Gorstew Ltd v Her Hon. Lorna Shelly-Williams

 
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[2015] JMSC Civ 71

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2014 HCV 04144

Between
Gorstew Limited
Applicant
and
Her Hon. Lorna Shelly-Williams
1st Respondent

and

Patrick Lynch
2nd Respondent

and

Jeffrey Pyne
3rd Respondent

and

Catherine Barber
4th Respondent

D. Leys QC, H. Wildman, B. Hines, K. Tennant instructed by H. Wildman and Co. for the Applicant

C. Larmond instructed by the Director of State Proceedings for the 1 st Respondent

K. Knight QC and J. Junor instructed by Knight Junor and Samuels for the 2 nd Respondent

B. Samuels, S. Knight instructed by Knight Junor and Samuels for the 3 rd Respondent

D. Martin, S. Usim instructed by Usim, Williams and Co for the 4 th Respondent

Lawrence-Beswick J
1

On December 10, 2014 I refused the application for leave to apply for judicial review in this matter. I promised to provide reasons for that decision. This is a fulfilment of that promise.

2

On June 3, 2014, Her Honour Ms. Lorna Shelley-Williams (the 1 st respondent) upheld the submission made on behalf of Mr. Patrick Lynch, Mr. Jeffrey Pyne and Ms. Catherine Barber (the 2 nd, 3 rd and 4 th respondents respectively) that they should not be required to answer the case presented by the prosecution against them. The result of that decision was that the 1 st respondent adjudged each of them to be not guilty of all the offences for which each was charged.

3

Gorstew Limited (the applicant) was the complainant in that matter and it has sought leave to apply for judicial review of that decision. The orders sought are for, inter alia:

  • i. a declaration that the 1 st respondent made a jurisdictional error in stating that she needed more time to go through the evidence and that it was a work in progress, thus rendering the verdict null and void

  • ii a declaration that the 1 st respondent's verdict was so unreasonable that no tribunal properly directed could have arrived at that verdict

  • iii an order of certiorari quashing the verdict of the 1 st respondent.

Background
4

The applicant was the founder of the Appliance Traders Group Pension Fund. Mr. Lynch was the chairman of the Fund, Dr. Pyne was a previous managing director of the applicant and Ms. Barber was general manager of the Fund.

5

Those three respondents were charged on an indictment containing 16 counts. The allegations were that on the 15 th or 16 th December 2010, the 3 rd respondent had forged four letters, that the 4 th respondent uttered them and that they, along with the 2 nd respondent used the letters to conspire to defraud the applicant and to falsify its accounts.

6

The allegation at the trial was that the letters stated that Gorstew Limited had consented to certain distributions by the Fund when the 2 nd, 3 rd and 4 th respondents knew that that was not true.

7

Several witnesses testified on behalf of the prosecution over a period of many trial dates. At the end of the prosecution's case, the 1 st respondent upheld the submission that there was no case for the accused persons (2 nd, 3 rd and 4 th respondents) to answer and entered not guilty verdicts against them.

8

Queen's Counsel Mr. K. D. Knight, submitted on behalf of the 2 nd respondent, that this application for leave to apply for judicial review of that decision should not be heard. Counsel for the other respondents adopted his submission. His argument was that the application is based on a falsehood concerning words allegedly used by the 1 st respondent. The words and their importance are exemplified in the written submissions of counsel for the applicant.

Submissions for the applicant
9

In his written submissions, counsel for the applicant complained that the 1 st respondent's decision was faulty. He submitted that she had said that there was insufficient time for her to consider the case. That situation, he argued, had therefore contributed to the learned Judge's error. He placed reliance on the pronouncements which he alleged the 1 st respondent made whilst giving her reasons for her decision.

10

Counsel submitted that the trial had lasted for several days and the volume of evidence was substantial. There were detailed written submissions and oral submissions lasted 5 days. Thereafter the 1 st respondent indicated that she would need time and adjourned the matter.

