Louis Smith v Director of Public Prosecutions

• Jurisdiction: Jamaica
• Judge: Wolfe-Reece, J
• Judgment Date: 06 February 2020
• Date: 06 February 2020
• Docket Number: CLAIM NO. SU2019HCV03757
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 15

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISON

CLAIM NO. SU2019HCV03757

Between

Louis Smith

Applicant

and

Director of Public Prosecutions

1 ^st Respondent

and

Parish Court Judge for the Parish of Saint James Sandria Wong-Small

2 ^nd Respondent

Mr. Hugh Wildman & Miss Faith Gordon instructed by Hugh Wildman & Company on behalf of the Applicant

Mrs. Andrea Martin-Swaby instructed by the Director of Public Prosecutions for the 1 ^st Respondent

Miss Faith Hall & Miss April July instructed by the Director of State Proceedings for the 2 ^nd Respondent

Application for leave for Judicial Review — Part 56.6 Of The Civil Procedure Rules-Delay — Whether the Applicant has a realistic prospect of success — Section 25(2) Of The Interpretation Act, 1968 — The Proceeds of Crime Act — Charges being laid pursuant to the provisions Money Laundering Act, 1998 (Repealed)

IN CHAMBERS

Wolfe-Reece, J

INTRODUCTION

1 The Applicant, Mr. Louis Smith, is jointly charged with Robert Dunbar, Delroy Gayle and Melford Daley for drug trafficking and money laundering contrary to section 3(1)(C) of the Money Laundering Act, 1998 (repealed) (hereinafter referred to as MLA) for offences, which the 1 ^st Respondent alleges were committed on divers days between 1999–2005. The matter is presently being adjudicated in the Parish Court for the parish of Saint James before the 2 ^nd Respondent who is the presiding Judge.

THE APPLICATION

2 The Applicant, Louis Smith pursues this application on his own and seeks to challenge the legality of being prosecuted under the MLA when the said act was repealed by Proceeds of Crime Act, 2007 (hereinafter referred to as POCA), which came into effect on the 30 ^th May of 2007. The Applicant filed a Notice of Application for Leave to Apply for Judicial Review on the 19 ^th September, 2019 for the following orders and declarations regarding the pending proceedings levied against him in the Saint James Parish Court:

• I. A Declaration that the initiating of criminal proceedings by the 1 ^st Respondent in the Parish Court of St. James and presided over by the 2 ^nd Respondent, of charges of Drug Trafficking and Money Laundering against the Applicant is illegal, null and void and of no effect.

• II. A Declaration that the initiating of criminal proceedings by the 1 ^st Respondent in the parish Court of St. James and presided over by the 2 ^nd Respondent, of charges of Drug Trafficking and Money Laundering against the Applicant, is in clear breach of provisions contained in the Proceeds of Crime Act of May 2007, rending the said criminal proceedings illegal, null and void and of no effect.

• III. An Order of certiorari quashing the decision of the 1 ^st Respondent to initiate charges against the Applicant as contained in the Information which is amended in which the 1 ^st Respondent has commenced criminal proceedings against the Applicant and being presided over by the 2 ^nd Respondent of drug trafficking and money Laundering in the parish court of St. James.

• IV. A Stay of the decision of the 1 ^st Respondent to commence criminal proceedings against the Applicant being presided over by the 2 ^nd Respondent as Parish Court Judge for the Parish of St. James, the said charges being contained in Information, until the determination of the Application for Leave to apply for Judicial Review.

• V. Damages to the Applicant to be assessed for the illegal action of the 1 ^st Respondent in commencing criminal proceedings against the Applicant for Drug Trafficking and Money Laundering in breach of the Proceeds of Crime Act of May, 2007.

• VI. Cost of Application to the Applicant;

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

UNDISPUTED FACTS

3 The case against the Applicant first came before the Saint James Parish Court on the 5th day of September 2013 when information dated the 3 ^rd day of September 2013, was laid against him. The allegations contained in the information were that the Applicant:

“Did on diverse days on or about 1999–2005 engaged in the exportation of Cocaine through Air Jamaica with Convicted Drug Trafficker Dean Drummonds and used the proceeds to acquire assets. Contrary to Section 3(a) of the Money Laundering Act.”

4 The matter came before the Parish Court for Plea and Case Management Hearing on the 12 ^th day of April, 2019 when the date of 16 ^th September, 2019 was confirmed as the date the trial was to commence.

