Louis Smith v Director of Public Prosecutions

• Jurisdiction: Jamaica
• Judge: Stamp J,Jackson-Haisley J,Nembhard J
• Judgment Date: 02 June 2021
• Neutral Citation: [2021] JMFC Full 3
• Docket Number: CLAIM NO. SU2019CV03757
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CORAM:

THE HONOURABLE Mr. Justice Chester Stamp

THE HONOURABLE Mrs. Justice Stephane Jackson-haisley

THE HONOURABLE Miss Justice Anne-marie Nembhard

CLAIM NO. SU2019CV03757

Between

Louis Smith

Applicant

and

Director of Public Prosecutions

1 ^st Respondent

and

Parish Court Judge for the Parish of St. James Sandria Wong-Small

2 ^nd Respondent

IN OPEN COURT

Mr. Hugh Wildman and Ms. Faith Gordon instructed by Hugh Wildman & Company for the Applicant

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

Ms. Faith Hall instructed by the Director of State Proceedings for the 2 ^nd Respondent

Judicial review — Application for leave to apply for judicial review — The threshold test — Whether the applicant has an arguable ground with a realistic prospect of success — Applicant charged with offences under repealed statute — Whether the charges laid against the applicant are null and void and of no effect — Whether the Full Court is the proper forum having regard to all the circumstances of the case — Whether there is an alternative remedy available to the applicant — The Money Laundering Act, section 3(1)(c), The Interpretation Act, section 25(2), The Proceeds of Crime Act, sections 2 and 139, The Civil Procedure Rules, 2002, rules 56.3(1), 56.5(1), 56.6

Costs — Whether a cost order should properly be made in the circumstances -The appropriate cost order to be made in the circumstances — Civil Procedure Rules, 2002, rules 56.15(4) and (5), 64.3, 64.6(1), 64.6(3), 64.6(4)(a), (b), (d)(i) and (ii), (e)(i), (ii) and (iii), 64.6(4)(f) and 64.6(4)(g)

Stamp J, Jackson-Haisley J and Nembhard J

Introduction

1 This is the judgment of the Court, to which each member has contributed a substantial portion.

2 This matter concerns a renewed application by the Applicant, Mr. Louis Smith, pursuant to Part 56 of the Civil Procedure Rules, 2002. It is an application for leave to apply for judicial review to challenge certain decisions made by the 1 ^st Respondent, the Director of Public Prosecutions (“the DPP”) and the 2 ^nd Respondent, the Senior Parish Court Judge for the St. James Parish Court, Her Honour Mrs. Sandria Wong-Small (“the learned trial judge”).

Background

3 Mr. Smith was jointly charged with Messrs. Robert Dunbar, Delroy Gayle and Melford Daley, on an Information dated 3 September 2013. They were charged with the offences of Drug Trafficking and Money Laundering, contrary to section 3(a) of the Money Laundering Act, 1998 (“the MLA”).

4 The prosecution is alleging that, on divers dates between 1999–2005, Mr. Smith and his co-accused were engaged in the exportation of cocaine and that they used the proceeds of their crime to acquire certain assets.

5 The matter first came before the St. James Parish Court on 5 September 2013, at which time the trial of the matter was scheduled to commence on 16 September 2019.

6 On 16 September 2019, the trial of the matter was listed before the learned trial judge. On that occasion, the prosecution sought to amend the Information to charge Mr. Smith and his co-accused pursuant to section 3(1)(c) of the MLA, instead of section 3(a) of the MLA. The application for the amendment was granted by the learned trial judge and the trial commenced and proceeded on the basis of the Information, as amended.

7 Learned Counsel Mr. Hugh Wildman, who represented Mr. Smith at the trial of the matter, first attended the trial on 18 September 2019. At that time, he raised an objection to the Information, on the basis that the charges are a nullity as, at the time that they were laid, the MLA had been repealed by section 139 of the Proceeds of Crime Act (“the POCA”). It was further submitted that it could not be disputed that the POCA was enacted and came into effect on 30 May 2007.

