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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2015 -02718

Between

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF PUBLIC

PROSECUTION FOR LEAVE TO MAKE A CLAIM FOR JUDICIAL REVIEW UNDER

PART 56.3 OF THE CIVIL PROCEEDINGS RULES, 1998 AND THE JUDICIAL

REVIEW ACT NO. 60 OF 2000

AND

IN THE MATTER OF THE DECISIONS OF HER WORSHIP MS LUCINA CARDENAS

RAGOONANAN DATED MAY 8TH

2015

AND

IN THE MATTER OF THE PROCEEDS OF CRIME ACT NO. 55 OF 2000

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

The Claimant

AND

HER WORSHIP MS LUCINA CARDENAS RAGOONANAN

The Defendant

Before the Honourable Madame Justice Margaret Y Mohammed

Dated the 11th

March 2016

Appearances

Mr. Sanjeev Lalla and Mr. Randall Hector instructed by Ms Amrita Ramsook for the Claimant

Mr. Ravi Rajcoomar and Ms. Nalini Bansee instructed by Mr. Irshaad Ali for the Defendant

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DECISION ON PRELIMINARY POINT

Background

1. On the 8th

May 2015 the Defendant dismissed the applications by Acting Sergeant

Ishmael Pitt (“the decision”) for orders of further detention of certain sums of cash

which were seized by police officers on the 8th

August 2014 from Gaindah Boodram (the

sum of TT $30,789. and US $13,246 ), Marlon Boodram (the sum of TT $29,352. and

US $102 ) and Lyndon Boodram (the sum of TT $29,498. and US $5,020 ) during the

execution of a search warrant under section 23 of the Dangerous Drugs Act1 . In making

the decision the Defendant also ordered that the cash be returned to the respective

persons.

2. Not being satisfied with the decision, on the 7th

August 2015 the Claimant sought leave to

review the decision (“the leave application”) and to obtain a stay of execution of the

decision (“the application for the stay”) until the determination of the substantive judicial

review matter. The grounds as set out in the leave application were :

i. The Defendant erred in law in finding that supporting documentation must

accompany an application for further detention of cash seized pursuant to

section 38 of the Proceeds of Crimes Act2 (“POCA”)

ii. The Defendant erred in law and failed to follow the rules of natural justice in

refusing to allow Sergeant Pitt to call supporting witnesses.

iii. The Claimant reserves the right to amend and or add to these grounds upon

receipt of the transcript of proceedings which the Applicant has applied for.

3. It was not in dispute that the leave application was heard without notice to the Defendant

and that the Claimant stated in the leave application that no alternative and/or equally

effective form of redress exists.

1 Chapter 11:25

2 Chapter 11:27

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4. In support of the leave application and the application for the stay the Claimant filed

three affidavits namely by the Claimant, by instructing attorney at law Ms Amrita

Ramsook and the important affidavit of Acting Sergeant Pitt which I will refer to later.

5. On the 11th

August 2015 (“the leave order”) the Claimant was granted permission to

make a claim for judicial review for the following reliefs:

a. A Declaration that the decision is unlawful, illegal, irrational and/or unreasonable,

disproportionate, and/or is or amounts to an unreasonable, irregular or improper

exercise of a discretion, is invalid, null, void and of no effect;

b. An Order of Certiorari to bring into this Court and quash the decision as well as

the decision ordering the release and return of the cash to Gaindah Boodram,

Marlon Boodram and Lyndon Boodram;

c. A Declaration that the decision of the Defendant to refuse to call or hear the

evidence of Acting Sergeant Hosein was unlawful, illegal, irrational and/or

unreasonable, disproportionate, and/or is or amounts to an unreasonable, irregular

or improper exercise of a discretion, is invalid, null, void and of no effect;

d. An Order of mandamus directing the Defendant to hear and consider the evidence

of Acting Sergeant Dale Hosein on the applications for orders of further detention

pursuant to Section 38(3) of the POCA against Gaindah Boodram, Marlon

Boodram and Lyndon Boodram dated the 5th

May , 2015;

e. An Order of mandamus directing the Defendant to hear and reconsider the

applications for further orders of detention;

f. Such other orders, directions or writs as the Honourable Court considers just as

the circumstances warrant pursuant to Section 8 of the Judicial Review Act3.

6. The Fixed Date Claim was filed on the 25th

August 2015 seeking the aforesaid reliefs.

