Summary: By a 2-1 majority, the Supreme Court quashed a decision by the Snr. R.M. who had refused to set aside a subpoena issued for the DPP to testify in the trial of Kern Spencer and Coleen Wright, and quashed an order the R.M. had made that the DPP remain out of court for the remainder of the testimony of the witness Rodney Chin. The subpoena itself was also quashed. The court stated that there was no evidence of prosecutorial misconduct, and that the Snr. RM should have given reasons for her decisions.
Supreme Court – Jamaica
Claim no. 2011 HCV 02310
Issues: prosecutorial misconduct, disclosure, did DPP have standing, setting aside subpoena,
Background: former government junior Minister Kern Spencer and his co-accused Coleen Wright are being tried in the Resident Magistrate’s court for alleged breaches of the Corruption Prevention Act and the Proceeds of Crime Act. The DPP dropped the charges against a former co-accused, Rodney Chin, who is now a prosecution witness. During his cross-examination, Chin revealed that he had met with the DPP, which the defence had not known. The defence accused the DPP of failure to disclose and prosecutorial misconduct and asked that a subpoena be prepared for her to testify in the matter. The R.M. refused the DPP’s application to set aside the subpoena and also made an order that the DPP was to stay out of court for the remainder of Rodney Chin’s testimony.
The DPP sought the following reliefs:
- A declaration that the issuing of the subpoena was an abuse of the process of the court.
- An order to quash the decision to refuse to set aside the subpoena
- An order to quash the subpoena
- An order to quash the RM’s order that the DPP should remain out of court for the remainder of Rodney Chin’s testimony.
Does the DPP have standing?
Brown J. traced the history of the law applicable to the declaration and certiorari, and the previous need for relator actions brought by the Attorney General on behalf of private individuals who would otherwise not have had standing to bring actions for declaration or an injunction to prevent a breach of the law. He noted that the enactment of the Civil Procedure Rules (CPR) allowed persons with “sufficient interest” to apply for judicial review. He said the list of such persons is non-exhaustive and could include a constitutional personality.
Brown J. pointed out that the DPP was personally at risk of any enforcement action if she failed to obey the subpoena, and that the subpoena had been addressed to her by name, without reference to her office. She therefore had been called as a witness in personam, rather than ex officio. He stated that:
“…where one is dealing with a subpoena to give oral testimony, as opposed to a subpoena to produce documents, the distinction between office and incumbent is one without meaning.”
“…it is clear that the DPP is both personally and by reason of her incumbency, adversely affected by the orders of the learned Snr. R.M. Being so affected, she has a sufficient interest in the subject matter of the application. Since standing is now to be decided by reference to the facts of the case, rather than the remedy sought, the DPP does have standing to bring the application.”
“It is therefore beyond doubt that under the CPR the DPP has the standing to bring this application…Standing is not a substantive right but a matter of practice and procedure. …All the CPR did was to codify the pre-existing common law rules on standing. Accordingly the CPR has lawfully given the right to the DPP to come before the throne of mercy without resort to a procedure which has long fallen into disuse.”
Purpose of the Subpoena
Brown J. examined the law stating the six (6) bases on which a subpoena can be set aside, namely:
- For lack of particularity;
- If the material required to be produced is prima facie inadmissible;
- If the proposed document or evidence required is immaterial;
- If public interest immunity attaches;
- If it touches and concerns questions of confidentiality or
- If it has been issued for vexatious reasons.
He concluded that the subpoena had not been issued for a proper reason, stating that:
“It appears that the defence is of the view that the DPP is able to give evidence concerning a bargain struck with the witness Chin as an incentive for him to testify. …The learned DPP…said neither she nor her agents coerced, induced or made any promise of any reward or favour to Mr. Chin to give a statement or to give evidence for the Crown. Mr. Chin himself testified that he neither came under any such pressure nor received any enticement. So, on the one hand, there is no evidence of a bargain, and on the other, the word of the DPP, an officer of the court, is that there was no bargain. In the finest traditions of the Bar, the word of an officer of the court is considered to be her bond, without more.”
