plain clothes drew a handgun from his waist and walked across the road pointing the gun menacingly in the Applicant’s direction, while walking backwards towards the police station.
Sheila Roopnarine Singh, Indira Roopnarine Singh
The allegations of the Applicant as to what transpired at the police station on 19 th February, 2001 was supported by his mother, Sheila Roopnarine Singh and his sister Indira Roopnarine Singh. Sheila and Indira Roopnarine Singh both testified to being at the Police Headquarters on 19 th February, 2001. Both speak in almost identical language of attempts by Mr Hernandez to win over their confidence with soothing words. Both speak of comments by Mr Hernandez about Prime Minister Panday, of his assurances of protection for the Applicant and his family. They also speak of Mr Philbert telling Sheila Roopnarine Singh that a relative from the Newsday newspaper wished to speak with her and of her refusal to speak with the reporter because she had no relative involved in the printed media. They also speak of arrangements made between Mr Hernandez and Indira Roopnarine Singh to meet later that day at St Augustine for him to collect a bed sheet for the Applicant to sleep on and that Mr Hernandez was given a cell phone number which belonged to her boyfriend.
Both mother and daughter also speak of Mr Hernandez taking the Applicant aside and speaking with him for half an hour, and of their concern at the time for what they heard but they provide no details.
Miss Roopnarine Singh makes the additional assertion that on 20 th February, 2001, at 2.00 pm she was met by Mr Hernandez at the Port of Spain Magistrate’s Court, where he exhorted her to make certain anti-Governmental comments to the media and, if she co-operated, that the police would protect the Applicant’s life by taking him out of the country. The thrust of that evidence is that threats against the life of the Applicant were manufactured by Mr Hernandez and leaked to the media, and that the Applicant’s well- being was in jeopardy in view of his and his family’s non-cooperation with the efforts of the police to implicate the Government in corruption.
Indira Roopnarine Singh also contends that she did meet with Mr Hernandez on the night of 19 th February. She had left Police Headquarters around 8.00 pm, Mr Hernandez called on the cell phone at about 9.15 pm stating that he would pick up the sheet at her home but she agreed to meet him at the St Joseph Police Station. When she arrived at the Police Station, Mr Hernandez said that he was tired and advised that she take the items herself to the CID.
Miss Roopnarine Singh states that Mr Hernandez again exhorted her to get her brother to speak out, efforts which he renewed on 20 th February, 2001 when they met at the Port of Spain Magistrate’s Court.
Leela Singh
Leela Singh, wife of the Applicant, also speaks of pressure by the police to get at her husband through his relatives. The officer in question was Police Constable Suzette Martin, who like Mr Hernandez, made adverse comments about the Government’s attitude towards the Applicant and sought to befriend her. She said she was accosted by Mr Hernandez at the Magistrate’s Court, who urged her to speak to the media about the danger posed to her life and that of her children and to request police protection. He also questioned the bona-fides of the Applicant’s legal advisors.
Darryl Ali
Mr Ali, in answer to paragraph 57 of Mr Hernandez’ affidavit stated he is the boyfriend of Miss Roopnarine Singh. He said that on 20 th February, 2001, he received a call on his cell and Mr Hernandez identified himself and asked to speak with Miss Roopnarine Singh. When told she was not available Mr Hernandez left a message that she should call him. He later told Miss Roopnarine Singh of the message, who said that she was uncomfortable speaking to Mr Hernandez and she would not call him.
Affidavits on behalf of the Director of Public Prosecution
Mark Mohammed - Director of Public Prosecutions
The reasons for Mr Mohammed’s decision to have the Applicant arrested and charged are cogently given at paragraphs 4 to 9. He then states at paragraph 10:
“After careful consideration of all of the evidence available to me, at the conclusion of the meeting referred to in paragraph 3 above, I advised Senior Superintendent Philbert that Dhanraj Singh should be charged with the murder of Hansraj Sumairsingh. I also indicated that matters would be put in train for a discontinuance of the murder charge to be entered against Elliott Hypolite and for a conditional immunity from prosecution to be granted to Elliott Hypolite. The Instrument of Discontinuance was signed by me on 22 nd February, 2001, and a true copy of same is annexed hereto as Exhibit “MM2”. The conditional immunity from prosecution was signed by me on 22 nd February, 2001, and true copy of same is annexed hereto as Exhibit “MM2”.
I did not consult the Attorney General before making the decisions to advise the police to charge Dhanraj Singh, to discontinue the charge against Elliott Hypolite and to grant him the conditional immunity. I saw no reason in law or in practice to consult the Attorney General before making any of these decisions. In my tenure as Director of Public Prosecutions I have sparingly granted conditional immunities to accomplice witnesses in murders. I have not consulted with the Attorney General before issuing these conditional immunities and the Attorney General has never questioned the policy or reasons behind my giving them.
…In my judgment, consulting with the Attorney General would have had the potential to place him in a difficult position since the Attorney General and the Applicant were former Cabinet colleagues and, in my judgment, the Attorney General ought to have been as far removed from the process as possible.”
James Philbert - Ag. Senior Superintendent of Police
Senior Superintendent Philbert was the officer in charge of the investigation into the murder of Mr Sumairsingh. At paragraph 5 he sets out his reasons for regarding the Applicant as a suspect.
Mr Philbert deposes that Mr Hypolite was arrested and charged for murder on the advice of the Director of Public Prosecutions. On 6 th February, 1991, he met with and interviewed Mr Hypolite and a statement under caution was recorded from him. Mr Hypolite implicated the Applicant. He met with Mr Mohammed on 18 th February, 2001, brought him up to date on the progress and findings of the police investigation and showed him a copy of Mr Hypolite’s statement. After discussions, the Director advised that the Applicant should be arrested and charged for the murder of Mr Sumairsingh. He played no active role in the arrest. The arresting officer was one Sergeant George.
The Applicant was visited several times by his attorneys while in custody. He (Philbert) spoke with them about the Applicant’s medical needs and arrangements for familial visits.
Mr Philbert denies most of the allegations of the Applicant. He denies the allegations set out in paragraphs 19 to 28 of the Applicant’s affidavit. He denies making any declaration as to the Applicant’s innocence of the murder charge and describes the allegation as being “a total misrepresentation of my own state of mind” . He did not attempt to persuade the Applicant to speak out, rather, he approached their conversation with great caution. SRP Hernandez had come to his office stating that the Applicant wished to speak with him (Philbert). The Applicant asked what he could do for him if he gave information to the police about corruption among Government officials. He told the Applicant he could do nothing and the Applicant proceeded to lament his involvement in politics. Indeed, both Philbert and Hernandez point to the Applicant as volunteering information to them and speaking openly about the situation in which he found himself.
Mr Philbert states that when he informed the Applicant of his lawyer’s arrival, the Applicant stated that he did not wish to speak with them, and it was he, Philbert, who told him that he (the Applicant) must speak with them. His lawyers were permitted to speak with the Applicant in Mr Philbert’s office.
As to the allegations made against Mr Hernandez and Ms Martin, Mr Philbert states that neither of them was involved in the investigation, arrest or prosecution and they were not authorized or instructed to use the charge against the Applicant to get information from him. He admits to speaking with a journalist who wished to photograph the Applicant. He informed the Applicant’s mother, Mrs Sheila Roopnarine Singh of it and “took no further interest in the matter”. Mr Philbert admits to granting approval to SRP Hernandez for the exchange of cell phone numbers with the Applicant’s sister.
He exhibited certified extracts of the Station Diary from the Homicide Bureau during the period February 19 th to February 20 th , 2001 (“JP1”), relevant to:
(i) the times when the Applicant was brought to and escorted from the Bureau.
(ii) his attorney’s visits.
(iii) visits by members of his family.
(iv) The Applicant’s activities during custody at the Bureau.
Certified extracts of the diary during that period, were also exhibited as they relate inter alia to the entry and departure of SRP Hernandez (“JP2”). Also exhibited were certified extracts from the C I D Reports Diary for the period February 19 to February 20, 2001 (“JP3”).
Mr Hernandez denies the allegations made by the Applicant. He is a Special Reserve Police Officer attached to the Homicide Division. His principal function at the division is that of driver, but he also provides “general assistance within the division, such as, guarding prisoners, escorting prisoners to court and making entries in station diary and other registers .” His duties do not include investigating crimes, interviewing prisoners or the recording of statements from witnesses, accused persons or suspects.
He was not part of the investigations into the Sumairsingh murder, nor was he privy to any information obtained during the course thereof. At 8.20 am on 19 th February, 2001, he was instructed to guard the Applicant who was seated within one of the cubicles. Mr Hernanadez denies that he remained with the Applicant for the entire day. He left the Applicant around 9.00 am to escort a state witness to court. He returned at 1.00 pm and relieved Mr Telesford at 1.05 pm. Mr Hernandez also denies trying to gain the Applicant’s confidence or being in any way familiar with him. All conversations “generally and particularly concerning the wrong doing of others and going to the Press were initiated by the Applicant” and the Applicant has wrongly attributed to him many things which the Applicant had said.
As to the period between 8.20 am and 9.00 am Mr Hernandez describes the Applicant as morose and depressed and he sought merely to comfort him. They spoke of his medical condition. The Applicant, who is diabetic, spoke of dying by not taking his medication because he did not wish to put his family through an ordeal. He advised Mr Philbert of the Applicant’s emotional state, who advised him to keep a careful watch over the Applicant. He did engage the Applicant in small talk but was merely trying to comfort him, rather than inviting him to talk. He was also being attentive because the Applicant was depressed and had talked of ending his life.