The Defendant’s application

3 Act No 60 of 2000

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7. By an application dated the 14th

October, 2015(“the Defendant’s application”) the

Defendant sought to set aside the leave order on the following grounds:

(a) That an alternative form of remedy existed or an equally effective form of redress

existed under Section 36(1) of the Supreme Court of Judicature Act 4 and/or under

Sections 128 and/or 156 of the Summary Courts Act5 and the Defendant had not been

heard on the issue;

(b) That the Claimant failed to disclose and/or state in the leave application that an

alternative form of remedy existed or an equally effective form of redress existed or

an equally effective form of redress existed under Section 36(1) of the Supreme Court

of Judicature Act and/or under Sections 128 and/or 156 of the Summary Courts Act

and the Defendant had not been heard on the issue; and

(c) That the leave order be set aside on the ground that it was wrong and unjustified.

The parties’ submissions

8. In support of the instant application the Defendant argued that based on the scheme of the

POCA cash detention applications and orders are criminal and not civil in nature. On the

hearing of the applications the summary jurisdiction of the Magistrate under the

Summary Courts Act was invoked and therefore under sections 128 and 156 of the

Summary Courts Act and section 36 of the Supreme Court of Judicature Act, the

Claimant had alternative and/or equally effective statutory remedies at the time when the

leave order was granted. Counsel also submitted that there was no explanation given by

the Claimant for the failure to pursue the alternative remedies and there was no evidence

before the Court at the hearing of the leave application of exceptional circumstances that

existed which permitted the Court to grant the leave order.

4 Chapter 4:01

5 Chapter 4:20

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9. In response it was submitted on behalf of the Claimant that : there is no statutory right of

appeal against a Magistrate who grants and/or fails to grant a further cash detention order

pursuant to section 38 of the POCA as amended; section 128 of the Summary Courts Act6

does not provide the Claimant with an alternative remedy or avenue for redress since the

right of appeal contemplated is only exercisable in relation to the decision of a Magistrate

in relation to a summary offence and that cash detention proceedings is not a case relating

to a summary offence; section 128 does not give the Claimant the right to appeal the

decision of a Magistrate in a Petty Civil matter; section 156 of the Summary Courts Act

does not give the Claimant a right of appeal since the Claimant’s right to approach the

Court of Appeal pursuant to section 156 can only be after the hearing and determination

of “any complaint”. A complaint refers to the document that formally prefers a charge

relating to a summary offence and it was not in dispute that there was no criminal charge;

section 36 of the Supreme Court of Judicature Act is not available to the Claimant since it

is dependent upon the decision being made in a criminal matter and an application for

cash detention does not amount to nor is it equivalent to the laying of a criminal charge.

10. Based on the Defendant’s submissions it was not disputed that section 38 of the POCA

did not expressly set out a right of appeal. I understood the Defendant’s position to be

that even in the absence of any expressed statutory right of appeal in section 38 of the

POCA, the Claimant still had statutory remedies available to him under the Summary

Courts Act and the Supreme Court of Judicature Act

11. The issues for my determination in the instant application can be summed up as :

(a) Were there alternative statutory remedies available to the Claimant?

(b) If there were, was the granting of leave justified?

Were there alternative statutory remedies available to the Claimant?

6 Chapter 4:20

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12. There are three alternative statutory remedies which the Defendant stated were available

to the Claimant namely under sections 128 and 156 of the Summary Courts Act and

section 36 of the Supreme Court of Judicature Act. Before I examine those sections I will

first consider the troubling question of whether the proceedings before the Magistrate for

the further orders for the cash detention under the POCA were of a civil or criminal

nature since much turns on this finding.

13. Section 38 of the POCA provides:

“38. (1) A Customs and Excise Officer of the rank of Grade III or higher, or a Police

Officer of the rank of sergeant or higher, may seize from any person and in accordance

with section, detain any cash in accordance with this section if its amount is more than

the prescribed sum.

(1A) A Customs and Excise Officer or Police Officer referred to in subsection (1),

may seize and detain cash only, where he has reason to believe that the cash directly or

indirectly represents any person’s proceeds of a specified offence, or is intended by

any person for use in the commission of such an offence.

(2) Cash seized by virtue of this section shall not be detained for more than ninety-six

hours unless its continued detention is authorised by an order made by a

Magistrate, and no such order shall be made unless the Magistrate is satisfied –

(a) that there are reasonable grounds for the suspicion mentioned in subsection

(1); and

(b) that continued detention of the cash is justified while its origin or derivation is

further investigated or consideration is given to the institution, whether in

Trinidad and Tobago or elsewhere, of criminal proceedings against any person for

an offence with which the cash is connected

(3) Any order under subsection (2) shall authorise the continued detention of the cash

to which it relates for such period, not exceeding three months beginning with the

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date of the order as may be specified in the order, and a Magistrate, if satisfied as

to the matters mentioned in that subsection, may thereafter from time to time by

order authorise the further detention of the cash but so that –

(a) no period of detention specified in such an order shall exceed three

months beginning with the date of the order; and (b) the total period of

detention shall not exceed two years from the date of the order under

subsection (2).

