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THE Privy Council has overturned the decision to quash a murder case against three Diego Martin men who were freed after a judicial review.
Chris Durham, Ian Sandy, and Deon Calliste were charged with murdering Kevon St Louis, Mentie Murai, and 15-year-old Mubarak Calder at Factory Road in Diego Martin on April 21, 2009.
The State’s main witness against the trio was O’Neil Benjamin, who claimed during preliminary hearings to have seen the men, all of whom he knew, near the scene with guns in their hands at the time of the shooting.
Shortly before the trial was due to begin in 2019, Benjamin told prosecutors at a pre-trial witness briefing that his earlier evidence had not been true and he had not seen the men as he previously claimed.
He said he named them and he did what he had to do at the time to bring peace in the community of Diego Martin, adding that calm had since been restored.
Benjamin told the prosecutors he intended to repeat his testimony at trial, despite having just said it was false.
On the opening day of the trial, the prosecuting attorneys raised “serious concerns they had about the legality, fairness and lawfulness of the continuation of the trial against the accused persons.”
Despite the information about Benjamin’s comment to the prosecutors, Director of Public Prosecutions (DPP) Roger Gaspard, SC, refused to drop the case against the men.
The trio applied for judicial review seeking an urgent without notice hearing, as they said were not entitled to bail and their prosecution and continued deprivation of liberty were illegal, unlawful and in breach of their constitutional rights.
Justice Avalon Quinlan-Williams declared the DPP’s failure to discontinue as “unreasonable, improper and unfair” and quashed the charges.
After the case was dismissed, the DPP appealed the decision but the Appeal Court ruled against him.
Justice Peter Rajkumar, in the majority ruling, concluded the judicial review had to be permitted and said allowing prosecutions to continue based on prior self-confessed false evidence being maintained at trial would bring the criminal justice system into disrepute.
Chief Justice Ivor Archie also said the men could not get a fair trial and it was unfair to try them in the first place.
However, in his dissenting comment, Justice of Appeal Nolan Bereaux wrote there was nothing exceptional about the case that warranted its being brought to the civil court or a judicial review being filed.
Bereaux said the concerns of both the prosecution and the defence could have been addressed adequately at the criminal trial, which was only two weeks away.
On Thursday, the Privy Council agreed with Bereaux and ruled that Archie, Rajkumar and Quinlan-Williams were wrong to allow “unwarranted interference by a civil court of concurrent jurisdiction with ongoing proceedings in a criminal court.”
In the ruling the court said judicial review is a remedy of last resort and should only be undertaken when a suitable alternative remedy does not exist.
“The respondents had an alternative remedy that was not only available to them, but far more appropriate, namely the criminal proceedings. Those proceedings were already constituted, with a judge and jury in place and the next hearing date fixed for June 3, 2019, only six working days away. There was nothing to prevent the respondents from making an immediate application for a stay for abuse of process in the criminal proceedings.
“In addition to the obvious merit in having a single set of proceedings, the judge presiding over the criminal proceedings was obviously better placed to address issues of potential abuse and fairness.”
It said there were multiple safeguards in the criminal proceedings to ensure justice for the men, including attacking Benjamin’s credibility, making a no-case submission and appealing the outcome if necessary.
It added, “It was not for the court on judicial review to assess, let alone determine, which of Mr Benjamin’s versions of events was true; it was not for the court on judicial review to find that Mr Benjamin’s sworn evidence was perjured.”
The council said Quinlan-Williams’s decision usurped the jury’s “classic function of fact-finding” and leave to apply for judicial review should not have been sought or granted at all.
“It is important for the courts to guard against the danger of unjustified collateral attacks on prosecutorial decisions.
Gaspard must now decide whether Sandy and Calliste should be rearrested and tried for the crime, as Durham died in 2020 when he drowned in a river near his home.
Newsday tried calling Gaspard for a comment on the ruling and his plans regarding the case but calls to his phone went unanswered.