He spent two to three hours with the Applicant on his return at 1.00 pm except for a short forty minute period. The Applicant continued to be depressed. It was the Applicant who spoke of being used by the Government and of other unidentified members of the Government being involved in corruption. It was the Applicant who spoke of not going down alone and of exposing all he knew in the Press. Mr Hernandez said that those statements aroused his curiosity and he responded at times in such a way as to encourage him to say more. Mr Hernandez also acknowledges that at one point he agreed with the Applicant that the best thing for him to do was to tell the Press of the corruption he knew. He did not however initiate those conversations. According to Mr Hernandez, he “merely acted as a sounding board to a man who was in great apparent distress and was talking generally about his troubles.”
Mr Hernandez said that at “some point he told the Applicant that he had to make the right decision and that he should not bottle up everything inside of him but should speak the truth”. The Applicant then broke into tears.
Mr Hernandez continues that it was the Applicant who expressed concerns about his lawyers because they were representing the Government and it was in that context that he suggested Mr Gilbert Petersen, attorney at law.
He denies telling the Applicant that he was taking the Applicant to “fix up” with Mr Philbert. Rather, it was the Applicant who requested an audience with Mr Philbert. During that conversation, the Applicant told Mr Philbert that he wanted to speak out about corruption in the Government and asked what Mr Philbert could do for him to which Mr Philbert replied that he could do nothing. It was also the Applicant who expressed the view that he would not go down alone and was fearful of the safety of his family if he did.
Mr Hernandez admits to exchanging cell numbers with Ms Roopnarine Singh so as to collect a bed sheet and pillow with which to provide the Applicant. He corroborates Mr Philbert’s evidence that approval was given for doing so. According to Mr Hernandez, the family members were concerned that the Applicant should have a sheet and pillow on which to sleep.
As to his encounter with Miss Roopnarine Singh at the St Joseph Police Station, he denies any familiarity in his conversation with her. He had spoken with her by cell phone at about 8.00 pm having left the Bureau in company with P C Telesford on police duty. They agreed to meet at the St Joseph Police Station. He never suggested that he could meet her at her home when he drove into the St Joseph Police Station. She spoke to him while standing outside of the vehicle. The conversation lasted no more than five minutes. She did not sit in the front seat of the car as she alleged nor did he invite her to.
As to the hearing of the charge at Port of Spain Magistrate’s Court, Mr Hernandez states that he escorted the Applicant to the Port of Spain Magistrate’s Court in an unmarked police vehicle. Because of heavy traffic at the corner of Abercromby Street and Duke Street, they diverted onto Knox Street and disembarked, walking the Applicant along St Vincent Street into the Magistrate’s Court. There was a crowd of persons facing north on St Vincent Street expectantly awaiting the Applicant’s arrival. As they neared the court entrance they were spotted and despite quickening their pace the crowd gathered around them and their pace was slowed. He denies trying to delay the Applicant in front of members of the Press Corps as alleged.
Mr Hernandez also denies having any conversation with Mrs. Sheila Roopnarine Singh and Mrs Leela Singh at the Magistrate’s Court, or having met with Miss Indira Roopnarine Singh on 20 th February, 2001. He did speak with her by cell phone and they arranged to meet outside the Port of Spain Magistrate’s Court. He did not see her there when he returned to the Court and called her cell. Someone else answered the phone and he left a message.
As to the Applicant’s allegation that he (Hernandez) pointed his firearm menacingly at him, Mr Hernandez denies it. He said that on 21 st February, 2001, he was instructed to drive Mr Telesford to the Mayaro Magistrate’s Court. The police were in receipt of information that two persons may attempt to bribe Mr Hypolite. He was shown a photograph of one of the suspects and instructed to go into the court and look out for that person as well as any other who may try to make contact with either Hypolite or the Applicant.
On arrival at the Mayaro Magistrate’s Court he parked the vehicle at the Mayaro Police Station and made his way over to the court. Before doing so he removed his firearm from his ankle holster and handed it over to P C Telesford. Later, during the court recess, he escorted Mr Hypolite from the court and then returned to the compound of the police station where he met Telesford. While at the court he did see Leela Singh but he gave no indication of wanting to talk to her.
Mr Telesford is a police officer, also attached to the Homicide Bureau. On 19 th February, 2001, shortly after 7.41 a.m. he was instructed to assist in guarding the Applicant. He took up guarding duty after Mr Hernandez left to attend court. During the period he and the Applicant spoke casually. The Applicant appeared depressed and concerned about his family. Mr Hernandez returned at approximately 1.05 pm from his other duties and resumed guarding of the Applicant. According to Mr Telesford, he fingerprinted the Applicant at about 4.30 pm.
Mr Telesford provides corroborating testimony for Mr Hernandez’ conversation by telephone and subsequent encounter at the St Joseph Police Station with Ms Roopnarine Singh. His account of the telephonic conversation accords with that of Mr Hernandez. He also denies that their subsequent conversation in the yard of the St Joseph Police Station lasted as long as forty-five minutes. He also asserts that it lasted no more than five minutes. He sat in the front seat during the conversation. He also supports Mr Hernandez’ version of events at the Port of Spain Magistrate’s Court on 20 th February, 2001 and at the Mayaro Magistrate’s Court on 21 st February, 2001.
Mr Gilbert is an Assistant Superintendent of Police in charge of the Court and Process Division and with responsibility for police administration for all the courts throughout Trinidad and Tobago. He was present at the Port of Spain Magistrate’s Court on 20 th February, 2001. At around 10.00 a.m. he received the Applicant from P C Telesford and SRP Hernandez. The Applicant was then taken to court before the Chief Magistrate. The Applicant was remanded into custody and escorted by officers of the Court and Process Division to the holding area to await the receipt of the demand warrant and the arrival of his medication before being transported to the Royal Gaol. Mr Gilbert says that the Applicant was removed from the courtroom and taken to the holding area via the same internal passage through which prisoners are normally escorted. He denies that there was an argument as to the route to be taken by the Applicant.
Mr Gilbert deposes that there is no back entrance through which prisoners are transported and denies that SRP Hernandez intervened so as to have the Applicant exposed to onlookers and members of the media by taking him through the front entrance upon the adjournment. He states that as the officer in charge, he supervised and directed the removal of the Applicant to the Port of Spain Prison, using the route normally taken when escorting prisoners from the court.
Ms Martin is a Woman Police Constable attached to the Homicide Bureau. She is not involved in the investigations into the murder of Hansraj Sumairsingh nor was she involved in the arrest or charging of the Applicant in respect of that crime. Ms Martin denies having any conversation with Leela Singh or saying the things attributed to her by Mrs Singh in her principal affidavit. The telephone number 625-7078 which Mrs Singh alleges was given to her, is that of the Homicide Division. She denies knowing anyone named Christine. She also denies knowledge of any telephone number 664-7078. That number had been inaccurately referred to as 664-7078 Mrs Singh in her principal affidavit but had been corrected to 664-1529, in a supplemental affidavit filed after Ms Martin’s. There was no further affidavit by Ms Martin with respect to it.
All of the Applicant’s deponents with the exception of Sunil Gopaul Gosine were cross-examined by Mr Strachan. Messrs Philbert, Hernandez and Telesford were cross-examined by Mr Ramadhar on behalf of the Applicant. The evidence of Police Constable Martin and Assistant Superintendent Wayne Gilbert was accepted by counsel as being in issue despite their not having been cross-examined.
Having had the benefit of cross-examination, I am satisfied that the allegations made against the police officers are baseless and manifestly untrue. In the first place nowhere in the affidavits is it alleged that any of the police officers assured the Applicant that the charge would be dropped if he cooperated and nothing of the kind was suggested in cross-examination to Mr Philbert, Mr Hernandez or Mr Telesford. The alleged assurance (although forming part of the relief sought) is a pivotal ground upon which the abuse of process is based.
None of the Applicant’s deponents, including the Applicant himself, was a convincing or credible witness.
Their oral evidence was characterized by inconsistencies, contradictions and evasions and their answers to Mr Strachan’s incisive questions were lacking in credibility. The Applicant was a wholly unimpressive witness who was evasive and at times recalcitrant, unwilling to make even the most uncontroversial of concessions.
None of the Applicant’s witnesses distinguished themselves in cross-examination. I shall refer to particular aspects of the cross-examination of the Applicant and his deponents which informed my conclusions.
(1) He could give no satisfactory answer for not telling his family of the statements allegedly made to him by Mr Philbert and Mr Hernandez when his family members visited him at the Homicide Bureau on 19 th February, 2001. His explanation was that there was always a police presence during the audience with members of his family. That answer was not supported by his mother who (after much equivocation) stated that there were periods of four to five minutes of privacy during their visits. Asked why he did not request to be allowed to speak privately with his family, his unconvincing response was, “I was in a strange environment. I was not my former self.”
(2) He gave multiple and conflicting reasons for not telling his attorneys of the police officers’ statements, when they visited him at the Homicide.
(i) He was afraid that the corner in which he sat was “bugged”.
(ii) He did attempt to speak to his attorneys “but the lawyer I attempted to speak to didn’t understand the sign language I was making to him”. (The name of the lawyer was not given.).
(iii) He tried to get their attention “ in a whispering kind of way” and his reference to sign language was really “a manner of speaking”.
(3) He could give no proper reason why he did not suggest to his lawyers that the police officers should move away to allow for privacy, except to revert to his earlier answer that he “was in a strange environment and was not my former self.”
