Louis Smith v Director of Public Prosecutions
| Jurisdiction | Jamaica |
| Judge | Brooks P,Simmons JA,Laing JA (AG) |
| Judgment Date | 02 June 2023 |
| Neutral Citation | JM 2023 CA 67 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2021CV00068 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Civ 33
THE HON Mr Justice Brooks P
THE HON Miss Justice Simmons JA
THE HON Mr Justice Laing JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2021CV00068
IN THE COURT OF APPEAL
Judicial review — Application for leave to apply for judicial review — Delay — Civil Procedure Rules, rule 56.6 — Delay — Whether the appellant could properly be charged under the Money Laundering Act which had been repealed and replaced by the Proceeds of Crime Act at the time the charges were laid — Proceeds of Crime Act, section 139 — Interpretation Act, section 25(2)
Costs — Whether costs were properly awarded against the appellant — Civil Procedure Rules, rule 56.15(5)
Hugh Wildman instructed by Hugh Wildman & Co for the appellant
Mrs Andrea Martin-Swaby for the respondent
I have read, in draft, the comprehensive judgment of my learned sister, Simmons JA. I agree with her reasoning and conclusions and I have nothing that I can usefully add.
This is an appeal from the decision of the Full Court made on 2 June 2021, refusing the appellant's renewed application for leave to apply for judicial review (see Louis Smith v Director of Public Prosecutions and another [2021] JMFC Full 3). The Full Court also refused the appellant's application for a stay of the proceedings in the Parish Court that are at the centre of this dispute.
In September 2013, the appellant was charged jointly with two others for the offences of drug trafficking and money laundering contrary to section 3(a) of the Money Laundering Act, 1998 (‘MLA’). On 16 September 2019, when the matters were listed for trial before Her Honour Mrs Wong-Small (‘the judge of the Parish Court’), the prosecution applied for and was granted permission to amend the information to charge the appellant and his co-accused under section 3(1)(c) of the MLA. The trial then commenced.
On 18 September 2019, counsel Mr Wildman, who represented the appellant, made his first appearance in the matter. Counsel objected to the amendment of the information on the basis that the charges were a nullity as at the time they were laid, the MLA had been repealed by section 139 of the Proceeds of Crime Act (‘ POCA’), which came into effect on 30 May 2007. His objection was overruled.
The appellant, aggrieved by that decision, filed an application for leave to apply for judicial review on 19 September 2019 against the Director of Public Prosecutions (‘the DPP’) and the judge of the Parish Court (‘the respondents’). He sought declarations that the initiation of the proceedings was “illegal, null and void and of no effect” and was in breach of the Proceeds of Crime Act (‘ POCA’). He also sought an order of certiorari to quash the decision of the respondent to initiate the proceedings against the appellant as well as a stay of the decision to commence the proceedings. Damages were also claimed.
The application, which was heard on 27 January 2020 by Wolfe-Reece J, was refused on 6 February 2020. The stay of the proceedings that was granted on 19 September 2019 was also lifted.
On 7 February 2020, the appellant filed a renewed application for judicial review seeking the following orders:
An application for a stay of the proceedings in the Parish Court pending the determination of the renewed application was also filed.
-
“1. A Declaration that the initiating of criminal proceedings by [the DPP] in the parish court of St. James and presided over by [the judge of the Parish Court], of charges of Drug Trafficking and Money Laundering against the [appellant] is illegal, null and void and of no effect.
-
2. A Declaration that the initiating of criminal proceedings by [the DPP] in the parish court of St. James and presided over by [the judge of the Parish Court], of charges of Drug Trafficking and Money Laundering against the [appellant], is in clear breach of the provisions contained in the Proceeds of Crime Act of May 2007, rending [sic] the said criminal proceedings illegal, null and void and of no effect.
-
3. An Order of Certiorari quashing the decision of [the DPP] to initiate charges against the [appellant] as contained in the Information which is amended in which [the DPP] has commenced criminal proceedings against the [appellant] and being presided over by [the judge of the Parish Court] of Drug Trafficking and Money Laundering in the parish court of St. James.
