THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...

of 13

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Cv. #2010-04494

BETWEEN

P.C. CURTIS APPLEWHITE Claimant

AND

THE POLICE SERVICE COMMISSION

BASDEO MULCHAN

LLOYD CROSBY Defendants

BEFORE THE HONOURABLE MADAM JUSTICE M. DEAN-ARMORER

APPEARANCES

Mr. K. Sagar attorney-at-law for the Claimant.

Mr. L. Lalla attorney-at-law for the Defendant.

JUDGMENT

Introduction

1. The claimant had been charged with discreditable conduct contrary to Regulation 163 (2)

the Police Service Amendment Regulations 1990. In the course of hearing charges

against him, the Standing Disciplinary Tribunal of the Police Service Commission

overruled a no case submission which had been made on behalf of the claimant. In this

application for judicial review, the claimant seeks orders of certiorari and mandamus in

respect of that decision of a disciplinary tribunal.

2. In these proceedings, the Court considered whether there existed an alternative remedy

and whether the application for judicial review should be dismissed as being premature.

of 13

Procedural History

1. By a Notice filed pursuant to Part 56 of Civil Proceedings Rules 1998 the claimant

sought leave to apply for judicial review seeking the following orders:

a. An Order of Certiorari against the first defendant and/or second and

third defendants quashing the decision made by the Police Service

Tribunal comprising of the second and third defendants and collectively

acting on behalf of the first defendant on the 22nd

September, 2010

overruling the no-case submission in the matter of the Disciplinary

charge against Curtis Applewhite P.C. No. 13220 for Discreditable

Conduct contrary to Regulation 163 (2) of the Police Service

(Amendment) Regulations 1990.

b. An Order of Mandamus against the first defendant and/or the second

and third defendant directing them to dismiss the Disciplinary Charge

against Curtis Applewhite P.C. No. 13220 for Discreditable Conduct

contrary to Regulation 163 (2) of the Police Service (Amendment)

Regulations 1990.

c. An Order that a Fixed Date Claim Form be issued.

d. An Interim Order preventing the defendants or each of them from

continuing the hearing of the disciplinary matter pending the

determination of these proceedings.

e. An Order that the Affidavit of Curtis Applewhite filed together with this

Application be read and used in support of the Fixed Date Claim Form.

f. Such further and or other reliefs.

g. Costs.

2. The Court granted leave to apply for judicial review by an Order dated the 25th

November, 2010 and the claimant filed his Fixed Date Claim form and his supporting

affidavit on 28th

January, 2011.

of 13

3. On 31st May, 2011, Basdeo Mulchan, Chairman of the Standing Disciplinary Tribunal of

the Police Service Commission swore an affidavit in opposition to this claim. The

affidavit of Mr. Mulchan was filed herein on 31st May, 2013 and was the sole affidavit

filed on behalf of the defendants.

4. The claimant Curtis Applewhite swore an affidavit in reply on 30th

June, 2011. This

affidavit was filed on the same date.

5. Parties relied entirely on written submissions filed by the claimant and the defendant on

the 6th

October, 2011 and the 15th

November, 2011 respectively. Further submissions

were filed on behalf of the claimant on 31st January, 2012.

Facts

1. The claimant, Curtis Applewhite was at all material times a police constable of the

Trinidad and Tobago Police Force regimental number 1322. The first defendant is the

Police Service Commission. The second defendant is the Chairman of the Standing

Disciplinary Tribunal of the Police Service Commission, and third defendant sits on the

Standing Disciplinary Tribunal.

2. By letter dated 7th

March, 2008, the claimant was informed that the following disciplinary

charge had been brought against him:

“Discreditable conduct contrary to Regulation 163 (2) of the Police

Service (Amendment) Regulations, 1990.”

3. The claimant received notice of the disciplinary charge by way of a letter dated 7th

March, 2008 from the Service Commissions Department. The letter contained a

statement of the Particulars of Charge, which in effect alleged that on Saturday 19th

March, 2005, P.C. Applewhite acted in a disorderly manner prejudicial to discipline

when he sexually assaulted W.P.C. Andrews regimental number 4811.

