Gorstew Ltd v Her Hon Mrs Lorna Shelly-Williams (Sitting in the Corporate Area Resident Magistrate's Court (Criminal) Holden at Half-way-Three)
| Jurisdiction | Jamaica |
| Judge | Morrison P,F WILLIAMS JA,STRAW JA (AG) |
| Judgment Date | 04 May 2017 |
| Neutral Citation | [2017] JMCA App 9,JM 2017 CA 19 |
| Date | 04 May 2017 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | APPLICATION NO 204/2016 |
[2017] JMCA App 9
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison P
The Hon Mr Justice F Williams JA
The Hon Miss Justice Straw JA (AG)
APPLICATION NO 204/2016
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Douglas Leys QC, Hugh Wildman and Miss Barbara Hines instructed by Hugh Wildman & Co for the applicant
Mrs Susan Reid-Jones instructed by the Director of State Proceedings for the 1 st respondent
KD Knight QC, Miss Stacy Knight and Miss Nieoker Junor instructed by Knight Junor & Samuels for the 2 nd respondent
No appearance for the 3 rd respondent
Miss Deborah Martin and Mrs Sharon Usim instructed by Usim Williams & Co for the 4 th respondent
This is an application for leave to appeal against the decision of the Full Court of the Supreme Court given on 4 November 2016 1. On 28 April 2017, we delivered our decision in this matter, granting leave to appeal in respect of the issue of costs only. The terms of our decision were as follows:
These are my reasons for concurring in that decision.
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“1. The application for leave to appeal against the Full Court's decision dated 4 November 2016 to refuse the applicant's application for leave to apply for judicial review of the decision of the 1 st respondent given on 3 June 2014 is refused.
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2. The application for leave to appeal against the Full Court's decision to order that the applicant should bear the respondents' costs of the renewed application for leave to apply for judicial review is granted. In order that the appeal as to costs only can be dealt with as efficiently and cost effectively as possible, it is ordered that:
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(i) the applicant is to file and serve its grounds of appeal against the Full Court's award of costs, together with skeleton arguments in support of the grounds, within 21 days of the date of this order;
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(ii) within a further 21 days of the service on them of the applicant's grounds of appeal and skeleton arguments on costs, the respondents are to file and serve skeleton arguments in response to the appeal; and
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(iii) within 28 days of the filing of the last of the respondents' skeleton arguments, the court will issue its decision on the appeal in writing.
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3. The applicant is to pay 75% of the respondents' costs of this application, such costs to be agreed or taxed.”
It is common ground between the parties that the test to be applied by this court in considering an application for leave to appeal is that set out in rule 1.8(9) of the Court of Appeal Rules 2002, which provides that:
“The general rule is that permission to appeal in civil cases will only be given if the court or the court below considers that an appeal will have a real chance of success.”
In order to determine whether this threshold has been met in this case, it is necessary to state briefly the background to the application.
At all times material to this application, the 1 st respondent was a Resident Magistrate for the Corporate Area assigned to the Corporate Area Resident Magistrate's Court at Half Way Tree.
Between April 2013 and 3 June 2014, the 2 nd, 3 rd and 4 th respondents stood trial before the 1 st respondent on a 16 count indictment containing various charges: conspiracy to defraud and falsification of accounts (preferred against the 2 nd, 3 rd and 4 th respondents); forgery (preferred against the 3 rd respondent); and uttering a forged document (preferred against the 4 th respondent). At the heart of the case against the 2 nd, 3 rd and 4 th respondents was the contention that, with fraudulent intent, they had caused funds to be paid out of the pension fund of which the applicant was the founder without the consent of the applicant, contrary to the rules of the pension fund.
On 3 June 2014, the 1 st respondent upheld a no-case submission made on behalf of the 2 nd, 3 rd and 4 th respondents and dismissed all charges against them. I will refer to the 1 st respondent's ruling as ‘the challenged decision’. At the outset of her ruling, which was given orally, the 1 st respondent said this:
“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. In fact, we do have a court reporter in court so whatever is going to be said will be recorded so you can, in fact, get it from the court reporter. Okay?”
And, at a later point during the ruling, the 1 st respondent added that, “[a]s I said, this is a work in progress”.
