10 years ago: The arrest of a sitting Chief Justice… Shame and scandal in the Judiciary

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Just over ten years ago, the Judiciary of Trinidad and Tobago was rocked by shame and scandal. The sitting Chief Justice was under probe, and the man behind the probe was the then Prime Minister.

In the middle of the scandal was the Chief Magistrate.

THE FACTS

Allegations against the the Chief Justice, Sat Sharma, arose out of a complaint made by the then Chief Magistrate Sherman Mc Nicolls to the then Prime Minister Patrick Manning on May 5, 2006,  that Sharma had attempted to influence him in a decision he was to take in the criminal trial of  Basdeo Panday, who was the Leader of the Opposition, on charges brought under the Integrity in Public Life legislation.

On May 8, 2006 the Chief Justice made a written complaint to the Commissioner of Police against Mc Nicolls about the Mc Nicolls’s own complaint and also made allegations about a land transaction in which the Mc Nicolls was said to have been involved.

On May,  11, 17 24 and 13 June 2006, Mc Nicolls made detailed statements to the police about the Chief Justice and about the land transaction. On July 14, 2006 the State filed criminal charges against the Chief Justice and issued a warrant for his arrest.

The police armed with a warrant went to the Chief Justice’s home in Fairways, Maraval, and attempted to execute it. But the intervention of lawyers and an order of the High Court prevented the police from arresting Sharma on a Friday afternoon, where he would have been kept in custody until Monday when he would have been taken to court.

The Chief Justice challenged the decision to charge him in judicial review proceedings which were resolved by the Judicial Committee in November 2006. The challenge failed. It was held that, although a decision to prosecute was in principle susceptible to judicial review on the ground of interference with a prosecutor’s judgment, such relief would in practice be granted extremely rarely and that the court had to be satisfied, not only that the claim had a realistic prospect of success, but also that the complaint could not be resolved within the criminal process, either at the trial or by way of an application to stay for abuse of process.

It was further held that, since all the issues could best be investigated and resolved in a single set of criminal proceedings, permission for judicial review ought not to have been granted and had rightly been set aside.

The criminal proceedings against the Chief Justice accordingly took their course. However, proceedings were also on foot against the Chief Justice under section 137 of the Constitution in which the question for decision was to be whether the Chief Justice should be removed from office. This was moved by then PM Manning.

By a letter dated February 13, 2007 to the Director of Public Prosecutions  (the DPP) Mc Nicolls asked him to take “immediate steps to stay the instant criminal proceedings” until the proceedings against the Chief Justice under section 137 had been determined.

Mc Nicolls explained that his statement to the Prime Minister had been given in support of the section 137 proceedings and that he had supported criminal sanctions only when it became clear that the Chief Justice had blocked those proceedings; hence his request for a stay of the criminal proceedings, now that the Chief Justice had “lifted his protest” to the section 137 proceedings.

On February 14, 2007 Mc Nicolls swore written statements for the purpose of the criminal proceedings against the Chief Justice to the same effect as his complaint against the Chief Justice but on the same day he indicated to the DPP, the Deputy DPP (Ms Carla Browne-Antoine) and the lead prosecutor (Mr Gilbert Peterson SC) his reluctance to give evidence in such proceedings.

On or about February 20, 2007 he also expressed similar reluctance to the Attorney General, who urged him to give serious consideration to testifying. In the meantime the Deputy DPP had decided that evidence at the committal proceedings would be given by written statements, which were tendered to the court on February 26.

The only witness whom the Chief Justice wanted for cross-examination was Mc Nicolls. According to the Deputy DPP, on February 27 she spoke to Mc Nicolls, who told her for the first time that he was not going to give evidence in the criminal proceedings.

On the same day she drafted a reply to Mc Nicolls’s letter of February 13th. On the next day, which was the date set for the hearing to resume, the DPP told the Deputy DPP that Mc Nicolls had called to say that he was going to attend court to testify and that, although he was not available on February 28, he would be available to attend on March 5.

The DPP also said that Mc Nicolls was asking for copies of the four statements that he had made. In these circumstances Mr Peterson advised that, since Mc Nicolls was going to attend court, they should not send the draft reply to his letter. The proceedings were accordingly adjourned to 5 March.

According to Mr Peterson, on March 1,  Mc Nicolls telephoned him to say that he wanted to make his position clear, namely that he was not giving evidence in the criminal proceedings and that he had already written to the DPP to that effect.

Mr Peterson took that to be a reference to the letter of February 13th. Again according to Mr Peterson, on the morning of March 5, Mc Nicolls telephoned Mr Peterson, returning a call of the day before, and said that he wanted to make his position clear that he was not prepared to testify.

Mr Peterson said ‘OK’. He added that he had said that before and that the purpose of his call the day before had been to ensure that Mc Nicolls would be attending court later on  March 5. Mc Nicolls said he would. Mr Peterson said that some time between 12.10 and 12.30 pm the same day he telephoned Mc Nicolls at his office and asked him to give a statement to the police saying that he refused to give evidence and setting out the reasons for his refusal.

Mc Nicolls said that he did not think that that was necessary since he had already indicated his position to Mr Peterson and that he had also done so in a letter to the DPP. According to Mr Peterson, before the case was called on at 1.00 pm, he had a discussion with the Deputy DPP and they agreed that, given the position taken by Mc Nicolls, it would be improper to continue the prosecution against the Chief Justice because the charge could not stand without the Mc Nicolls’s evidence.