(4) The absence of any assertion in his principal affidavit of any inability to speak privately with his family. Indeed, the impression given at paragraph 33 is to the contrary. It states that:
“after the fingerprinting … my parents, brother and sister were allowed upstairs and they were told they could stay as long as they wanted… my relatives remained a long time.”
That to my mind would have been an appropriate juncture in the affidavit to complain about the lack of privacy in meeting his family. Indeed, the evidence of Mrs Roopnarine Singh is also to the effect that she was pleased at how well her son was being treated.
(5) The Applicant gave inconsistent oral evidence as to his ability to communicate privately with his attorneys on their three visits to him on the 19 th February, 2001. Having been forced to concede (however churlishly) that he was able to discuss whatever he wanted with them during their first visit, he later contradicted that evidence by saying that in none of the three visits was he able to speak to them in private.
As to Item 5 above, I note as well that the Applicant raised no complaint whatever in his principal affidavit of being unable to speak privately to his lawyers both of whom are experienced criminal and public law attorneys. It is highly unlikely that his discomfort and his efforts to bring it to their attention (whether by sign language or by whispering), would have escaped their attention. Indeed any lack of privacy would have founded a basis of complaint under the Constitution and the Applicant, as Mr Strachan submitted, has not been slow to assert his constitutional rights in this case.
(1) She gave conflicting evidence throughout cross-examination about her two visits to the Applicant on 19 th February, 2001. She began her evidence by stating that during both visits her family had no problem talking privately with the Applicant during both visits. That statement was ultimately changed to say that during both visits there were short periods of privacy of four to five minutes only. But before that final answer was cobbled together there were many adjustments to her story which included an answer that the family’s entire morning visit was private because there was no officer present at that time but which was later changed to say that no period during the morning visit was private.
(2) She could give no satisfactory explanation for excluding from her affidavit her oral evidence that the Applicant complained to them about the police officers statements.
(3) That evidence (at item 2), was of itself inconsistent with the Applicant’s oral evidence to the effect that he did not complain to his family about the police officers’ comments because of a consistent police presence during those visits.
(4) Her evidence was that the gist of the Applicant’s complaint to them about the police was words to the effect that “something is going on here” . This evidence, both as to content and as to demeanour was unconvincing. Given the Applicant’s allegations of the police officers’ desire to get information on crime and to bring the Government down, it was simply unbelievable that his complaint would be only of such a nature.
(5) Her answers to questions by Mr Strachan as to the identical wording of her paras. 3.1, 3.2 & 3.3, and those in her daughter’s affidavit, were implausible. It was not so much that there were no plausible reasons for it (a lack of industry on the part of those who drafted it for example) but that she gave none and in a manner which did not redound to her credit.
(1) Miss Roopnarine Singh’s evidence conflicted with her mother’s in two material respects.
(i) She testified that there was no period during the family visit in the afternoon when they could talk privately to the Applicant except for a two minute period. Indeed she expressly denied that there were four to five minute periods of privacy during the visit.
(ii) Unlike her mother, she did not get the impression that the Applicant wanted to tell them anything about police conduct.
(2) In her affidavit she spoke of a half hour conversation between Mr Hernandez and the Applicant at the Homicide Bureau at the end of the evening visit by members of her family and that members of the family expressed concern “about what they were hearing”. Her oral evidence however is that she could not hear what was said between them and her concern was for “what the conversation had been about.”
(3) Her evidence that she spoke with Mr Hernandez for about forty-five minutes at the St Joseph Police Station was demonstrably untrue. Miss Roopnarine Singh stated in cross-examination that she arrived at the St Joseph Police Station between 9.00 pm and 9.15 pm on the night of 19 th February and that she left the station about 10.00 pm and arrived at the CID at around 10.15 pm. The CID station diary extract “JP 3” put her arrival there at 9.30 pm. It is a more accurate reflection of her time of arrival at the CID and is consistent with a five minute conversation with Mr Hernandez at the St Joseph Police Station and her departure at 9.05 pm for a fifteen minute journey from St Joseph into Port of Spain.
(4) The arrangements made between Miss Roopnarine Singh and Mr Hernandez for the collecting of the bed sheet at St Joseph made it highly unlikely that they could engage in conversation for forty-five minutes.
(5) She gave inconsistent evidence as to the time she saw Mr Hernandez on 20 th February, 2001. In her principal affidavit she said she saw him at 2.00 pm on that afternoon but under cross-examination sought to adjust that evidence to 12.00 noon (no doubt having read the affidavit of Mr Gilbert and the exhibit “WG 1”).
Leela Singh & Darryl Ali
The evidence of Leela Singh and Darryl Ali went towards lending credibility to the allegations against Mr Hernandez. Despite the relative brevity of her affidavit Mrs Singh could recall few details of her visit to the Bureau on 20 th February, 2001. Mr Darryl Ali was simply not a credible witness.
The Police Officers
On the other hand, Mr Philbert and Mr Hernandez, against whom the allegations were directed, were credible witnesses. Much was sought to be made of Mr Hernandez’ inquisitorial abilities. It was suggested that he was possessed of some specially honed skill by which he could ferret out information and which he employed on the Applicant.
Cross-examination was directed at establishing these abilities so as to lend credibility to the allegations of Mr Singh and his family and focused on Mr Hernandez’ stated involvement in confidential inquiries. In re-examination however, Mr Hernandez’ involvement in those enquiries was sufficiently clarified. Indeed, it put into context his overall involvement in the process.
I accept the evidence of the police officers. Their affidavit evidence is prima facie both credible and probable and there was nothing which arose in cross-examination which led me to believe that their evidence was untrue. The station diary extracts “JP 1”, “JP 2” and “JP 3” and “WG 1” provided corroboration for the movements and activities of Mr Hernandez, as well as the times and visits of the Singh family and of Mr Singh himself. Counsel for the Applicant sought to demonstrate that not all significant events were recorded in the diary but even if that were true, it did not derogate from the accuracy of those which were. In fact, both Mrs Roopnarine Singh and Miss Roopnarine Singh accepted the record of the time and duration of their visits as true.
Mr Hernandez was grilled by Mr Ramadhar. There was some divergence between his oral evidence and his affidavit as to where in the Homicide Bureau Mr Singh had complained to him about his attorneys and as to whether Mr Philbert was present or not. But both in oral evidence and in his affidavit he had qualified his evidence by stating that he did not recall his conversations and exchanges with the Applicant in proper sequence. Despite the divergence in his evidence he was to my mind the most impressive of the witnesses who testified before me. The affidavit evidence of Mr Gilbert together with exhibit “GW1” corroborated his (Hernandez’) evidence that he did not meet with Miss Roopnarine Singh at 2.00 pm on 20 th February, 2001, on the morning of 20 th February, 2001.
I am satisfied the allegations made by the Applicant and members of his family are untrue and I accept the evidence of Mr Philbert, Mr Hernandez,s Mr Telesford, Mr Gilbert and Miss Martin are true. For the reasons I have given the allegation as to abuse of process fails.
Whether the Director of Public Prosecutions has power to grant an immunity
This is a constitutional point of major importance affecting the future conduct of public prosecutions and the inter-relationship between the Director and the Attorney General in the discharge of their functions under the Constitution.
The Applicant contends that the grants of immunity to both accomplices were illegal because:
(1) Upon a proper interpretation of section 90 of the Constitution, the Director does not have the power to grant a witness immunity from prosecution whether conditional or otherwise.
(2) The powers of the Director under section 90 of the Constitution are subject to the powers of the Attorney General under section 76(2) by which the Attorney General is vested with responsibility for the administration of legal affairs in Trinidad and Tobago, and a decision to grant immunity requires that it be taken by the Attorney General. A decision to grant immunity is a policy decision for the Attorney General which falls within his responsibility for the administration of legal affairs.
(3) Under section 87 of the Constitution the President is vested with power to grant a pardon which he may exercise conditionally. There being no parallel power to grant an immunity given to the Director, no such power vests in him. See Grounds 3 and 9 of the murder and corruption motions respectively.
(4) It will always amount to an infringement of the defendant’s right under sections 4(a) and 4(b) to seek to secure his conviction on the evidence of an accomplice who has been granted a conditional immunity where one of the conditions is that such immunity may be withdrawn if the accomplice fails to testify.
(1) Power of the Director under the Constitution
Section 90 of the Constitution provides as follows:
“(1) The provisions of this section shall, subject to section 76(2) have effect with respect to the conduct of prosecutions.
(2) There shall be a Director of Public Prosecutions for Trinidad and Tobago whose office shall be a public office.
(3) The Director of Public Prosecutions shall have power in any case in which he considers it proper to do so -
(a) to institute and undertake criminal proceedings against any person before any court in respect of any offence against the law of Trinidad and Tobago;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority;
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
(4) The powers conferred upon the Director of Public Prosecutions by subsection (3)(b) and (c) shall be vested in him to the exclusion of the person or authority who instituted or undertook the criminal proceedings, except that a person or authority that has instituted criminal proceedings may withdraw them at any stage before the person against whom the proceedings have been instituted has been charged before the Court.
(5) For the purposes of this section a reference to criminal proceedings includes an appeal from the determination of any court in criminal proceedings or a case stated or a question of law reserved in respect of those proceedings.
(5) The functions of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions.”
Mr Newman submitted:
(1) That the powers of the Director as set out in section 90(3) do not provide him with express power to grant immunity to any person nor can those powers be implied in light of the fact that other bodies and private individuals have the same power. The fact that the Director’s function may be exercised by other persons under section 90(6) make it highly unlikely that the immunity power can be implied under section 90(3).
