Kevin Patrick Etienne v The Chief Magistrate of Dominica, Candia Carette George
| Jurisdiction | Dominica |
| Judge | Josiah-Graham, J |
| Judgment Date | 26 June 2023 |
| Neutral Citation | DM 2023 HC 22 |
| Docket Number | CLAIM NO. DOMHCV2022/0214 |
| Court | High Court (Dominica) |
her ladyship, the Honourable Justice Jacqueline Josiah-Graham
CLAIM NO. DOMHCV2022/0214
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Dawn Yearwood – Stewart for the Applicant; and
Tameka Burton for the Respondent
Application for leave to apply for judicial review
— These are a summary of the Court's reasons for its decision in this matter. The Court reserves the right to amplify these reasons in a fuller judgment in the event of an appeal if requested.
Before the Court is an application filed on the 15 th of November, 2022 for leave to apply for judicial review for an Order of Prohibition and Certiorari to quash the Respondent's decision not to stay the proceedings in the Magisterial Matter of Police and Kevin Patrick Etienne DOMMCR 2022/06/2-A and DOMMCR 2022/06/2-B on the ground of abuse of the process.
The crux of the application for the stay is an alleged promise by the police to the Applicant through his Attorney at Law during the course of police investigations that he, the Applicant would not be prosecuted indictably but summarily only and further to release his girlfriend from custody only if he cooperates with the investigation and gives an accused statement.
In the appearance before the Respondent, the accused, charged indictably with gun-related offences, requested that he be heard on an abuse of process application after the charges were read to him. The application was granted by the Respondent. He asked for a stay of the proceedings on the basis of his allegation of manipulation by the Police during the investigative stage of the matter.
After hearing the Application, the Respondent made findings of no abuse of process in the case, and dismissed the application. A written decision evidencing the decision exhibited with the Affidavit in Support of the Application is before the Court.
In her Affidavit in Opposition to Leave filed on the 14 th December, 2022 the Respondent avers that the application before her was not that there was a “promise not to prosecute”, but that there was a “promise to charge” the Applicant summarily and to release his girlfriend. The Respondent avers further that the giving of such a promise was disputed by the witnesses for the prosecution.
The basis of this application for leave to appeal appears to be two-fold in that the Applicant in his Affidavit in Support of the Application for Leave at paragraph 11 says “I relied on to my detriment and reneged on the same and this is an abuse of process which should have caused the Respondent to issue a stay of the proceedings as it would be unfair to have me tried in all the circumstance” and simultaneously, Counsel for the Applicant submits that the decision of the Respondent offends against the Court's sense of justice and propriety to try the Applicant in the particular circumstances of this case.
The relevant facts of the case are as stated in the submissions filed on behalf of the Applicant. At paragraphs 4–8 of the Affidavit in Support of the Application filed 15 th November, 2022 the Applicant sets out the circumstances which led to the promise being made to him by the police.
The Applicant alleges, that based on this alleged agreement, he the Applicant acted on the promise by fully cooperating with the police in their investigations by answering all questions posed to him and even writing his own accused statement in complete reliance on the promise. He states in his affidavit in support of the application at paragraph 13 that the charges against him were filed in breach of the agreement made with the investigating officers and will cause him to be prejudiced to the extent that a fair trial cannot be had and that the prosecution of the case against him is now abusive and ought to have been stayed. He avers further that the behavior of the police reeks of bad faith and manipulation of the process and undermines the moral integrity of the process.
Counsel for the Applicant submits that the findings of the Respondent were perverse and unreasonable in all the circumstances and should be the subject of judicial review hence leave should be granted for an order of prohibition to prevent the hearing of committal proceedings against the Applicant. Counsel argues that there is authority for the proposition that “if the police speak to the lawyer for the Accused and the information is communicated to the Accused who acts to his detriment then this is an abuse of process. The case of R v Carl Mason 1 was cited as the authority for this proposition. In this case, it was held inter-alia that the trial judge had wrongly exercised his discretion when he failed to consider the deceit practiced on the Appellant and his solicitor for if he had done so he would have been bound to exclude the confession.
In submissions on behalf of the Applicant, Learned Counsel identified several instances which she alleges give rise to an arguable ground and contends that the Respondent Chief Magistrate, having heard all the evidence, gave a perverse decision, the said decision being against the weight of the evidence and accordingly, the proceedings are subject to review. With regard to the seriousness of the offence, Counsel for the Applicant cited the case of R v Grant 2 mentioned and referred to in Andrew Choo's text pages 127–128 as instructive.
In that case the accused was charges with murder and the police deliberately eavesdropped on a conversation that the accused had with his Solicitor. Though nothing was recovered which was of value to the Prosecution the police misconduct led to a stay of proceedings. The Court said that on the one hand it was the Court's duty to protect the public from crime, especially serious crime that consideration may militate against the refusal of a stay. However, they made it quite clear that the deliberate interference with the detained suspect's right to the confidence to the privileged communications with his solicitor, such as they have found was done, seriously undermines the rule of law and justice requires a stay on the grounds of abuse of process, notwithstanding the absence of prejudice.
Learned Counsel submits further that in any event, where police are speaking to a lawyer for the accused and hold out promises they are speaking to the accused: See R v Carl Mason 86 Cr. App R. 348. In that case, the Court stated that there was deceit practiced upon the appellant's solicitor. (See page 10). At the end of the case, Lord Justice Watkins stated thus “… we think we ought to say that we hope never again to hear of deceit if such as this being practiced upon an accused person, and more particularly possibly on a solicitor whose duty If is to advise him, unfettered by false information from the police.” Reference to the case was given to show that where police practice deceit on a solicitor the effect of this is that they hoodwinked both solicitor and client.
On the principle of alternative remedy, learned Counsel for the Applicant cites the book, Commonwealth Caribbean Administrative Law where the author 3 references the Cayman Island Court of Appeal's decision of Kirk Freeport Plaza Ltd v Immigration Board 4 for the proposition that the Court has the discretion to
Counsel claims as a result that to continue the proceedings is an abuse of the process of the Court because it offends the Court's sense of justice and propriety to be able to be asked to try the accused in the circumstances of this particular case, there being an arguable case with a realistic prospect of success.
The Respondent opposes the application for leave on the grounds that the Applicant does not have an arguable case with a realistic prospect of success and further that the Applicant has in the criminal proceedings, alternative remedies available to him.
In relation to the argument of no good arguable case, Learned Counsel for the Respondent contends that the Chief Magistrate in her assessment of the evidence correctly found that the Applicant's contention and the evidence on his behalf was not that there was a promise not to prosecute, but a promise of charges that would attract lesser penalties. Learned Counsel asserts that based on the evidence before the Respondent, it was correct and open to her to find that the Applicant always knew that he would be facing charges for the firearm offences and accordingly, the Respondent's findings is not unreasonable, neither is it one that a reasonable person acting reasonably could not have made it.
The Respondent argues further that the part of the Applicant's case that the oral ruling of the Respondent differs from the written ruling is unsupported by evidence; being only the belief of the affiant who, in her affidavit states this to be true, was in fact not present when the ruling was given. Counsel also submits that for the reneging on a promise not to prosecute to amount to an abuse of process, there must be a clear and unequivocal representation upon which the Defendant relies to his detriment, and even so,...
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