4. Hearing of the disciplinary charge began on 5th

August, 2009 before the Standing

Disciplinary Tribunal of the Police Service Commission and continued until September,

of 13

2010, when the Tribunal overruled the claimant’s no case submission and the claimant

instituted these proceedings for judicial review. Between August, 2005 and September,

2010 the hearing of the disciplinary charge had been adjourned several times for several

different reasons. On the 5th

of August 2009 the prosecution led evidence of one

Corporal Nagassar and W.P.C. Harriett Andrews. Hearing was adjourned to 12th

August,

2009.

5. On the 12th

of August 2009, owing to the absence of Mr. Cloyd Crosby, one of the

members of the Standing Disciplinary Tribunal, the Tribunal comprised two members

only, that is to say Mr. Mulchan and Mrs.Alaka Atiba. W.P.C. Andrews was not cross-

examined and hearing of the disciplinary charge was adjourned to the 7th

of September

2009. On 7th

September, 2009, Mr. Sagar, learned attorney for the claimant presented a

written submission to the Tribunal. The submission of Mr. Sagar was forwarded to the

Police Service Commission for their decision as to whether the cross-examination of

W.P.C. Andrews should be reserved in order to facilitate further research into charges

against the claimant.

6. Thereafter the matter was adjourned a number of times pending a decision by the Police

Service Commission.

7. On the 8th

of February, 2010, the Tribunal received the decision of the Police Service

Commission. The Commission advised that the Tribunal should proceed with the matter

to completion.

8. On the 14th

of April, 2010, Mr. Sagar, representing P.C. Applewhite began cross-

examination of W.P.C. Andrews before the Tribunal. On this occasion all three members

of the Tribunal were present that is to say: Mr. Crosby, Mrs. Atiba and Mr. Mulchan.

9. On the 12th

of May when the tribunal reconvened they received information that W.P.C.

Andrews was hospitalised. Hearing was adjourned to 2nd

June, 2010.

10. On the 2nd

of June 2010, the Tribunal comprised of Mr. Crosby, and Mr. Mulchan, Mrs.

Atiba being absent. W.P.C. Andrews did not appear and the prosecution proceeded to

lead evidence from the Investigating Officer Jimmy Marcano. Mr. Marcano was then

of 13

cross examined by learned Counsel for P.C. Applewhite. Hearing was adjourned to 28th

June, 2010.

11. On the 28th

of June 2010, Mr. Sagar learned attorney-at-law for P.C. Applewhite made a

submission to the effect that Mrs. Atiba’s presence was prejudicial to the principle of

natural justice since she had been absent during several hearings. This submission was

forwarded for the decision of the Police Service Commission.

12. The Tribunal reconvened on 28th

July, 2010. On this occasion the tribunal consisted of

Mr. Crosby and Mr. Mulchan. Mr. Sagar learned counsel for P.C. Applewhite was

absent. The Tribunal indicated that the Police Service Commission had upheld Mr.

Sagar’s submission.

13. On the 2nd

of September 2010, when the Tribunal reconvened, the prosecution sought an

adjournment on the ground that W.P.C. Andrews was still interested in the matter but

could not attend the hearing because her son had contracted dengue and had to be

monitored at home. Mr. Sagar strongly objected on behalf of the claimant to the

application for the adjournment. The application for the adjournment was refused. The

prosecution closed its case. Mr. Sagar then made a no case submission and the

prosecution responded. The matter was adjourned to the 22nd

of September 2010.

14. On the 22nd

of September 2010, the Tribunal overruled the no case submission and P.C.

Applewhite was called upon to make his defence. Mr. Sagar, on behalf of the claimant

applied for an adjournment to file an application for Judicial Review. The matter was

adjourned to 1st November, 2010.

15. Since that date the hearing of the disciplinary charge has been adjourned on a number of

occasions but has not yet been resolved.

Issues

The following issues arise for the Court’s consideration:

i. Whether the claimant’s application for judicial review is premature.

of 13

ii. If the issue at (i) is answered in the negative, whether the tribunal made a

substantial error in law leading to demonstrable injustice in overruling the no case

submission made on behalf of P.C. Applewhite, in light of the fact that his

attorney was not afforded an opportunity to complete the cross examination of the

main witness.