The Director’s powers are limited to discontinuance of proceedings under subsection 3(b) or the entry of nolle prosequi under section 11 of the Criminal Procedure Act none of which is the same as an immunity because in neither case are they a bar to subsequent proceedings on the same facts.
(2) That the power to grant immunity is the same as the power to grant a pre-conviction pardon provided by section 87 of the Constitution which vests such power in the President and empowers the President to grant such a pardon subject to conditions. I understand the submission to be that the silence of the Constitution on any similar or equivalent immunity, power being given to the Director is evidence of the fact that none was intended. It is therefore for the President to confer on the accomplices a pre-conviction pardon with the appropriate conditions as set out in “SGG 2” of the Gopaul-Gosine affidavit in the murder motion. The submission however is inconsistent with the Applicant’s contention that any entitlement to grant an immunity is vested in the Attorney General under section 76(2).
The main submission on behalf of the Attorney General with which counsel for the Director agrees is that the entitlement of the Director of Public Prosecutions to make grants of immunity from prosecution derives from his power in section 90(3)(a) to “institute and undertake criminal proceedings” and from the common law . The position is the same in England where there is also no express power in the Director to grant immunities.
Counsel for the Attorney General submitted that an examination of the provisions of earlier constitutions of Trinidad and Tobago makes it clear that the power is derived from the power to institute and undertake criminal proceedings since the same trilogy of powers were accorded the Director under section 63(2) of the 1961 Constitution and to the Attorney General under the 1962 Constitution (when the office of the Director of Public Prosecutions which existed briefly under the 1961 Constitution was abolished).
In Burroughs v Attorney General and Director of Public Prosecutions (1990) 1TTLR 135, Ibrahim J (as he then was), held that the Director of Public Prosecutions had the power to grant immunity from prosecution. That case was a consolidation of two actions under the Constitution and in tort for malicious prosecution and false imprisonment, brought after the dismissal of certain criminal offences preferred against the plaintiff in that case, as a result of the killing of two men by police officers under his control. Two witnesses in the criminal trial were granted immunities. At the civil trial, counsel for the plaintiff, after challenging the legality of the immunities in his opening address, conceded the Director of Public Prosecution’s power to grant the immunities. Nevertheless, Ibrahim J did go on to consider the matter and at pg. 144C said:
“In England, the office of Director of Public Prosecutions was created by the Prosecution of Offences Act 1879. That Act also sets out his duties which included, inter alia, the power ‘to institute, undertake and carry on criminal proceedings’. In the United Kingdom there is no expressed statutory power in the Director of Public Prosecutions to grant immunities. But he, nevertheless, exercises that power. It is a power there exercised under the Common Law and it is also inherent in the power to institute, undertake and carry on prosecutions. The power to institute also carries with it the implied power not to institute which can be effected in many ways.”
The powers of the Director of Public Prosecutions in England are now governed by section 3(2) of the Prosecution of Offences Act
1985 in language quite similar to our own section 90(3) and the Director of Public Prosecution’s power to grant immunities
pursuant thereto was accepted by the Court of Appeal in
R v Croydon J J
(1994) 
98 Cr. App R 76. That was a case in which the police represented to the accused that he would not be prosecuted if he cooperated with the police.
The representation was made without consulting the Crown Prosecution Service which later decided to proceed with the prosecution
because the representation had been made without authority. The prosecution was held to be an abuse of process. At pg. 82
Straughton L J
stated:
“It is submitted on behalf of the Crown Prosecution Service that they alone are entitled, and bound, to decide who shall be prosecuted, at any rate in this category of case; and that the police had no authority and no right to tell the Applicant that he would not be prosecuted for any offence in connection with the murder: see section 3(2) of the Prosecution of Offences Act 1985. I can readily accept that. I also accept that the point is one of constitutional importance. But I cannot accept the submission of Mr Collins that, in consequence, no such conduct by the police can ever give rise to an abuse of process. The effect on the Applicant, or for that matter on his father, of an undertaking or promise or representation by the police was likely to have been the same in this case whether it was or was not authorised by the Crown Prosecution Service.
The grant of immunity has long been recognized at common law. In R v Turner (1975) 61 Cr App R 67, Lawton L J traced the practice back to the 18 th Century. At pg. 78 of the judgment he said:
“It is manifest that in the eighteenth century the courts did not consider an accomplice to be incompetent to give evidence because any inducement held out to him to do so was still operating on his mind when he was in the witness box. Blackstone considered that an accomplice could not expect to receive his pardon unless he gave his evidence ‘without prevarication or fraud.’ The nineteenth century brought about no change in the competence of accomplices to give evidence even though the prospect of immunity from prosecution was before them: see all the editions of S M Phillips’ Treatise on the Law of Evidence which appeared between 1814 and 1852 – there were ten. The contribution of the nineteenth century to this topic was the rule of practice that judges should warn juries of the dangers of convicting on the uncorroborated evidence of accomplices. In this century that practice became a rule of law.”
By virtue of section 12 of the Supreme Court of Judicature Act Chap. 4:01 the common law as it existed in the United Kingdom as at 31 st March 1848 was deemed to have the force of law in Trinidad. In the case of Tobago the date of reception is 1 st January, 1889. As the dictum of Lawton L J indicates the practice of granting immunity to accomplices was long established by 1848 and 1889. The Supreme Court of Judicature Act took effect on Independence Day, the 31 st August, 1962. At that time the Attorney General in whom was vested the power to carry on public prosecution by virtue of section 62(4) of the 1962 Constitution, would have had the common law power to grant immunity and that power became vested in the office of the Director of Public Prosecutions when that office was re-introduced by the Republican Constitution of 1976.
The immunity power is also vested in the office of the Director of Public Prosecutions under section 90(3). I agree with Ibrahim J that it is inherent in the power to institute, undertake and carry on prosecutions that the Director may choose not to. I am also persuaded by the dictum of Straughton L J in R v Croydon J J . It is a power to be exercised in the public interest. Indeed the grant of immunity is no more than an undertaking or promise by the Director not to exercise his power to institute or undertake criminal proceedings. Where it has been granted subject to conditions which are accepted by the grantee, it may be described as an “agreement”.
The fact that such an agreement may be forged between the holder of an office created to uphold and enforce the criminal law and a confessed law breaker may be distasteful but has come to be recognized by the courts as being sometimes necessary in the public interest. The existence of such a power in the Director of Public Prosecutions under section 90(3) and a pardon power in the President under section 87(1) are entirely consistent with their respective constitutional functions.
Mr Newman referred to the comments of Lawton L J at page 80 of the reported judgment in support of his submission that a conditional pardon may also raise questions as to an abuse of process but I can find nothing in them to support anything other than the court found the fact of an arrangement between the Director and the accomplice to be distasteful.
(2) Interrelationship between the duties of the Director of Public Prosecutions and that of the Attorney General under the Constitution
There is no contention between the Attorney General and the Director as to the grants of immunity to the accomplices in this case, although, from the affidavit of Mr Johnathan Walker there appears to be some disagreement by Mr Mohammed on whether the Attorney General can give him any direction whatever with regard to his functions under section 90(3). Mr Strachan did urge that in those circumstances it was unnecessary for me to decide this issue. However, because it was argued before me and is a matter of some constitutional importance, I shall address it.
There was some equivocation by Mr Newman in his submission on this aspect. In his further written submission he expressed his argument in this way:
(a) The power to grant immunity is part and parcel of the general powers relating to the administration of legal affairs conferred on the Attorney General under section 76 and therefore rests on him
(b) Alternatively, the grant of immunity by the Director of Public Prosecutions to a self confessed murderer is a matter of policy of some importance and the effect of section 90(1) which renders the Director of Public Prosecutions’ powers subject to section 76(2) is that the Director of Public Prosecutions must first consult with the Attorney General before granting immunity from murder. Where there is a difference of opinion between them the effect of section 90(1) is that the Director of Public Prosecutions must obey any direction of the Attorney General.
The latter submission was a variation of the pleaded case.
Central to the issue is the effect on section 90 of the words “subject to section 76(2)” in section 90(1).
Section 76(2) provides:
The Attorney General shall, subject to section 79, be responsible for the administration of legal affairs in Trinidad and Tobago and legal proceedings for and against the State shall be taken –
(a) in the case of civil proceedings, in the name of the Attorney General
(b) in the case of criminal proceedings, in the name of the State.
Mr Newman’s broad submission is that the effect of the phrase in section 90(1) is that the Director of Public Prosecutions when exercising his powers under section 90(3) in relation to the prosecution of any individual is subject to the direction of the Attorney General, by reason of the Attorney General’s overall responsibility for legal affairs. Section 76(2) is expressed in mandatory terms and contemplates that the Attorney General has a role in the taking of criminal proceedings.
In support of his submissions Mr Newman referred me to the legislative history of the powers of the Director of Public Prosecutions and Attorney General in the 1961 and 1962 Constitutions of Trinidad and Tobago.
The 1961 Constitution created the office of Director of Public Prosecutions and gave the office powers which were effectively the same as those in the 1976 Constitution. The 1962 Constitution abolished the office of Director of Public Prosecutions and gave to those powers to the Attorney General. In both the 1961 and 1962 Constitutions however there was “a protection clause” which provided that in the exercise of the powers the holders of the respective offices.
“shall not be subject to the direction or control of any other person.”
