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Director of Public Prosecutions v. Jaikaran Tokai and Others (Trinidad and Tobago)
Director of Public Prosecutions v. Jaikaran Tokai and Others (Trinidad and Tobago) [1996] UKPC 2 (12th June, 1996)
Privy Council
Appeal No. 53 of 1995
(1) The Director of Public
Prosecutions and
(2) The Attorney-General of Trinidad and Tobago Appellants
v.
(1) Jaikaran Tokai
(2) Seeram Tokai and
(3) Jaisham Tokai Respondents
FROM
THE COURT OF
APPEAL OF
TRINIDAD AND
TOBAGO
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY
COUNCIL,
Delivered the 12th
June 1996
------------------
Present at the hearing:-
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Nicholls of Birkenhead
Lord Steyn Lord Hope of Craighead
[Delivered by Lord Keith of Kinkel]
-------------------------
1. The question raised by this appeal is
whether in Trinidad and Tobago long delay in bringing accused persons to trial
constitutes an infringement of their constitutional rights with the result
that the indictment must be quashed, and no further proceedings taken.
2. The facts of the case are these. On 15th
November 1981 a police officer, Corporal Keith Farrell, was approached by two
men, Rasheed Mohammed and his brother Shaheed Garib, who made to him certain
allegations against the respondents relating to events which had occurred
earlier that day in a shop at Three Roads Junction, Chickland, Caroni. Shaheed
Garib had a wound above his eye. Having made further inquiries Corporal
Farrell on 19th January 1982 laid charges against the three respondents for
the offence of wounding Shaheed Garib with intent to do grievous bodily harm.
He also charged the first respondent, Jaikaran Tokai, with the summary offence
of having unlawfully and maliciously damaged the property of Rasheed Mohammed.
Warrants for the arrest of the respondents were executed on 29th January 1982
and they were later released on bail. As the wounding charge was an indictable
offence necessitating a preliminary inquiry proceedings were commenced in the
Couva Magistrate's Court. Between 5th February 1982 and 18th March 1986 the
proceedings were adjourned on 28 occasions. The prosecution was represented by
an attorney in private practice who was present on only four of these
occasions. The preliminary inquiry eventually started on 18th March 1986, the
prosecution being represented by a police officer. It continued on 28th April
1986, and on 5th May 1986 the magistrate committed the respondents for trial
at the next San Fernando Assizes. The file relating to the charge reached the
office of the Director of Public Prosecutions on 1st July 1986. On 7th July
1986 the first respondent was convicted, after summary trial, upon the charge
of malicious damage. The first respondent appealed against the conviction but
his appeal was dismissed on 28th November 1988.
3. An indictment against the respondents on the
wounding charge was not preferred until 17th February 1994. A hearing by a
judge and jury was fixed for the Assizes on 14th April 1994. On 30th March
1994 the respondents commenced the present proceedings by way of
constitutional motion claiming an order quashing the indictment and
prohibiting any further proceedings for the alleged offence, and also
compensation. An affidavit in support was sworn by the third respondent. In
this he gave his account of the events of 15th November 1981, stating that
Mohammed and Garib were the aggressors and that Mohammed accidentally struck
Garib with a glass while attempting to throw it at the respondent Seeram
Tokai. He further stated that he could not remember precise details of the
incident, that there had been an independent witness of it, namely a barman,
whom the respondents had been unable to trace, and that by 1994 he had not
expected any prosecution to be brought in respect of the incident since the
D.P.P. had received the papers as long ago as July 1986. The appellants filed
affidavits in reply from Corporal (now Sergeant) Farrell and from a member of
the D.P.P.'s staff and an assistant registrar of the High Court of Justice.
They described the long delays regularly encountered over preliminary inquiry
proceedings, the huge backlog of cases in the department's office and the
number of cases listed, determined and still pending in the criminal courts
over the years from 1986 to 1993.
4. On 29th June 1994 Lucky J. dismissed the
respondents' notice of motion. The respondents appealed, and on 8th March 1995
the
5. Court of Appeal by a majority (Ibrahim and
Hosein JJ.A., Hamel-Smith J.A. dissenting) allowed the appeal. The appellants,
who are the Director of Public Prosecutions and the Attorney-General of
Trinidad and Tobago, now appeal to the Board.