5 Approximately six (6) years after the information was laid against the Applicant, the matter came on for hearing on 16 ^th September, 2019 before Her Honour Mrs. Sandria Wong-Small who is the Senior Parish Court Judge for Saint James and who is named as the 2 ^nd Respondent.

6 On the first day of the trial, being 16 September, 2019, Mrs. Martin-Swaby who appeared on behalf of prosecution made an application to amend the information, specifically, the charging section was amended to read as 3(1)(c) of MLA whilst the particulars of offence remained the same. Counsel for the Applicant was absent on the 16 ^th day of September, 2019 and the 17 ^th September, 2019 and the trial proceeded in his absence.

7 Counsel for the Applicant made an appearance on the 18 ^th September, 2019. Based on all the evidence presented, this was the first time Counsel made an objection to the continuation of the matter on the basis that the charges as presented in the information is a nullity as the MLA was repealed by section 139 of POCA. Counsel based his argument on the undisputed fact that POCA came into effect on the 30 ^th May, 2007 and repealed and replaced both the MLA and Drug Offences (Forfeiture of Proceeds) Act.

8 That this application came before the Supreme Court on 19 ^th September 2019 Daye, J granted a stay of the proceedings before the Parish Court pending the hearing of this application.

SUBMISSIONS ON BEHALF OF THE APPLICANT

Legality of the charges against the Applicant

9 Mr. Wildman submitted that the ground on which his application was built was that the charge contained in the information that was levied against the Applicant was illegal, null and void. Learned Counsel stated that because the MLA was repealed by POCA it ceased to be a part of the corpus of laws of the land. It was therefore illegal to charge the Applicant under an act which no longer formed a part of the laws of the land. Counsel submitted that in so doing, the 1 ^st Respondent had breached the Applicant's right to only be charged for offences which are known to law.

10 Counsel for the Applicant relied, in part, on the cases of Meek v Powell [1952] 1 KB 164 and Stowers v Darnell [1973] CLR 528 to support his point. In each case the respective Appellants were charged on indictments under provisions which were repealed at the time when the charges were brought. In each case, the conviction was quashed.

11 It is the Applicant's contention that delay is not an issue in the instant case. He noted that applications for leave for Judicial Review are to be made within the 3 months as stipulated by Part 56 of the Civil Procedure Rules (hereinafter called the CPR). Mr. Wildman urged on the Court that in the instant case time would begin to run from the date when the trial commenced (September 16, 2019) and not the date when the information was first laid in 2013.

12 To support his point, Mr. Wildman relied heavily on the House of Lords decision of Regina (Burkett) v Hammersmith and Fulham London Borough Council and another — [2002] 1 WLR 1593 which involved an application for leave to apply for judicial review against the local planning authority. The House of Lords was asked to consider, inter alia, whether time began to run from the date when the local planning authority passed a resolution authorising one of the authority's officers to grant outline permission for a large development, subject to two conditions precedent or whether time began to run from the date when the planning permission was actually granted. The board found that the time for bringing Judicial Review proceedings began to run from the date when planning permission had actually been granted, not from the date of an earlier resolution.

13 Further he relied on several other English authorities where by virtue of policy considerations, the court found that where the matter was of general importance, it would be wrong for the Court to exercise its discretion to refuse leave on the ground of delay, “thereby leaving substantive issues unresolved” See Regina v Secretary of State for the Home Department, ex parte Ruddock and others [1987] 1 WLR 1482.

14 Learned Counsel, Mr. Wildman, argued that “there is absolutely no scope for the application of the Interpretation Act as there is nothing to be interpreted.” It was his considered opinion that the Interpretation Act, 1968 could not be used to defeat the clear intention of parliament, by the passing of POCA. He relied on the words of Lord Morris in the case Blue Metal Industries, Ltd and Another v. R.W. Dilley and Another [1969] 3 All E.R. 437 @ 442 H “the Interpretation Act is a drafting convenience. It is not expected that it would change the character of legislation.

SUBMISSIONS OF BEHALF OF THE 1ST RESPONDENT

15 In summary the 1 ^st Respondent submitted that the application for leave for Judicial Review ought to be refused on the basis of:

• i. Delay (breach of rule 56.6);

• ii. Failure to give any good reason or any reason at all for the delay (breach of rule 56. (3)(f));

• iii. The Applicant has no realistic prospect of success; and

• iv. To grant leave would amount to a stay of proceedings and would cause substantial hardship to the 1 ^st Respondent.

16 Mrs. Martin-Swaby submitted that the Applicant failed to make the Application expeditiously as the application is being made some 6 years after the matter was first brought before the...