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THE Court of Appeal has overturned a judge’s ruling in a novel constitutional claim involving the rights of victims of crime.
In September 2023, Justice Avason Quinlan-Williams declared the failure to ensure criminal cases involving child victims were expeditiously concluded was a breach of their right to protection of the law.
Before the judge was the constitutional claim of a a rape victim who had sued the State for inordinate delay in treating with sexual offences.
The State appealed the judge’ ruling, arguing that the court’s orders for the State to put mechanisms in place and allocate sufficient resources to ensure the rape trial was completed expeditiously ascribed rights to a victim of crime that are not provided for under the Constitution.
On July 22, in a ruling delivered at the Hall of Justice, Port of Spain, Justices of Appeal Mark Mohammed, Peter Rajkumar and Maria Wilson upheld the State’s appeal and set aside Quinlan-Williams’s orders and declarations.
They also dismissed a cross-appeal file by the woman’s attorneys.
However, they did not order the alleged rape victim to pay the State’s costs either in the High Court or the Appeal Court after her attorney, Senior Counsel Lee Merry, argued it would discourage others from bringing similar claims. Merry also submitted it was the first time the courts had been asked to interrogate the particular constitutional point.
Despite upholding the appeal and setting aside the ruling of the High Court, the judges acknowledged a need to address situations involving victims of crime in a “sensitive, practical, and meaningful way.
“There are, in many cases, obvious physical, psychological, and financial consequences.
“These continue whether or not the criminal justice system has dealt with the alleged perpetrator.
“However, these are matters which have political, administrative, legislative, and financial implications which cannot properly be addressed by a court’s reading into the Constitution a right which neither its language, structure, nor precedent permit.”
The State’s lead attorney Rishi Dass, SC, raised 19 grounds of appeal, which were all successful.
In their unanimous ruling, written by Mohammed, the Appeal Court held there was neither a right to a speedy trial or a right to a trial within a reasonable time when the 1976 Republican Constitution was thoroughly analysed.
While admitting there were two international conventions which TT had ratified that provided a right to a speedy trial or a right to a trial within a reasonable time, Mohammed said these were not incorporated into domestic law. Mohammed said those rights could not be implied in the “catalogue of rights provided in sections 4 and 5 of the Constitution.
“To be clear, the contention is not that nothing can be implied into the Constitution. The case law demonstrates otherwise. Rather, the contention is that the exercise of implication must be cautiously undertaken so that a court does not, by judicial interpretation, bind the State and its citizens to obligations which the constitutional framers did not expressly accept and might not have been willing to accept.
“There is nothing in sections 4 and 5 which would allow a right to a speedy trial or to a trial within a reasonable time to be engrafted onto our Constitution.
“A court has to be alert to the possibility that it does not read into the Constitution rights which do not exist simply because of the court’s own moral persuasions. A constitutional court must always be on guard to ensure that it does not let its own personal opinions and beliefs about what the Constitution should protect seep into how it interprets what is actually said in this foundational document.”
He said the danger of this would lead a court to engage in “divination rather than interpretation.”
In the case before Quinlan-Williams, the alleged victim complained of the court’s delay in dealing with her case since 2018. She spoke of the trauma of attending court and facing her alleged attacker.
In her ruling, the judge said, “The ongoing court proceedings have added to her existing PTSD symptoms by retraumatising her in court.”
Quinlan-Williams detailed the evidence and held that although the damage to the claimant’s psychological integrity stemmed from her alleged attack at 16, it was “accentuated by the trauma from the ongoing court proceedings.”
The judge also said in her ruling that the record of the proceedings “showed…the criminal case lumbered through the court without regard to the claimant being a child.
“Having regard to law as obtained with regard to children matters, the court was satisfied that the claimant was not afforded the protection of the law.”
Quinlan-Williams also ordered the State to ensure the claimant receives psychological counselling while the case against her alleged rapist is pending and to provide half-yearly reports to the registrar on these arrangements. She also ordered compensation of $60,000 for the alleged victim.
This, too, was set aside by the Appeal Court.
“None of the respondent’s constitutional rights were violated. She was, therefore, not entitled to damages.”
The Appeal Court also faulted Quinlan-Williams’s conclusion that the rape trial should have been transferred to the Children’s Court. In this case, the judges said, to do so could have been a “flagrant violation” of the legislative intention of the Family and Children Division Act. Mohammed said the judge also erred in determining that all children’s matters should be referred to that specialised court.
“It is indisputable that the provisions of the FCDA seek to achieve the laudable intention of protecting children.
“However, the respondent in this case was not the intended beneficiary of that laudable goal.”
Mohammed also held it was “far-fetched” to argue that the Judiciary failed to provide a proper explanation for the alleged delay in the preliminary inquiry, as the evidence of the two magistrates who presided over the matter contradicted those assertions.
The judge also acknowledged the “inherent tension” between the rights and interests of the accused, the alleged victim and the public. However, Mohammed said the State’s role in the criminal justice system was to ensure that each player received the maximum of their rights and interests.
He said in triangulating the interest of the accused and the alleged victim, to rule that the latter’s right to protection of the law had been violated would, to some degree, indirectly erode the fundamental right of the former to be presumed innocent.
Mohammed also agreed with the State’s contention that a constitutional court had no jurisdiction or power to direct the State or its agents on how to allocate its financial resources, and to the extent that the judge did so “in making the impugned orders, she erred and was plainly wrong. Because the orders infringed the doctrine of the separation of powers, they are void.”
After the ruling was delivered, Merry said the victim’s attorneys were considering it and would make a decision on an appeal in the coming days.
Also appearing for the State were Sasha Sookram, Coreen Findley and Anala Mohan. Rebecca Rafeek and Larry Boyer appeared for the alleged victim.
In the criminal proceedings, the woman was allegedly attacked by her neighbour in March 2017 when she was 16. Her alleged attacker was her football coach, who lived nearby.
On the day of the incident, she alleged her attacker picked her and several other players up at their homes. After dropping the other players off, he forced her to have sex with him in his car. She reported the incident and the man was arrested and charged several months later.
The woman eventually gave birth to a child that was conceived as a result of the sexual assault.
She had to attend almost three dozen hearings before the preliminary inquiry, which began in October 2017, was completed in May 2022 and the accused was committed to stand trial in the High Court.