The inclusion of this provision in the 1961 Constitution (section 63(6)) left no doubt as to the Director’s independence of any form of direction from the Attorney General which was and still is a political office. Its inclusion in the 1962 Constitution (section 62(4)) was curious since the public prosecutorial powers were given to the political office of Attorney General and, for what it was worth, appears to have insulated him from direction from any other political source.
The 1976 Constitution which reintroduced the office of Director of Public Prosecutions does not have any equivalent protection clause. Mr Newman points to this omission and submits that the intention must have been to give direction and control to the Attorney General under section 76(2) hence the phrase “subject to 76(2)” .
Mr Strachan’s submission in reply is that the 1976 Constitution sought to combine independence in the institution and conduct of criminal proceedings from political influence with ensuring that there was someone who would be politically responsible and answerable to Parliament for the important executive function of administering legal affairs. The independent and non-political office of the Director of Public Prosecutions was established by section 90(3) to allow for accountability to Parliament by the Attorney General in the administration of legal affairs.
He contends that the exclusion of any form of protection clause from the 1976 Constitution meant that Parliament intended the Director’s powers over criminal proceedings to be subject to the general direction and control of the Attorney General arising from his responsibility for administration of legal affairs. The Attorney General could not give specific directions to the circumstances of individual cases. He could do so only generally. Once he does it is the duty of the Director to respect them in exercising his discretion. The decision is his alone and the Attorney General cannot dictate what the Director’s decision should be in any particular case.
Mr Armour for the Director of Public Prosecutions disagrees with the submission on behalf of the Attorney General but only to the extent that it is suggested that the Attorney General may give general directions to the Director. He submits that there is no power in the Attorney General to exercise any form of direction or control over the Director. The office of Director of Public Prosecutions is independent of any form of direction or control by the Attorney General, be it general or specific. That submission is consistent with the opinion of the Director himself. Mr Armour submits that the interpretation of section 90 must be done with a generous and purposive approach. The manner of appointment to and removal from office of the holder of the office of Director of Public Prosecutions and the fact that those processes are to be managed by an independent body, are factors to be taken into account.
I have been referred to two decisions from other jurisdictions. The constitutional provisions which fell to be interpreted are not identical with the Trinidad and Tobago Constitution but the dicta are helpful. In Attorney General of Fiji v Director of Public Prosecutions (1983)2 AC 672 one of the issues before the Judicial Committee was a whether the Governor General of Fiji had power under section 76(1) of the Constitution to assign to the Attorney General responsibility for the administration of the office of the Director of Public Prosecutions. The office and powers of the Director of Public Prosecutions were created by section 85 of the Constitution of Fiji in language almost identical to section 90(3) of the Trinidad and Tobago Constitution. Under section 76(1) of the Fijian Constitution the Governor General acting in accordance with the advice of the Prime Minister may assign to the Prime Minister or any other Minister of Government responsibility for the conduct of any business of the Government, “including responsibility for the administration of any department of the Government”.
Acting under this provision, the Governor General assigned to the Attorney General responsibility for the administration of the office of director of Public Prosecutions. The assignment of responsibility for the administration of the office of Director of Public Prosecutions was by its terms expressed to be subject to section 85 of the Constitution. Section 85(7) provided that the Director of Public Prosecutions was not subject to the direction and control of any other person in the exercise of his powers. The Director of Public Prosecutions of Fiji applied to the Supreme Court for a declaration that the assignment was unconstitutional. On appeal to the Judicial Committee it was held that section 76(1) permitted the Governor General to assign to the Attorney General such functions of the Director of Public Prosecutions as were not required by the Constitution itself or any other law to be exercised exclusively by the Director of Public Prosecutions. The Director of Public Prosecutions had responsibilities in addition to those provided for by section 85 of the Constitution on which an assignment was capable of taking effect. The reservation that it was subject to section 85 meant that by its terms, the assignment did not encroach upon the powers to be exclusively exercised by the Director of Public Prosecutions as guaranteed by sub-section 7.
The speech of Lord Fraser of Tullybelton provides, at page 679F, an interesting insight into the Board’s approach. He said:
“Section 85(7) contains the constitutional provision on which the Director of Public Prosecutions primarily relies in this appeal. Their Lordships agree with the Court of Appeal that this subsection amounts to a constitutional guarantee of independence from the direction or control of any person in the exercise by the Director of Public Prosecutions of his powers under the preceding subsections of section 85. Similar constitutional guarantees are given to the Supervisor of Elections (section 43(4)), the Auditor-General (section 126(4)) and the Ombudsman (section 177(1)). The independence of the Director of Public Prosecutions is further safeguarded by other sections in the Constitution. One of these is section 109(2) which provides that any person holding the office of Director of Public Prosecutions, and certain other similarly protected offices, may be removed from office only for inability or misbehaviour, and only after an elaborate procedure has been followed. Another is section 124 which provides that the salaries of the holders of the offices therein specified, including that of Governor-General, judge and Director of Public Prosecutions, are to be charged on the Consolidated Fund and that the salary and tenure of office of any such holder shall not be altered to his disadvantage after his appointment. The Attorney-General on the other hand, although he must be a person qualified to practise as a barrister and solicitor in Fiji (section 73(3)(a)), holds a political office and he is the principal legal adviser to the Government (section 76(2)). He is entitled to attend and take part in the proceedings of either House of Parliament, notwithstanding that he is not a member of that House (section 60).”
He went on to say at page 681(G) that:
“…functions under the Constitution and his non-assignable responsibilities under other laws are not exhaustive of all his responsibilities. There are other areas of his responsibility which might fall under the ‘general direction and control’ of the Attorney-General by virtue of the assignment and of section 82, without contravening section 85(7). For example his department will require supply from public funds, and communications with the Cabinet and Parliament to explain and justify estimates for the office, as well as a responsibility for provision of appropriate accommodation and facilities, might be proper matters to be under the general direction and control of the Attorney-General without eroding the independence of the Director of Public Prosecutions. Responsibility for approving and reviewing the establishment of the department is vested in the Public Service Commission: Public Service Act, section 5(1)(d), but matters concerning the economical and efficient deployment of staff might fall under the general direction and control of the Attorney-General. Their Lordships say ‘might’ because they wish to avoid any appearance of drawing up a list of matters for which responsibility has been assigned, and also to allow for the possibility that circumstances might arise in which a Government behaved so unreasonably, for example by exercising such excessive financial pressure on the Director of Public Prosecutions’ department, that the inference would be that they were really seeking to interfere with his independence. There is, of course, no suggestion that such a possibility has been realized.”
While there is no equivalent to section 85(7) in the 1976 Constitution, there are similarities between the Constitution of Fiji and the Trinidad and Tobago Constitution in their efforts to insulate the office of Director of Public Prosecutions from political control.
In Re the Constitutional Relationship between the Attorney General and the Prosecutor-General; ex parte the Attorney General of Namibia (1995) 3 LRC 507, differences in opinion arose between the Attorney General and the Prosecutor-General of Namibia regarding the extent to which the Attorney General could exercise authority and control over the office of Prosecutor-General. In August 1993 the Prosecutor General refused to withdraw a prosecution in defiance of an instruction from the Attorney General. The Attorney General applied to the Supreme Court to determine whether the Attorney General in the exercise of final responsibility for the office of Prosecutor-General had the authority to do the following:
(i) to instruct the Prosecutor-General to decline to prosecute or to terminate a pending prosecution in any matter.
(ii) to instruct the Prosecutor-General to take or not to take any steps which the Attorney General may deem desirable in connection with the preparation, institution or conduct of any prosecution.
(iii) to require that the Prosecutor-General keep the Attorney General informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
The office of the Attorney General was constituted under art. 87 of the Namibian Constitution in which the powers and functions of the office-holder were set out. The Attorney General was appointed by the President under article 86. Under article 87 his powers and functions were; that he was the principal legal adviser to the President and Government; that he could take all action necessary for the protection of the Constitution; that he shall perform such other functions as may be assigned by Act of Parliament and that he shall ‘exercise the final responsibility for the office of the Prosecutor General’ . Under art 88 of the Namibian Constitution the Prosecutor-General was appointed on the recommendation of the Judicial Services Commission and his powers and functions included prosecuting in criminal proceedings and all functions relating thereto. The Attorney General contended that he was wholly accountable for the functions of the office of the Prosecutor-General and that by s 3(5) of the Criminal Procedure Act 1977, the Prosecutor-General had to prosecute ‘subject to the directions of the Minister’ and for the purposes of that Act he was the responsible Minister. That provision, he contended, was in force immediately before the date of independence and, by virtue of art. 140(1) of the Constitution, remained in force until repealed, amended or declared unconstitutional. The Prosecutor General contended that under the Constitution he was independent in the exercise of his functions and in the performance of his duties.
Like the Trinidad and Tobago Constitution there is no provision in art. 88 of the Namibian Constitution equivalent to Section 85(7) of the Constitution of Fiji.
