Tapper el al v Director of Public Prosecutions el al

JurisdictionJamaica
JudgePANTON, J.,F.A. SMITH, J.,Marsh
Judgment Date08 February 1999
Judgment citation (vLex)[1999] 2 JJC 0801
Docket NumberConstitutional Court Suit Nos. M103 and M113 of 1998
CourtSupreme Court (Jamaica)
Date08 February 1999

Supreme Court

Panton, Smith and Marsh JJ.

Constitutional Court Suit Nos. M103 and M113 of 1998

Tapper el al
and
Director of Public Prosecutions el al
Appearances

Mr. Ian Ramsay Q.C. and Miss Carolyn Reid for applicant Tapper.

Mr. Walter Scott and Mrs. Sharon Usim for applicant Mckenzie.

Mr. Gayle Nelson for Mr. Rose.

Mr. Hugh Wildman and Miss Palmer for Director of Public Prosecutions.

Mr. Lennox Campbell for Attorney General.

Judicial review - Powers of the Director of Public Prosecution — Nolle prosequi — Voluntary bill of indictment

Facts: The applicants were charged jointly with conspiracy to defraud. After numerous appearances and adjournments the matter came on for hearing on 6th July 1998; and counsel acting on behalf of the Director of Public Prosecutions entered a nolle prosequi. A note appended thereto indicated that it was entered solely so that proceedings may be commenced (against the accused) de novo, on a Voluntary Bill of Indictment, in the Home Circuit Court. The charges in the Supreme Court indictment were identical to those in the Magistrate's Court. On a consideration of the relevant facts and the law that is applicable.

Held: (1) The right of the D.P.P. to discontinue criminal proceedings pursuant to section 94(3) of the Constitution and his right to enter a nolle prosequi pursuant to s. 4 of the Criminal Justice Administration Act are subject to judicial review (2) the entry of the nolle prosequi and the presentation of a voluntary bill in respect of the said charges amounted to (a) an abuse of the process of the court (b) a deprivation of the protection of law under s. 277 of the Judicature (Resident Magistrates) Act; (c) a contravention of the applicant's rights under s. 20(1) of the Constitution. It is ordered that (i) the nolle prosequi be set aside (ii) the proceedings on the indictment preferred in the Supreme Court be stayed; (iii) the matter be remitted to the Resident Magistrate's Court. The claim of the applicants under s. 25 of the Constitution for compensation in respect of the alleged unlawful arrest be dismissed.

PANTON, J.
1

On February 8th 1999 we declared as follows -

  • (1) the exercise of the powers of the Director of Public Prosecutions under the Constitution is subject to review by the court by virtue of section 1(9) of the Constitution; and

  • (2) the entry of the nolle prosequi and the presentation of a voluntary bill of indictment in respect of the said charges by the Director of Public Prosecutions amounted to -

    • (i) an abuse of the process of the court;

    • (ii) a deprivation of the protection of the law; and

    • (iii) a contravention of the constitution.

2

We also stayed proceedings on the voluntary bill of indictment, and remitted the criminal proceedings to the Resident Magistrate's Court at Half Way Tree for trial as had been originally agreed between the prosecution and the applicants.

3

We gave then a summary of our reasons. Herein follow our detailed reasons. My learned brother, Smith, J., has stated fully the facts of the case. I am in full agreement with his reasoning and conclusions except so far as the unlawful arrest of the, applicants is concerned, and so far as I may express myself differently in the few line that I hereby contribute.

THE ABUSE OF PROCESS
4

Section 1(9) of the Constitution states:

“No provision of this Constitution that any person or authority shall not be subject to tile direction or control of any other person or authority in exercising any functions under this Constitution shall be construed as precluding a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with the Constitution or any other law.”

5

The Director of Public Prosecutions is empowered to function as such by section 94 of the Constitution. He is not subject to the direction or control of any other person or authority, in the exercise of his powers (section 94(C). However, he is not a law unto himself. “It [referring to section 94(6)) is not intended to apply to judicial control of the proceedings.” (Brooks v. Director of Public Prosecutions and Attorney General) [1994] 2 All E.R. p. 231 at 238H. He cannot simply do whatever he wishes without regard for the rights of the citizen or of the laws of the country. His action is subject to judicial review. In any, such review, the court is obliged to consider his reasons if he has disclosed them. This case is unique as the circumstances leading up to the final act by the Director of Public Prosecutions are unprecedented. It seems clear that the Director (Mr. Glen Andrade, Q.C.) was misled by his Deputy Mr. Wildman into making strange extra-judicial moves to have Her Honour Miss Millicent Rickman removed from trying the case against the applicants. According to Mr. Wildman, in answer to this court, the Director of Public Prosecutions had undisclosed reasons for wanting the matter to be heard by another Resident Magistrate. This, he said, was prior to the use of the word “persecutors” and “worms” as alleged of the Resident Magistrate. These reasons were never communicated to Miss Rickman, nor have they been communicated to this court.

