Sookoonsingh v Summary Ct

JurisdictionCayman Islands
Judge(Smellie, C.J.)
Judgment Date21 March 2006
CourtGrand Court (Cayman Islands)
Date21 March 2006
Grand Court

(Smellie, C.J.)

SOOKOONSINGH
and
SUMMARY COURT and KAUFMAN

O.E. Nsugbe, Q.C. and A. Akiwumi for the applicant;

P. St.J. Stevens and S.D. Dickson for the second respondent,

Miss V. Ellis, Crown Counsel, with a watching brief on behalf of the Attorney General.

Cases cited:

(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680; (1947), 177 L.T. 641, considered.

(2) Connelly v. D.P.P., [1964] A.C. 1254; [1964] 2 All E.R. 401; (1964), 48 Cr. App. R. 183, considered.

(3) Fiallo v. R., 1987 CILR 253, referred to.

(4) Gibbs v. Rea, 1998 CILR 16, considered.

(5) Gouldham v. Sharrett, [1966] W.A.R. 129, considered.

(6) Gouriet v. Union of Post Office Workers, [1978] A.C. 435; [1977] 3 All E.R. 70, considered.

(7) Hunter v. Chief Constable of W. Midlands, [1982] A.C. 529, [1981] 3 All E.R. 727, considered.

(8) Marsh, Ex p., [1966] Qd.R. 357, distinguished.

(9) R. v. Croydon JJ., ex. p. Dean, [1993] Q.B. 769; [1993] 3 All E.R. 129; [1993] Crim. L.R. 759; (1994), 98 Cr. App. R. 76, distinguished.

(10) R. v. George Maxwell (Dev.) Ltd., [1980] Crim. L.R. 321, considered.

(11) R. v. Telford JJ., ex p. Badhan, [1991] 2 Q.B. 78; [1991] 2 All E.R. 858; (1991), 93 Cr. App. R. 171, considered.

(12) R. v. Tower Bridge Metrop. Stip. Magistrate, ex p. Chaudhry, [1994] 1 Q.B. 340; [1994] 1 All E.R. 44; (1994), 99 Cr. App. R. 170, distinguished.

(13) R. v. West London Metrop. Stip. Magistrate, ex p. Klahn, [1979] 1 W.L.R. 933; [1979] 2 All E.R. 221; [1979] Crim. L.R. 393, followed.

(14) R. v. Willesden JJ., ex p. ClemmingsUNK(1987), 87 Cr. App. R. 280, referred to.

(15) R. v. Wilson, ex p. Battersea Borough Council, [1947] 2 All E.R. 569, considered.

(16) Rice v. Connolly, [1966] 2 Q.B. 414; [1966] All E.R. 649, followed.

(17) Walsh v. Jewell, Supreme Ct. of W. Australia, Library No. 980580, unreported, distinguished.

Legislation construed:

Criminal Procedure Code (1995 Revision), s.13(2): The relevant terms of this sub-section are set out at para. 19.

s.14: The relevant terms of this section are set out at para. 19.

s.107(1): The relevant terms of this sub-section are set out at para. 45.

s.108: The relevant terms of this section are set out at para. 46.

Criminal Procedure-private prosecution-duty of disclosure-private prosecutor has duty of disclosure of information relevant to decision on public prosecution-need not disclose that Attorney General”s decision to prosecute still pending-if charges already laid by Attorney General, disclosure required

Criminal Procedure-private prosecution-factors for consideration-no need for private prosecutor to show special circumstances to bring prosecution by issue of process by justice of peace, committal proceedings and trial on indictment-needs to show reasonable and probable cause to believe offence committed and willingness to assume public prosecutor”s duties of probity, objectivity and fairness

The second defendant commenced a private prosecution against the applicant for causing grievous bodily harm.

K (the second defendant) and acquaintances were involved in a fracas which the police were called to control. K was restrained and handcuffed but managed to escape and was taken back into custody by the applicant and another police officer. K was hit across the face with the applicant”s radio and as a result of this injury became totally blind in his right eye, though there was some dispute as to the circumstances in which this occurred. K and his acquaintances did not cooperate with the police in their enquiries, but all gave statements to K”s attorney. The Attorney General finally ruled that in the absence of the key witness statements, there was insufficient evidence to justify prosecuting the applicant.