-
4. A Stay of the decision of [the DPP] to commence criminal proceedings against the [appellant] and being presided over by [the judge of the Parish Court] 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.
-
5. Damages to the [appellant] to be assessed for the illegal action of [the DPP] in commencing criminal proceedings against the [appellant] for Drug Trafficking and Money Laundering, in breach of the Proceeds of Crime act [sic] of May 2007.
-
6. Costs of the Application to the [appellant]; and
-
7. The Court may on the grant of leave, give such other consequential directions as may be deemed appropriate.”
The Full Court indicated, at para. [36] of its judgment, that the following two issues arose for its consideration:
-
“(a) Has the [appellant] met the threshold for the grant of leave to apply for judicial review?
-
(b) Should the case against the [judge of the Parish Court] be struck out?”
In dealing with issue (a), the Full Court considered the following:
-
“(i) Whether the application is barred by delay on the part of the [appellant]?
-
(ii) Whether the [appellant] has established an arguable case with a realistic prospect of success;
-
(iii) Whether the charges laid against the [appellant] in the St. James Parish Court are illegal, null and void and of no effect;
-
(iv) Whether there is an alternative remedy that is available to the [appellant]; and
-
(v) Whether the Full Court is the proper forum having regard to all the circumstances of the case.”
The Full Court addressed the issue of delay at paras. [47]-[57] of the judgment. In addressing that issue, the Full Court found that the grounds for the application first arose on 3 September 2013 when the proceedings against the appellant were initiated. Therefore, at the time when the application for judicial review was filed, the matter had been before the Parish Court for over six years. The court also considered counsel's submission that from the moment the matter was commenced, “it represents a continuity of the illegality and every time it produces a new justiciable period of time”. That submission did not fall on fertile ground.
Counsel for the appellant submitted further that where it is alleged that a fundamental right of a litigant has been breached, the court has the discretion to grant an extension of time to apply for judicial review. Alternatively, that the court should extend the time, having regard to the public importance of the issues raised in the application. In treating with those issues, the Full Court found that no good reason had been proffered for the “obvious delay”. The court quite rightly did not view this as the end of the matter. At para. [54] of the judgment the Full Court stated that the issues raised in the application are of “some public importance” and the question of whether there was an arguable case would “trump” that discretionary bar.
The Full Court then considered whether the grant of relief would be likely to result in substantial hardship or prejudice to the rights of any person or was detrimental to good administration (see rule 56.6(5) of the Civil Procedure Rules, 2002 (‘CPR’)). The court found that any further delay in the hearing of the matter could result in “severe prejudice” to the applicant's co-accused “in terms of their time, financial resources, and simply the fact that during all this time this criminal matter is hanging over their heads”. Further, any additional delay may have an impact on the availability of the witnesses and, in “the circumstances, could not be said to be tantamount to good administration” (see paras. [57] and [58]).
Having found as indicated above, the Full Court correctly proceeded to consider whether the applicant's case had a realistic prospect of success. In dealing with that issue, the court having examined the provisions of the MLA, POCA and the Interpretation Act, concluded that the charges under the MLA were properly laid. In its determination of this issue, the court referred to para. [87] of Dawn Satterswaite v Bobette Smalling [2019] JMCA Civ 43 (‘ Bobbette Smalling CA’) and stated thus at para. [71]:
“[71] It is difficult to grasp how, with this very clear authority on this issue, counsel for the Applicant has made the submissions that once the statute has been repealed it ceases to be part of the law and that one cannot bring any proceeding pursuant to this repealed law. Counsel has instead sought to rely on authorities which are not only not on point but are clearly distinguishable on the facts and in the law.”
The Full Court found that the appellant had failed to meet the required threshold for a grant of leave to apply for judicial review. In the event that it was incorrect in its assessment of the appellant's prospect for success, the court considered whether he had an alternative remedy. The court found that the Parish Court was the proper forum to address the issue of whether the charges were properly brought and that the appellant had the option to appeal the decision of that court in the event that he is convicted.
Public policy considerations also informed the court's decision. At para. [102] it was noted that it was almost eight years since the matter first came before the Parish Court and that a third application for...
To continue reading
Request your trial