6

It was never intended by the Constitution that the Director of Public Prosecutions was to be able to choose which Resident Magistrate should try a case. If it is intended to challenge the right of a Resident Magistrate to preside at a particular trial, it should be done boldly and clearly. Surreptitious behaviour is not expected of the Director in a matter of such importance. The method of challenge has long been established as -

  • (1) applying to the Resident Magistrate in Chambers, setting out the reasons;

  • (2) applying to the Resident Magistrate in open court, if the application in Chambers has failed; and

  • (3) applying to the Supreme Court if the Resident Magistrate has rebuffed the earlier efforts.

7

Having not followed the established procedure and having failed in his extrajudicial efforts to secure the removal of the Resident Magistrate, the Director of Public Prosecutions went to the extreme. He entered a nolle prosequi and presented a voluntary bill of indictment for the applicants to be tried in the Circuit Court. He, in my view, was high-handed and unfair in this move. He had led the applicants to the edge so for as a trial in the Resident Magistrate's Court was concerned. He had presented them with a copy of the indictment on which they were to be tried in the lower court. Their preparation was based on this. To have suddenly done what the Director did, appeared malicious. He disregarded the fact that he was now exposing the applicants to greater penalties if convicted. It is my view that the Constitution never contemplated such behaviour by the Director, and it does not countenance it. Indeed, section 277 of the Judicature (Resident Magistrates) Act provides the method that would have been applicable if the Director genuinely wished the case to be tried in the Circuit court. The section reads:

“Anything in this Act to the contrary notwithstanding it shall be lawful for the Director of Public Prosecutions in any case brought before a court, at any time before the accused person has stated his defence, by writing under his hand to require the magistrate to adjourn the case, or deal with it as one for the Circuit Court; and on receipt of such requisition the said Magistrate shall deal with the case accordingly.”

8

In my view, the proceedings having reached the point they had before the Resident Magistrate, with both sides having unequivocally committed themselves to a trial in that forum, the Director should have written to the Resident Magistrate requesting the conduct of a preliminary examination, in keeping with section 277. In proceeding as he did, given the history of the matter, the Director of Public Prosecutions clearly abused the process of the court.

THE UNLAWFUL ARREST
9

As regards the arrest of the applicants in the courtroom at Half-Way-Tree, Mr. Wildman, in answer to this court, conceded that “there may have been a technical breach committed in how the matter was brought before the High Court.(

10

When he gave the verbal instructions for the arrest of the applicants there was no document in existence to authorise the arrest - neither in the Resident Magistrate's Court nor in the Circuit Court. There was also no process in the hands of the police or even en route to them to sanction the arrest. The applicants had been on bail which had not been revoked by any court. Furthermore, they had not committed any new offence. Mr. Wildman was here standing in the shoes of the Director of Public Prosecutions, a public officer whose office is one under the Constitution. In acting as he did, that is, without observing the legal requirements, it is my view that he abused the constitutional position of the: Director. His abuse of it resulted in the unlawful deprivation of the liberty of the applicants in contravention of section 15 of the Constitution. There does not appear to be any real dispute on the point. After all, “where the liberty of the subject is at stake, technicalities are important”: Brooks v. Director of Public Prosecutions and Attorney General (supra). The applicants are, in my view, entitled to redress, in the form of damages to be assessed at the completion of the criminal trial. Multiplicity of actions are to be avoided so the fact that redress may be available to them in a separate action should not prevent the present recognition and determination of the breach of the Constitution.

11

Counsel's conduct

12

During the course of the proceedings before us, the new Director of Public

13

Prosecutions Mr. Kent Pantry, Q.C. sought audience on two occasions. On the first, he came to indicate his willingness to facilitate a settlement of the matter by the return of the criminal trial to...

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