6. The respondents' claim is founded upon
certain provisions of the Constitution of Trinidad and Tobago. These are:-
7. Section 4(a) and (b)
"It is hereby recognised and declared
that in Trinidad and Tobago there have existed and shall continue to exist
without discrimination by reason of race, origin, colour, religion or sex, the
following fundamental human rights and freedoms, namely -
(a) the right of the individual to life,
liberty, security of the person and enjoyment of property and the right not be
deprived thereof except by due process of law; (b) the right of the individual
to equality before the law and the protection of the law."
8. Section 5(1) and (2)(e) and (f) "(1)
Except as is otherwise expressly provided in this Chapter and in section 54,
no law may abrogate, abridge or infringe or authorise the abrogation,
abridgement or infringement of any of the rights and freedoms hereinbefore
recognised and declared.
(2) Without prejudice to subsection (1), but
subject to this Chapter and to section 54, Parliament may not - ...
(e) deprive a person of the right to a fair
hearing in accordance with the principles of fundamental justice for the
determination of his rights and obligations;
(f) deprive a person charged with a criminal
offence of the right -
(i) to be presumed innocent until proved
guilty according to law, but this shall not invalidate a law by reason only
that the law imposes on any such person the burden of proving particular
facts;
(ii) to a fair and public hearing by an
independent and impartial tribunal or; ..."
Section 14(1)
"For the removal of doubts it is hereby
declared that if any person alleges that any of the provisions of this Chapter
has been, is being, or is likely to be contravened in relation to him, then
without prejudice to any other action with respect to the same matter which is
lawfully available, that person may apply to the High Court for redress by way
of originating motion."
9. It is noticeable that this Constitution,
unlike some of those in other Caribbean countries and elsewhere, particularly
the United States of America and Canada, does not include in the catalogue of
fundamental rights and freedoms the right to a speedy trial or trial within a
reasonable time. The only relevant rights are the right not to be deprived of
life, liberty or property except by due process of law and the right to the
protection of the law, which include, as section 5(2)(f) makes plain, the
right of those accused of criminal offences to a fair trial. Further, the
opening words of section 4 indicate that the rights in question are rights
which existed at the coming into force of the Constitution. The present
Constitution is that of 1976, but the relevant wording in the original
independence Constitution of 1962 was identical. It follows that the rights in
question are rights which were enjoyed at common law before the 1962
Constitution came into force. Neither Constitution purports to vary or enlarge
these common law rights. It is further to be observed that the remedy made
available by section 14(1) is available where a relevant right has been, is
being or is likely to be contravened in relation to the applicant. The
question to be considered is therefore whether a trial of the respondents
under the indictment of 17th February 1994 would, in the prevailing
circumstances, contravene the respondents' right to a fair trial, that is to
say, whether such a trial would be an unfair trial.
10. The consequences under the common law of
England of delay in bringing an accused person to trial were considered by the
Court of Appeal there in Attorney-General's Reference (No. 1 of 1990) [1992]
Q.B. 630. In that case there had been delay by the prosecution in bringing a
police officer to trial, so that the trial was not due to start till 27 months
after the alleged offence. The trial judge ordered a stay of the proceedings.
The Attorney-General referred the following points of law for the opinion of
the Court of Appeal:-
"1. The point of law referred for
consideration by the court is: (i) whether proceedings upon indictment may be
stayed on the grounds of prejudice resulting from delay in the institution of
those proceedings even though that delay has not been occasioned by any fault
on the part of the prosecution; (ii) if the answer to (i) above is in the
affirmative what is the degree of: (a) the likelihood and (b) the seriousness
of any prejudice which is required to justify a stay of such
proceedings."
11. Lord Lane C.J., said at pages 641-642, after
observing that the issue was one of abuse of process, which might take various
forms:-
"However, the most usual ground is that
based on delay, that is to say the lapse of time between the commission of the
offence and the start of the trial. The number of applications based on this
ground has increased alarmingly over the past few years.
The decision of the Divisional Court in Reg.
v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164 for some time
seems to have provided the guidelines for courts faced with this problem of
delay. Sir Roger Ormrod, delivering the judgment of the court in that case,
said at pp. 168-169:-
`In our judgment, bearing in mind Viscount
Dilhorne's warning in Director of Public Prosecutions v. Humphrys [1977] A.C.