When the case was called on Mr Peterson told the court that Mc Nicolls was present, his name was called and he entered the court room. Before Mc Nicolls could be sworn, Mr Peterson told the court that, based on the position which Mc Nicolls had indicated to him, the prosecution against the Chief Justice could go no further.

The Deputy DPP says that Mr Peterson told her that Mc Nicolls was not willing to make a further statement and that he would stand by his letter of February 13th. Her account of what happened in court is broadly the same as that of Mr Peterson. A transcript of what occurred in open court is available. It shows that a number of witness statements were tendered in evidence and that thereafter Mr Peterson told the magistrate that Mc Nicolls was outside the court.

The magistrate told him to call his witness and then asked Mc Nicolls to step into the witness box. Mr Peterson said: “Ma’am, having regard to a position indicated to us by this witness, we are adopting a particular course in this matter. We are not proceeding any further with this prosecution. We are asking that the accused be discharged.”

The magistrate asked Mc Nicolls to step out of the witness box, Mr Peterson reiterated that he had asked that the Chief Justice be discharged and the magistrate said that the prosecution was not offering any evidence in the case and that he was discharged.

Later the same day the Deputy DPP altered the draft letter of reply to Mc Nicolls’s letter of February 13th and sent it to him, who received it on March 6. The reply stated that it had not been sent earlier because Mc Nicolls had indicated that he was going to attend to give evidence.

It added that there was no power in the DPP to stay criminal proceedings pending the outcome of section 137 proceedings and gave a number of reasons why the Mc Nicolls’s position was untenable. They included that the integrity of the judiciary would be best served by his giving evidence in support of his sworn testimony, which he had made, not only in the context of section 137 proceedings but also in connection with the criminal proceedings.

Also on March 5, the Deputy DPP issued a press release saying that the proceedings had been discontinued because the main witness had indicated that he was no longer willing to give any further evidence in the criminal prosecution. On the next day, March 6, Mc Nicolls also issued a press release explaining his position. He said that in his February 13, 2007 letter he had told the DPP that he was willing, eager and able to “give evidence in the proper forum in relation to the Sharma matter” and that the DPP had never responded to that letter.

He continued: “What has occurred in fact is that statements have been taken from me for use in both sets of proceedings, in my view, in defiance of the guidelines provided by the Privy Council in the Sharma matter. Last evening, in keeping with the position adopted in my correspondence, I affirmed that I was willing to give evidence and eager to do so in proceedings which it is now public record have been instituted under Section 137 of the Constitution of Trinidad and Tobago.

“Statements have already been given by me to this end. In my judgment those proceedings should have priority on the facts of this case. In my judgment it would have been improper both in principle and in law to allow for the cross-examination of evidence in two separate proceedings which were at roughly the same stage in their development. It should be remembered that in a preliminary enquiry no one is called upon to plead whereas in Section 137 proceedings an answer must be provided to the complaint.

“As a judicial officer I stand by the courage of my convictions and this is my judgment on the facts and applicable law relevant to the case,” Mc Nicolls added.

Sharma was acquitted and after rumblings, he returned to office, but only for a brief period until his retirement at the age of 65.

But that was not the end of the matter. The Judicial and Legal Service Commission (JLSC) decided to lay six charges against Mc Nicolls for his refusal to testify in the criminal proceedings. It reached the Privy Council which had to decide the following:

i) Was the JLSC acting ultra vires in preferring the charges?
ii) Was the JLSC acting unfairly and/or contrary to the rules of natural justice in preferring the charges?
iii) Are the charges unsustainable in fact and law?
iv) Was the JLSC’s conduct of the disciplinary process fundamentally unfair?

The Privy Council which comprised Lord Phillips, Lady Hale, Lord Mance, Lord Clarke, and Sir Jonathan Parker, unanimously dismissed the appeal.

The panel, in a judgment delivered by Lord Clarke read as follows, “On the first issue, the Chief Magistrate can have been under no misapprehension as to the precise nature of the allegations on which the charges are based. The two charges that were not quashed were properly brought under the Public Service Commission Regulations, and there is no basis which it could be held that they are ultra vires.”

On the second issue, the Committee said, “It is clear that the Chief Magistrate has been made fully aware of the case against him. Further, he has exercised his right to comment upon that case at every stage of the proceedings. There is no basis on which to conclude that the JLSC was acting unfairly, or contrary to the rules of natural justice in bringing the charges.”

The Law Lords further reasoned that, “the Chief Magistrate has a case to answer first, that he was guilty of misconduct in informing the prosecutor that he would not give evidence against the Chief Justice and, secondly, that that misconduct caused the criminal proceedings against the Chief Justice to end.

The two remaining charges brought against the Chief Magistrate are sustainable in fact and law.” Finally, on the fourth issue, the Committee found that, “there was nothing oppressive in the disciplinary process conducted by the JLSC, nor does it consider the Chief Magistrate’s defence to be prejudiced by it. The disciplinary process was not in any way unfair or prejudicial to the Chief Magistrate.”

However, before Mc Nicolls could face the tribunal, he retired from the Judiciary at the age of 55. He died two years later in 2012.

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