Dana See­ta­hal

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.

Dou­ble jeop­ardy

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.