Last week the news was full of the fact that a woman had laid a case in the Port-of-Spain Magistrates' Courts against the Prime Minister and the matter had been thrown out in the Eighth Court for want of appearance. There was some talk of the woman relaying the charge. So many questions have been asked of me as to the propriety of the proceedings and whether the PM can still be made to face the charge, that I believe it would be useful to look at what the law says on the several issues. In the Magistrates' Court, where summary cases (not so serious matters) are heard, there is a case list in which all the matters for the particular day are listed. Courts usually begin sitting at 9 am (as is stipulated in the relevant Orders) and the defendant (person charged) and complainant (person laying the charge) are expected to be present at that time on the date fixed for hearing. They would have been notified of the particular court to attend
Appearing through lawyer
The first question is: "Can a defendant not appear personally?
In this regard, we need to consider the Summary Courts Act which sets out the procedure in the Magistrates' Courts. Section 60 (1) provides "If, when the case is called, the defendant does not appear, the Court...may, if it thinks fit, allow the defendant to appear by Attorney-at-law." In the PM's case, therefore, he was represented by an attorney, so if the Court thought "if (usually at the attorney's request if his client had, for example, a prior engagement) he could appear through the attorney. It appears then that the PM did 'appear'.
Absence of the complainant
What about the complainant?
Section 59 of the SCA stipulates, "If, when the case is called, the defendant appears voluntarily in obedience to the summons...and the complainant, having had due notice of the time and place of hearing (which shall be proved to the satisfaction of the Court), does not appear in person...the Court shall dismiss the complaint, unless the Court, having received a reasonable excuse for the non-appearance of the complainant...thinks fit to adjourn the hearing of the case..."
Thus, when the case is called, if the complainant does not appear but the defendant appears, the court may dismiss the charge or adjourn the case at its discretion. Further, on the assumption even that the magistrate had not given the PM leave to appear through counsel, the SCA provides that if both the complainant and the defendant fail to appear, the court has a discretion to dismiss or adjourn the case.
It is evident then that the magistrate had the power in law to throw out the charge against the PM. Can it be re-laid? There has been learning on the question as to whether a charge can be re-laid where it is dismissed without a hearing but the cases do not speak with one voice. In a 1978 English case it was held that where there has been an "adjudication, whether or not there was a trial on the merits, the decision is binding and the matter cannot be prosecuted again." The test, then, seems to be whether there was a (valid) adjudication. The commentary on the case suggests that even where the prosecution offers no evidence this is an acquittal and so is a bar to a further charge.
In a 1977 Guyana case the Court of Appeal held that a dismissal on no evidence being offered is a dismissal on its merits and thus a bar to a further charge. It is interesting to note that in both these cases the defendants had pleaded before the prosecution had offered no evidence. In the circumstances in each case it would seem that the defendant was put in jeopardy and the subsequent dismissal of the charge amounted to a valid adjudication even though no evidence had been led. In a 1979 T&T case the Court of Appeal seemed to use the question of whether or not a plea had been entered by the defendant as the litmus test to determine whether there was a valid adjudication. The court quoted Lucie Smith CJ in a 1914 case in which he said, "The magistrate had done nothing to exhaust his jurisdiction, the person charged did not plead and the magistrate did not adjudicate."
There was thus no dismissal on the merits (adjudication) to justify a plea of autrefois acquit. This view is consistent with a 1994 English case in which it was held that since the defendant had never entered a plea, he was never in peril of being convicted. Based on the above it seems to me that while a court may dismiss a case for non-appearance of the complainant, where the defendant has not appeared and pleaded, such a dismissal does not amount to an adjudication or a dismissal on the merits. The defendant was never in jeopardy of being convicted. The charge may be re-laid and there can be no issue of double jeopardy.