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Trinidad and Tobago High Court |
] [Hide Context] THE REPUBLIC OF TRINIDAD & TOBAGO
THE HIGH COURT OF JUSTICE
HCA # 51 of 1997
BETWEEN DARRIN ROGER THOMAS
NATASHA DE LEON
-v-
THE STATE
_______________________________
RULING ON MOTIONS TO STAY
_______________________________
BEFORE THE HONOURABLE MR. JUSTICE IAN STUART BROOK (Ag.)
IN THE SAN FERNANDO FOURTH ASSIZE
MS. N. RAMSUNDAR & MS. M. JOSEPH on behalf of the STATE
MS. M. ROSE & MRS. R. RAMJIT on behalf of the FIRST APPLICANT
MR. L. ALLEYNE-FORTE & MS. A. PANDAY on behalf of the SECOND APPLICANT
Brook J. (Ag.):
THE MOTIONS
1. By Notice of Motion re-filed on the 6 January 2006, the First Applicant sought to have criminal proceedings, against him, for the murder of Ruben Paul Jaskaran, contained in Indictment No. 51 of 1997 ("the Indictment") quashed and/or stayed on the grounds that:
a) the continued prosecution of the Applicant in the circumstances of this case constitutes a breach of the Applicant's right to a fair trial within a reasonable time in accordance with the Constitution and/or settled principles of the common law;
b) the continued prosecution of the Applicant in the circumstances of this case amounts to an abuse of the process of the Court.
2. By Notice of Motion filed on the 4 January 2006, the Second Applicant sought:
1. to have criminal proceedings against her contained in the Indictment stayed on the grounds that:
a) the unreasonable delay of about Thirteen (13) years elapsing from the date of the alleged offence to the date of trial or the period of approximately twelve (12) years from the date of committal constitutes an abuse and/or misuse of the process of the Court; and b) the continuation of the prosecution herein is manifestly unfair and unjust and tends to bring the administration of criminal justice into disrepute; and c) the continuation of the prosecution is contrary to the principles of fundamental justice and is in breach of the applicant's constitutional right to a fair trial within a reasonable time or without unreasonable delay in accordance with the provisions of section 4 (a) and (b) and 5 (2) (e) and (h) of the Constitution; and d) the continuation of the prosecution herein in light of procedural breaches is manifestly unfair and unjust and attacks the fundamental blocks of the administration of justice.
2. the committal Order in these proceedings be quashed on the following grounds:
a) the Applicant was without lawful reason or excuse not informed by the presiding Magistrate of her right to call witnesses on her behalf during the conduct of the Preliminary Enquiry contrary to section 18 of the Indictable Offences (Preliminary Enquiry) Act Chapter 12:01 nor was she assisted in her cross-examination by the presiding Magistrate in accordance with the principles of a fair hearing; and b) in making the said committal order the presiding Magistrate acted without jurisdiction.
3. In support of his Motion, the First Applicant relied upon an affidavit, with 23 Exhibits, sworn to on the 6, and filed, on the 7 April 2005, in support of his original Motion. When the Motion came before me, on the 13 February 2006, his Counsel, Ms Margaret Rose, was granted leave to rely on an amended, draft affidavit, upon her undertaking to cause the same to be sworn, filed and served that day [1] . In substance, the latter amended paragraph 47, of the original, by the addition of a single sentence, inserted 2 new paragraphs, 48 and 49, and incorporated the 23 Exhibits, originally filed.
4. Additionally, the First Applicant relied upon an affidavit of Barbara Whitier, his mother, filed on the 13 February 2006 [2] , in substitution for her previous, filed, on the 7 April 2005, in support of the original Motion. The latter, in time, incorporated an additional, albeit hearsay, phrase, contained within paragraph 6 thereof, to the effect that one Mr. Lee Young was with the First Applicant, at the material time, which the First Applicant has deposed to, himself, in any event.
