The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 53 of 1995

 

(1) The Director of Public Prosecutions and

(2) The Attorney-General of Trinidad and Tobago Appellants

v.

(1) Jaikaran Tokai

(2) Seeram Tokai and

(3) Jaisham Tokai Respondents

 

FROM

 

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 12th June 1996

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Present at the hearing:-

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

  ·[Delivered by Lord Keith of Kinkel]

 

-------------------------

The question raised by this appeal is whether in Trinidad and Tobago long delay in bringing accused persons to trial constitutes an infringement of their constitutional rights with the result that the indictment must be quashed, and no further proceedings taken.

 

1. The facts of the case are these.  On 15th November 1981 a police officer, Corporal Keith Farrell, was approached by two men, Rasheed Mohammed and his brother Shaheed Garib, who made to him certain allegations against the respondents relating to events which had occurred earlier that day in a shop at Three Roads Junction, Chickland, Caroni. Shaheed Garib had a wound above his eye.  Having made further inquiries Corporal Farrell on 19th January 1982 laid charges against the three respondents for the  offence of  wounding  Shaheed Garib with intent to do grievous bodily harm.  He also charged the first respondent, Jaikaran Tokai, with the summary offence of having unlawfully and maliciously damaged the property of Rasheed Mohammed.  Warrants for the arrest of the respondents were executed on 29th January 1982 and they were later released on bail.  As the wounding charge was an indictable offence necessitating a preliminary inquiry proceedings were commenced in the Couva Magistrate's Court.  Between 5th February 1982 and 18th March 1986 the proceedings were adjourned on 28 occasions.  The prosecution was represented by an attorney in private practice who was present on only four of these occasions.  The preliminary inquiry eventually started on 18th March 1986, the prosecution being represented by a police officer.  It continued on 28th April 1986, and on 5th May 1986 the magistrate committed the respondents for trial at the next San Fernando Assizes.  The file relating to the charge reached the office of the Director of Public Prosecutions on 1st July 1986.  On 7th July 1986 the first respondent was convicted, after summary trial, upon the charge of malicious damage.  The first respondent appealed against the conviction but his appeal was dismissed on 28th November 1988.

 

2. An indictment against the respondents on the wounding charge was not preferred until 17th February 1994.  A hearing by a judge and jury was fixed for the Assizes on 14th April 1994.  On 30th March 1994 the respondents commenced the present proceedings by way of constitutional motion claiming an order quashing the indictment and prohibiting any further proceedings for the alleged offence, and also compensation.  An affidavit in support was sworn by the third respondent.  In this he gave his account of the events of 15th November 1981, stating that Mohammed and Garib were the aggressors and that Mohammed accidentally struck Garib with a glass while attempting to throw it at the respondent Seeram Tokai.  He further stated that he could not remember precise details of the incident, that there had been an independent witness of it, namely a barman, whom the respondents had been unable to trace, and that by 1994 he had not expected any prosecution to be brought in respect of the incident since the D.P.P. had received the papers as long ago as July 1986.  The appellants filed affidavits in reply from Corporal (now Sergeant) Farrell and from a member of the D.P.P.'s staff and an assistant registrar of the High Court of Justice.  They described the long delays regularly encountered over preliminary inquiry proceedings, the huge backlog of cases in the department's office and the number of cases listed, determined and still pending in the criminal courts over the years from 1986 to 1993.

 

3. On 29th June 1994 Lucky J. dismissed the respondents' notice of motion.  The respondents appealed, and on 8th March 1995 the

 

 

4. Court of Appeal by a majority (Ibrahim and Hosein JJ.A., Hamel-Smith J.A. dissenting) allowed the appeal.  The appellants, who are the Director of Public Prosecutions and the Attorney-General of Trinidad and Tobago, now appeal to the Board.

 

5. The respondents' claim is founded upon certain provisions of the Constitution of Trinidad and Tobago.  These are:-

 

Section 4(a) and (b)

"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely -

 

(a)the right of the individual to life, liberty, security of the person and enjoyment of property and the right not be deprived thereof except by due process of law;

(b)the right of the individual to equality before the law and the protection of the law."