Law

Prematurity

16. On the issue of prematurity in applications for judicial review, the learned authors of,

Lewis Judicial Remedies in Public Law (3rd

2004 ed)1 wrote at paragraph 11-013:

“English Law is beginning to develop a concept of prematurity. There

are numerous dicta indicating that premature challenges should not

normally be allowed, although the courts have often found

“exceptional” reasons why an otherwise premature application should

be allowed. The courts have primarily dealt with the concept of

premature challenges in the context of attempts to seek judicial review of

interlocutory decisions, particularly ones concerning the disclosure or

use of evidence or other procedural matters, made during a decision-

making process. The courts have indicated that “it is only in exceptional

circumstances that the court will grant judicial review of a decision

taken during the course of a hearing … before that hearing has been

concluded.”

17. The issue of prematurity was extensively considered by the Alberta Court of Queens

Bench in Montgomery v Edmonton Police Service et al2. In Montgomery, the applicant

Detective Montgomery filed an application for judicial review in respect of pending

disciplinary proceedings. Sullivan J. had this to say at paragraph 18 of his decision:

1 Lewis Judicial Remedies in Public Law (3

rd ed. 2004).

2 Montgomery V Edmonton Police Service et al 1999 A.R. Lexis 1427.

of 13

“The issue of whether judicial review should be permitted prior to the

conclusion of an administrative hearing has been the subject of much

discussion in the common law.

Although the courts have a broad discretion to grant prerogative remedies

such as prohibition, they have traditionally been reluctant to exercise this

discretion if to do so would interfere with the administrative proceedings.

At paragraph 21 of his judgment, Justice Sullivan compared the Courts’ approach in judicial

review to the practice adopted by appellate courts:

“This approach is closely related to the practice in the judicial system

which discourages an appellate court from hearing matters which arise

during trial, after the trial has started. Rather than having piecemeal

appeals on issues as they arise, the trial is allowed to run its course, and

contested issues which arise during the trial are dealt with all at once at

the appeal. That this principle applies to the administrative law context

was confirmed by Veir J. In Stirrat Laboratories Ltd. V. Health Sciences

Assn. (Alberta) (1996, 1 Admin. L.R. (3d) 200 (Alta. Q.B.).”3

Justice Sullivan continued at paragraph [22]:

“While the dominant view is that the court should decline to intervene in

an administrative proceedings on interim or interlocutory matters, the

courts have exercised their discretion to intervene in an administrative

proceedings in exceptional circumstances, for instance, where judicial

review is the only remedy available in the circumstances.” 4

3 Ibid at paragraph 21.

4 Ibid at paragraph 22.

of 13

Alternative of appeal to the Public Service Appeal Board

18. Section 6 of the Constitution Amendment Act 2006 provides:

“The Constitution is amended by repealing section 123 and substituting

the following:

... (10) Notwithstanding section 132, no appeal shall lie to the Public

service Appeal Board in respect of a decision made by the Police Service

Commission under this section.”

19. Mohammed v the Police Service Commission, and the Public Service Appeal Board5

was a judgment of Boodoosingh J. on an application for judicial review. The Police

Service Commission (the Commission) purported to dismiss the claimant Abzal

Mohammed by a letter dated 6th

August, 2008. On 13th

April, 2006, Parliament had

passed the Constitution (Amendment) Act 2006. In the dismissal letter, the claimant was

told that he did not have a right to appeal to the Public Service Board, since the latter was

of the view that it had no jurisdiction to hear an appeal from the Commission following

the enactment of the Constitution Amendment Act 2006. Boodoosingh, J considered

whether the Public Service Appeal Board was invested with jurisdiction to hear appeals

from the decision of the Commission. The learned Judge concluded:

“The Public service Appeal Board had no jurisdiction to hear an appeal

from his dismissal and they correctly declined to do so6.

