Anand Beharrylal appears for successful claimant in Trinidad and Tobago
Anand Beharrylal, instructed as sole counsel, appeared for former Prime Minister of Trinidad and Tobago and current Leader of the Opposition Mr Basdeo Panday, in his claim for judicial review before the Trinidad and Tobago High Court. Mr Panday (the Claimant) challenged a decision by Senior Magistrate Ejenny Espinet refusing to recuse herself from hearing his summary trial on the ground of apparent bias.
The decision of the Magistrate was made on 31st July 2007 following a defence application for her to recuse herself on the basis that she had already adjudicated on contested committal proceedings (where live evidence was called), involving exactly the same evidence that would be called in the summary trial. Further, the Magistrate had come to conclusions on that evidence that were adverse to the Claimant. As such it was submitted that, applying the law on judicial bias, she could not approach the evidence in the summary trial with the required impartiality resulting in a breach of the Claimant's constitutional rights. The Director of Public Prosecutions (DPP) then represented by Sir Timothy Cassell QC agreed with the submission and supported the application. However, the Magistrate in a reserved ruling refused the application giving reasons which included that she did not think that the fair minded and informed observer would consider that there was a real possibility of bias.
The Claimant sought judicial review before the High Court shortly after the decision naming the Magistrate as Defendant. The Claimant had expected the DPP to maintain their position as expressed in the Magistrates' Court and/or not contest the claim for judicial review. However, in an unexpected turn of events the DPP applied to be joined as an Intervening Party and opposed the Claimant's claim thereby supporting the Magistrate. The DPP also instructed leading silk Douglas Mendes SC assisted by junior counsel to contest the claim. The Magistrate herself declined to take any part in the proceedings. The DPP's change of position was the subject of submissions in which its role as a Minister of Justice was questioned by the Claimant.
On 24th November 2009 the Honourable Madam Justice Jones delivered the judgement of the High Court in favour of the Claimant. At paragraph 43 of her judgement she stated:
"In my view a fair minded observer, informed but not a member of the legal profession, on ascertaining that the evidence upon which the Magistrate had to assess the guilt or innocence of the Claimant is the same evidence which the Magistrate had already determined was credible enough to found the basis for committal would be hard pressed to make any distinction with respect to the differences between the two procedures. In my opinion this hypothetical observer would have concluded that there was a real possibility that by accepting that in one case the evidence was sufficient to put the Claimant on trial, the same Magistrate would not be in a position to approach the evidence in the retrial with the required impartiality. In my view it would be highly likely that this hypothetical observer would come to the conclusion that the Magistrate would be predisposed to a particular view of the evidence before her." She also stated at paragraph 44 that "Where there is bias there is a presumption of lack of due process."
The DPP obtained a stay pending an appeal to the Trinidad and Tobago Court of Appeal.
26 November 2009