5. In support of her Motion, the Second Applicant relied upon an affidavit sworn to and filed on the 4 January 2006.
6. At the hearing of this Motion, the State relied upon an affidavit of Dianne Pierre Henry, together with 3 exhibits, sworn to and filed the 14 April 2005 ("the Henry affidavit"), an affidavit of Janice Rigsby sworn the 14, and filed the 15 April 2005, in relation to the Second Applicant, and an affidavit of Janice Rigsby, with two exhibits sworn the 10, and filed on the 11 of January 2006, in substitution for what appears to be an affidavit, in identical terms, sworn the 13, and filed on the 14 April 2005, in relation to the First Applicant. At the hearing, Ms Ramsundar, one of the two attorneys appearing on behalf of the State, indicated that she intended to cause to be sworn, filed and served a further affidavit in substitution of the Henry affidavit, from another officer attached to the Supreme Court of Judicature, in identical terms and producing the relevant exhibits. There being no objection from Counsel for the defence, the Court proceeded with the Henry affidavit, in anticipation that it would be provided with the replacement, as a matter of formality, in due course.
7. Although those filed by the State were entitled "Skeleton Arguments", I had placed before me, in advance of and at the hearing of the Motion, full written submissions on behalf of the First and Second Applicants and the State, filed 6 January 2006, 9 January 2006 and the 15 April 2005 respectively. Upon being informed that I had read the same, together with all relevant authorities, with which I am familiar, referred to in the various written submissions, in advance of the hearing of the Motion, all Counsel agreed that the hearing took the form of my clarifying one or two points which had arisen in the written submissions, together with my receiving supplementary, oral submissions from each of the attorneys such as they might care to present. Additionally, Ms Ramsundar, on behalf of the State, provided me with an unfiled, update of her original skeleton arguments which, inter alia , incorporated material from the previously aborted first trial, in respect of the Indictment, in 2005, together with certain conclusions of, Rampersad, J. (Ag.) when considering similar Motions, together with arguments on section 18 ibid , in light of those included by Counsel for the Second Applicant, in his written submissions. State Counsel indicated that the amended skeleton would be filed, in due course [3] , and there was no objection by Counsel for the Applicants, for my having recourse to an un-filed copy, in advance thereof.
8. In, R. v. Derby Crown Court, ex parte Brooks , (1985) 80 Cr.App.R. 164, 168, it was held that the power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused 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 (b) on the 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.
9. On the issue of delay, the Court was guided, in its deliberations, by the common-law, in respect of this issue. The cases of
Attorney-General’s Reference (Number 1 of 1990)
[1992] 3 All ER 169 and
Tan v. Cameron
[
1993] 2 All ER 493 were instructive. The judgments in the cases of
Director of Public Prosecutions and another v. Jaikaran Tokai and others
(1995) 48 WIR 376 and
Sookermany v. Director of Public Prosecutions and another
(1996) 48 WIR 346, although emanating from constitutional motions, also provided useful guidance. From the cases, the following principles can be distilled:
• A stay should only be imposed in exceptional circumstances.
• The burden of proof of proving serious prejudice to the extent that a fair trial was impossible, so that a continuance of the prosecution would be an abuse of the process of the Court, rests on the accused on a balance of probabilities and the burden is an onerous one.
• While lengthy, inexplicable delay raises the question of presumptive prejudice that alone is not sufficient to warrant a stay but the real issue is whether, in all the circumstances, given the trial Court's dominion over the admissibility of evidence and directions to the jury the accused could be afforded a fair trial.
• A further, distinct consideration arises on an issue broader than prejudice and that is the discretionary power of a Court in cases of inordinate delay to stay proceedings where to allow them to proceed would amount to oppression or misuse of the court process - an accused may exceptionally be granted a stay of criminal proceedings for delay at common law even if he cannot show that he has suffered any actual prejudice in the presentation of his defence as a result of the delay if: (a) there has been something oppressive or unconscionable in the conduct of those responsible for the prosecution in procuring or (where there is an option) permitting the delay; or (b) the time which has elapsed since the alleged offence was committed or since the accused was charged (or both), is so long that, after considering whatever explanation or excuse for the delay (including a lack of institutional resources) is offered, the court regards the continued prosecution of the accused as unconscionable or oppressive and a misuse of the court’s process. This residual discretion will only be exercised in the most exceptional cases.
10. The Applicants deposed that they were arrested, in March 1993, for the murder of the deceased, Ruben Paul Jaskaran, the victim, particularised in the Indictment. The Second Applicant deposed that she was charged for a murder that occurred in or about February 1993, on the 25th May 1994 (deceased: Chandranath Maharaj). She also deposed that she was charged for another murder that occurred on the 10 March 1993 (deceased: Lambert Dookoo).