The Supreme Court held that there was nothing in the Namibian Constitution to make the office of the Prosecutor-General subject to the direction of the Attorney General. The construction placed on art. 87 by the Supreme Court was influenced by the fact that the Attorney General was a political appointee and his functions executive in nature, while that of the Prosecutor-General were, like the Director’s, quasi-judicial. The Supreme Court reasoned that to allow a political appointee to dictate the initiation or termination of prosecutions would not protect fundamental rights and freedoms because there was always the danger that such an appointee would allow his political considerations to influence his decisions. At page 523(f) Leon Ag. J A who delivered the judgment of the Court said:
“Before expressing my final views on the remaining issues raised, I wish to say a word about the potential danger of political appointees deciding on when to prosecute and thereafter I shall deal with the concept of legality and the rechtssaat. While it cannot for one moment be suggested that the present incumbent of the office of the Attorney General has behaved in an oppressive, arbitrary, unreasonable or unfair manner, there is in my view always potential danger of political appointees allowing political considerations to influence their decisions even subconsciously. In a keynote address on ‘Decisions to Prosecute at the First Conference of Commonwealth Directors of Public Prosecutions’ (1991) Commonwealth Law Bulletin 1032 at 1034 Ayoola J said:
‘The manner in which such discretion is exercised and the process of prosecutorial decision-making are central to the criminal justice system. If prosecutorial decisions are to lead to public confidence in the system and are to be consistent with human rights norms they must also not only be just but also be seen to be so. The mechanism for arriving at such decisions must itself be seen to be such as can be conducive to fairness.’
I respectfully agree.”
That court’s approach in interpreting article 87 was informed by giving full recognition and effect to the rights and freedoms enshrined in the Constitution.
At page 527, Leon Ag. J A concluded:
“In the light of what I have said earlier in this judgment, on my understanding of the aspirations, expectations and the ethos of the Namibian people, it seems to me that one must interpret the Constitution in the most beneficial way, giving it the full amplitude of the powers which are given to the Prosecutor-General. Thus interpreted, the office, appointed by an independent body, should be regarded as truly independent subject only to the duty of the Prosecutor-General to keep the Attorney General properly informed so that the latter may be able to exercise ultimate responsibility for the office. In this regard it is my view that final responsibility means not only financial responsibility for the office of the Prosecutor-General but it will also be his duty to account to the President, the executive and the legislature therefore. I accept that on this view of the respective articles the ‘final responsibility’ may be more diluted and less direct but it is nevertheless still possible for such responsibility to be exercised provided that the Attorney General is kept properly informed. On this view of the matter the Constitution creates, on the one hand, an independent Prosecutor-General while at the same time it enables the Attorney General to exercise final responsibility for the office of the Prosecutor-General. The notions are not incompatible. Indeed, it is my strong view that this conclusion is the only one which reflects the spirit of the Constitution, its cardinal values, the ethos of the people, and articulates their values, their ideals and their aspirations. It also is entirely in accordance with the ‘uniquely caring and humanitarian quality of the Constitution.’
In my judgment questions (i) and (ii) must be answered in the negative while question (iii) must be answered in the affirmative.”
It will readily be appreciated that by this approach the Namibian Supreme Court was in no way inhibited in coming to its conclusions by the absence of any provision protecting the Prosecutor-General from direction or control of any person in the exercise of his powers. It is this approach that Mr Armour urged upon me.
Before giving my opinion on the effect of 90(1) of the Constitution, I must refer to section 85(1) which Mr Strachan submitted provided assistance in my interpretation of section 90(1) and 76(3).
Section 85(1) provides:
“where any Minister has been assigned responsibility for any department of Government, he shall exercise general direction and control over that department; and, subject to such direction and control, the department shall be under the supervision of a Permanent Secretary whose office shall be a public office.”
Mr Strachan submitted that it is probable that section 76(2), by making the Attorney General responsible for the administration of legal affairs, assigned him responsibility for a ‘department of Government’ within the meaning of section 85(1). My understanding of the operation of 85(1) is that the department is assigned to the Minister by the President on the advice of the Prime Minister in the allocation of portfolios within the Cabinet and I do not consider it to be apposite.
In considering the effect of the words subject to section 76(2), I am minded that I must construe both section 90 and section 76(2) so as to give effect to them both. I am also mindful that I am construing a document which is the supreme law and which is to be interpreted in a purposive and broad manner rather than in any “narrow or pedantic” way.
In the final analysis while I can look at and consider the provisions of the Constitutions of other jurisdictions, it is the provisions of our own Constitution which fall ultimately to be considered but the approach of the courts of other jurisdictions can provide valuable assistance in their interpretation.
The intention, by the re-introduction of the office of Director of Public Prosecution into the 1976 Constitution, was to make public prosecutions the responsibility of the holder of an independent office free from political control, by removing the power to initiate, undertake or discontinue public prosecutions from the control of the Attorney General, who is a political appointee.
The independent status of the Director under the Constitution is exemplified by the fact that the holder’s appointment and removal is effected by the Judicial and Legal Service Commission, chaired by the Chief Justice. The Commission is an independent body created by the Constitution. It is this same body which appoints judicial officers to the Magistracy, High Court and Court of Appeal. The office of Director of Public Prosecutions, like that of the Solicitor General and Chief Parliamentary Counsel, is part of a number of offices under the jurisdiction of the Commission, the holders of which provide independent legal advice and service to the State. Their salaries, not unlike those of judges and magistrates, are fixed by the Salaries Review Commission, another constitutionally autonomous body. The constitutional purpose of vesting in the Judicial and Legal Service Commission the powers of appointment to and removal from office of the holder of the office of Director is to safeguard the holder from political influence and to allow for the functions to be exercised free from political considerations.
In my judgment it could never have been the intention to permit the office of the Director of Public Prosecutions to be subject to any form of direction on the part of the Attorney General.
There was much argument on the omission from the 1976 Constitution of the protection clause previously included in the 1961 and 1962 Constitutions. As Lord Fraser said in Attorney General of Fiji v Director of Public Prosecutions the express inclusion thereof provided a guarantee of the Director’s independence in the exercise of his function. But, in my judgment, the absence of such a provision does not render the office any less independent. It would simply have put the issue beyond doubt.
Indeed, having regard to the nature and structure of the Constitution, such independence is to be presumed. The words of Lord Diplock in Hinds v R (1972) 24 W I R 326, at 331 are instructive. That was a case involving inter alia the doctrine of separation of powers between the legislature, the executive and the judiciary but his dictum provides useful guidance in the interpretation of a constitutional instrument.
At page 331 F he said:
“The new constitutions, particularly in the case of unitary states, were evolutionary not revolutionary. They provided for continuity of Government through successor institutions, legislative, executive and judicial, of which the members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.
Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a Governmental structure which makes provision for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of Government, thus the constitution does not normally contain any express prohibition upon the exercise of legislation powers by the Executive or of judicial powers by either the Executive or the Legislature. As respects the judicature, particularly if it is intended that the previously existing courts shall continue to function, the constitution itself may even omit any express provision conferring judicial power upon the Judicature. Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this Governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the Legislature, by the Executive and by the Judicature respectively. To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their Lordships’ view, be misleading …”
The scheme and structure of the Constitution are also consistent with the creation of an independent Director of Public Prosecutions. The absence of express words guaranteeing the independence of the office of the Director of Public Prosecutions does not make the office any less independent because of it. Section 90(3) gives the Director the right to exercise his powers “in any case in which he considers it proper to do so”. Those powers are his and his alone, to be exercised in his discretion. To act on or by the direction of any person would be an improper exercise of them.
Any such power of direction in the Attorney General must be expressly provided by the Constitution and the absence thereof is as significant as the absence of any protection clause.
Section 76(2) makes the Attorney General responsible for the administration of legal affairs. It makes him responsible for the overall management of legal affairs in Trinidad and Tobago and in so far as it affects the office of the Director of Public Prosecutions would include the financial responsibility of running that office, the provision of appropriate accommodation and facilities and other related administrative matters necessary for the efficient running of the office of Director of Public Prosecutions.
It also includes accounting to Parliament for the affairs of that office and the Department in which it functions. In this regard the words “subject to 76(2)” place on the Director a duty to keep the Attorney General informed of major and important matters of public interest or which affect the public interest. He is not however obliged to follow any direction or instruction arising out of such discussions. I turn to the next issue for consideration.
Whether it will be an infringement of section 4(a) of the Constitution if the Applicant is convicted on the evidence of an accomplice who has been granted a conditional immunity
This ground proceeds on the basis that the Director does have the power to grant a conditional immunity but contends that a conviction on the evidence of an accomplice who has to testify under cover of such immunity is a breach of his right under 4(a) and (b). The basis of such a contention must be that the Applicant will not have received a fair trial or the protection of the law.
I have found no authority to the effect that the grant of a conditional immunity is unconstitutional or otherwise unfair. On the contrary, the complete answer to the Applicant’s contention is to be found in the dictum of Lord Mustill in Chan Wai-Keung v R [1995] 2 Cr App Rep. 194. In that case the witness who gave evidence against the appellant on the charge of murder, was awaiting sentencing for an unrelated offence and he gave his evidence in expectation of receiving a reduced sentence.
The appellant’s appeal to the Judicial Committee was dismissed by the Board on the ground that the trial judge had given a clear and firm direction to the jury warning them of the potential fallibility of the witness’ evidence.
At pg. 200 Lord Mustill said:
“It has been recognized for centuries that the practice of allowing one co-defendant to ‘turn Queen’s evidence’ and obtain an immunity from further process by giving evidence against another was a powerful weapon for bringing criminals to justice, and although this practice ‘has been distasteful for at least 300 years to judges, lawyers and members of the public’, and although it brings with it an obvious risk that the defendant will give false evidence under this ‘most powerful inducement’, the same very experienced court which so stigmatized this practice was willing to accept that it was in accordance with the law: Turner (Bryan) (1975) 61 Cr App. R 67, 79.