 

Section 5(1) and (2)(e) and (f)

"(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.

 

(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not -

...

 

(e)deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

 

(f)deprive a person charged with a criminal offence of the right -

 

(i)to be presumed innocent until proved guilty according to law, but this shall not invalidate a law by reason only that the law imposes on any such person the burden of proving particular facts;

 

(ii)to a fair and public hearing by an independent and impartial tribunal or;

..."

 

Section 14(1)

"For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion."

 

6. It is noticeable that this Constitution, unlike some of those in other Caribbean countries and elsewhere, particularly the United States of America and Canada, does not include in the catalogue of fundamental rights and freedoms the right to a speedy trial or trial within a reasonable time.  The only relevant rights are the right not to be deprived of life, liberty or property except by due process of law and the right to the protection of the law, which include, as section 5(2)(f) makes plain, the right of those accused of criminal offences to a fair trial.  Further, the opening words of section 4 indicate that the rights in question are rights which existed at the coming into force of the Constitution.  The present Constitution is that of 1976, but the relevant wording in the original independence Constitution of 1962 was identical.  It follows that the rights in question are rights which were enjoyed at common law before the 1962 Constitution came into force.  Neither Constitution purports to vary or enlarge these common law rights. It is further to be observed that the remedy made available by section 14(1) is available where a relevant right has been, is being or is likely to be contravened in relation to the applicant. The question to be considered is therefore whether a trial of the respondents under the indictment of 17th February 1994 would, in the prevailing circumstances, contravene the respondents' right to a fair trial, that is to say, whether such a trial would be an unfair trial.

 

7. The consequences under the common law of England of delay in bringing an accused person to trial were considered by the Court of Appeal there in Attorney-General's Reference (No. 1 of 1990) [1992] Q.B. 630.  In that case there had been delay by the prosecution in bringing a police officer to trial, so that the trial was not due to start till 27 months after the alleged offence.  The trial judge ordered a stay of the proceedings.  The Attorney-General referred the following points of law for the opinion of the Court of Appeal:-

"1. The point of law referred for consideration by the court is: (i) whether proceedings upon indictment may be stayed on the grounds of prejudice resulting from delay in the institution of those proceedings even though that delay has not  been  occasioned  by  any fault  on  the part  of  the

prosecution; (ii) if the answer to (i) above is in the affirmative what is the degree of: (a) the likelihood and (b) the seriousness of any prejudice which is required to justify a stay of such proceedings."

 

8. Lord Lane C.J., said at pages 641-642, after observing that the issue was one of abuse of process, which might take various forms:-

"However, the most usual ground is that based on delay, that is to say the lapse of time between the commission of the offence and the start of the trial.  The number of applications based on this ground has increased alarmingly over the past few years.

 

  The decision of the Divisional Court in Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164 for some time seems to have provided the guidelines for courts faced with this problem of delay.  Sir Roger Ormrod, delivering the judgment of the court in that case, said at pp. 168-169:-

 

`In our judgment, bearing in mind Viscount Dilhorne's warning in Director of Public Prosecutions v. Humphrys [1977] A.C. 1, 26, that this power to stop a prosecution should only be used in "most exceptional circumstances." ... the effect of these cases can be summarised in this way.  The power to stop a prosecution arises only when it is an abuse of the process of the court.  It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused, or to genuine difficulty in effecting service. ... The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, for, as Lord Diplock said in Reg. v. Sang [1980] AC 402, 437: "the fairness of a trial ... is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted."'

 

  We would like to add to that statement of principle by stressing a point which is sometimes overlooked, namely, that the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for a stay."

 

9. After discussing a number of cases Lord Lane recorded at page 643 a concession by counsel for the Attorney-General that in the light of Reg. v. Telford Justices, Ex parte Badham [1991] 2 Q.B. 78 the first question put to the court should be answered with a qualified "yes" and at pages 643-644 continued:-

"As it is not possible to anticipate in advance all the infinitely variable circumstances which may arise in the future, we feel ourselves, albeit reluctantly, forced to agree to a limited extent with that concession.

