Fritz Pinnock v Financial Investigations Division

• Jurisdiction: Jamaica
• Judge: Stamp, J,Batts J.,Jackson-Haisley, J
• Judgment Date: 02 March 2020
• Date: 02 March 2020
• Docket Number: CLAIM NO. SU2019CV04098
• Court: Supreme Court (Jamaica)

[2020] JMFC Full 2

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Coram:

THE HONOURABLE Mr. Justice David Batts

THE HONOURABLE Mr. Justice Chester Stamp

THE HONOURABLE Mrs. Justice Stephane Jackson-Haisley

CLAIM NO. SU2019CV04098

Between

Fritz Pinnock

1 ^st Applicant

Ruel Reid

2 ^nd Applicant

and

Financial Investigations Division

Respondent

Hugh Wildman and Faith Gordon for Applicants

Richard Small and Cheryl Lee Bolton for Respondents instructed by The Senior Legal Officer of the Respondent

Judicial Review — Renewed application for leave — Whether Respondent has power to arrest and charge — Whether “designated” constable under FIDA has power to arrest and charge — Whether Informations void — Whether alternate remedy available in the parish court — Whether Fiat to prosecute should be set aside — Costs.

Batts J.

1 On the first morning of hearing Mr Richard Small, the lead counsel for the Respondent, was not in attendance. We accepted the apology proffered on his behalf and, with the concurrence of the Applicants? counsel, agreed to hear the Respondent's submissions on the 11th February.

2 In their renewed application for leave to apply for Judicial Review, filed on the 31 ^st December 2019, the Applicants seek the following relief:

• 1. A Declaration that the Respondent is a purely investigative body of financial crimes under the Financial Investigations Division Act, 2010, and is not empowered by law under the said Act to institute charges against the Applicants.

• 2. A Declaration that the Respondent is not empowered by law under the Financial Investigations Division to charge the Applicants for any offence arising from any investigation conducted by the Respondent.

• 3. A Declaration that Police Officers designated by the Commissioner of Police to be members of the Respondent are not empowered under the Financial Investigations Division Act to institute charges under the said Act against the Applicants.

• 4. A Declaration that the purported charges instituted by the Respondent against the Applicants, for various offences, to wit, conspiracy to defraud, corruption, misconduct in public office, engaging in a transaction that involves criminal property are illegal, null and void and of no effect.

• 5. A Declaration that the proceeding instituted by the Respondent against the Applicants before His Honour Mr. Justice Vaughn Smith, Parish Court Judge for the Parish of St. Andrew, for the various offences of conspiracy to defraud, corruption, misconduct in public office engaging in a transaction that involves criminal property and the possession of criminal property, is illegal, null and void and of no effect.

• 6. A Declaration that the Respondent is not permitted under the Financial Investigations Division Act to seek and obtain a Fiat from the Director of Public Prosecutions to prosecute the Applicants in respect of the purported charges brought against the Applicants by the Respondent.

• 7. An Order of Prohibition prohibiting the Respondent from taking any steps to seek and obtain a Fiat from the Director of Public Prosecution to prosecute the applicants in respect of the purported charges brought against the Applicants by the Respondent.

• 8. An Order of Certiorari quashing the charges brought by the Respondent against the Applicants for the various offences of conspiracy to defraud, corruption, misconduct in public office, engaging in a transaction that involves criminal property and possession of criminal property.

• 9. A Stay of the charges brought by the Respondent against the Applicants for conspiracy to defraud, corruption, misconduct in public office, engaging in a transaction that involves criminal property and possession of criminal property pending the determination of this Application for Leave to Apply for Judicial Review.

• 10. Cost of the Application to be cost in the Application.

• 11. The Court may on the grant of leave, give such other consequential directions as may be deemed appropriate.

3 Simply put the Applicants are seeking the permission of the court to apply for judicial review of the decision of the Respondent, or its agents, to institute criminal charges. These charges were laid, by way of Informations, in the Half Way Tree Parish Court. The Applicants wish to have it declared, among other things, that neither the Respondent, nor its agents, have a statutory power to institute charges. The Respondent's statutory role, it is contended, is purely investigatory. Permission is sought also to apply for Certiorari to quash the criminal charges so laid and to stay the proceedings. The Applicants wish also to prohibit the issue of a fiat by the Director of Public Prosecutions for that purpose.