1, 26, that this power to stop a prosecution should only be used in "most
exceptional circumstances." ... the effect of these cases can be
summarised in this way. The power to stop a prosecution arises only when it is
an abuse of the process of the court. It may be an abuse of process if either
(a) the prosecution have manipulated or misused the process of the court so as
to deprive the defendant of a protection provided by the law or to take unfair
advantage of a technicality, or (b) on the balance of probability the
defendant has been, or will be, prejudiced in the preparation or conduct of
his defence by delay on the part of the prosecution which is unjustifiable:
for example, not due to the complexity of the inquiry and preparation of the
prosecution case, or to the action of the defendant or his co-accused, or to
genuine difficulty in effecting service. ... The ultimate objective of this
discretionary power is to ensure that there should be a fair trial according
to law, which involves fairness both to the defendant and the prosecution,
for, as Lord Diplock said in Reg. v. Sang [1980] AC 402, 437: "the
fairness of a trial ... is not all one-sided; it requires that those who are
undoubtedly guilty should be convicted as well as that those about whose guilt
there is any reasonable doubt should be acquitted."'
12. We would like to add to that statement of
principle by stressing a point which is sometimes overlooked, namely, that the
trial process itself is equipped to deal with the bulk of complaints which
have in recent Divisional Court cases founded applications for a stay."
13. After discussing a number of cases Lord Lane
recorded at page 643 a concession by counsel for the Attorney-General that in
the light of Reg. v. Telford Justices, Ex parte Badham [1991] 2 Q.B. 78 the
first question put to the court should be answered with a qualified
"yes" and at pages 643-644 continued:- "As it is not possible
to anticipate in advance all the infinitely variable circumstances which may
arise in the future, we feel ourselves, albeit reluctantly, forced to agree to
a limited extent with that concession.
14. However, we remind ourselves of the
principles outlined earlier in this judgment and the observation of Lord
Morris of Borth-y-Gest in Connelly v. Director of Public Prosecutions [1964]
A.C. 1254, 1304, that
`generally speaking a prosecutor has as much
right as a defendant to demand a verdict of a jury on an outstanding
indictment, and where either demands a verdict a judge has no jurisdiction to
stand in the way of it.'
15. Stays imposed on the grounds of delay or for
any other reason should only be employed in exceptional circumstances. If they
were to become a matter of routine, it would be only a short time before the
public, understandably, viewed the process with suspicion and mistrust. We
respectfully adopt the reasoning of Brennan J. in Jago v. District Court of
New South Wales (1989) 168 C.L.R. 23.
16. In principle, therefore, even where the
delay can be said to be unjustifiable, the imposition of a permanent stay
should be the exception rather than the rule. Still more rare should be cases
where a stay can properly be imposed in the absence of any fault on the part
of the complainant or prosecution. Delay due merely to the complexity of the
case or contributed to by the actions of the defendant himself should never be
the foundation for a stay.
17. In answer to the second question posed by
the Attorney-General, no stay should be imposed unless the defendant shows on
the balance of probabilities that owing to the delay he will suffer serious
prejudice to the extent that no fair trial can be held: in other words, that
the continuance of the prosecution amounts to a misuse of the process of the
court. In assessing whether there is likely to be prejudice and if so whether
it can properly be described as serious, the following matters should be borne
in mind: first, the power of the judge at common law and under the Police and
Criminal Evidence Act 1984 to regulate the admissibility of evidence;
secondly, the trial process itself, which should ensure that all relevant
factual issues arising from delay will be placed before the jury as part of
the evidence for their consideration, together with the powers of the judge to
give appropriate directions to the jury before they consider their
verdict."
18. In the opinion of the court the decision to
grant a stay was wrong. The delay was not unjustifiable, the chances of
prejudice were small; the trial process would have provided ample protection
for the accused; there was no danger of the trial being unfair; finally, the
case was not in any sense exceptional so as to justify a stay.
19. In Tan v. Cameron [1992] 2 A.C. 205, a case
from Hong Kong, Lord Mustill giving the judgment of the Board endorsed the
statement of the law in the passage from Lord Lane's judgment quoted above.