 

However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris of Borth-y-Gest in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1304, that

 

`generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.'

 

  Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances.  If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust.  We respectfully adopt the reasoning of Brennan J. in Jago v. District Court of New South Wales (1989) 168 C.L.R. 23.

 

  In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule.  Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution.  Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

 

  In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay  he  will suffer  serious prejudice to the extent that no

fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court.  In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."

 

10. In the opinion of the court the decision to grant a stay was wrong.  The delay was not unjustifiable, the chances of prejudice were small; the trial process would have provided ample protection for the accused; there was no danger of the trial being unfair; finally, the case was not in any sense exceptional so as to justify a stay.

 

In Tan v. Cameron [1992] 2 A.C. 205, a case from Hong Kong, Lord Mustill giving the judgment of the Board endorsed the statement of the law in the passage from Lord Lane's judgment quoted above.  Lord Mustill went on to deal with an argument that while the burden of showing that the continuance of the prosecution would be an abuse of process rested on the accused, yet where an inexcusably long delay was demonstrated that burden was discharged unless the prosecution could show that no prejudice resulted from the delay.  He said at page 225:-

"Their Lordships do not agree with this appreciation of the law.  Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred.  But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account.  This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair."

 

In Boodram v. Attorney-General of Trinidad and Tobago [1996] 2 WLR 464 an individual charged with murder issued a notice of  motion  seeking declarations  that  his constitutional  rights

under section 4(a) and (b) and section 5(e) and (f) of the Constitution had been infringed by adverse press reports and by the failure of the Director of Public Prosecutions to stop them; he claimed that his trial should be discontinued or postponed for at least 18 months.  This Board, affirming the judge at first instance and the Court of Appeal of Trinidad and Tobago, decided that the appellant had no grounds for constitutional relief.  Lord Mustill, giving the judgment of the Board, first considered and dismissed an argument that the inaction of the Director of Public Prosecutions itself contravened the appellant's constitutional rights.  He continued at pages 472-473:-

"Their Lordships now turn to the second and more substantial argument for the applicant, which stripped of elaboration comes to this.  By its use of the expression `is likely to be contravened' section 14(1) contemplates both that the power of the High Court can and in suitable cases should be exercised to avert a threatened breach of constitutional rights, and also that the jurisdiction exists in cases short of absolute certainty that what is feared will come to pass.  In the present case the impropriety was so gross that unless more time is allowed to elapse before the trial it must at the very least be likely that the minds of the jury will be poisoned, however hard the trial judge may try to put the damage right.  Why wait for the trial, with all the stress for the applicant and uncertainty for those responsible for preparing the case which this will involve, when the High Court in its constitutional role can immediately nip the abuse in the bud?

 

Although this argument was made to seem very attractive their Lordships believe it to be misconceived, for the reasons already given by the courts in Trinidad and Tobago.  The flaw can perhaps be seen most clearly in relation to section 5, and in particular to sections 5(2)(e) and (f) upon which the applicant based an important part of his argument.  In the opinion of their Lordships those provisions have no bearing on the appeal.  The purpose of subsection (2) is to make clear that certain fundamental rights which would otherwise exist in law are not taken away.  Here, neither Parliament nor any other body is seeking to take away the applicant's right to the fair trial which is part of the due process of law guaranteed by section 4(a).  That right is undisputed, and the applicant has no need for recourse to the High Court in order to establish it.  Properly analysed, the real gist of the applicant's complaint is that the adverse publicity will prejudice, not the existence of the right, but the exercise of it.  Whether this complaint is well founded is a matter for decision and if necessary remedy by the ordinary and well-established methods  and  principles of  criminal  procedure

which exist independently of the Constitution, and which the newspapers and broadcasts could not even purport to abrogate.  Provided that the safeguards remain in place, and are made available to the applicant in the trial court, and if necessary on appeal, he has the benefit of the fair trial process to which he is entitled.

