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.

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