(4) Any application for an order under subsection (2) or (3) shall be made in the

prescribed form before a Magistrate by the Customs and Excise Officer or a

Police Officer of the grade or rank referred to in subsection (1).

(5) Any cash subject to continued detention under subsection (3) shall, unless

required as evidence of an offence, immediately upon order for such detention

being made, be delivered into the care of the Comptroller of Accounts who shall

forthwith deposit it into an interest bearing account.

(6) An order made under subsection (2) shall provide for detention of cash seized for

the period stated in the order until-

(a) the expiration of the period;

(b) the release of the cash by the Court; or

(c) the release of the cash by the Comptroller of Accounts.

(7) At any time while cash is detained under this section-

(a) A Magistrate may direct its release if satisfied-

(i) on application made by the person from whom it was seized or

person by or on whose behalf it was being imported or exported, that

there are no, or are no longer any grounds for its detention as are

mentioned in subsection (2); or

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(ii) on an application made by any other person, that detention of the

cash is not for that or any other reason justified; and

(b) The Comptroller of Accounts may, upon the written application of the

applicant for the order, release the cash together with any interest that may

have accrued, if satisfied that the detention is no longer justified.

(8) Where the cash is to be released under subsection (6) (b), the Comptroller of

Accounts shall first notify the Magistrate under whose order it is being detained.

(9) If at a time when any cash is being detained under this section

(a) an application for its forfeiture is made under this Act; or

(b) proceedings are instituted, whether in Trinidad and Tobago or elsewhere,

against any person for an offence with which the cash is connected, the cash shall

not be released until any proceedings pursuant to the application or as the case

may be, the proceedings for that offence have been concluded.

(10) In this section-

(a) “cash” includes coins, notes and negotiable instruments in any currency; and

(b) “the prescribed sum” means such sum in Trinidad and Tobago currency as

may be prescribed for the purposes of this section by an Order made by the

Minister.

(11) In determining under this section whether an amount of currency other than

Trinidad and Tobago currency is less than the prescribed sum, that amount shall

be converted at the prevailing rate of exchange.

(12) The Minister may for the purposes of subsection (1), make an Order prescribing

the sum referred to therein.

(13) An Order made under subsection (12), shall be subject to negative resolution of

Parliament.”

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14. The Claimant’s argument that the applications for cash detention orders under section 38

of the POCA were civil proceedings was grounded on authorities emanating from the

United Kingdom which concluded that cash detention and cash forfeiture proceedings

were not criminal proceedings but were actually civil proceedings. In support the

Claimant referred the Court to section 240 (1) of the UK Proceeds of Crimes Act 2002,

the authorities of Bassick & Osborne v Commissioners of Customs and Excise7 , R v

Crawley Justices, ex parte Ohakwe8 and Butler v the UK

9.

15. The aforesaid authorities interpret the equivalent UK provision on the civil recovery of

the proceeds of unlawful conduct. Section 240 (1) expressly states that such proceeding

are to be treated as civil proceedings and it defines unlawful conduct as conduct of a

criminal nature. Before recourse is made to the UK provision to determine if there is any

merit in the Claimant’s argument the Court must first examine section 38 of the POCA.

16. It is a fundament rule that when the Court is interpreting the provisions of an Act of

Parliament it strives to ascribe a meaning to reflect Parliament’s intention and to do so

the Court must first look to the ordinary meaning of the words of the section.

Halsbury’s Laws of England 10

describes the plain meaning rule as :

“ It is a rule of the common law, which may be called the plain meaning rule, that

where, in relation to the facts of the instant case, the enactment under inquiry is

grammatically capable of one meaning only and, on an informed interpretation of

the enactment, the interpretative criteria raise no real doubt as to whether the

meaning is the one intended by the legislator then the legal meaning of the

enactment is taken to correspond to that grammatical meaning but that in any

other case the basic rule of statutory interpretation is to be applied.”

7 (1993) 161 JP 377

8 (1994) 158 JP 781

9 Application No 41661/98

10 4th

ed Vol 44 (1) at paragraph 1391

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17. Bennion on Statutory Interpretation 6th

ed describe this rule of statutory interpretation

as:

“Literal meaning The term ‘literal meaning’ corresponds to the grammatical meaning

where this is straightforward. If, however the grammatical meaning, when applied to

the facts of the instant case, is ambiguous then any of the possible grammatical

meanings may be described as the literal meaning. If the grammatical is semantically

obscure, then the grammatical meaning likely to have been intended (or any one of

them in the case of ambiguity) is taken as the literal meaning. The point here is that

the literal meaning is one arrived at from the working of the enactment alone, without

consideration of other interpretative criteria. When account is taken of such other

criteria (for the purpose of arriving at the legal meaning of the enactment), it may be

found necessary to depart from the literal meaning and adopt a strained construction.