In the ruling, the 1 st respondent stated that although, based on the evidence for the prosecution, the actus reus in relation to all the counts in the indictment was not in issue, it was nevertheless necessary to go on to examine the evidence as to the mens rea: that is, whether the 2 nd, 3 rd and 4 th respondents acted dishonestly. After a full and careful review of the evidence and a number of the relevant authorities, the 1 st respondent stated that the prosecution “have not produced evidence to establish the mens rea in relation to dishonesty and intent to defraud”. Accordingly, applying the test for consideration of a no-case submission laid down in the authorities 2, the 1 st respondent's conclusion was “that a reasonable jury could not draw an inference of guilty mens rea based on the evidence that was heard”.
By notice of application filed on 28 August 2014, the applicant sought leave to apply for judicial review of the challenged decision, by way of -
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“i. A declaration that the statement by the 1 st Respondent in her ruling on the no case submissions in the trial … that she really needed more time to go through the evidence and that it was a work in progress, amounts to jurisdictional errors on the part of the 1 st Respondent, rendering her findings and the subsequent verdict null and void and of no effect:
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ii. A declaration that the verdict of the 1 st Respondent is so unreasonable, that no Tribunal, properly directed in law and having considered all the relevant evidence could have arrived at the said verdict.
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iii. An order of Certiorari quashing the verdict of the 1 st Respondent, that the 2 nd, 3 rd and 4 th Respondents were not guilty of the charges with which they were indicted.”
The application for leave to apply for judicial review was heard in the first instance by Lawrence-Beswick J, who refused it. In the written reasons for her decision which was given on 10 December 2014 3, the learned judge considered that, in keeping with well-established principles 4, “[t]he question to be determined at this stage is whether I am satisfied that there is an arguable ground for judicial review having a realistic prospect of success, not having a discretionary bar such as delay or alternative remedy”. Applying this test, the learned judge took the view that the words spoken by the 1 st respondent in delivering her ruling could not be taken to mean that she had not had sufficient time to consider the matter. Therefore, having accepted the submission of counsel for the respondents that, “at the substratum of this application is the
However, as a supplementary basis for her decision, Lawrence-Beswick J considered 5 that “…judicial review of the finding that there is no case to answer and that the 2 nd, 3 rd and 4 th respondents are not guilty of the charges would amount to allowing the prosecution to appeal an acquittal”. This, the learned judge said, “is not permissible under our law”. And in any event, the learned judge added, even if the challenged decision could be successfully impugned, “[o]ur constitution protects persons from the jeopardy of being tried twice for the same offence”.
In a supplementary ruling on costs issued on 19 October 2016, after considering written submissions received from the parties, Lawrence-Beswick J made the following order 6:
“…I award costs to each respondent for one counsel each to be agreed or taxed save for the specific costs which had been awarded to the applicant against the 1 st respondent on December 9, 2014 those costs having been limited to the costs of counsel reviewing the 1 st respondent's submissions filed and served on December 8, 2014. The costs are on an indemnity basis as it concerns the 2 nd, 3 rd and 4 th respondents.”
It is in these circumstances that the applicant therefore renewed the application for leave to apply for judicial review before the Full Court 7. As already indicated, that
The leading judgment was delivered by Brown-Beckford J, with whom Campbell and Thompson-James JJ agreed. As Lawrence-Beswick J had done, Brown-Beckford J approached the matter on the basis of whether the applicant had established the existence of an arguable ground for judicial review with a realistic prospect of success. In deciding that it had not, the learned judge endorsed the 1 st respondent's view that there was no evidence on the prosecution's case upon which a finding of an intention to defraud on the part of the 2 nd 3 rd and 4 th respondents could be based. 8
The learned judge also rejected the submission put forward on behalf of the applicant that the 1 st respondent ought not to have come to a conclusion on the question of whether the element of an intention to defraud had been established without first hearing the evidence of the 2 nd, 3 rd and 4 th respondents. 9
As regards the contention that the 1...
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Kingsley Chin v Andrews Memorial Hospital Ltd
...to the contrary. Analysis 19 It is important to note, as was accepted in Gorstew Limited v Her Hon Mrs Lorna Shelly-Williams and Others [2017] JMCA App 9, that “the test to be applied by this court in considering an application for leave to appeal is set out in rule 1.8(9) of the Court of A......