Judicial Review of Magisterial Decision to Committals

24. Reynold Makhan v Sherman Mc Nicolls7, was an application for judicial review of the

decision of the respondent/Magistrate to overrule a no case submission made on behalf of

the applicant and to commit him to stand trial for the larceny of $1,635,840.00 being the

property of the North West Regional Health Authority (NWRHA). The magistrate found

5 Abzal Mohammed v Police Service Commission and the Public Service Appeal Board Cv. 2008/04646.

6 Abzal Mohammed v Police Service Commission and the Public Service Appeal Board Cv. 2008/04646 at page 15 of

15. 7 In the matter of an application by Reynold Makhan for leave to apply for judicial Review HCA 562/2003.

of 13

that a prima facie case had been made out against the applicant, and committed him to

stand trial. Counsel for the applicant submitted inter alia that there was no evidence

before the respondent to support the charge of misbehaviour in public officer. Narine J.

(as he then was) held:

“[T]he Respondent committed an error of law in finding that a prima facie

case of the offence of misbehaviour in public office had been made out

against the applicant, when the evidence did not disclose an essential

element of the offence.” 8

24. More recently, the House of Lords examined the circumstances in which the Divisional

Court could quash an order for committal. Williams v Bedwellty Justices9 was a decision

of the House of Lords, in which their Lordships considered the jurisdiction of the

Divisional Court to quash committal proceedings. The appellant had been charged with

perverting the course of justice. The Magistrate committed the appellant to stand trial on

the basis of inadmissible evidence. Their Lordships allowed the appeal, holding that the

committal was fatally flawed by the reception of inadmissible hearsay evidence.

25. Lord Cooke of Thornton delivered a judgment, with which the other four Law Lords

agreed. In the course of his decision Lord Cooke had this to say:

“The authorities now establish that the Queen’s Bench Division of the

High Court has normally in judicial review proceedings jurisdiction to

quash a decision of an inferior court, tribunal or other statutory body for

error of law, even though the error is neither apparent on the face of the

record nor so serious as to deprive the body of jurisdiction in the original

and narrow sense of power to enter on the inquiry and to make against

persons subject to its jurisdiction the kind of decision in question.” 10

27. Lord Cooke in Williams v Bedwellty Justices11

approached the question in this manner:

8 Cv. 562 of 2003 Reynold Ma Khan v Sherman Mc Nicolls page 27 of 29.

9 [1996] 3AllER 737

10 Williams v Bedwellty Justices [1996] 3 All ER 737 at page 742-3

11 Ibid

of 13

“My Lords, in my respectful opinion it would be both illogical and

unsatisfactory to hold that the law of judicial review should distinguish in

principle between a committal based solely on inadmissible evidence and

a committal based solely on evidence not reasonably capable of

supporting it. In each case there is in truth no evidence to support the

committal and the committal is therefore open to quashing on judicial

review.” 12

Role of the Disciplinary Tribunal

28. The disciplinary tribunal is provided for at Regulation 89 of the Police Service

Commission Regulations Ch. 1:0113

. By regulation 96, the Tribunal is charged with the

obligation of reporting its finding of fact to the Police Service Commission. By

Regulation 98 the Tribunal is also required report to the Commission when it is of the

view that the evidence is insufficient.

29. The issue of punishment and penalties to be imposed prior to 2006, fell to the Police

Service Commission. By the Constitution Amendment Act 2006, disciplinary control of

officers below the rank of Deputy Commissioner of Police now falls to the Commissioner

of Police. The structure of the Regulations however appear to remain in the same14

.

Reasoning and Decision

1. The claimant seeks to set aside, by way of judicial review, a decision of a standing

Disciplinary Tribunal of the Police Service Commission to overrule his no case

submission and to call upon him to present his defence.

2. Learned attorneys-at-law for the defendants have argued that the Court ought to exercise

its discretion to dismiss the application for judicial review on the ground that it is

premature.

12

Ibid at p. 746j – 747a 13

Police Service Commission Regulations (updated to 2011). 14

See the Constitution Amendment Act 2006 at section 6.

of 13

3. Learned attorneys-at-law for the defendants have argued further that even if the

disciplinary tribunal makes a finding against the claimant, it remains open to the Police

Service Commission nonetheless to dismiss the complaint against the claimant and that

even if the Police Service Commission sees it fit to impose a penalty, the claimant would

have at his disposal an adequate alternative remedy by way of an appeal to the Public

Service Appeal Board.