The logic of this practice, which places the interests of the public in the detection and punishment of crime above the risk which must always exist where a witness gives evidence for the prosecution in the hope that he will obtain a benefit thereby, must also apply to situations where the ‘powerful inducement’ takes the shape not of a promised immunity from prosecution, but of the expectation that he will be granted the ‘discount’ from sentence which the courts accord to those who, not infrequently at physical risk, give evidence against their co-defendants. This logic is carried into effect. No authority is needed to illustrate the widespread practice of calling as a witness for the prosecution a co-defendant who has pleaded guilty.”
There is nothing in the law which renders such a practice unfair or illegal. It is a matter for the trial judge at the criminal trial. The decision of the English Court of Appeal in Turner also provides support for this view. There is therefore no merit in this submission and the Applicant also fails on this ground.
The legality of the Director’s consent to the prosecution of the corruption charges
The Applicant seeks a declaration that his right to liberty and security of the person and the right not to be deprived thereof except by due process of law are being or are likely to be contravened because the consents given by the Director pursuant to section 11 of the Prevention of Corruption Act are null void and of no effect.
Section 11 of the Act provides:
“A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.”
In his grounds the Applicant alleges that the Director is obliged to look closely at the facts and circumstances of the charges and must exercise his powers in a manner which is not wednesbury unreasonable, taking into account relevant considerations only. That upon a proper consideration of the evidence which the Director of Public Prosecutions placed before Baird J on 19 th October, 2000 (in order to obtain a search warrant) and the twenty-seven charges as drafted:
(i) the sums of money allegedly corruptly received by the Applicant on or between various dates set out in the charges do not match up with the sworn evidence of Karamchand Rampersad (presented by Baird J);
(ii) the charges confuse Karamchand Rampersad personally, and companies with which he is connected, namely Oilfield and Marine Sales and Services Limited, Petromar Limited and Hardware Tree Limited;
(iii) there appear to be overlaps and duplications between some of the charges.
(iv) in a number of instances, the charges allege a time period during which the offence is said to have occurred, that is too extended to make it possible for the Applicant fairly to defend the charge.
(v) in one instance, there appears to be an allegation of an offence contrary to section 9(1) of the Act, which section does not create any offence.
The argument proceeds on the basis that the only evidence upon which the informations are based is the evidence reflected in the affidavits of Mr Rampersad and Superintendent Virgil, which were placed before Baird J. There was some argument as to the disclosure of other statements of Mr Rampersad which the prosecution may have in its possession, it being in controversy whether the Applicant was legally entitled to those statements or not. Be that as it may, the allegation that the consents of the Director are a nullity is founded, deductively, on the results of the comparison of the informations with the evidence placed before Baird J and on the affidavits done by the Applicant and his advisors, set out at paragraphs (i) to (v) above. It is as a consequence of what is perceived of the evidence (by the Applicant and his legal advisors) as set out in those paragraphs that the consent of the Director is said to be null and void. The inference is that the Director did not give careful consideration to the charges. It would follow that, were I to come to a different conclusion (as I have), the Applicant’s case must fail. It is also worthy of note that there is no specific allegation that the Director took irrelevant considerations into account.
Mr Newman’s submits that a comparison of paragraphs 21, 26, 28 & 29 of the Rampersad affidavit with the twenty-seven informations reveals no relationship between the evidence therein and the charges, except for informations #560, #557 and #574 of 2001. (A consequence of the concession as to those specific informations appears to have been that there is no longer a challenge to the legality of those charges.) He also submitted there was a clear error on the face of information #558 of 2001 which referred to a section in the Act which did not create any offence. Coupled with the lack of rational relation of the evidence to the other informations, this error had two consequences:
(1) The Director has not fulfilled his role to protect the interest of the Defendant in giving his consent under section 11 of the Act.
(2) It is evidence of how carefully the Director may have looked at the other informations.
He submitted that it was a breach of the due process and protection of the law provisions because the Director acts as a filter so as to eliminate baseless criminal prosecutions. That function was an important procedural provision underpinned by section 5(2)(h).
Mr Newman founded this argument on the following legal propositions which I have summarized thus:
(c) A prosecution instituted without the consent of the Director is a nullity – R v Angel (1968) 52 Cr. App. R. 280;
(d) The purpose of requiring his prior consent is to prevent frivolous or vindictive complaints being made and to prevent persons from being harassed by private prosecutions – R v Breckenridge (1905) O.W.R. 501 at 502; Berwin v Donohoe [1915] HCA 79; (1915-16) 21 C.L.R. 1, at 24; R v Ostler (1941) N.Z.L.R. 318, at 331;
(e) The Director, before giving his consent, must be informed of the facts and engage in a careful examination of the circumstances of the particular case – C.A. 132 of 1988 – Moonan v DPP, at pg. 11;
(f) It is to be presumed that the Director has done his duty in examining the circumstances of the case – Berwin v Donohoe, (supra)
(g) If the Defence challenges the fact that the Director has examined the facts of a particular case, the prosecution may be put to the proof that he has – Berwin v Donohoe, at 26;
(h) The Director’s power to grant consent can be abused and may be set aside on the following grounds:
(i) mistake of law in misconstruing the limits imposed by statute upon the scope of his power;
(ii) procedural irregularity;
(iii) unreasonableness in the wednesbury sense;
(iv) bad faith; or
(v) improper motive
Moonan v DPP; Nottinghamshire County Council v Secretary of State [1985] UKHL 8; (1986) AC 240.
The thrust of Mr Newman’s submission is that the Director gave his consent to the laying of the charges by Superintendent Virgil without giving sufficient consideration thereto and the evidence is the lack of reasonable relation of the informations to the affidavit evidence.
He relied on R v Cain 61 Cr. App. R 186 and the dictum of Lord Mac Dermott C J in R v Downey (1971) N.I. 224 to the effect that the consent should describe the offences charged with reasonable particularity and is not a mere rubber stamp to the preferment of charges. Mr Newman conceded however that the decision of the Court of Appeal in Jagesssar v The State (No. 1) (1989) 41 W.I.R. 342 does not adopt such a strict approach. In that case it was contended that the indictment of the Appellant on a bribery charge under the predecessor Act was bad because there was no prior consent by the Director of Public Prosecutions to the laying of the charge. The Court of Appeal held that since it was the Director who preferred the indictment the spirit and intention of the then Act was not contravened. The decision also turns on the interpretation of sections 23(2) and 25(3) of the Indictable Offences (Preliminary Enquiry) Act but even if the Jagessa r decision differs somewhat from the present the decision is very highly persuasive.
In my judgment even if a strict approach were to be adopted here, the submissions of Mr Newman are plainly unsustainable. The intention behind section 11 of the Prevention of Corruption Act is to protect against the institution of oppressive and vexatious prosecutions. It cannot be said that the prosecution of the Applicant is oppressive or vexatious. Mr Mohammed deposed that the charges were laid on his instructions after he gave very careful consideration to the evidence and after an investigation in which he played an active role and of which he was kept apprised throughout. Paragraphs four, six, seven and eight all make this clear. The Director also impressed his formal consent onto each information.
As Ibrahim J A said in Moonan v The Director of Public Prosecutions and Commissioner of Police C/A #132 of 1988 at page 11:
“The office of Director of Public Prosecutions. is created by the Constitution and the powers are there set out. The underlying basis for the creation of the office is to eliminate as far as possible vexatious and oppressive prosecutions and produce a measure of uniformity in prosecuting policy. Further, it was also an attempt to satisfy the public and the police that cases were independently and impartially investigated and considered before prosecutions are commenced especially where the police are accused of committing crime … To achieve that objective, the D.P.P. has to look closely at all the facts and circumstances of each case and the law relating thereto. It is only if the evidence which the D.P.P. has available in any particular case points to a reasonable prospect of conviction that a prosecution ought to be instituted.”
The decision of the Court of Appeal in Jagessar is authority for the proposition that a direction given by the Director of Public Prosecutions for the laying of charges against the Applicant, without a formal indorsement of his consent, does not breach the spirit and intention of section 11. But even if I am wrong in my interpretation of that decision, in this case the direction by itself (or together with the formal indorsement of his consent on the informations), is a proper exercise of the Director’s discretion under section 11. Further, Mr Newman’s contention that there is no rational relation between the Rampersad affidavit and the informations, wrongly assumes that the evidence reflected in that affidavit is the only evidence upon which the Director acted. Paragraph eight of Mr Mohammed’s affidavit shows this assumption to be misplaced. Paragraph eleven also provides a further reason for the manner of drafting of the informations.
My own examination of the Rampersad affidavit and informations found no material inconsistencies to justify any finding that the Director’s consents were null and void. Finally, Mr Mendes in his submissions on behalf of the Director, which I accept, has demonstrated quite clinically the bases upon which the charges proceed.
There is also no merit in this ground.
Legislative Validity of the Act
The Applicant contends that the Act is inconsistent with sections 4 and 5 of the Constitution because it so states in its preamble and in order to have legislative validity it must have been passed by both Houses of Parliament in accordance with section 13(2) of the Constitution. He contends that the Act was not passed in accordance with section 13(2) because the final vote on the Act in the House of Representatives occurred on 24 th April when the House agreed with Senate amendments. No formal record was kept as to the precise votes cast and no certificate has been provided by the Clerk of the House as to compliance, on that day, with the requirements of section 13(2).
Section 13 of the Constitution provides:
“13(1) An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
13(2) An Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all members of that House.”
(Section 13(3) is not relevant to the issue).