Lord Mustill went on to deal with an argument that while the burden of showing
that the continuance of the prosecution would be an abuse of process rested on
the accused, yet where an inexcusably long delay was demonstrated that burden
was discharged unless the prosecution could show that no prejudice resulted
from the delay. He said at page 225:-
"Their Lordships do not agree with this
appreciation of the law. Naturally, the longer the delay the more likely it
will be that the prosecution is at fault, and that the delay has caused
prejudice to the defendant; and the less that the prosecution has to offer by
explanation, the more easily can fault be inferred. But the establishment of
these facts is only one step on the way to a consideration of whether, in all
the circumstances, the situation created by the delay is such as to make it an
unfair employment of the powers of the court any longer to hold the defendant
to account. This is a question to be considered in the round, and nothing is
gained by the introduction of shifting burdens of proof, which serves only to
break down into formal steps what is in reality a single appreciation of what
is or is not unfair."
20. In Boodram v. Attorney-General of Trinidad
and Tobago [1996] 2 WLR 464 an individual charged with murder issued a
notice of motion seeking declarations that his constitutional rights under
section 4(a) and (b) and section 5(e) and (f) of the Constitution had been
infringed by adverse press reports and by the failure of the Director of
Public Prosecutions to stop them; he claimed that his trial should be
discontinued or postponed for at least 18 months. This Board, affirming the
judge at first instance and the Court of Appeal of Trinidad and Tobago,
decided that the appellant had no grounds for constitutional relief. Lord
Mustill, giving the judgment of the Board, first considered and dismissed an
argument that the inaction of the Director of Public Prosecutions itself
contravened the appellant's constitutional rights. He continued at pages
472-473:-
"Their Lordships now turn to the second
and more substantial argument for the applicant, which stripped of elaboration
comes to this. By its use of the expression `is likely to be contravened'
section 14(1) contemplates both that the power of the High Court can and in
suitable cases should be exercised to avert a threatened breach of
constitutional rights, and also that the jurisdiction exists in cases short of
absolute certainty that what is feared will come to pass. In the present case
the impropriety was so gross that unless more time is allowed to elapse before
the trial it must at the very least be likely that the minds of the jury will
be poisoned, however hard the trial judge may try to put the damage right. Why
wait for the trial, with all the stress for the applicant and uncertainty for
those responsible for preparing the case which this will involve, when the
High Court in its constitutional role can immediately nip the abuse in the
bud?
Although this argument was made to seem very
attractive their Lordships believe it to be misconceived, for the reasons
already given by the courts in Trinidad and Tobago. The flaw can perhaps be
seen most clearly in relation to section 5, and in particular to sections
5(2)(e) and (f) upon which the applicant based an important part of his
argument. In the opinion of their Lordships those provisions have no bearing
on the appeal. The purpose of subsection (2) is to make clear that certain
fundamental rights which would otherwise exist in law are not taken away.
Here, neither Parliament nor any other body is seeking to take away the
applicant's right to the fair trial which is part of the due process of law
guaranteed by section 4(a). That right is undisputed, and the applicant has no
need for recourse to the High Court in order to establish it. Properly
analysed, the real gist of the applicant's complaint is that the adverse
publicity will prejudice, not the existence of the right, but the exercise of
it. Whether this complaint is well founded is a matter for decision and if
necessary remedy by the ordinary and well-established methods and principles
of criminal procedure which exist independently of the Constitution, and which
the newspapers and broadcasts could not even purport to abrogate. Provided
that the safeguards remain in place, and are made available to the applicant
in the trial court, and if necessary on appeal, he has the benefit of the fair
trial process to which he is entitled.