4. Before considering the issue of prematurity, it is necessary in my view to address the

possibility of an adequate alternative remedy by way of appeal to the Public Service

Appeal Board. In my view, the possibility of an appeal to the Public Services Appeal

Board does not arise on these facts. Prior to 2006, an aggrieved police officer was

entitled to appeal to the Public Service Appeal Board from a decision of the Police

Service Commission. There was no corresponding right of appeal from a finding of a

disciplinary tribunal. It was therefore never possible for an aggrieved officer to appeal to

the Public Service Appeal Board from a decision of a disciplinary Tribunal. Since the

year 2006 however, with the enactment of the Constitution Amendment Act 2006 it is no

longer possible to lodge an appeal even in respect of a decision of the Police Service

Commission. See the decision of the Honourable Justice Boodoosingh in Cv.

2008/04646 Mohammed v Police Service Commission15

. Accordingly it is my view that

there is no possibility of appeal to the Public Service Appeal Board.

5. I therefore turn to consider whether in the face of the unavailability of access to the

Public Service Appeal Board, the application is nonetheless premature.

6. Learned Attorneys-at-law for the Defendants have provided authority to support their

contention that as a general rule, the Court will not hear a premature application except in

exceptional circumstances. As a general rule an application in respect of a decision made

in the course of a hearing will be regarded as premature.

7. Learned Counsel for the defendants relied on the Canadian Case of Montgomery v

Edmonton Police Service 1999 A.R. Lexis 1427. Full Reference is made thereto earlier

in this decision. In that case, as in these proceedings, the claimant had been facing

15

Mohammed v Police Service Commission Cv. 2008/4646.

of 13

disciplinary charges for discreditable conduct. Detective Montgomery had filed an

application for judicial review claiming that the disciplinary tribunal in question was

biased.

8. In Montgomery, Sullivan J observed at paragraph 22:

“While the dominant view is that the court should decline to intervene in

administrative proceedings on interim or interlocutory matters the courts

have exercised their discretion to intervene in an administrative

proceedings in exceptional circumstances for instance where judicial

review is the only remedy available ...”

9. I therefore proceeded to consider whether any exceptional circumstances arise in these

proceedings which will require the Court to depart from the general rule that the Court

should be reluctant to intervene in the course of administrative proceedings.

10. Learned Counsel for the claimant has relied on cases concerning judicial review of

committal orders. In my view the instant case is distinguishable from cases such as

Makhan v Mc Nicolls16

, where the Court exercised its discretion to quash the order of

committal. In the latter type cases, judicial review proceedings were brought after the

Magistrate had made a decision to commit.

11. By contrast in the matter before me, the tribunal has not made a finding of fact and has

only ordered that the defence present its case. According to the facts of this case, it

would be open to the claimant either to proceed with the fact finding exercise to

completion or to seek an order that the virtual complainant be recalled for cross-

examination.

12. It is clear from the record however that the claimant has not even attempted to seek an

order that W.P.C. Andrews be recalled for further cross-examination, or even attempted

to submit that the value of her testimony is negated by her failure to show for cross-

examination.

16

Makhan v Mc Nicolls H.C.A. #562 of 2003.

of 13

13. Moreover, even if there were a finding by the disciplinary tribunal as to the guilt of the

claimant, the issue of punishment is determined not by the tribunal but by the Police

Service Commission17

.

14. It would still open to the Police Service Commission to decide against the imposition of

punishment. Should proceedings be determined against the Applicant he may at that

stage probably seek judicial review.

15. In my view, there are no exceptional circumstances in this case. In my view the

application for judicial review is premature and ought to be and is hereby dismissed.

16. My finding on the issue of prematurity renders it unnecessary to consider the other issues

identified supra. I will therefore not express any views on those issues.

Dated this 1st day of July, 2013.

M. Dean-Armorer

Judge18

17 Following the Constitutional Amendment Act 2006 the issue of punishment now is determined by the

Commissioner of Police.

18

Judicial Research Assistant Ms. Jendy Jean. Judicial Secretary Mrs. Irma Rampersad.

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...

Documents

Transcript of THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...