8 That objection was overruled by the learned trial judge and, aggrieved by that decision, Mr. Smith filed a Notice of Application for leave to apply for Judicial Review, on 19 September 2019, in the Supreme Court.

9 By virtue of that application Mr. Smith sought, inter alia, Declarations that the initiation of criminal proceedings in the St. James Parish Court, in respect of the offences of Drug Trafficking and Money Laundering is illegal, null and void and of no effect; and that the charges laid against Mr. Smith, in the St. James Parish Court, are in breach of the POCA, thereby rendering them illegal, null and void and of no effect.

10 Additionally, Mr. Smith sought an Order of Certiorari to quash the decision of the DPP to initiate charges against him, as contained in the amended Information, as well as a Stay of Proceedings, in respect of that decision.

11 On 6 February 2020, Mr. Smith was refused leave to apply for judicial review by a single Judge in Chambers. He now renews that application before this Court.

The Renewed Application

12 By way of a Renewed Notice of Application for leave to apply for Judicial Review, filed on 7 February 2020, Mr. Smith seeks the following Orders: -

• (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 the provisions contained in the Proceeds of Crime Act of May 2007, rendering 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 and 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) Costs; and

• (vii) Such other consequential directions as may be deemed appropriate.

13 By way of a Notice of Application for Court Orders for Stay of Proceedings, which was filed on 7 February 2020, Mr. Smith also seeks a stay of the proceedings in the St. James Parish Court, pending the final determination of the renewed application for leave to apply for judicial review.

The Submissions

The Submissions on behalf of the Applicant

The Effect of the Repeal of the MLA

14 Mr. Wildman submitted that the initiation of criminal proceedings in the St. James Parish Court, in respect of the offences of Drug Trafficking and Money Laundering, is illegal, null and void and of no effect. It was also submitted that the charges laid against Mr. Smith in the St. James Parish Court are in breach of the POCA, thereby rendering them illegal, null and void and of no effect. Mr. Wildman contended that the DPP has no legal power or lawful authority to initiate criminal proceedings against Mr. Smith for the said offences, in light of the repeal of the MLA by virtue of section 139 of the POCA.

15 It was further submitted that, by virtue of section 2 of the POCA, as of 2007, criminal conduct, as defined in the MLA, is no longer criminal conduct. Those provisions of the MLA, it was submitted, were replaced by sections 91 and 93 of the POCA. Furthermore, Mr. Wildman submitted, where a statute or a part of a statute has been repealed, it no longer forms part of the corpus juris. To ground these assertions, Mr. Wildman relied on the authorities of Meek v Powell, 1 Stowers v Darnell, 2 Asset Recovery Agency (Ex-parte) (Jamaica) 3 and The Director of Public Works & Another (No. 3) v Ho Po Sang & Others. 4

16 It was asserted that the Informations laid against Mr. Smith in the St. James Parish Court are bad, for the simple reason that they are not grounded in any statute and are a breach of Mr. Smith's constitutional rights under section 16(1) of the Constitution.

17 On this basis, Mr. Wildman asserted, Mr. Smith has an arguable case with a realistic prospect of success and ought properly to be granted leave to apply for judicial review.

The Issue of Delay

18 In this regard, it was submitted that the issue of time and delay, the primary issue being raised on behalf of the DPP, would not be a bar to the application for leave to apply for judicial review. Mr. Wildman submitted that, in the circumstances of this case, where the allegations involve an alleged breach of fundamental rights, the court normally extends time to apply for judicial review in order that the application might be determined on its merits.

19 Mr. Wildman did not agree that there has been any delay on the part of Mr. Smith in bringing his application for leave to apply for judicial review. In any event, it was submitted, the initiation of the criminal proceedings in the St. James Parish Court represented a continuing breach of Mr. Smith's fundamental rights. Every occasion on which a breach occurred constituted a new justiciable period of time. As such, it was submitted that the learned trial judge's refusal of the application to discontinue the criminal proceedings before her, amounted to a new...