11. The First Applicant deposed that arising out of the same arrest in March 1993, he was also charged with two other murders. It is common ground that these were those in respect of Chandranath Maharaj and Lambert Dookoo.
12. The Henry affidavit produces as exhibits, the various Court flysheets in respect of the hearings in respect of these three cases. Although the First Applicant deposed that it was on the 15th of November 1995, the Second, together with Henry, deposed that they were found guilty of the murder of Chandranath Maharaj, and sentenced to death by hanging, on the 9th November 1995. Both Applicants deposed that they have exhausted their appeals in respect of this matter and that the ruling in Pratt and Morgan, (1993) 43 WIR 340, applies to their current status, as condemned prisoners.
13. The First Applicant deposed that a Death Warrant was read, to him, on the 25th June 1998 [4] . Ultimately, the death sentence imposed upon him was stayed, by the Privy Council, pending the determination of his petition to the IACHR [5]
14. The Court flysheets indicate that the matter the subject of the Indictment and the Lambert Dookoo matter came before the San Fernando Assizes, in separate courts, on the 9 March 2000. According to the record, the First and Second Applicants, but not their co-accused in the latter, were present and, accordingly, the matter was adjourned, to the 20 March 2000 "for all parties to be present". The record indicates that the other matter, the subject of the Indictment, was adjourned "generally", by Baird J. On the other hand, both Applicants have deposed that this matter was called on, before Mae Weekes J. (as she then was), on the 20 March 2000, in their absence , and that they were informed, subsequently, that the matter had been adjourned generally/indefinitely.
15. Whilst there is no evidence before me, as to the reasons why this matter was adjourned "generally", Ms Ramsundar indicated, in argument, on the 13th of February 2006, that a decision had been taken by her Department, to try the Lambert Dookoo matter, before this, as the third accused, in that matter, was a minor.
16. In respect of the Lambert Dookoo matter, both Applicants depose that the First, was acquitted of this allegation and the Second, was found guilty of manslaughter, sometime in March 2001. The Court flysheets confirm that, in fact, this was at a hearing on the 5th of February 2001 and that the Second Applicant was ordered to be imprisoned for life, not to be released before the expiration of 20 years from the date on which the sentence was pronounced, viz., the 1 March 2001.
17. The First Applicant deposed that, having regard to the length of time that had elapsed and to the fact that over the years there were three different murder charges pending against him, he had difficulty in remembering exactly what occurred on the adjourned dates of each of the matters, and he sought, as best he could, to put together, from his recollection and documents in his possession, what transpired during the course of these proceedings.
18. It is common ground that the first Cause List hearing, in this matter, at which the Applicants appeared, albeit unrepresented, was held on the 30 September 1997. The Court flysheet is endorsed that both defendants requested [the services of an attorney at law through the Legal Aid and Advisory Authority ("LAAA")], on that occasion. Whilst the First Applicant deposed that "[this] matter was finally set down for trial on the 4 April 2005", the Court flysheets record that on the next adjourned hearing, the 20 October 1997, notwithstanding the fact that the First Applicant was absent, with only the Second, present, albeit unrepresented, the matter was fixed for trial for the 20 November 1997.
19. The Court flysheets record that, thereafter, the matter came before the Court on the 8th December 1997, 8th and 14th January and the 2nd and 3rd of February 1998, with intermittent legal representation, when, on two occasions, the Court was engaged with another matter in progress.
20. Legal representation, for both Applicants, seems to have crystallised, for the first time, on the 4th March 1998, when the Court appointed AR to represent the First Applicant, the Second, being represented by MC. The appointment of AR was confirmed by the LAAA, on the 22 April 1998.
21. The First Applicant deposed that:
[Context] [Hide Context] [1] The affidavit was duly sworn on the 24 th February and filed on the 1 st March 2006.
[2] This affidavit was not in proper form, but this was rectified with the re-filing of the affidavit, on the 1 st March, sworn on the 24 th February 2006.
[3] This was filed on the 2 nd March 2006.
[4] Ms Ramsundar’s written submissions indicate that such a warrant was read to both.
[5] Presumably this is what occurred with the Second Applicant too.
[Context] [Hide Context]
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URL: http://www.commonlii.org/tt/cases/TTHC/2006/15.html