Section 6 of the Statutes Act Chap. 3:02 provides:
“6(1) When the Constitution for any purpose requires a Bill to be supported at the final vote thereon by the votes of a specified proportion of the members of a House of Parliament, the Clerk of the House shall certify whether any such Bill passed by the House was at the final vote supported by the votes of the required proportion of the members of the House.”
6(2) The certificate of the Clerk duly signed and authenticated shall be conclusive evidence as to the proportion of members supporting the Bill at the final vote.”
On the last page of the Prevention of Corruption Act it is stated that the Act was “passed in the House of Representatives this 20 th day of March, 1987” and it is signed by the Clerk of the House. Thereafter it is certified as follows:
“IT IS HEREBY CERTIFIED that this Act is one the Bill for which has been passed by the House of Representatives and at the final vote thereon in the House has been supported by the votes of not less than three-fifths of all the members of the House that is to say by the votes of thirty members of the House.
J. E. Carter
Clerk of the House
Passed in the Senate this 7 th day of April, 1987
R. L. Griffith
Clerk of the Senate
IT IS HEREBY CERTIFIED that this Act is one the Bill for which has been passed by the Senate and at the final vote thereon in the Senate has been supported by the votes of not less than three-fifths of all the members of the Senate that is to say by the votes of twenty-eight Senators.
R. L. Griffith
Clerk of the Senate
Senate amendments were agreed to in the House of Representatives on Friday 24 th April, 1987
J. E. Carter
Clerk of the House
Mr Newman submits that the final vote of the House of Representatives was on the 24 th April, 1987 and not 20 th day of March, 1987 as certified by the Clerk of the House. It is convenient at this juncture to refer to the affidavits of Christophe Grant and Jacqueline Sampson, Clerk of the House filed in defence to the motion. At para. 4 Ms Sampson states that the third stage is the final and decisive stage in the legislative process. It is at this stage that members decide whether the Bill should be passed into law and, where such a majority is required, a count is taken to certify that the requisite majority has been obtained. She adds that according to the practice in Parliament “final” vote has come to mean “the third reading” vote and not the “last” vote.
After the Bill is passed on the third reading it is sent to the Senate for its concurrence. Senate amendments are thereafter submitted to the House for its consideration in the form of a motion which relates exclusively to the Senate amendments. Each amendment is dealt with individually and an indication, by a collection of voices in favour that the House agrees with each amendment of the Senate is considered as sufficient proof of the House’s agreement. The Clerk’s certificate in accordance with section 6 of the Statutes Act, is only inserted in relation to the third reading and none is inserted in relation to the acceptance by the House, of any amendment by the Senate to a specific clause or clauses. She states that the procedure is governed by Standing Orders 58 and 59 of the Trinidad and Tobago Standing Orders of the House of Representatives made by the Governor under the provisions of section 8 of the Trinidad and Tobago Constitution Order in Council, 1961 and by the established practice of the House of Representatives.
Mr Grant appends a copy of the official report of Hansard which details the House’s agreement to Senate amendments. The amendments are of an extremely minor nature.
Mr Gopaul Gosine, who has no experience in matters of Parliament, in his affidavit in reply purports to deny that it is a settled practice or procedure that Senate amendments sent to the House for approval do not require a three-fifths majority in the House. The sole basis of that denial is his reference to Central Bank Act #2 of 1986 which contains a certificate that it was supported by twenty Senators (sufficient for a three-fifths majority).
Those amendments were agreed to by the House of Representatives on 7 th February, 1986, and were supported by the votes of thirty members.
Mr Gopaul Gosine’s assertion is misplaced as it is evident on the face of that Act that reference to the Senate amendments and to the vote thereon was not a certification within the meaning of section 6 of the Statutes Act.
Mr Newman submitted that the word “final” has its ordinary dictionary meaning and it was not a sufficient compliance with section 13(2) that the Senate amendments were passed by a collection of voices in favour. It matters not how trivial the amendments. He relied on a decision of the Supreme Court of Tennessee in Roane Iron Co. v Francis 172 S.W. Reporter 816 on 1 st January, 1915. The facts are taken from the headnote. The Constitution of Tennessee provided that no bill shall become law until it shall have been read and on its final passage have received the assent of a majority of all the members to which the house shall be entitled.
An Act originating in the House was amended by the Senate and, as amended, was passed by a constitutional majority. The House refused to concur in the amendment and the matter was referred to a conference committee. The Senate first refused to adopt the conference report but later on a motion to reconsider, the action of the committee was made the action of the Senate by a vote of fifteen to fourteen. The Senate comprised thirty-three members making the requisite majority seventeen. The Act was struck down as unconstitutional. It was held that the final passage meant the actual final vote necessary to a bill becoming law regardless of parliamentary functions. Williams J who delivered the judgment of the court said at pg. 816:
“The question is to be answered by a determination of what is the meaning of the phrase ‘final passage,’ used in the Constitution.
We are of opinion that the object of the makers of the Constitution was to require the assent of such a constitutional majority to all of the provisions of the act on passage, not merely or necessarily the third passage. The third passage of the bill under review by the Senate was not its final passage, since it was amended to make it satisfactory to the House. At first the greater number of Senators registered their votes against the bill as thus amended. Was it then finally passed? If not, when it came to a second vote after reconsideration, that tested its final passage or failure to pass. This final vote, according to the mandate of the Constitution, required the constitutional majority of 17 to make the measure a law.
He added at page 817:
“It is apparent that under a caption broad enough to admit of it, a bill might, under the rule contended for by appellee, be radically changed, made by amendment after passage on its formal reading an essentially different measure, and one that a constitutional majority could not be procured to vote for in any event. It must, we think be that a construction of the constitutional provision that would admit of such manipulation, resulting in its own easy subversion and defeat, is not the better one. Board of Revenue v Crow , 141 Ala. 126, 37 South. 469; Rogers v State , 72 Ark. 565, 82 S. W. 169; Glenn v Wray, 126 N. C 730, 36 S. E. 167; Cohn v Kingsley , 5 Idaho, 441, 49 Pac. 985, 28 L. R. A. 84; State v Drabrelle (Mo.) 170 S. W. 465.
We do not feel warranted, even in order to uphold wholesome legislation, in making by construction such a breach in a barrier that the framers of our fundamental law have thus thrown around the enactment of statutes for the protection of minorities.”
Mr Newman relied on this passage.
In my judgment the Applicant’s contention on this ground must also fail. The Roane decision is distinguishable. There appears to have been a fundamental difference of opinion between both Houses of Parliament. Secondly the approval of the Senate at the final passage required a majority of seventeen which was not met. Finally, it is a decision of a State Supreme Court and carries little persuasive value.
Having regard to section 13(1) of the Constitution it is sufficient for the validity of the Act that it is expressly declared to have effect even though inconsistent with sections 4 and 5 of the Constitution. The certification of the Clerk of the House appears on its face stating that the requisite three-fifths majority of all members of each house was obtained at the final vote thereon. Such a certification is conclusive evidence of the proportion of members supporting the Bill at the final vote. It is also conclusive of the fact that the vote in question was the final vote. Once the certification has shown compliance with section 13(2), the Act is effective for the purposes of section 13.
The Clerk of the House however has deposed that by established practice the “final” vote in the House of Representatives is the vote taken at the third reading of the bill, a fact with which Mr Newman takes issue. It is well established that the courts must defer to the practices and procedures adopted by Parliament in the enactment of legislation. It is for Parliament to lay down the procedures to be followed in enacting legislation and for Parliament to determine whether those procedures have been followed. In British Railways Board v Pickin [1974] UKHL 1; (1974) A.C. 765 Lord Morris of Borth-y-Gest at pg. 790C said:
“It must surely be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its Standing Orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed.”
Unless it is apparent from the certificate that the requisite majority has not been obtained the court is bound to find for the validity of the Act.
It was submitted for the respondents that even if the final vote were the vote taken on 24 th April, 1987, in order to render the Act invalid it must first be shown that the Act was inconsistent with sections 4 and 5 and what renders the Act void are the provisions of section 2 of the Constitution. A declaration by Parliament does not make the Act inconsistent and it does not bind the court. It is a question of law for the High Court. That submission is plainly right. The onus is on the Applicant to show that the provisions of the Act are in fact inconsistent with sections 4 and 5. To the extent that it may be found to be inconsistent, section 2 renders it void to the extent of the inconsistency.
It is no part of the grounds of the Applicant’s motion that the provisions of the Act (or any part of it) are inconsistent with sections 4 and 5. On the contrary, the Applicant relies on the fact that the Act so states in its preamble. Mr Newman belatedly sought to amend his notice of motion to correct that deficiency. The application was not allowed having been made far too late in the day.
In the result, it is not open to the Applicant to contend now that there are provisions in the Act which are inconsistent with Sections 4 and 5. In summary I find that:
(i) The Prevention of Corruption Act has legislative validity because it has complied with the provisions of section 13 of the Constitution and the certificate of the Clerk of the House as to the finality of the vote is conclusive.
(ii) Even if it does not, the Act must first be found to be inconsistent with sections 4 & 5. That is a matter entirely for the High Court and a declaration by Parliament of such inconsistency does not bind the High Court nor does it make the Act inconsistent with the Constitution. Moreover, it is no part of the Applicant’s case that there are provisions of the Act which are inconsistent with sections 4 & 5.
The Applicant has not succeeded on any of his grounds on the motions. Both are dismissed. I shall hear arguments on the issue of costs.
NOLAN P G BEREAUX
Judge
4 th December, 2001
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URL: http://www.commonlii.org/tt/cases/TTHC/2001/38.html