11

Counsel said that he expected the 1 st respondent to then deliver a written judgment as that would have been the appropriate and procedurally regular thing for her to do. He did, however, accept that there was no legal requirement for her to do so. Instead the legal requirement was for the decision to be made after a reasonable and accurate examination of the prosecution's case and a consideration of all the relevant evidence and issues that arose.

Preliminary Points
False substratum
12

Mr. Knight submitted that all grounds being urged as being bases for judicial review had their foundation in the assertion that the 1 st respondent had said that she needed more time to go through the evidence. Queen's Counsel's submission was that the substratum of the application was the words which the 1 st respondent is alleged to have said but they were misquoted. The application for judicial review was therefore based on what he described as a falsehood and was thus faulty.

13

Queen's Counsel referred to paragraphs 8 and 10 of the Notice of Application which alleged that the 1 st respondent had stated that she really needed more time to go through the evidence and that it was a work in progress. He then referred to paragraph 12 which he said contended that the statement allegedly said by the 1 st respondent that she needed more time amounts to a jurisdictional error which vitiates her ruling on the no case submission, rendering the verdict null and void.

14

Mr. Knight referred to the exhibited transcript where it is recorded that the 1st respondent said:

“Let me just say first of all that I think I have given myself too little time in relation to this matter. I had hope [sic] to give persons copies of the decision, it's not going to be possible.”

15

Mr. Knight pointed out that nowhere in that quotation did the 1 st respondent speak to needing more time to go through evidence. Queen's Counsel then referred to particular quotations which were said to display that the 1 st respondent had stated her concerns about the time she had spent considering the evidence:

  • a. “Now please forgive me if I left out areas. I only went to certain areas I dealt with in my decisions.” [pg 19 of transcript]

  • b. “I am very sorry this is taking longer than I thought and I am going to start summarizing.” [page 23 of transcript]

16

Her words as quoted, he said, referred to her intention to have provided persons with copies of her judgment and that it was no longer going to be possible to do so at that time. These quotations, he argued, did not demonstrate that the 1 st respondent said she needed more time to go through the evidence, but rather they showed how diligently she had approached the decision. The words on which the applicant relied, he points out, are exhibited and the applicant must stand or fall by them.

17

Counsel submitted that when the 1 st respondent referred to a matter taking longer than she thought she (1 st respondent) was referring to the actual articulation of the decision, not to the time for reaching the decision.

No official document to be quashed
18

In submitting further that the application should not be heard, Mr. Knight argued that the applicant had not exhibited the official order which it wished to have reviewed judicially and which it sought to have quashed. Instead, the applicant relied on a transcript of the proceedings produced by a stenographer. Mr. Knight stated that all parties had agreed for that record to be made but they had not agreed for it to become the official record of the proceedings.

19

Queen's Counsel described it as false to state that the transcript was analogous to an official transcript which is described in ss. 291 and 292 of the Judicature (Resident Magistrates) Act. He stated that the 1 st respondent had made it clear that that transcript was not an official transcript and that her notes are the official notes.

20

Indeed, Queen's Counsel referred to par. 9 of the affidavits of the 3 rd and 4 th respondents in which they said that the understanding was that it was the 1 st respondent's notes of evidence, not the stenographers' notes, which formed the official record of the proceedings.

Autrefois acquit
21

In furthering his submission that the application should not be heard, counsel for the 2 nd respondent argued that there is no right to appeal by the prosecution in this jurisdiction and this application would amount to an appeal by the prosecution. A Full Court could not accede to the relief being sought by the applicant because of s. 16 (9) of the Constitution. There it is provided that no person who shows he has been tried and acquitted shall be tried again save on the order of a superior court made in the course of appeal proceedings. He relied on Millicent Forbes v Attorney General of Jamaica [2009] 75 WIR 406 at par. 6 and 8 to support that...

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