Derek Achong
The Court of Appeal has reserved its decision in two appeals over four men accused of murder in two separate cases, who won their freedom after bringing civil lawsuit against the Office of the Director of Public Prosecutions (DPP).
Chief Justice Ivor Archie and appellate Judges Nolan Bereaux and Peter Rajkumar reserved their judgment after hearing submissions from the DPP’s Office and attorneys for Kevon Nurse, Chris Durham, Ian Sandy and Deon Calliste during a virtual hearing on Monday.
In the appeals, the DPP’s Office is contending that two High Court judges got it wrong when they heard and upheld judicial review lawsuits from the group of men in 2019 and in July.
The DPP’s office is claiming that their civil lawsuits were an abuse of process as the men should have raised individual issues in their criminal cases before the judges assigned to preside over them.
“Respectfully, it is submitted that the learned judge usurped the role of the criminal trial judge and decided it would be unsafe to continue the prosecution,” attorneys for the DPP’s Office said in their written submissions in Nurse’s appeal.
They also suggested that the judge conflated the issues associated with a stay of the proceedings, which would be considered by a criminal judge, with the principles of unreasonableness and unfairness on a judicial review application.
“The conflation respectfully led the learned judge into error whereby she assumed the role of decision maker, whether the criminal court or the appellant or both without any regard or sufficient regard to the impermissible nature of the task she had undertaken and disregarded the criminal court and appellant’s experience, expertise, policy including and the broad and unprescriptive ambit of his discretion,” they added.
In his response to the DPP’s position, attorney Shaun Morris, who represented Nurse, suggested that the DPP’s decision in his client’s case was amenable to review.
“The traditional grounds of judicial review are applicable to all of the appellant’s decisions and the Appellant was found to be unreasonable and unfair in the exceptional circumstances which were permitted in law for the trial judge to find,” Morris said.
He also stated that a stay in the criminal proceedings,as suggested by the DPP’s Office, was not an appropriate alternative remedy as it would not have addressed the DPP’s handling of the case. He also claimed that a stay would have meant that his client would remain incarcerated indefinitely as there are currently no jury trials with the closure of courts due to the COVID-19 pandemic.
In his submissions in the appeal, attorney Gerald Ramdeen, who represented Durham, Sandy and Calliste, noted that the appeals were of extreme public importance as they raise issues with transparency in the work of the DPP.
“Very troubling is the fact that it is clear from the manner of the decisions that have been challenged in these proceedings that the powers of the Director seem to be exercised in a manner that seek to secure a conviction at all costs notwithstanding the circumstances,” Ramdeen said.
“If this is correct our democracy and the rule of law are seriously under threat and it is a matter that calls for the immediate intervention of this court,” Ramdeen added.
In July, High Court judge Eleanor Donaldson-Honeywell upheld Nurse’s case, in which he claimed that he would be prejudiced by facing a sixth trial.
In January 2001, Nurse was charged with murdering his uncle Lester Ash, who was shot dead at his home at Success Village, in Laventille, on Christmas Day in 2000.
The State was relying on the evidence of Ash’s 12-year-old neighbour, who claimed she briefly saw Nurse before he put on a ski mask and entered his house with a gun.
Nurse denied any wrongdoing but admitted that he had a confrontation with Ash hours before the incident and was beaten. He claimed that at the time of the murder he was seeking medical attention of the injuries he suffered in the scuffle with Ash.
Nurse’s first trial in 2002 was aborted. Almost a year later, Nurse faced a retrial and was convicted of the crime. His conviction was overturned on appeal and a retrial was ordered.
Nurse had two other trials that were aborted in 2008 and 2011. His fifth trial in 2019 ended with a hung jury, who could not decide on a unanimous verdict for him.
While Justice Donaldson-Honeywell noted that some of the delays in Nurse’s case were due to him periodically not having legal representation and judges recusing themselves having represented or prosecuted him before joining the bench, she said that significant delays were due to the DPP’s Office problems with having the witness testify.
She agreed that the public interest in continuing the prosecution was outweighed by the prejudice suffered by him.
Despite her decision, Nurse was not immediately freed as the DPP’s Office obtained a stay of the judgement pending the determination of the appeal.
In their case, Durham, Sandy and Calliste challenged the decision of the DPP’s Office to continue to prosecute their case after the State’s main witness admitted to fabricating his claims against them.
Durham, Sandy and Calliste were charged with murdering Mubarak Calder, 15, Mentie Murai, 19, and Kevon St Louis during a shooting at a bottle factory at Factory Road in Diego Martin on April 21, 2009.
In June 2019, High Court Judge Avason Quinlan-Williams upheld their novel lawsuit as she ruled that the DPP’s failure to discontinue the charges based on the witness’ admission was unreasonable, improper and unfair.
While she noted that the court’s willingness to interfere with the DPP’s constitutional remit was rare, she said it was justified based on the exceptional circumstances of the case.
Based on the decision, the trio was freed of the charges before the criminal court.
The DPP’s Office is being represented by Ian Benjamin, SC, Keston McQuilkin, and Nairob Smart.