The initial presumption is in favour of the literal meaning in the sense just explained,

since Parliament is taken to mean what is says. The presumption is of very long

standing, being embodied in early maxims of the law. ”11

18. Section 38 creates a power to detain cash where there is reason to believe that the cash

directly or indirectly represents any persons proceeds of a specified offence, or is

intended by any person for use in the commission of such an offence. Subsection 38(2)

permits a Magistrate to make a further detention order where there are reasonable

grounds that the cash seized is either the proceeds of a specified offence or is to be used

for the commission of a specified offence, or where the reasons given for the cash

requires further investigation, or consideration is being given to the institution of criminal

proceedings against any person for an offence with which the cash is connected. Section

2 of the POCA defines a “ specified offence” as an indictable offence committed in

Trinidad and Tobago whether or not the offence is tried summarily, any act committed or

omitted to be done outside of Trinidad and Tobago which would constitute an indictable

offence in Trinidad and Tobago or any offence set out in the Second Schedule to the

POCA which include fraud and breaches of the Value Added Taxes Act and Copyright

infringements. Therefore the sole reason for the creation of the power to detain cash

11

Pages 780 to 781

Page 11 of 23

under section 38 is based on the association of the cash with criminal activity and not any

civil matter.

19. From the ordinary meaning of the words in section 38 it is clear that the intention of

Parliament in crafting this section was to assist in a criminal investigation. There is

nothing which is ambiguous.

20. This ordinary and literal interpretation of section 38 is borne out by two aspects of the

section. Firstly, the officers who are empowered to seize and detain cash do so by

exercising powers under the Police Service Act. The type of officers who are permitted

under section 38 to exercise the authority for seizure of cash and detention of cash is

either a Customs and Excise Officer of the rank of grade three or higher or a Police

Officer of the rank of Sergeant or higher. Under section 3 of the Customs Act12

for the

purposes of carrying out the Customs Laws the Customs and Excise Officer has the same

powers, authorities and privileges as that given by law to police officers. Therefore under

section 38 the officers, who are senior officers, empowered under section 38 are

exercising police powers under the Police Service Act.

21. Secondly, the sanctions associated with section 38 belong to criminal law. Subsection 9

sets out the type of sanctions which can flow during the period a cash detention order is

in effect. The sanction can be penalty of forfeiture, the use of the cash as evidence in

criminal proceedings, and further criminal proceedings under the POCA. Clearly it was

the intention of Parliament that the seizure and detention of cash is more than a

preliminary investigative stage under the POCA but it can be connected to any offence

not limited to the specified offence under the POCA. The second schedule of the POCA

sets out the specified offences which all carry sentences of imprisonment which are

sanctions are associated with criminal law.

22. The plain and ordinary meaning of section 38 of the POCA is not made any less clear

when sections 9 and 39 of the POCA which deals with confiscation and forfeiture

12

Chapter 78:01

Page 12 of 23

respectively are examined. Section 9 expressly state that the standard of proof required

for confiscation orders is that in civil proceedings and in section 39 of the POCA where

forfeiture of the seized cash is to be considered by a Magistrate, there is an expressed

provision that in such proceedings the standard of proof would be that applicable to civil

proceedings. The absence of an express provision in section 38 setting the standard of

proof, can only mean that Parliament intended the criminal standard to apply and the

Magistrate must be sure that reasonable grounds exist before ordering continued

detention. This is borne out in section 38 where in all instances whether it relates to the

Customs and Excise Officer or Police Officer, the Magistrate must ‘be satisfied’ that

there are reasonable grounds for the continued detention of the cash which appears to

place a burden of proof akin to criminal proceedings

23. Therefore, in my view, unlike the UK provision there is no expressed provision in section

38 of the POCA which states that cash detention matters are to be treated as civil

proceedings and on an ordinary literal meaning of the section is that such applications are

to be treated as a criminal matter .

24. Counsel for the Claimant also submitted that the Magistrate presided in the Petty Civil

jurisdiction when she made the decision. But this submission was not even supported by

the Claimant’s own evidence. Indeed the Claimant’s evidence demonstrated that the

police treated with the further cash detention applications as criminal proceedings and not

civil proceedings. According to Acting Sergeant Pitt on the 8th

August 2014 he was in

charge of a party of police officers who had cause to execute a warrant for dangerous

drugs at the residence of Merlin Boodram. The endorsed warrant which was executed

was attached as exhibit “IP1”. In my view the indorsement made by officer A Khan on

the 8th

August 2014 is instructive in demonstrating that the executing officers treated the

seizure of the cash as criminal proceedings. It states:

“Executed by me the undersigned on Friday 8th

August, 2014 at 5.10 am at 5th

Street,

New Settlement, Dow Village California in the presence of GAINDAH MERLYN

BOORAM, #1381 Ag/SGT P1 TT, #17309 PC ELLIOTT, a comprehensive search

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was conducted of the premises, however nothing illegal was found whilst searching

the person of LYNDON BOODRAM, the right front pants pocket, found a small

quantity of plant material resembling MARIJUANA, also found large quantities of

cash from the following occupants.