A similar flaw vitiates the arguments based
on section 4. The `due process of law' guaranteed by this section has two
elements relevant to the present case. First, and obviously, there is the
fairness of the trial itself. Secondly, there is the availability of the
mechanisms which enable the trial court to protect the fairness of the trial
from invasion by outside influences. These mechanisms form part of the
`protection of the law' which is guaranteed by section 4(b), as do the appeal
procedures designed to ensure that if the mechanisms are incorrectly operated
the matter is put right. It is only if it can be shown that the mechanisms
themselves (as distinct from the way in which, in the individual case, they
are put into practice) have been, are being or will be subverted that the
complaint moves from the ordinary process of appeal into the realm of
constitutional law. No such case is made out here. It is not even suggested
that if an application to stay the trial is made, either at the commencement
of the trial or in advance if a sufficient need is shown, the court will fail
to receive it; or will not do its best to arrive at a solution which measures
together the risk of prejudice, the steps which can be taken to ensure that
the verdict is uninfluenced by improper comment, and the public interest in
making sure that a case which has been committed for trial does in fact come
to trial, and at a proper speed. Nobody could pretend that these are always
easy decisions for the judge to make, but they are concerned with trial
management within the context of a system whose fairness as a system has not
been attacked. Thus, in the opinion of the Board, no constitutional question
is invoked."
21. Lord Mustill proceeded to leave open the
possibility of an application to the High Court for constitutional relief
where the chance of a fair trial had been obviously and totally destroyed.
22. In their Lordships' opinion similar
considerations apply in the present case, where the complaint made is that of
undue delay. The traditional procedures available to the criminal courts of
Trinidad and Tobago exist for the purpose of securing that trials are fair.
Application can be made to the trial judge for a stay, which the trial judge
may grant if he considers that the case falls into the exceptional category
indicated by Lord Lane C.J. in Attorney-General's Reference (No. 1 of 1990).
If the trial judge does not grant a stay, it will be his duty in directing the
jury to bring to their attention all matters arising out of the delay which
tell in favour of the accused. If he fails to do that satisfactorily the
appeal process is available to put right any injustice which may have resulted
from the failure, as in R. v. Dutton [1994] Crim.L.R. 910. In that case the
accused was tried on a charge of indecency with a male, the last alleged
indecent act having taken place 14 years before the trial. The trial judge
refused a motion for a stay without giving reasons, and failed to give the
jury any direction that they should have regard to possible prejudice to the
accused resulting from the delay. The Court of Appeal held that the trial
judge was entitled to refuse a stay but allowed the appeal against conviction
on the ground of the judge's failure to direct the jury as to the possible
adverse effects that the delay could have occasioned to the defence.
23. Their Lordships were referred by Dr.
Ramsahoye S.C., for the respondents, to a number of cases in jurisdictions
where there exists a constitutional right to a speedy trial or to trial within
a reasonable time. One of these was Bell v. Director of Public Prosecutions
[1985] AC 937, an appeal from Jamaica where section 20(1) of the
Constitution provides that a person charged with a criminal offence shall be
afforded "a fair hearing within a reasonable time by an independent and
impartial court established by law". The applicant had been arrested and
charged in May 1977 and convicted in October 1977, but his appeal against
conviction was allowed in March 1979 and a retrial ordered. He was released on
bail in March 1980 and after the case had been mentioned on several occasions
he was discharged by a judge in November 1981, the Crown offering no evidence.
He was re-arrested in February 1982 for the same offences and it was proposed
to retry him in May 1982. The Full Court and the Court of Appeal in Jamaica
dismissed his application for constitutional redress on the ground of
contravention of section 20(1). This Board advised Her Majesty that the
applicant's appeal should be allowed. Lord Templeman said at page 947:-
"It was argued on behalf of the
respondents, the Director of Public Prosecutions and the Attorney-General,
that the applicant was able to obtain redress by waiting until his retrial,
ordered for 11 May 1982, and then submitting to the Gun Court at the
commencement of the retrial that the proceeding should be dismissed on the
grounds that in the events which had happened a retrial would be an abuse of
the process of the court. Their Lordships cannot accept this submission. If
the constitutional rights of the applicant had been infringed by failing to
try him within a reasonable time, he should not be obliged to prepare for a
retrial which must necessarily be convened to take place after an unreasonable
time."