Brown J. also considered whether there was material from which the fact of a bargain could be inferred. He concluded that since Chin had been receiving contracts from the Government of Jamaica for twenty years prior to his meeting with the DPP, the receipt of government contracts after he became a prosecution witness:
“…appears to be no more than a coincidence, an unhappy one perhaps but a coincidence nonetheless…In essence the premises upon which it is felt the DPP can give material evidence amounts to no more than ‘I smell a rat’”.
“Nothing has been placed before us resembling the pale shadow of prosecutorial misconduct. The charge of prosecutorial misconduct remains a theory with a superstructure which awaits the excavation for its foundation. That foundation, it appears, will come from trawling through the deep recesses of the mind and memory of the DPP by some process of divination. …to allow the subpoena to stand would be permitting the defence to fish for evidence to support their theory of prosecutorial misconduct.”
Relevance of Disclosure Principles
Brown J. said that the DPP had already made disclosure and what was before the R.M. was whether she could give any evidence relevant to the case.
“As elegant as the submissions were on the law of disclosure, they failed to conceal the true purpose of the subpoena. That is, to satisfy the curiosity or more precisely the suspicion of the defence, that there is more to be disclosed by the learned DPP…it is not sufficient that the applicant for the subpoena merely wants to find out whether the DPP has material evidence. To allow the subpoena to stand would be permitting the defence to use the subpoena as a disguised attempt to obtain discovery.”
Impact of the subpoena upon the trial
King J. questioned whether the Snr. R.M. had weighed the:
“…disadvantage to the prosecution against the very limited if any value which the DPP could give…”
and said that:
“I do not consider in the circumstances that the Learned R.M. could have properly considered the factors relevant to the proper exercise of her judgment in disallowing the application to quash the subpoena.”
Unlawful assumption of jurisdiction by the Snr. R.M.
Justice Brown summarised the instances in which the exercise of the DPP’s powers are subject to review, that is, when the power is exercised:
– In excess of the DPP’s power;
– Contrary to the constitution…in that it was under the direction or control of another person or authority;
– In bad faith;
– In abuse of the process of the court and
– Where the DPP has fettered his or her discretion
He concluded that:
“there is no evidence of any wrongdoing on the part of the learned DPP much less evidence amounting to bad faith….none of the excised categories (is) applicable….there can be no questioning of the exercise of the DPP’s power which has as its foundation supposition and suspicion…Where the subpoenaed witness is a constitutional figure, and the inquiry will trespass upon a constitutionally guaranteed protection, that is a powerful argument to set aside the subpoena. In other words, if the precedent conditions for challenging the exercise of the power are absent, it would not be permissible to expose the office holder to what would then become an unlawful enquiry.”
And he concluded that the Snr. R.M. had exceeded her lawful jurisdiction.
“Fundamentally, even if there was a basis to enquire into the exercise of the DPP’s discretion, the Resident Magistrate’s Court is not the proper forum, for want of jurisdiction. The stated motives for summoning the DPP, if pursued in either examination or cross-examination of the DPP, would be tantamount to such an enquiry through the back door. Therein lies the gravamen of the indictment of an unlawful assumption of jurisdiction.”
The Dissenting Judgment
Justice Sinclair-Haynes, in a dissenting judgment, said, inter alia, that:
“An interview with Mr. Chin, who falls in the category of ‘witnesses with interests to serve’ makes it even more important that the contents of the interview should be revealed to the defence and to the court. The demand by the defence for disclosure of what transpired at the interview is an entitlement. The Resident Magistrate is charged with the responsibility of ensuring that the accused persons receive a fair trial….her decision to have the DPP testify is within the pursuit of justice.”
In relation to the DPP’s treatment of the meeting with Chin, Justice Sinclair-Haynes said that:
“…it is worthy of note in light of the DPP’s statement that her office deals with hundreds of matters, the casual manner in which “etching” “might have been made” and the “paper discarded” begs the question as to why the interview was treated so cursorily by her especially since this is a matter of national arrest involving a former minister of government as one of the defendants.”