1. GAINDAH MERLYN BOODRAM $31, 000 TT currency $15,500 US currency.

2. MARLON BOODRAM $29, 137 TT currency.

3. LYNDON BOODRAM $29, 220 TT currency $5 020 US currency.

I then informed all the aforementioned persons that the money seized formed part of

criminal proceedings and that same had to be analyzed and assessed for classification

and accountability.

A Khan PC 16899

8/8/14”

25. According to Acting Sergeant Pitt when the aforesaid persons were found to be in

possession of the cash they were questioned by him and they were unable to account for

how they came into possession of it. As a result he became suspicious that the cash

represented “proceeds of or was intended for use in the commission of a specified

offence”13

. Acting Sergeant Pitt swore to four applications under section 38 of the POCA

on the 11th

August 2014, 11th

November 2014, 6th February 2015 and the 5th

May 2015.

He exhibited each further application for continued detention of seized cash. In each

application the reasonable grounds stated were :

“There are reasonable grounds for suspecting that the cash directly or indirectly

represents any person’s proceeds of a specified offence, or is intended by any person

for use in the commission of such an offence,

a. Its continued detentions is justified while its origin or derivation is further

investigated or consideration is given to the institution (in Trinidad and

13

Paragraph 4 of the affidavit of Acting Sergeant Ishmael Pitt filed on the 7th

August 2015

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Tobago or elsewhere) of criminal proceedings against any person for an

offence with which the cash is connected, or

b. Proceedings against any person for an offence with which the cash is

connected have been started and have not been concluded.

……It is suspected that the cash represents the proceeds of a specified offence (drug

trafficking) or is intended by any person for use in the commission of such and

offence and therefore this application for its detention is made pending further

enquiries”

26. The procedure adopted by the police before, during and after the time when the cash was

seized were that followed in the conduct of a criminal enquiry/investigation. According

to the affidavit of Acting Sergeant Pitt which was filed on the 7th

August 2015 in support

of the leave application the police seized the cash during the execution of a warrant under

the Dangerous Drugs Act. He questioned Merlin/ Gaindah Boodram, Lyndon Boodram

and Marlon Boodram and they were unable to adequately account to him the source of

the cash or provide information demonstrating how they came into its possession and it

was based on the inadequacy of the responses he became suspicious that the cash

represented proceeds of or was intended for use in the commission of a specified offence.

Upon seizure of the cash Acting Sergeant Pitt contacted the Financial Investigation

Branch (“the FIB”) of the Trinidad and Tobago Police Service and he informed Acting

Assistant Superintendent Wendell Lucas of his discovery and seizure of cash and Acting

Sergeant Dale Hosein from the FIB was appointed as the Investigating Officer. In the

application dated the 8th

May 2015 for the further detention order Acting Sergeant Pitt

stated that the police needed further time to obtain information requested from the

Ministry of Transport, Licensing Division to locate and interview two persons by the

names of Spotty and Smiley who had been given to them in a previous interview by

Lyndon Boodram and they had received information from various sources to obtain

Production Orders which would assist in gathering further information to assist with the

enquiry into the origin and derivation of the cash seized.

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27. Based on Acting Sergeant Pitt’s evidence it was obvious that the procedure used and the

manner in which the police treated with the investigation of the cash was as if they were

conducting a criminal investigation. The application for the further detention orders were

made to the Magistrate not under the Petty Civil Court jurisdiction as argued by Counsel

for the Claimant but in the Summary jurisdiction. For the aforesaid reasons the cash

detention proceedings before the Magistrate were not civil but criminal proceedings.

Analysing the alternative statutory remedies

28. Sections 128 of the Summary Courts Act provides:

“128. (1) Where a Court refuses to make a conviction or order, the

complainant may appeal to the Court of Appeal against such

decision.

(2) Where a Court makes a conviction or order, the party against whom

the conviction or order is made may appeal to the Court of Appeal

against such conviction or order.”