 

  A similar flaw vitiates the arguments based on section 4.  The `due process of law' guaranteed by this section has two elements relevant to the present case.  First, and obviously, there is the fairness of the trial itself.  Secondly, there is the availability of the mechanisms which enable the trial court to protect the fairness of the trial from invasion by outside influences.  These mechanisms form part of the `protection of the law' which is guaranteed by section 4(b), as do the appeal procedures designed to ensure that if the mechanisms are incorrectly operated the matter is put right.  It is only if it can be shown that the mechanisms themselves (as distinct from the way in which, in the individual case, they are put into practice) have been, are being or will be subverted that the complaint moves from the ordinary process of appeal into the realm of constitutional law. No such case is made out here. It is not even suggested that if an application to stay the trial is made, either at the commencement of the trial or in advance if a sufficient need is shown, the court will fail to receive it; or will not do its best to arrive at a solution which measures together the risk of prejudice, the steps which can be taken to ensure that the verdict is uninfluenced by improper comment, and the public interest in making sure that a case which has been committed for trial does in fact come to trial, and at a proper speed.  Nobody could pretend that these are always easy decisions for the judge to make, but they are concerned with trial management within the context of a system whose fairness as a system has not been attacked.  Thus, in the opinion of the Board, no constitutional question is invoked."

 

11. Lord Mustill proceeded to leave open the possibility of an application to the High Court for constitutional relief where the chance of a fair trial had been obviously and totally destroyed.

 

12. In their Lordships' opinion similar considerations apply in the present case, where the complaint made is that of undue delay.  The traditional procedures available to the criminal courts of Trinidad and Tobago exist for the purpose of securing that trials are fair. Application can be made to the trial judge for a stay, which  the trial judge may grant if he considers that the case falls into the exceptional category indicated by Lord Lane C.J. in Attorney-General's Reference (No. 1 of 1990).  If the trial judge does not grant a stay, it will be his duty in directing the jury to bring to their attention all matters arising out of the delay which tell in favour of the accused.  If he fails to do that satisfactorily the appeal process is available to put right any injustice which may have resulted from the failure, as in R. v. Dutton [1994] Crim.L.R. 910.  In that case the accused was tried on a charge of indecency with a male, the last alleged indecent act having taken place 14 years before the trial.   The trial judge refused a motion for a stay without giving reasons, and failed to give the jury any direction that they should have regard to possible prejudice to the accused resulting from the delay. The Court of Appeal held that the trial judge was entitled to refuse a stay but allowed the appeal against conviction on the ground of the judge's failure to direct the jury as to the possible adverse effects that the delay could have occasioned to the defence.

 

13. Their Lordships were referred by Dr. Ramsahoye S.C., for the respondents, to a number of cases in jurisdictions where there exists a constitutional right to a speedy trial or to trial within a reasonable time.  One of these was Bell v. Director of Public Prosecutions [1985] AC 937, an appeal from Jamaica where section 20(1) of the Constitution provides that a person charged with a criminal offence shall be afforded "a fair hearing within a reasonable time by an independent and impartial court established by law".  The applicant had been arrested and charged in May 1977 and convicted in October 1977, but his appeal against conviction was allowed in March 1979 and a retrial ordered.  He was released on bail in March 1980 and after the case had been mentioned on several occasions he was discharged by a judge in November 1981, the Crown offering no evidence.  He was re-arrested in February 1982 for the same offences and it was proposed to retry him in May 1982.  The Full Court and the Court of Appeal in Jamaica dismissed his application for constitutional redress on the ground of contravention of section 20(1).  This Board advised Her Majesty that the applicant's appeal should be allowed.  Lord Templeman said at page 947:-

"It was argued on behalf of the respondents, the Director of Public Prosecutions and the Attorney-General, that the applicant was able to obtain redress by waiting until his retrial, ordered for 11 May 1982, and then submitting to the Gun Court at the commencement of the retrial that the proceeding should be dismissed on the grounds that in the events which had happened a retrial would be an abuse of the process of the court.  Their Lordships cannot accept this submission.  If the constitutional rights of the applicant had been infringed by failing to try him within a reasonable time,  he  should not  be  obliged to prepare for a retrial which

must necessarily be convened to take place after an unreasonable time."

