Justice Chang’s ruling may have opened doors
The ruling by Justice Chang has truly created a magnitude 8 earthquake in a legal environment in which we are accustomed to getting a few level 2 to level 6 shocks. We, the citizenry, not being lawyers ourselves, must not abdicate our right, based upon some kind of notion that only lawyers can understand the implications and impact of a ruling. That is like saying that only a musician can understand a great piece of music. I may not know a quaver from a crescendo but I know I like the music.
This ruling and its aftermath have left a bitter taste in the mouth of most of us. But what seems to be happening is that some of us are confusing the court of public opinion with a court of law, the one in which Justice Chang made his ruling.
Since legal practitioners, including QC Seetahal of Trinidad and Tobago, have joined the unrelenting criticism of Justice Chang I will certainly not attempt to match wits with those learned people.
Now, either Justice Chang was right in his assessment of the evidence being legally inadmissible and irrelevant or he was not. If he was right, then any judge looking at the same issue on appeal should find similarly.
But if he was wrong, the implications are truly serious. It would mean that (a) someone who is occupying the position of Chief Justice and who was a DPP himself cannot recognize what statements are legally admissible as evidence and what statements are not; (b) that this learned judge was so confident in a wrong assessment that he did not even feel a need to recheck and confirm, but most amazingly (c) sought to admonish the person who knows what is correct , and (d) he did all this knowing that he would have to document his ruling for posterity.
To my mind, this is the fulcrum around which an appeal will turn. Chang did not only say that the charge based upon the statements cited was irrational. He used the words ‘unlawful’ and ‘illegal’. Where are you placing your bets? I know where I’ll place mine.
There is another question that we non-lawyers should ask, now that we know of this magical mechanism summoned like a genie and unleashed on an unsuspecting public, called a ‘judicial review’, (at least the kind of judicial review before the case is tried is said to be new). The question is the following. Is the decision of the DPP in the negative also susceptible to judicial review?
In other words, if the DPP should decide in a particular case that the evidence does not support a charge being laid, can an interested member of the public challenge her decision similarly? The CJ hinted that it was but he did not expand. (That was not relevant to his presentation). Or does the answer to this question have to await a test in court? I believe there are a more than a few high profile cases (in which the DPP or police decided not to prosecute) any of which can be used to test this thesis.
The claim that when the police pass a matter over to the DPP it is to buy time (Editorial SN, 2nd April), is enlightening. The clear implication is that there are cases which are ‘hot potato’ cases for the police. If it turns out that, in this jurisdiction, a decision of the office of the DPP not to prosecute could be successfully challenged the next check is why not the decision of the police?
We have not been in the habit of challenging a decision not to prosecute criminally. What this case might have backhandedly managed to do is to provide the populace with a new means of holding our legal system to account – at its very core. Suddenly, the DPP’s office is not a law unto itself susceptible to the directives of any person of influence. Not without the willing complicity of the rest of us.
Perhaps if we can look at the opportunities this ruling now presents instead of simply getting more entrenched in the positions we have taken, we might find that a glorious opportunity has now been presented to drill down into some of the workings of the office of the DPP and of the police in the more mysterious decisions. And that in doing this the pursuit of justice for both Greene and her accuser need not be sacrificed.
Frederick W.A. Collins