29. The Claimant qualifies as a complainant under section 2 of the Summary Court Act

which defines complainant to include “the Director of Public Prosecution, any informant

or prosecutor in any case relating to a summary offence”. Summary offence is described

at section 2 of the Summary Court Act as :

“summary offence” or summary offence” means any offence punishable on

summary trial or conviction in the manner provided by this Act and includes any

Act in respect of which under any law a person is liable on summary conviction to

a penalty, or in respect of which a Summary Court can make an order in the

exercise of its jurisdiction; and the term “on conviction” in relation to a summary

offence, means on summary trial and conviction in the manner provided by this

Act.”

Page 16 of 23

30. In DPP v Her Worship Murray and Panday14

Aboud J opined that sections 128 and

132 in the Summary Courts Act set out the ordinary criminal procedure.

31. Counsel for the Claimant argued that the right of appeal contemplated by section 128 is

only exercisable in relation to a decision of a Magistrate “ in any case relating to a

summary offence” and that section 128 only gives a right of appeal to a complainant in

relation to a summary offence. In this case cash detention proceedings are not a case

relating to a summary offence since the seizing of cash pursuant to section 38 of the

POCA does not qualify as “ any offence punishable on summary trial and conviction”

and that it is not in dispute that no individual has been charged with any offence.

32. While I agree that no individual was charged with an offence, in my view the Claimant

did not examine all the limbs of section 2 in its interpretation. In section 38 of the POCA

there are two options available to the Magistrate. Under subsection (2) the Magistrate can

make the order for continued detention or under subsection (7) the Magistrate can direct

its release. In the instance case the decision was that the cash was to be released which

meant that the Magistrate refused to make the order while exercising a function in her

summary jurisdiction. As such the decision fell squarely within the limb of section 2

which states “or in respect of which a summary Court can make an order in the exercise

of its jurisdiction” Therefore once the Magistrate made the decision the aggrieved party,

the Claimant was entitled under section 128 to appeal the decision to the Court of Appeal.

33. Section 156 (1) of the Summary Courts Act provides:

“ 156. (1) After the hearing and determination of any complaint, the Magistrate of

Justice may, in his discretion , on the application of either party to such complaint

or on his own motion without such application, state a case on any point of law

arising in the case for the opinion of the Court of Appeal. The statement of facts

in such case so stated shall, for the purpose of the determination thereof, be

conclusive.”

14

CV 2012-03883

Page 17 of 23

34. Complaint is defined in section 2 as:

“complaint” includes any information or charge relating to a summary offence.”

35. It was submitted on behalf of the Claimant that he did not have a right of appeal under

section 156 since there was no criminal charge laid and therefore there was no complaint

or formal document which preferred a charge relating to a summary offence.

36. In Director of Public Prosecutions v The Chief Magistrate His Worship Sherman

Mc Nicholls 15

Warner JA examined the jurisdiction of the Court of Appeal in dealing

with appeals of a Magistrate’s decision. At paragraphs 15 and 16 Justice of Appeal

Warner stated:

“15. In this jurisdiction appeals by way of case stated may be made on the

application of either party against decisions of a magistrate exercising their

summary jurisdiction to try criminal offences ‘after the hearing and

determination of any complaint’. See section of the Summary Courts Act Chap

4:20 and under Section 60 after conviction on indictment.

16. It is clear therefore that a Magistrate has no power to state a case until there is

a final determination. A case stated deals with facts which have been proved and

legal issues which arise from those facts.”

37. In Director of Public Prosecutions v Her Worship Murray and Panday 16

Aboud J

referred to the paragraphs of Warner JA and went further to state that:

“55. In my opinion the appeal by way of case stated involves the holding of a

hearing in an inferior court and an appeal against a determination based on that

hearing. The word “determination” was not defined by Warner JA. According to

Mr. Benjamin the word must mean a finding after hearing all the facts, in other

words after a full trial. He submitted that a trial stopped midway could not result

15

Civ Appeal No 2 of 2003 16

Supra

Page 18 of 23

in a determination. No authority was cited to rule out the availability of this

remedy. He instead, relied on the dicta of Warner JA at para 16 quoted above.

With respect, I do not agree. It cannot rightfully be said that the complaint against

Mr Panday wasn’t determined when the magistrate was “functus officio” as soon

as the decision was given. There was a hearing, and the State led evidence. The

evidence was tested and further evidence was elicited during cross examination.

The magistrate made findings on the basis of the evidence this adduced before

her. Those findings led her to the conclusion that the prosecution was abusive.

She stayed the proceedings, effectively bringing them to an end. The summary

criminal proceedings were therefore determined. In Environment Agency v

Stanford [1998] C.O.D. 345-426, 373 Lord Bingham, sitting in the Divisional

Court, heard an appeal by way of case stated, of a decision of a magistrate to stay

proceedings on the ground that it was abusive. No objection was taken as to the

jurisdiction of the Divisional Court to hear such an appeal by way of case stated.