This passage highlights the distinction between the constitutional right to a trial within a reasonable time and the constitutional right only to a fair trial. The latter right is to be secured by the procedures exercised by the trial judge, which in an exceptional case involving delay may include the grant of a stay.  The former right, however, may be invoked by constitutional motion in advance of any trial.  In drawing this distinction their Lordships have not overlooked that in Vincent v. The Queen [1993] 1 W.L.R. 862 Lord Woolf said at page 867 that the provisions of section 20(1) and (6) of the Jamaican Constitution "do no more than codify in writing the requirements of the common law which ensure that an accused person receives a fair trial".  That case was not, however, concerned with the right to a hearing within a reasonable time, and in so far as Lord Woolf's words are to be read as applying to that aspect of section 20(1) they must be regarded as obiter, and as not being the subject of particular consideration.

 

14. Their Lordships have also considered Attorney-General of Hong Kong v. Cheung Wai-Bun [1994] 1 A.C.1.  That was a case where the trial judge had granted a stay of trial on the ground of undue delay.  Article 11(2) of the Hong Kong Bill of Rights, contained in section 8 of the Hong Kong Bill of Rights Ordinance, provided:-

"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality ... (c) to be tried without undue delay; ..."

 

15. This Board advised the dismissal of an appeal by the prosecution, with special leave, against the trial judge's ruling.  Lord Woolf said at page 8:-

"There remains the question as to whether Duffy J. was correct in saying that there is no material distinction between the onus on a  defendant who seeks to have a prosecution stayed as being an abuse of process at common law and the onus which faces a defendant who wishes to establish that he is entitled to have the proceedings stayed under the Bill of Rights.  Mr. Nicholls having accepted that, if there was any distinction between the approach at common law and under the Bill, this distinction could not avail him on this appeal, their Lordships had to decide whether to determine this issue.  In the circumstances their Lordships decided not to do so and did not call on Mr. Robertson to address the Board as they had already decided that  his  help  was not  needed as to the outcome of the

appeal. Their Lordships recognise that it is possible to argue that there is a difference of approach at common law and under the Bill.  However, as any difference in the approach to be adopted is only likely to be of significance in a very small minority of applications for stay, their Lordships have decided that it is preferable not to determine the extent of the difference in this case, where it would be merely an academic exercise, but to leave it to be determined in a case where the existence of the difference would materially affect the result of the appeal.  The issue is one which can be more satisfactorily examined in the context of a case where a difference in approach could have practical consequences."

 

16. Their Lordships consider that the difference between the common law position and that where there is an express constitutional right to trial without undue delay or within a reasonable time is that in the latter case complaint by way of constitutional motion can more readily be regarded as the appropriate remedy. Where, on the other hand, common law principles are to be applied in order to determine whether the trial would be a fair one the matter is primarily for the trial judge to decide. One of the matters which he will take into account in making his decision is the extent to which suitable directions to the jury are capable of obviating any prejudice to the accused resulting from the delay.  That is not an aspect which would be conveniently available to the court on a constitutional motion.

 

At page 953 of Bell v. Director of Public Prosecutions (supra) Lord Templeman said:-

"Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by sections 13 and 20 of the Constitution of Jamaica, the courts of Jamaica must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica.  The administration of justice in Jamaica is faced with a problem, not unknown in other countries, of disparity between the demand for legal services and the supply of legal services. Delays are inevitable.  The solution is not necessarily to be found in an increase in the supply of legal services by the appointment of additional judges, the creation of new courts and the qualification of additional lawyers. Expansion of legal services necessarily depends on the financial resources available for that purpose. Moreover an injudicious attempt to expand an existing system of courts, judges and practitioners, could lead to deterioration in the quality of the justice administered and to the conviction of the innocent and

the acquittal of the guilty.  The task of considering these problems falls on the legislature of Jamaica, mindful of the provisions of the Constitution and mindful of the advice tendered from time to time by the judiciary, the prosecution service and the legal profession of Jamaica.  The task of deciding whether and what periods of delay explicable by the burdens imposed on the courts by the weight of criminal causes suffice to contravene the rights of a particular accused to a fair hearing within a reasonable time falls upon the courts of Jamaica and in particular on the members of the Court of Appeal who have extensive knowledge and experience of conditions in Jamaica. In the present case the Full Court stated that a delay of two years in the Gun Court is a current average period of delay in cases in which there are no problems for witnesses.  The Court of Appeal did not demur.  Their Lordships accept the accuracy of the statement and the conclusion, implicit in the statement, that in present circumstances in Jamaica, such delay does not by itself infringe the rights of an accused to a fair hearing within a reasonable time.  No doubt the courts and the prosecution authorities recognise the need to take all reasonable steps to reduce the period of delay wherever possible."