Before this decision had been taken, K initiated his private prosecution of the applicant by laying a charge before the Clerk of Courts, without indicating that the Attorney General”s decision on whether or not to prosecute was still pending. The Clerk of Courts issued the process in his capacity as a justice of the peace, requiring the production of the applicant before the Summary Court. The applicant applied to the magistrate to stay the warrant and charge against him as an abuse of the process of the court, but she refused. The applicant sought judicial review of her decision.

The applicant submitted that (a) as the Attorney General had decided not to prosecute it ought not to be open to K to disregard that decision by pursuing a private prosecution unless he could prove that the circum

stances of the case were exceptional, because it was generally preferable that prosecutions be carried out by the Attorney General who was familiar with the ministerial duties of probity, objectivity and fairness and not likely to be biased against the applicant; (b) as the prosecutor of the applicant, K had a duty in the interests of fairness to disclose all relevant information of which he was aware and had failed to fulfil this duty by not informing the court that the Attorney General”s decision on whether or not to prosecute was still pending; (c) the Attorney General would be placed in a compromising position by his right to take over or discontinue the private prosecution at any time, as K was also pursuing a civil claim against the Crown as the applicant”s employer, on whose behalf the Attorney General would act; (d) furthermore, the Attorney General had led the applicant to believe that he would not be prosecuted; and (e) K. had refused to co-operate with the official police investigation into the matter, and had interfered with it by persuading witnesses to give information to his attorney rather than to the police, and his bringing a private prosecution was therefore an abuse of the process of the court.

K submitted in reply that (a) since he had reasonable and probable cause to think that an offence had been committed, and the complaint was not frivolous or vexatious, there was no requirement to show exceptional circumstances, so long as he was willing to assume the usual duties of a prosecutor to be objective and fair; (b) he did not have a duty to inform the Clerk of Courts (as a justice of the peace) that the Attorney General”s decision was still pending; the Clerk, as a legally qualified officer, would have been aware that it was a matter of record that the Attorney General had not yet laid a charge against the applicant; (c) any conflict of interest the Attorney General might suffer was a matter for him to consider, not the courts and was not a basis upon which a stay of a private prosecution should be granted; and (d) he had not deliberately prevented the witnesses from helping with the police enquiry but rather, as they feared it was biased against him, they had chosen of their own accord not to do so, and in any case there was no property in a witness and so to persuade one not to testify to the police would not affect his right to initiate a private prosecution.

Held, dismissing the application:

(1) Judicial review would not be granted because so long as K had reasonable and probable cause to believe that an offence had been committed and his complaint was not frivolous or vexatious, the justice of the peace was right to issue a summons. Although it was rare that the Attorney General would not already have instituted proceedings in a case of such seriousness, K was not required to show exceptional circumstances to justify his bringing the private prosecution by application to the justice of the peace. Although the Attorney General was usually better placed to be objective than a victim, a private prosecution would not serve to truncate any part of the usual criminal proceedings-with a committal proceeding before a trial on indictment-and therefore so long

as K was aware of his obligation to fulfil the usual ministerial duties of probity, objectivity and fairness, his private prosecution should not be stayed unless the applicant could show that, on the balance of probabilities, a fair trial was impossible (paras. 21–22; para. 26).

(2) Furthermore, whilst there was not sufficient evidence to show that K had been aware that the Attorney General was still considering whether to prosecute when K initiated his private prosecution, his statutory right to bring the prosecution did not depend on whether or not the Attorney General decided to prosecute. Therefore, whilst he had a duty to disclose information which he was aware might be relevant to the decision whether or not a private prosecution should be permitted, that duty did not extend to disclosing his own belief whether or not the Attorney General was still considering an official prosecution. If the Attorney General had already laid a charge in respect of the incident in question, that fact should have been disclosed, though it would have been a matter of public record of which the Clerk of Courts would have been aware (para. 24; paras. 36–38).

(3) Moreover, the Attorney General had the right to take over or discontinue the private prosecution at any time; the fact that he was indirectly a defendant to K”s civil claim did not affect this right, any conflict of interest arising in this situation was a matter with which the Attorney General should concern himself, and not a basis upon which the court could hold that the private prosecution was an abuse of process. As the Attorney General had not made any promise or representation to the applicant which would oblige him to intervene and discontinue the prosecution, it was not an abuse of the process of the court for K to institute the proceedings (paras. 41–43).

(4) Additionally, whilst it was not clear on the facts why K”s acquaintances had chosen to make their statements to his attorney rather than the police, as there was no property in a witness, even if he had been the cause of their refusal, he could not be regarded as...

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