In my view, I must have more regard to the substance of the decision than to the

terminology used to describe it. It was a final decision that entirely and effectively

determined the proceedings. How could Mr. Panday be discharged if the

proceedings were not determined?”

38. In the instant case, it was not in dispute that there was no complaint since there was no

charge laid against the Boodrams. According to Acting Sergeant Pitt the police were still

conducting an investigation to determine the changes, if any, to be laid since they had

reasonable suspicion to believe that an offence may have been committed. Therefore

there were no facts to be proven before the Magistrate for the final determination of any

complaint. I therefore agree with the Claimant’s submissions that section 156 of the

Summary Courts Act did not provide an alternative remedy to the Claimant.

39. Section 36 of the Supreme Court of Judicature Act provides:

“36. (1) Upon application by or on behalf of the Director of Public Prosecutions

in criminal matters and by or on behalf of the Attorney General in any other

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matter, the Court of Appeal may, if it thinks fit, order any Judge, Magistrate, or

Justice presiding in any inferior Court, to send to the Registrar the records of

proceedings in any case, and may also, if it thinks fit, require in addition to such

record a statement showing in detail the proceedings taken in reference to the

whole case or any particular matter, and if it appears to the Court of Appeal that

there had been any material error in the proceedings of the inferior Court, the

Court of Appeal may set aside or vary any judgment or order of proceedings of

the inferior Court and pass such judgment and remit the case or matter to the

inferior Court with such directions as justice requires.

(2) It shall be in the discretion of the Court of Appeal to exercise the powers given

to it by this section either without hearing any person or after hearing such

persons as it thinks fit, and the Court of Appeal may, if it thinks fit, direct that an

order nisi be served upon such persons as the Court thinks fit, and upon making

absolute any such order nisi, may order the cost to be paid by all or any of the

parties served as the Court thinks just.”

40. In Director of Public Prosecutions v The Chief Magistrate His Worship Sherman

Mc Nicholls17

Warner JA described section 36 proceedings as:

“17… Section 36 proceedings are in our view analogous to judicial review

proceedings. It provides to the Director of Public Prosecutions a specific statutory

remedy for challenging an order or judgment by way of an application to the

Court of Appeal. I am grateful to counsel for tracing this provision to as early as

1879. Historically, certiorari evolved as a general remedy to quash the

proceedings of inferior tribunals and was used largely to supervise the justices of

the peace in the performance of their criminal and administrative functions.

Section 36, in my view embodies this type of function. There are of course,

certain procedural differences. For example, no leave of the court is necessary.

17

Supra

Page 20 of 23

18. The section states what material is to be sent to the Registrar, that is the record

of the proceedings and in addition a statement showing the proceedings taken in

reference to the ‘whole case’ or any ‘particular matter.’ The reference to ‘any

particular matter’ does suggest to me that the scope of this court’s authority under

section 36 is not limited to final decisions.

19. The jurisdiction which this court is called upon to exercise is certainly

‘extraordinary and peculiar’ and I do accept that the emphasis on a ‘material

error’ clearly indicates that the power ought not to be exercised readily or

routinely. I do not however agree with counsel that the fact that no evidence had

been taken or that in the absence of evidence, that application to this court is

precluded. If for example, an inferior court falls into jurisdictional error or

disregards the scope or limits of its powers, then, while it may be acting within

the general area of its jurisdiction, it falls into jurisdictional error if it does

something which it has no authority to do.

20. The jurisdiction is an original jurisdiction available only to the Director of

Public Prosecutions in criminal matters. I can see no reason why the remedy

ought not to be available to the Director during the court of committal

proceedings, in an appropriate case.”

41. According to Acting Sergeant Pitt he indicated to the Magistrate that he could not

answer certain questions which she posed to him but the appointed investigator from FIB

Acting Sergeant Hosein who was in the gallery of the Court was best suited to address the

concerns. He requested the Magistrate to allow Acting Sergeant Hosein to be permitted to

give the evidence to address the concerns raised but this request was refused and the

Magistrate indicated that only Acting Sergeant Pitt could give evidence since he was the

applicant and not Acting Sergeant Hosein. Acting Sergeant Pitt also stated that for the

first time, the Magistrate raised the necessity for supporting documentation to his

application for the order for further extension and on the previous occasions when he had

sought and obtained further detention orders in this matter and in other matters the issue

of supporting documentation being attached to the application had never arisen. On all

Page 21 of 23

previous occasions the Court relied on his viva voce evidence in respect of his application

which he pointed out to the Magistrate. In light of the foregoing, Acting Sergeant Pitt

requested that the matter be stood down to enquire from Acting Sergeant Hosein if he had

any documents or information that would assist the Court. Neither Acting Sergeant

Hosein nor Acting Sergeant Pitt was able to provide any further evidence. The Magistrate

stated that she was not satisfied with the prosecution’s position and she refused the

application for a further detention order and ordered that the cash be returned.