24. This passage highlights the distinction
between the constitutional right to a trial within a reasonable time and the
constitutional right only to a fair trial. The latter right is to be secured
by the procedures exercised by the trial judge, which in an exceptional case
involving delay may include the grant of a stay. The former right, however,
may be invoked by constitutional motion in advance of any trial. In drawing
this distinction their Lordships have not overlooked that in Vincent v. The
Queen [1993] 1 W.L.R. 862 Lord Woolf said at page 867 that the provisions of
section 20(1) and (6) of the Jamaican Constitution "do no more than
codify in writing the requirements of the common law which ensure that an
accused person receives a fair trial". That case was not, however,
concerned with the right to a hearing within a reasonable time, and in so far
as Lord Woolf's words are to be read as applying to that aspect of section
20(1) they must be regarded as obiter, and as not being the subject of
particular consideration.
25. Their Lordships have also considered
Attorney-General of Hong Kong v. Cheung Wai-Bun [1994] 1 A.C.1. That was a
case where the trial judge had granted a stay of trial on the ground of undue
delay. Article 11(2) of the Hong Kong Bill of Rights, contained in section 8
of the Hong Kong Bill of Rights Ordinance, provided:- "In the
determination of any criminal charge against him, everyone shall be entitled
to the following minimum guarantees, in full equality ... (c) to be tried
without undue delay; ..."
26. This Board advised the dismissal of an
appeal by the prosecution, with special leave, against the trial judge's
ruling. Lord Woolf said at page 8:-
"There remains the question as to
whether Duffy J. was correct in saying that there is no material distinction
between the onus on a defendant who seeks to have a prosecution stayed as
being an abuse of process at common law and the onus which faces a defendant
who wishes to establish that he is entitled to have the proceedings stayed
under the Bill of Rights. Mr. Nicholls having accepted that, if there was any
distinction between the approach at common law and under the Bill, this
distinction could not avail him on this appeal, their Lordships had to decide
whether to determine this issue. In the circumstances their Lordships decided
not to do so and did not call on Mr. Robertson to address the Board as they
had already decided that his help was not needed as to the outcome of the
appeal. Their Lordships recognise that it is possible to argue that there is a
difference of approach at common law and under the Bill. However, as any
difference in the approach to be adopted is only likely to be of significance
in a very small minority of applications for stay, their Lordships have
decided that it is preferable not to determine the extent of the difference in
this case, where it would be merely an academic exercise, but to leave it to
be determined in a case where the existence of the difference would materially
affect the result of the appeal. The issue is one which can be more
satisfactorily examined in the context of a case where a difference in
approach could have practical consequences."
27. Their Lordships consider that the difference
between the common law position and that where there is an express
constitutional right to trial without undue delay or within a reasonable time
is that in the latter case complaint by way of constitutional motion can more
readily be regarded as the appropriate remedy. Where, on the other hand,
common law principles are to be applied in order to determine whether the
trial would be a fair one the matter is primarily for the trial judge to
decide. One of the matters which he will take into account in making his
decision is the extent to which suitable directions to the jury are capable of
obviating any prejudice to the accused resulting from the delay. That is not
an aspect which would be conveniently available to the court on a
constitutional motion.
28. At page 953 of Bell v. Director of Public
Prosecutions (supra) Lord Templeman said:-
"Their Lordships accept the submission
of the respondents that, in giving effect to the rights granted by sections 13
and 20 of the Constitution of Jamaica, the courts of Jamaica must balance the
fundamental right of the individual to a fair trial within a reasonable time
against the public interest in the attainment of justice in the context of the
prevailing system of legal administration and the prevailing economic, social
and cultural conditions to be found in Jamaica. The administration of justice
in Jamaica is faced with a problem, not unknown in other countries, of
disparity between the demand for legal services and the supply of legal
services. Delays are inevitable. The solution is not necessarily to be found
in an increase in the supply of legal services by the appointment of
additional judges, the creation of new courts and the qualification of
additional lawyers. Expansion of legal services necessarily depends on the
financial resources available for that purpose. Moreover an injudicious
attempt to expand an existing system of courts, judges and practitioners,
could lead to deterioration in the quality of the justice administered and to
the conviction of the innocent and the acquittal of the guilty. The task of
considering these problems falls on the legislature of Jamaica, mindful of the
provisions of the Constitution and mindful of the advice tendered from time to
time by the judiciary, the prosecution service and the legal profession of
Jamaica. The task of deciding whether and what periods of delay explicable by
the burdens imposed on the courts by the weight of criminal causes suffice to
contravene the rights of a particular accused to a fair hearing within a
reasonable time falls upon the courts of Jamaica and in particular on the
members of the Court of Appeal who have extensive knowledge and experience of
conditions in Jamaica. In the present case the Full Court stated that a delay
of two years in the Gun Court is a current average period of delay in cases in
which there are no problems for witnesses. The Court of Appeal did not demur.
