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Heard on 25 April 2024

This appeal concerns the circumstances in which it is appropriate for the civil courts to intervene by way of judicial review in prosecutorial decisions to bring or, more specifically, to continue criminal proceedings.

The Appellant is the Director of Public Prosecutions for the Republic of Trinidad and Tobago (“the DPP”), a public office holder with power (under section 90 of the Constitution of Trinidad and Tobago (“the Constitution”)) to institute, undertake, continue and discontinue criminal proceedings in respect of any offence against the law of Trinidad and Tobago. In exercise of that power, the DPP brought criminal charges against the Respondents for the alleged murders of three men who were shot and killed in Diego Martin on 21 April 2009. A conviction for murder in Trinidad and Tobago carries a mandatory death penalty (by section 4 of the Offences against the Person Act 1925).

The prosecution case relied centrally on the evidence of a Mr O'Neil Benjamin (“Mr Benjamin”), who was said to have been an eyewitness to the shootings. Mr Benjamin gave detailed evidence in preliminary proceedings in 2009 incriminating each of the Respondents (whom he said that he knew and had seen with firearms at the time of and near the shootings), following which the Respondents were committed for trial. However, shortly before the trial was due to commence in 2019, Mr Benjamin stated in a pre-trial witness briefing that his earlier evidence had not been true, but that he intended to repeat it at trial. Although requested to do so, he declined to sign a statement to this effect.

The DPP continued the prosecution. The Respondents brought immediate judicial review proceedings challenging what was said to be a decision not to discontinue the criminal proceedings. In May 2019 the High Court (Quinlan-Williams J) granted leave to bring judicial review proceedings on an urgent without notice basis and, following a full hearing, in June 2019 declared the DPP's failure to discontinue the prosecution to be “unreasonable, improper and unfair”. Certiorari was ordered to remove the DPP's decision to the High Court, and the indictment was quashed and declared to be of no effect. In June 2022, by a majority (Archie CJ and Rajkumar JA) (“the Majority”), the Court of Appeal affirmed this result on the basis that the failure to discontinue was “unreasonable, unfair and an abuse of process”. The minority (Bereaux JA) (“the Minority”) stated that the decisions of both the High Court and the Majority were “palpably wrong”.

The question for the Board is whether the decision of the Majority was correct. The DPP seeks a “principled answer to guide future courts”.

It is common ground that, although a decision to prosecute (or to continue to prosecute) is in principle susceptible to judicial review, such relief will in practice be granted only extremely rarely. It is a “highly exceptional remedy” (see Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780 (“ Sharma”) at para 14(5)).

The DPP submits that the decision of the Majority (and that of the High Court) improperly enlarged the scope of judicial review: the remedy had been used incorrectly as a device to resolve points of law otherwise to be addressed in the ordinary course of criminal proceedings. Amongst other things, it is said that the Majority failed to take into account the safeguards available within the criminal proceedings and proceeded wrongly throughout on the assumption that Mr Benjamin's evidence was false. For the Respondents, it is said that the decision of the Majority (and that of the High Court) was “obviously right”. The Majority were fully entitled to conclude that the circumstances were exceptional such that civil intervention by way of judicial review was justified.

On 21 April 2009 Mentei Murai, Mubarak Calder and Kevon St Louis were shot and killed on Factory Road, Diego Martin. They were all young men, their ages ranging between 15 and 25.

The Respondents were charged with murder. A preliminary hearing took place in the Magistrates' Court. The prosecution relied on the evidence of 25 witnesses. Of these, 24 were formal witnesses, such as witnesses identifying the deceased and the crime scene, or arresting officers. None provided any evidence linking the Respondents to the crime. The only eyewitness was Mr Benjamin, who provided sworn witness statements, gave recorded interviews and evidence in chief. His testimony was that he had heard the gunshots, and seen the Respondents, each of whom he knew, with firearms in the vicinity of the shootings at the time of the shootings.

Mr Benjamin was cross-examined at length over a number of days across June, July and September 2009. The transcripts of his evidence run to over two hundred pages. Mr Benjamin stated that he had seen the Respondents at the time of and close to the shootings. He identified the three men in the dock as those whom he had seen. He confirmed repeatedly that he saw three men on the dirt track and that these men were the Respondents, whom he had already known at the time.

The reliability of Mr Benjamin's evidence was challenged robustly and at length. It was put to Mr Benjamin that the Respondents were facing away from him, that his view was obstructed and that he had insufficient time to recognise the accused. He denied that there was any impediment to or error in his identification. He stated that it was not possible for him to be mistaken. His credibility was also the subject of direct attack. Thus, it was put to him that his account was “a fiction”, that his delay in producing a witness statement was to give him “time to create [his] story, and it is for that reason, [he] had nothing to say in detail at the scene”. He categorically denied this. It was also put to him that he was motivated by a gang-based animosity against the Respondents and was using the “judicial process to execute a misplaced vendetta.” Again, he denied this. He said that he had no “grouse” with the First Respondent, and said that he was conveying truthfully what had happened. Quinlan-Williams J described Mr Benjamin's evidence, on its face, as “cogent”.

On 6 November 2009 the Respondents were committed to stand trial at the Assizes.

The matter was called on before Rampersad J on 1 March 2019 and fixed for trial to commence on 17 May 2019. A jury (and alternates) were empanelled.

On 23 April 2019, Mr Benjamin attended a pre-trial witness briefing with Prosecuting Attorneys Mr Jaglal and Ms Shah (“the Prosecuting Attorneys”). The briefing lasted approximately one and a half hours. Notes of Briefing were prepared and signed by both Prosecuting Attorneys (“the Notes”). According to the Notes, for the majority of the meeting Mr Benjamin confirmed his earlier evidence. He went on to give a history of the gangs in Diego Martin and in Port of Spain. In terms of contact with the Respondents since giving evidence at the Magistrates' Court, Mr Benjamin stated that the Respondents had sent “thanks” to him, appreciating his evidence, as “they enjoy a level of security in prison” as opposed to being in the outside world. He also said that “they” had offered him around $20,000 not to give evidence, but he was not interested in the offer. He said that he was aware that his evidence “makes or breaks the case”, and was of the view that the jury would not come back with a guilty verdict. He went on to say that he had no fear of the Respondents being released. He said that he had been charged with arson with one of the deceased, Mr Calder, in January 2009. The matter had been dismissed but Mr Benjamin was one of those responsible for setting the house in question on fire as it was a “den for criminal activity”. As the meeting was coming to an end, Mr Benjamin said that he realised that the meeting was concluding and so wished to tell the Prosecuting Attorneys something.

The Notes recorded that the following exchanges then ensued:

“[Mr Benjamin] proceeded to say that, all of this (pointing to the papers in front of him — depositions) was all part of his plan for the good of the community. He continued by saying that there were no men in the track, he did not see these three accused persons but he named them and he did what he had to do at the time to bring a level of peace in the community of Diego Martin. He further said that following his actions (ie giving statements and causing the three accused persons to be locked up in remand) there was calm restored in the community. He also said that several persons including the family members of the accused continue to thank him to this present day for what he had done. As regards this shooting/killing incident, he said he did what needed to be done for the good of the community which had been experiencing a lot of violence and shootings from warring factions of individuals at the time.

Mr Jaglal asked [Mr Benjamin]: So why it is that you are saying this now? In light of the fact that you gave several statements to the police, your...