Lawyers question judicial review in Cuban light-bulb case

Barbara Gayle, Staff Reporter

SOME LAWYERS in the Office of the Director of Public Prosecutions (DPP), are disappointed that the claim brought by DPP Paula Llewellyn, QC, against Senior Resident Magistrate (RM) Judith Pusey was not fully aired in the Judicial Review Court so that the case could be used as a precedent.

One of the questions posed by the three-member panel was whether the DPP had legal standing to bring the matter before the Judicial Review Court.

"In an appropriate case, the DPP can bring judicial review against anyone who aggrieves the DPP," attorney-at-law Hugh Wildman, a former deputy director of public prosecutions in Jamaica and former DPP in Grenada, said last week. "The question is not whether the DPP has legal standing, but whether this was an appropriate case for judicial review because the DPP does have legal standing to bring a case before the Judicial Review Court," Wildman stressed.

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He said there were cases from the House of Lords which show that the DPP apply for judicial review.

Llewellyn was seeking orders to quash a ruling by the RM that she should write a witness statement in relation to an interview she had with star crown witness Rodney Chin in the fraud case against former junior minister Kern Spencer.

Spencer is charged jointly with his former assistant, Coleen Wright, in connection with allegedly benefiting from the implementation of the Cuban light-bulb programme. Chin was a co-accused in the case when he gave a statement to the police and was subsequently interviewed by Llewellyn in the presence of his lawyers and police officers.

When Chin made revelations under cross-examination that Llewellyn was taking notes at the interview, defence lawyers K.D. Knight, QC, and Patrick Atkinson, QC, requested disclosures as to what had taken place at the interview. Llewellyn insisted she took no notes, and RM Pusey ordered on April 16 that disclosures be made.

Llewelyn submitted a document on April 20 indicating that she had taken no notes at the interview.

Llewellyn said in court documents that Pusey insisted that she write a witness statement, and so she took the issue to the Judicial Review Court.

The hearing began last week Monday, but the court granted an early adjournment to allow the parties to research whether the DPP had legal standing to bring the claim, and whether what was said by Pusey amounted to an order or a ruling.

There was no official record exhibited as to the RM's ruling, and the parties had to rely on the lawyers' notes of the comments made by the RM during the exchange in court.

When the hearing resumed on Tuesday, Jacqueline Samuels-Brown, QC, who represented Pusey, said she had further consultation with Pusey, who said it was an invitation and not an order. Samuels-Brown had said in court last week Monday that the claim was not properly before the court and she was going to argue that other means of redress were available to the DPP. She said the RM made an order which the DPP was entitled to challenge before the very RM for further submissions to be made. Diahann Gordon-Harrison, senior deputy director of public prosecutions, in withdrawing the claim, said she had no choice but to accept the belated communication that it was not an order.

legal standing

Supreme Court judges Lloyd Hibbert, Roy Jones, and Ingrid Mangatal said then that based on the outcome of the case, the court would not consider the point as to whether the DPP had legal standing to bring the claim.

Wildman said there was nothing wrong with the RM asking the DPP at the request of the defence to make disclosures. However, Wildman said there were certain rules of law governing disclosures. The question which arose was whether the RM was insisting Llewellyn write a statement, or insisting she turn over notes of the conversation with Chin, and how she responded. He said there should have been a formalised order exhibited in court as to what the RM was ordering the DPP to do. He said if Llewellyn said she had no notes and had taken no notes, that would be the end of the matter. He emphasised that under the rules of disclosure, the DPP or any prosecutor cannot be compelled to give a witness statement.

Wildman said if the RM had asked the DPP to give a witness statement, that would be outside the RM's jurisdiction and the DPP could have that order quashed. However, Wildman added: "the DPP cannot use the remedy of judicial review as an avenue to appeal against a ruling of the RM where the RM's ruling does not take her outside of her jurisdiction."