MANNING BACK BEFORE MAGISTRATE
By Jada Loutoo Wednesday, August 1 2012
HOURS before his expected return to the country, the Court of Appeal has reinstated a private criminal complaint filed against former Prime Minister Patrick Manning by a woman who alleged he used annoying language against her in 2009.
Appeal Court judges, Justices Paula Mae Weekes and Alice Yorke-Soo Hon yesterday ruled that former Chief Magistrate Sherman Mc Nicolls acted with unjudicial haste in dismissing Natasha Cumberbatch’s complaint against Manning.
The judges held that Mc Nicolls improperly exercised his discretion, which they said was exercised in an “ad hoc and arbitrary manner.”
In allowing the appeal, the judges reinstated the private complaint and sent it back to the magistrate’s court for a new hearing.
Acknowledging that Mc Nicolls has since retired, the judges ordered that the matter be tried before another magistrate.
Manning returned to TT last night after completing six months of medical treatment in the United States.
Manning was admitted to the Walter Reed Hospital in Washington DC in January after suffering a stroke at his home at Sumadh Gardens, Vistabella, San Fernando, on January 23.
Cumberbatch, through her attorney Raphael Morgan, filed an appeal against Mc Nicolls’ decision to dismiss the charge of using annoying language with intent to provoke a breach of the peace she filed in a private complaint against Manning.
Cumberbatch, of Field Trace, Quarry Road, San Juan, claimed Manning committed the offence on May 21, 2009, contrary to Section 49 of the Summary Offences Act. The charge was laid against Manning and Morvant resident Michael Vasqueo.
On October,14, 2009, Mc Nicolls, who was presiding in the Port-of-Spain Eighth Magistrate’s Court, dismissed the charge after Cumberbatch failed to attend the court hearing. The matter was called at 9.20 am and when she failed to appear after her name was called, the matter was dismissed. She later appeared in the Eighth Court, but the matter was not recalled and she appealed the decision on the same day.
Cumberbatch claimed she had been told to appear in the Second Magistrate’s Court where private complaints were heard, and did not know the case was being called in another courtroom.
Manning, who was Prime Minister at the time the private complaint was filed against him, did not appear in court in person but was represented by his attorney Michael Quamina.
Now that he is now no longer Prime Minister, he is expected to put in an appearance himself unless an application to do otherwise is made to the presiding magistrate.
Manning’s attorney John Jeremie, SC, argued that the Summary Courts Act did not allow for Cumberbatch’s challenge of the Chief Magistrate’s decision to dismiss the case.
He also argued that it was open to the Chief Magistrate to use his discretion to dismiss the case for want of appearance as he also challenged the appellate court’s jurisdiction to hear the appeal.
Jeremie admitted there was no prolonged history of the matter, but in any event the nature of the charge on the scale of gravity of charges was such that it was “less serious.”
In their written 12-page ruling, Weeks and Yorke-Soo Hon said while the case could be considered trivial, there was a larger principle at stake “that a person must have access to the court system and be treated fairly.”
“The interests of justice are not served when matters are dismissed without a trial. It erodes public confidence in the criminal justice system. Magistrates must always be alive to this,” they emphasised.
The judges also acknowledged that historically the Appeal Court has jealously guarded its jurisdiction to review for error a magistrate’s exercise of a discretion.
“We continue so to do,” the two judges noted, added that legislation confers on them the jurisdiction to entertain magisterial appeals.
They also said it was incumbent on Mc Nicolls, before considering the exercise of his discretion, to satisfy himself that Cumberbatch had due notice of time and place of hearing.They also noted that although she did eventually go to Mc Nicolls’ court, the matter was not reinstated.
While not questioning the Chief Magistrate’s decision to have the matter transferred from the Second Court to his court, they said by doing so he had a duty to ensure that enquiries were made in the original court to ensure that Cumberbatch was not there awaiting the matter.
At the hearing, Weekes pointed out it was commonly understood that the matter was to be heard in the Second Court, and the proper and responsible duty of the Chief Magistrate was to “go down the corridor and make the relevant enquiries” of the private complainant. Jeremie, Quamina, Keith Scotland, and Daniel Khan appeared for Manning at the appeal.
Although there appeared to be an administrative error involving the appeal against Vasqueo, the judges applied the same reasoning in the case against him and made the same orders that the private complaint be reinstated and reheard in the Magistrates’ Court.