Shane Graham v The Chief of Police et Al

• Jurisdiction: Dominica
• Judge: Stephenson J.
• Judgment Date: 09 June 2023
• Judgment citation (vLex): [2023] ECSC J0609-2
• Docket Number: Claim No. DOMHCV 2020/0218
• Court: High Court (Dominica)

In the Matter of a Decision by the Director of Public Prosecutions, The Chief of Police and Regan Balthazar to Proceed with Criminal Complaints against The Applicant and The Indictment Relating Thereto.

and

In the Matter of An Application Pursuant to Part 56 of the Civil Procedures Rules 2000 Claiming the Administrative Orders of Certiorari to Quash the Charge of Regan Balthazar and to Prohibit the Director of Public Prosecution from Proceeding with the Indictment on the Criminal Charges against the Applicant which Indictment is Dated April 11 ^th 2019 and Deposition Filed 10 ^th 2019.

and

In the Matter of the Constitution of the Commonwealth of Dominica

and

In the Matter of An Application by Shane Graham a Person Alleging that Section 8 (1), 8 (2) (a), (b), (c), (d) and (e) of the Constitution of the Commonwealth of Dominica Are Being, Have Been and Likely to be Infringed

and

In the Matter of An Application for Redress by Shame Graham Under Section 16 of the Constitution of the Commonwealth of Dominica

Between:

Shane Graham

Applicant

and

[1] The Chief of Police

[2] Officer Regan Baltazar

[3] Director of Public Prosecution

Respondents

Claim No. DOMHCV 2020/0218

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Gina Dyer Munro of Dyer & Dyer for the Applicant

Kayan Toussaint State Counsel of the Attorney General's Chambers for the Respondents

DECISION

Stephenson J.

1 If a person has suffered grievance at the hands of a public body there is opportunity for him to obtain redress through the Courts. A person who feels he has been wronged has a right to invoke the inherent supervisory jurisdiction of the High Court which enables the Court to review decisions of government functionaries, inferior courts, tribunals and other administrative bodies to ensure that they did not act illegally, irrationally or commit some procedural impropriety.

Re: CCSU v The Minister for Civil Service 1

2 Before the court is an application for leave to apply for Judicial Review. This claim is intermingled with applications for Constitutional redress.

3 It is unfortunate that the submissions were filed both in support of and in opposition to the application since December 2021 and those submissions were duly filed away and only recently been brought to the court's attention. It is my sincere hope that counsel and the parties would accept my humblest apologies for the delay in the delivery of my ruling. This court is aware that

matters such as these should be dealt with on an urgent basis and it is indeed very unfortunate that this decision was not dealt with, with the expediency required. Further, it is noted that this period was an extremely difficult period for the court due to the infestation of mold followed by the onset of the Covid Quake

4 At the leave stage, the court is required to look at the overall evidence presented and to identify the grounds on which the appellants challenge is arguable.

5 The test for leave to apply for Judicial Review was adumbrated in the Privy Council in the oft quoted and applied in the Sharma's case 2, Lords Bingham and Walker elucidated the test for the grant of leave in the following terms 3

‘The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy… But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. … It is not enough that a case is potentially arguable; an applicant cannot plead potential arguability to justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory process of the Court may strengthen.” 4

6 As the English Court of Appeal recently said with reference to the civil standard of proof in R (on the application of N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, at para [62], in a passage applicable mutatis mutandis to arguability:

‘…the more serious the allegation of the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.’ [Emphasis added.]

7 The applicant's case was supported by affidavit evidence filed on his behalf dated 22 ^nd September 2021, 22 ^nd October 2021, February 5 ^th 2021, April 14 ^th 2021 and September 7 ^th 2021. Written submissions were made on the 7 ^th September 2021. There was also an affidavit filed in support of the applicant's case by counsel Mr E Peter Alleyne on the 5 ^th February 2021.

8 The applicant submits that at the preliminary inquiry of the charges laid against him that the virtual complainant was cross examined by his counsel and the deposition as filed with his indictment never disclosed that cross-examination. The applicant further complained that he has sought disclosure at the case management hearing of the criminal matter that the Director of Public Prosecutions was ordered to make full disclosure which order has never been complied with.

9 This court understand that the applicant complains also that the DPP is biased and acting with mala fides by indicting him when his counsel was not afforded the opportunity to cross examine witnesses at the Preliminary Inquiry and also not recording the cross examination of the virtual complainant on the deposition.

10 Counsel on behalf of the applicant contends that Judicial Review in criminal matters is allowed where the prosecution seeks to proceed to trial where evidence is not available, further that the absence of the evidence creates a situation leading to an unfair trial to which the applicant is constitutionally entitled to.

11 Counsel Dyer Munro also submitted that the failure on the part of the Director of Public Prosecutions to give disclosure as requested provides grounds for Judicial Review.

12 The right to be heard can be stated as a person having the right to have the opportunity to tell their story in their own words. Accused persons also have the right to have decisions made in their matter without personal bias. They are also expected to be treated with respect, dignity and courtesy and there is also the expectation that public authorities will act in their best interest.

13 One of the grounds upon which judicial review is granted is procedural unfairness this court is of the view that this is the basis upon which the applicant is seeking to review the decisions essentially taken by the Director of Public Prosecutions. The concept of procedural fairness is based on the principle of national justice built on what has been referred to as the “twin pillars” of “the rule against bias” and the “right to be heard”.

14 Actual bias, if established, is a conclusive factor in disqualifying a decision maker. The right to be heard is without a doubt a fundamental right in criminal cases. If a person is denied this right, it amounts to a flay which can invalidate the impugned decision. It is a principle of judicial review that judicial review remedies are discretionary a claimant may show that the impugned decision was improperly made but the court may in some circumstances decline to grant the remedy sought, having consideration of all the circumstances of the court.

15 Counsel Dyer Munro urged the court to consider that:

• (i) depositions as filed are faulty in that, the cross examination of the virtual complainant was not duly recorded on the depositions, further that the applicant was not permitted to cross examine the witnesses for the prosecution who were deposed at the preliminary inquiry.

• (ii) The Director of Public Prosecutions, in filing the indictment with the faulty depositions acted with mala fides in the prosecution of the matter against the applicant.

• (iii) That the prosecution has failed to comply with an order for discovery and that in responding to the application for leave to file judicial review the applicant produced affidavit evidence in his application to say that they have not seen the original exhibits upon which the prosecution intends to rely on since the passage of Hurricane Maria

16 The following matters are to be considered as submitted by Counsel for the applicant:-

• 1) Whether the Learned Director of Public Prosecutions acted Mala Fides in presenting the indictment in light of the fact that the Cross-examination of the virtual complainant was not recorded in the deposition?

• 2) Whether the case of State v Alphius Auguiste is relevant to the issues raised in this application?

• 3) Whether the Claimant has a valid basis for the Constitutional relief and/or Judicial Review and the applicable principles when there is a hybrid claim for constitutional relief and judicial review?

17 In considering the procedural complaint made in this application for leave to apply for judicial review the court is mindful of the fact that it is called upon not to review the merits of the decision made by the Director of Public Prosecution but rather the applicant has made out a prima facie case that the course of conduct embarked on by the Director of Public Prosecution to file and indictment with the depositions as attached was unfair, unreasonable or in violation of the principles of natural justice.

18 A person seeking judicial review must first obtain leave to do so pursuant to part 56.3(1) of...