42. The nature of the Claimant’s complaint against the Magistrate was the procedure she

adopted in exercising her discretion not to grant the further detention order. Based on

Acting Sergeant Pitt’s evidence the complaint which the Claimant had against the

Magistrate was that she made a material error in the conduct of the proceedings before

her by not permitting Sergeant Hosein to give evidence to address some concerns which

she had. In other words she exercised her discretion by adopting a procedure which

limited the evidence available to her before she made the decision. The Magistrate was

sitting as an inferior Court in a criminal matter. She made an order which the Claimant

was not satisfied with in terms of the procedure which she adopted in arriving at the

decision. While Warner JA was of the view that section 36 proceedings may be

analogous to judicial review proceedings, in my view, section 36 set out the procedure for

the Claimant to appeal to the Court of Appeal if he was not satisfied with the manner in

which the Magistrate conducted the proceedings. Therefore the Claimant had an

alternative statutory remedy under section 36 of the Supreme Court of Judicature Act for

the nature of his complaint against the Magistrate.

43. In summary, the absence of an expressed statutory provision in section 38 of the POCA

did not oust the Claimant’s right of appeal under section 128 of the Summary Courts Act

or section 36 of the Supreme Court of Judicature Act. I am satisfied that the Claimant

had two alternative statutory remedies available to seek relief against the decision.

If there were alternative remedies, was the granting of leave justified?

Page 22 of 23

44. The Judicial Review Act Chapter 7:08 provides;-

“9. The Court shall not grant leave to an applicant for judicial review of a decision

where other written law provides an alternative procedure to question, review or

appeals that decision, save in exceptional circumstances.”

45. Michael Fordham QC in Judicial Review Handbook 18

summarized the position adopted

by the Courts in not permitting a party to pursue relief by judicial review where there is

an alternative remedy available at paragraph 36.3.1 where it is stated:

“36.3.1 Alternative remedy in a nutshell. R(Cart) v Upper Tribunal [2011]UKSC

28 P2012] 1 ac 663 at [71] (Lord Phillips, explaining that it is not the practice of

the court to use the power of judicial review “where a satisfactory alternative

remedy has been provided by the Parliament”); Kay v Lambeth London Borough

Council [2006] UKHL 10 [2006] 2 AC465 at [30] (Lord Bingham, referring to

“the principle that if other means of redress are conveniently and effectively

available to a party they ought ordinarily to be used before resort to judicial

review”); R (C) v Financial Services Authority[2012] EWHC 1417 (Admin) at

{89} (Silber J: “judicial review will not be granted where there is an alternative

remedy as long as it is .... ‘equally effective and convenient’ or ... ‘suitable to

determine’ the issue and ... judicial review can be brought where the alternative

remedy is ...’nowhere near so convenient, beneficial and effectual’”); R (Pepushi)

v Crown Prosecution Service [2004] EWHC 798 (Admin) [2004] INLR 638 at

[50] (“judicial review is very rarely appropriate where an alternative remedy is

available”); R v Ministry of Agriculture, Fisheries and Food, ex p Live Sheep

Traders Ltd [1995] COD 297 (see transcript) (“It is a cardinal principle that, save

in the most exceptional circumstances, the jurisdiction to grant judicial review

will not be exercised where other remedies are available and have not been

used”)”

18

6th ed

Page 23 of 23

46. There was no evidence in support of the leave application of any exceptional

circumstances to permit the Court to make the leave order even in light of alternative

remedies. Therefore, in the absence of such evidence the Court must assume that there

were no exceptional circumstances and since there were alternative remedies the Court

ought not to have granted the leave order.

Disposition

47. In dealing with cash detention applications under section 38 the Magistrate is presiding in

the summary jurisdiction where such applications are treated as criminal and not civil

proceedings. The absence of an expressed provision for an appeal under section 38 where

the aggrieved party is the Claimant did not oust the Claimant’s right to appeal the

decision under section 128 of the Summary Courts Act or section 36 of the Supreme

Court of Judicature Act. Therefore there were alternative remedies available to the

Claimant and the Claimant failed to demonstrate in the leave application any exceptional

circumstances why he did not pursue the alternative remedies available to him.

ORDER

48. The Defendant has been successful on its application. The leave order granted on the 11th

August 2015 is hereby set aside.

49. The Claimant to pay the Defendant’s costs. I will hear the parties on the assessment of

those costs.

…………………………..

Margaret Y Mohammed

Judge