Their Lordships accept the accuracy of the statement and the conclusion,
implicit in the statement, that in present circumstances in Jamaica, such
delay does not by itself infringe the rights of an accused to a fair hearing
within a reasonable time. No doubt the courts and the prosecution authorities
recognise the need to take all reasonable steps to reduce the period of delay
wherever possible."
29. At pages 954-955 Lord Templeman went on to
say that while a period of 32 months between arrest and trial might not be
unreasonable in Jamaica a special need for urgency arose after retrial had
been ordered. Further, the judge who discharged the applicant in November 1981
must have been satisfied, and the prosecution did not appear to have disputed,
that any further delay would have been unfair to him, and if fairness required
that the applicant should be discharged in November 1981 fairness required
that he should not be rearrested in February 1982.
30. It is apparent that the case exhibited
certain exceptional features in the shape of the order for retrial and the
applicant's subsequent discharge and later rearrest. It may well be that in
similar circumstances retrial of an accused person in Trinidad would not
constitute fair trial and that a stay would therefore be appropriate. But the
case affords no direct assistance for purposes of the present appeal apart
from Lord Templeman's observations about the significance of the disparity
between the demand for legal services and the supply of legal services in the
jurisdiction concerned.
31. Their Lordships are of opinion that the
approach favoured by the Board in Boodram v. Attorney-General of Trinidad and
Tobago [1996] 2 WLR 464 is appropriate for the purpose of dealing with
cases where the complaint is one of undue delay as well as cases such as
Boodram where the complaint relates to adverse publicity. The question in both
categories of cases is whether the circumstances are such that the procedures
available to the trial judge are obviously and inevitably going to be
insufficient to secure that the trial will be a fair one. Unless that is so a
constitutional motion under section 14(1) must be dismissed. In Sookermany v.
Director of Public Prosecutions and Attorney-General of Trinidad and Tobago
(unreported, 1st May 1996 Civil Appeal No. 153 of 1995), in which the Court of
Appeal of Trinidad and Tobago dismissed an appeal against refusal of
constitutional relief claimed on the ground of undue delay, de la Bastide C.J.
said at page 18 of the transcript:-
"As there are admittedly measures
available to a trial judge to negative the prejudicial effect on the defence
of delay, there would seem to me to be no reason why a court following the
lead given by the Board in [Boodram] should not in all but the most
exceptional circumstances refuse to stay criminal proceedings on a
constitutional motion brought for that purpose, and leave it for the trial
judge to determine what measures he should take to counteract the prejudicial
effect of the delay and if he should conclude that no effective counteraction
is possible, himself to order the proceedings stayed."
32. Their Lordships would respectfully endorse
that statement of the position.
33. In the present case the affidavit of the
third respondent sets out as matters tending to prejudice the defence failing
memories and the fact that the barman said to be an independent witness of the
events giving rise to the charge has not been traced. The facts of the case
are, however, extremely simple. The only issue would appear to be whether one
of the respondents deliberately wounded Shaheed Garib, or whether, as the
third respondent says in his affidavit, Rasheed Mohammed accidentally wounded
Garib when trying to attack the second respondent, Seeram Tokai. The affidavit
indicates that the third respondent has a clear recollection of any matters of
importance. As to the missing barman, the affidavit does not describe what
attempts, if any, have been made to trace him, or when. That is a matter which
could very appropriately be gone into before the trial judge. In the result,
their Lordships do not consider that this is a case of exceptional character
where the procedures available to the trial judge will be obviously and
inevitably insufficient to secure that fairness of trial is achieved. The
measures which the trial judge may take will include the ordering of a stay
if, in the light of Attorney-General's Reference (No. 1 of 1990) [1992] Q.B.
630, he considers that to be the appropriate course.
34. For these reasons their Lordships will allow
the appeal and restore the order of Lucky J. The respondents must pay the
appellants' costs in the Court of Appeal and before the Board.
[31]
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