4 The test to be applied at an application for leave to apply for Judicial Review is now well established. The applicant for leave must demonstrate that he (or she) has an arguable case with a realistic prospect of success and which is not subject to a discretionary bar such as delay or an adequate alternative remedy, see Sharma v Brown-Antoine [2007] 1 WLR 780 (PC). The test has been applied on many occasions by our Court of Appeal. The test is flexible in its application in that the more serious the consequence of the allegation the stronger the evidence required. It is fair to say also that the bar is not to be set too high lest injustice results.

5 The Applicants? initial application, for leave before a single judge, was refused. Hence the renewed application before us. In refusing leave the learned Chief Justice Bryan Sykes gave a written judgment. Counsel for the Applicants, in the course of his submissions, relied heavily on that judgment He relied also on written submissions filed before the learned Chief Justice and additional written submissions filed before this court. The Respondent opposed the application and also relied on written submissions filed here and before Sykes CJ. The Respondent similarly found comfort in the judgment of the Chief Justice. I will return to a more detailed consideration of the Chief Justice's decision and judgment. Both parties were permitted to make extensive oral submissions.

6 I am very grateful for the assistance thereby provided but will not, in the course of this judgment, restate the submissions made. Reference to them will be made only to the extent necessary to explain my decision. Counsel should rest assured that, in doing so, I intend no disrespect and choose this approach only for reasons of economy.

7 In the event, and having heard and read the submissions authorities and affidavits filed, I am firmly of the view that the application must fail. This is because the Applicants have failed to avail themselves of an alternative remedy which is still available and, in many respects, more appropriate in all the circumstances of this case. It is out of deference to the carefully articulated submissions, as well as the judgment of the learned Chief Justice, that I proffer these fairly extensive reasons.

8 The first reason, for rejecting the application, has to do with the availability of an alternative remedy. It was not disclosed, or stated by the Applicants to exist, when making the application. This is a breach of Rule 56.3 (3) (d) of the Civil Procedure Rules. Mr. Wildman, counsel for the Applicants, submitted that there was no alternative remedy and hence nothing to disclose. He is wrong. The Informations being impugned were laid before the Half Way Tree Parish Court. That is a court created by statute. Mr. Wildman's submission was that, as this was an application for judicial review to quash the originating process, it was inappropriate to make the application before an inferior tribunal. Such a tribunal, he suggested, ought not to rule on its own jurisdiction to hear the matter. He cited no authority which supported that position. It has been my experience in the Parish Court (then called Resident Magistrates Courts), over many years of practice, that the judge or magistrate has often been called upon to decide jurisdictional issues. This one is no different.

9 There are very good reasons why the parish judge, before whom the Informations are filed, is in the best position to determine the issues intended to be raised in the proceedings for judicial review. These may be summarised thus:

• a) The Applicants contend that the Respondent has only investigative power and that the Information was laid by agents of the Respondent who were acting as such. The Respondent, on the other hand, says the Informations were laid by police officers acting in the capacity of police officers. Is not the Parish Judge, after seeing and hearing the witnesses, in the best position to determine that issue? It is after all one of mixed law and fact.

• b) Even if the Applicants are correct, that the Informations were laid by agents of the Respondent acting as such, and that the evidence in its support was unlawfully obtained, the question will arise whether the resultant proceedings are void. It will be a discretionary matter, given that all prerogative remedies are discretionary, and moreso, because this case concerns the effect on an originating process, see Caribbean Pirates Theme Park Limited v Irish Rover Limited [2015] JMSC Civ 158 ( unrpted judgment 29 ^th May 2015) upheld on appeal on the 11 ^th October 2019. This is a matter that the learned Parish Court Judge should be best able to determine. It is well established that illegally obtained evidence, and/or irregular procedures, do not necessarily render proceedings void or evidence inadmissible, see Kuruma v R [1955] 1 All ER 236: Phipson on Evidence 17 ^th edition paras. 39-01 to 39-08; R v Sang [1979] 2 All ER 122; Boddington v British Transport Police [1998] 2 All ER 203; and Caribbean Pirates Theme Parks (cited above). Judicial processes once commenced are valid until and unless set aside see, Swatch AG (Swatch...