At pages 954-955 Lord Templeman went on to say that while a period of 32 months between arrest and trial might not be unreasonable in Jamaica a special need for urgency arose after retrial had been ordered.  Further, the judge who discharged the applicant in November 1981 must have been satisfied, and the prosecution did not appear to have disputed, that any further delay would have been unfair to him, and if fairness required that the applicant should be discharged in November 1981 fairness required that he should not be rearrested in February 1982.

 

17. It is apparent that the case exhibited certain exceptional features in the shape of the order for retrial and the applicant's subsequent discharge and later rearrest. It may well be that in similar circumstances retrial of an accused person in Trinidad would not constitute fair trial and that a stay would therefore be appropriate.  But the case affords no direct assistance for purposes of the present appeal apart from Lord Templeman's observations about the significance of the disparity between the demand for legal services and the supply of legal services in the jurisdiction concerned.

 

18. Their Lordships are of opinion that the approach favoured by the Board in Boodram v. Attorney-General of Trinidad and Tobago [1996] 2 WLR 464 is appropriate for the purpose of dealing with  cases where the complaint is one of undue delay as well as

cases such as Boodram where the complaint relates to adverse publicity. The question in both categories of cases is whether the circumstances are such that the procedures available to the trial judge are obviously and inevitably going to be insufficient to secure that the trial will be a fair one.  Unless that is so a constitutional motion under section 14(1) must be dismissed. In Sookermany v. Director of Public Prosecutions and Attorney-General of Trinidad and Tobago (unreported, 1st May 1996 Civil Appeal No. 153 of 1995), in which the Court of Appeal of Trinidad and Tobago dismissed an appeal against refusal of constitutional relief claimed on the ground of undue delay, de la Bastide C.J. said at page 18 of the transcript:-

"As there are admittedly measures available to a trial judge to negative the prejudicial effect on the defence of delay, there would seem to me to be no reason why a court following the lead given by the Board in [Boodram] should not in all but the most exceptional circumstances refuse to stay criminal proceedings on a constitutional motion brought for that purpose, and leave it for the trial judge to determine what measures he should take to counteract the prejudicial effect of the delay and if he should conclude that no effective counteraction is possible, himself to order the proceedings stayed."

 

19. Their Lordships would respectfully endorse that statement of the position.

 

20. In the present case the affidavit of the third respondent sets out as matters tending to prejudice the defence failing memories and the fact that the barman said to be an independent witness of the events giving rise to the charge has not been traced.  The facts of the case are, however, extremely simple.  The only issue would appear to be whether one of the respondents deliberately wounded Shaheed Garib, or whether, as the third respondent says in his affidavit, Rasheed Mohammed accidentally wounded Garib when trying to attack the second respondent, Seeram Tokai.  The affidavit indicates that the third respondent has a clear recollection of any matters of importance.  As to the missing barman, the affidavit does not describe what attempts, if any, have been made to trace him, or when.  That is a matter which could very appropriately be gone into before the trial judge.  In the result, their Lordships do not consider that this is a case of exceptional character where the procedures available to the trial judge will be obviously and inevitably insufficient to secure that fairness of trial is achieved.  The measures which the trial judge may take will include the ordering of a stay if, in the light of Attorney-General's Reference (No. 1 of 1990) [1992] Q.B. 630, he considers that to be the appropriate course.

 

21. For these reasons their Lordships will allow the appeal and restore the order of Lucky J. The respondents must pay the appellants' costs in the Court of Appeal and before the Board.

 

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