The Court of Ap­peal has re­ject­ed a nov­el ap­peal over the abil­i­ty of peo­ple charged with mi­nor crim­i­nal of­fences to be com­pen­sat­ed for their le­gal fees if they are suc­cess­ful in de­fend­ing their cas­es due to is­sues in pros­e­cut­ing them.  

De­liv­er­ing an oral judg­ment af­ter hear­ing ex­ten­sive sub­mis­sions dur­ing a hear­ing at the Hall of Jus­tice, on Thurs­day, Ap­pel­late Judges Prakash Moo­sai, Char­maine Pem­ber­ton, and Gillian Lucky dis­missed the case that was re­ferred to them by Mag­is­trate Na­tal­ie Hamil­ton-Diop af­ter the is­sue was raised in 2022. 

Lawyers for Ravi Nar­i­nesingh made an ap­pli­ca­tion un­der Sec­tion 77 of the Sum­ma­ry Courts Act af­ter an as­sault charge was dis­missed against him in March 2022. 

The pro­vi­sion em­pow­ers mag­is­trates to or­der com­pen­sa­tion and costs to de­fen­dants or com­plainants if they con­sid­er it to be just and rea­son­able in the cir­cum­stances of the case. Mag­is­trates are al­so giv­en the pow­er to or­der $200 in com­pen­sa­tion for suc­cess­ful de­fen­dants if they be­lieve the com­plaint was friv­o­lous and vex­a­tious. 

Nar­i­nesingh was charged in Au­gust 2021 and was grant­ed bail. The case was dis­missed as it was filed out­side the six-month lim­i­ta­tion pe­ri­od un­der the leg­is­la­tion. 

The ap­pli­ca­tion was re­ject­ed by the mag­is­trate, who point­ed to a sub­sec­tion of the leg­is­la­tion which states: “No such or­der for pay­ment of costs shall in­clude any fees to At­tor­ney-at-law.” 

In the ap­peal, Nar­i­nesingh’s lawyers led by Dar­rell Al­la­har claimed that the leg­is­la­tion made a dis­tinc­tion be­tween costs to be award­ed to the com­plainant and de­fen­dant and that the pro­vi­sion bar­ring fees for at­tor­neys on­ly ap­plied to com­plainants. 

Re­spond­ing to the case, at­tor­ney Wayne Ra­jban­sie, who rep­re­sent­ed the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), said that it had to ap­ply to both de­fen­dants and com­plainants as if the leg­is­la­tion could not be deemed to be “even-hand­ed”.

He al­so claimed that the case would make the leg­is­la­tion dis­pro­por­tion­ate as po­lice com­plainants and by ex­ten­sion, the State would be held li­able for sig­nif­i­cant le­gal fees if a de­fen­dant re­tains a Se­nior Coun­sel to de­fend a mi­nor crim­i­nal charge. 

Se­nior Coun­sel Ravi Ra­j­coomar, who rep­re­sent­ed the Crim­i­nal Bar As­so­ci­a­tion (CBA), sup­port­ed Ra­jban­sie’s po­si­tion on the is­sue. 

He said that suc­cess­ful de­fen­dants could be re­im­bursed for their le­gal fees by pur­su­ing a sep­a­rate ma­li­cious pros­e­cu­tion civ­il law­suit. 

“There is no un­fair­ness,” he said. 

“Your ac­cess to a fair tri­al is your rem­e­dy,” he added.

In his sub­mis­sions, at­tor­ney Ravin­dra Ra­jah, who rep­re­sent­ed the Le­gal Aid and Ad­vi­so­ry Au­thor­i­ty (LAAA) and the Pub­lic De­fend­ers’ De­part­ment (PDD), agreed as he claimed that cit­i­zens who ben­e­fit from rep­re­sen­ta­tion from ei­ther body for crim­i­nal cas­es should not be en­ti­tled to le­gal costs. 

He not­ed that such ser­vices are not pro­vid­ed for traf­fic of­fences or pri­vate crim­i­nal com­plaints brought by cit­i­zens. 

“The essence of le­gal aid is to de­fend not pros­e­cute,” he said. 

Af­ter hear­ing the sub­mis­sions, the ap­peal pan­el de­cid­ed to im­me­di­ate­ly de­liv­er their judg­ment. 

Jus­tice Lucky said that the leg­is­la­tion was clear and un­am­bigu­ous, and did not ap­ply to le­gal fees as con­tend­ed by Nar­i­nesingh’s lawyers. 

“Con­text is every­thing. One can­not read a sub­sec­tion with­out look­ing at the sec­tion as a whole,” Jus­tice Lucky said. 

“The in­ter­pre­ta­tion can­not lead to un­fair­ness,” Jus­tice Lucky said. 

Jus­tice Lucky said that the pro­vi­sion deal­ing with le­gal fees had to ap­ply to both com­plainants and de­fen­dants to be bal­anced. 

“It would vi­o­late even-hand­ed jus­tice,” Jus­tice Lucky said. 

“When peo­ple come for jus­tice it is sup­posed to be for all in­clud­ing com­plainants,” Jus­tice Lucky added. 

Nar­i­nesingh was al­so rep­re­sent­ed by Yves Jacques Nichol­son, Matthew Al­la­har, and Aaron Ma­habir. 

Nicholas Ram­per­sads­ingh ap­peared along­side Ra­jah for the LAAA and the PDD. —Derek Achong