Robert Dunbar v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 08 February 2019
• Neutral Citation: JM 2019 CA 6
• Court: Court of Appeal (Jamaica)
• Docket Number: APPLICATION NO 170/2018
• Date: 08 February 2019

IN THE COURT OF APPEAL

BEFORE:

THE HON Mr Justice Morrison P

THE HON Mr Justice Brooks JA

THE HON Mr Justice Pusey JA (AG)

APPLICATION NO 170/2018

Robert Dunbar

and

R

Ms Olivia Derrett instructed by Oswest Senior-Smith and Company for the applicant

Mrs Susan Reid-Jones and Ms Deidre Pinnock instructed by The Director of State Proceedings for the Crown

Brooks JA

1 On 22 November 2018, we considered Mr Robert Dunbar's application for leave to appeal against the decision of Anderson J, which denied Mr Dunbar's application for leave to apply for judicial review. Unusually, the decision for which Mr Dunbar sought review is a decision handed down by Her Honour Mrs Hart-Hines, then a judge of the Parish Court for the parish of Saint James. After hearing the submissions of counsel and considering the material, which learned counsel helpfully provided, we made the following orders:

We promised, at that time, to put our reasons for the decision, in writing. This is a fulfilment of that promise.

• 1. Application for leave to appeal the decision of Anderson J made on 13 July 2018 denying the application for leave to apply for judicial review, is refused.

• 2. No order as to costs.

The background

2 Mr Dunbar, along with three other persons, was charged in 2013 with breaches of the Money Laundering Act (now repealed). The case was to have been tried in the Parish Court for the parish of Saint James. The prosecution applied to Her Honour Mrs Hart-Hines, in June 2016, to allow a witness to give evidence by video-link. At the time, the proposed witness was incarcerated in the United States of America (the USA), serving a 27-year sentence. The learned Parish Court Judge granted the application in July 2016, despite opposition from the defence.

3 Mr Dunbar applied to the Supreme Court for permission to apply for judicial review of the learned Parish Court Judge's decision. Anderson J heard the application, and, on 13 July 2018, refused it. The learned judge also refused Mr Dunbar's application for permission to appeal. Mr Dunbar's present application, before this court, is a renewed application for permission to appeal.

4 The learned Parish Court Judge, on 26 August 2016, handed down her written reasons for her decision. Learned counsel appearing before this court have indicated that the trial has been adjourned, pending the outcome of the application for judicial review.

The application

5 In this application, Mr Dunbar contends that he has a real prospect of successfully arguing an appeal if permission is granted. He hopes to advance the following grounds:

• “a. The Learned Judge erred when he found that the Applicant had not satisfied the test of having a realistic prospect of success in Sharma v Brown Antoine [2017] 1 WLR 780 in arguing that:

  • V The decision-maker failed to take into account relevant matters in arriving at her decision.

  • V The decision-maker considered irrelevant material which weighed heavily on her arriving at the decision to permit evidence by way of video link.

  • V The decision-maker has not adopted proper procedures in the hearing of the application.

• b. The Learned Judge erred when he found that the Applicant was afforded an alternative source of redress.

• c. The Learned Judge erred when he found that the Applicant did not provide evidence to support whether or not Judicial Review was appropriate and/or why another redress [sic] was not pursued.

• d. The Learned Judge erred when he found that the Applicant's alternative resort is to await the hearing of the Trial and thereafter to appeal on the following basis if a conviction is found pursuant to the Judicature (Appellate Jurisdiction) Act on the following grounds if necessary:

  • 1. The decision-maker did not give the Applicant sufficient time to be prepared for the hearing in breach of Natural Justice Principles.

  • 2. The Applicant has suffered serious hardship from the decision.

  • 3. The Applicant is substantially prejudiced.

• e. For the fair and just disposal of the matter.” (Bold characters and italics as in original.)

6 Ms Derrett, on his behalf, did not argue the proposed ground c. She accepted that there was no such evidence placed before the learned judge. In support of the other prospective grounds of appeal, learned counsel relied on her written submissions. She supplemented those written submissions with oral arguments.

7 Learned counsel, in her oral submissions, strenuously contended that Anderson J was wrong in denying the application on the basis that the appeal process was a viable alternative to the application for judicial review. She submitted that the learned Parish Court Judge's decision was not amenable to an appeal and therefore the only means of redress that is open to Mr Dunbar is a judicial review of that decision. She relied, in part, on In Re Preston (sub nom Preston v Inland Revenue Commissioners) [1985] AC 835; [1985] 2 All ER 327, for those submissions.

8 Ms Derrett also stressed the bases for the objection to having the witness give evidence by way of video link. She argued that that method of giving evidence was not appropriate for a witness, who is so critical to the prosecution's case, and is the only prosecution witness as to fact.

9 Learned counsel submitted that the testing of the witness would prove especially difficult in having the tribunal of fact assess the demeanour of the witness. She argued that there would also be significant difficulty for defence counsel in using the available documentation, which is voluminous, to challenge the witness on previous inconsistent statements or other documents, using the principle in R v Peter Blake (1977) 16 JLR 61. The learned Parish Court Judge, she argued, erred in failing to recognise those threats to a fair trial.

10 Ms Derrett also submitted that Anderson J was wrong in failing to recognise those weaknesses in the learned Parish Court Judge's approach. He also failed, she submitted, to recognise that those weaknesses could not have been sufficiently remedied by an appeal to the court of appeal, in the event that Mr Dunbar was convicted for the offences. She submitted that among the failures in the approach of the learned Parish Court Judge were, that she:

• a. did not allow the defence sufficient time to prepare for the cross-examination of witnesses who were called to support the prosecutor's application and did not alert Mr Dunbar or his counsel of the procedure that she intended to utilise in assessing the prosecution's application;

• b. took into account the possibility of a threat to the safety of the witness, when there was no evidence of any such threat; and

• c. failed to take into account the complexity and volume of relevant documentation that the trial would involve.

11 Accordingly, she submitted, permission to appeal ought to be granted.

The response

12 Mrs Reid-Jones, for the Crown, argued that the application ought to be refused. Learned counsel submitted that the learned Parish Court Judge carried out a detailed and careful examination of the relevant issues, and that there is no basis to interfere with the exercise of her discretion. She also submitted that Anderson J was correct in finding that an appeal was the appropriate method of challenging such an exercise, if Mr Dunbar was of the view that the learned Parish Court Judge was wrong.

13 Learned counsel argued that, the proposed appeal had no real prospect of success. She perused Mr Dunbar's prospective grounds of appeal and sought to demonstrate that each one was destined to fail, if allowed to be argued. She submitted that the application for permission to appeal should be refused.

The analysis

14 Rule 1.8(7) of the Court of Appeal Rules 2002 (as amended) (the CAR) guides this court in respect of applications for permission to appeal. The rule states:

“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.”

Despite its origins in criminal proceedings, it is Anderson J's decision, in a civil case, from which permission to appeal is being sought. The relevant principles to be applied therefore lie in the law relating to civil cases.

15 The law with regard to applications such as Mr Dunbar's is now well settled. In order to be allowed leave to appeal, Mr Dunbar must show that his prospective appeal has a realistic prospect of success. Morrison JA, as he then was, set it out in Duke St John Paul Foote v University of Technology Jamaica (UTECH) and another [2015] JMCA App 27A. He said at paragraph [21]:

“This court has on more than one occasion accepted that the words ‘a real chance of success’ in rule 1.8(7) of the [CAR] are to be interpreted to mean that the applicant for leave must show that, in the language of Lord Woolf MR in Swain v Hillman and...