Judicial review claim rarely appropriate when criminal trial in process

Ian L Benjamin SC, Keston McQuilkin and Pierre Rudder (all of the Trinidad and Tobago Bar) for the DPP; Richard Clayton KC, Gerald Ramdeen (of the Trinidad and Tobago Bar) and Wayne Sturge (also of the Trinidad and Tobago Bar) for the accused.

THE LADY CHIEF JUSTICE, giving the judgment of the Board, said that the accused had been charged with the murders of three men who were shot and killed in Diego Martin in 2009. A conviction for murder in Trinidad and Tobago carried a mandatory death penalty.

The prosecution case relied centrally on the evidence of one O’Neil Benjamin, who was said to have been an eyewitness to the shootings. Benjamin gave detailed evidence in preliminary proceedings incriminating each of the accused (whom he said that he knew and had seen with firearms at the time of and near the shootings), following which they were committed for trial.

Later, however, at the end of the pre-trial witness briefing with prosecuting attorneys in which he had confirmed his earlier evidence, he said that he wished to tell the attorneys something “just between us”.

He then said that he had not seen the accused as he had claimed but had named them to cause them to be locked up “for the good of the community”, which had been experiencing a lot of violence and shootings from warring factions at the time. He also said that, at trial, he would “answer as I did before”.

The attorneys made a note of the conversation but, when asked later, Benjamin refused to sign a statement confirming any retraction. The prosecuting attorneys informed the DPP who, having notified the defence and the trial judge, made the decision to proceed with the prosecution.

Although the start of the trial was only six working days away, the defence commenced civil proceedings seeking leave to apply for judicial review, seeking a declaration that the DPP’s failure to discontinue was unreasonable, procedurally improper and unfair.

The judge granted leave and quashed the indictment, holding that the only witness connecting the accused to the murders had given a “perjured account” of events and intended to maintain his deception at trial. The majority of the Court of Appeal affirmed the judge’s order on the basis that the failure to discontinue was “unreasonable, unfair and an abuse of process”.

Her Ladyship said that a prosecutor’s function was to not decide whether a person was guilty of a criminal offence, but rather to make an assessment as to whether it was appropriate to present charges for the criminal court to consider.

Judicial review of a prosecutorial decision was a highly exceptional remedy. While the standard of review could not be set so high as to deprive an aggrieved citizen of their only effective remedy, a highly restrictive approach was appropriate. The reasons were, in summary:

(i) The prosecutorial powers had been entrusted to the DPP and to no one else;

(ii) The polycentric character of official decision-making in prosecutorial decisions, including policy and public interest considerations. It was within neither the constitutional function nor the practical competence of the courts to assess the merits of such decision-making;

(iii) The powers were conferred on the DPP in very broad and unprescriptive terms;

(iv) The delays inevitably caused to the criminal trial if judicial review proceeded, and the desirability of all challenges taking place in the criminal trial or on appeal;

(v) The great weight to be accorded to the judgment of experienced prosecutors on whether a jury was likely to convict;

(vi) The fact that an independent prosecutor would be bound by a code of conduct; and

(vii) The need to avoid undermining prosecutorial effectiveness by subjecting the prosecutor’s motive and decision-making to outside inquiry.

In the present case, the upcoming criminal proceedings would have afforded a full panoply of safeguards to ensure justice for the accused. Leave to bring judicial review proceedings should not have been granted in circumstances where the criminal court was fully (and indeed better) equipped to deal with the issues arising.

That was sufficient to dispose of the appeal in the DPP’s favour. But even if a judicial review challenge had been appropriate, there had not been exceptional circumstances such as would have justified a quashing of the DPP’s decision to continue the prosecution and the indictment.

The DPP had been faced with two conflicting versions of events from Benjamin. The first was based on sworn depositions from and recorded interviews with him (confirmed and repeated over several days of examination in chief and cross-examination in the magistrates’ court) clearly placing the accused close to the scene of the shootings and carrying firearms.

Against that were his comments at the end of the pre-briefing session stating that he had not in fact seen the accused at all; he had simply said what he needed to at the time “for the good of the community”.

Confronted with these differing versions, the DPP had decided to continue with the criminal proceedings where the evidence could be tested. It was not for the court on judicial review to assess, let alone determine, which version of events was true.

The judge fell into error in finding in terms that Benjamin had committed perjury when he gave his sworn evidence in the magistrates’ court. She therefore accepted that what he later said to the prosecuting attorneys was true.

Moreover, she went on to evaluate other credibility matters which, in her view, pointed against him being a reliable or honest witness (such as his painting himself as “some type of vigilante hero”). That was to usurp the jury’s classic function of fact-finding.

Her conclusion that Benjamin’s original evidence had been untrue underpinned her conclusion that the DPP’s decision had not been “fairly” or “justly made”.

The majority of the Court of Appeal also treated Benjamin’s original evidence as unequivocally false.

As for the majority’s finding of abuse of process, the Board questioned whether the conundrum arising out of Benjamin’s alleged comments to the prosecuting attorneys fell neatly within considerations of abuse of process.

Rather, it was a situation where a central witness’s credibility was called into serious doubt. That, of itself, was not an unusual, let alone an exceptional, circumstance. Witnesses could recant for a number of different reasons, for example, out of fear, distress or coercion — or because the first version of events was untrue. But, as already stated, the criminal process had safeguards to address such situations.

But, in any event, the test for abuse of process had not been made out. A fair trial had been possible. And there had been no prosecutorial misconduct such that a trial would offend the court’s sense of justice and propriety or undermine public confidence in the criminal justice system.

Leave to apply for judicial review should not have been sought, or granted. It was important for the courts to guard against the danger of unjustified collateral attacks on prosecutorial decisions. Occasions when it was appropriate to judicially review a prosecutorial decision whether to (or continue to) prosecute were extremely rare.

In the present case, there had been unwarranted interference by a civil court of concurrent jurisdiction with ongoing proceedings in a criminal court. It was for the DPP to decide what, if any, next steps were appropriate.

Solicitors: Charles Russell Speechlys LLP; Dayadai Harripaul, Port of Spain.