A judge’s decision to quash the indictment of a Laventille man accused of killing his uncle in 2000 has been overturned by the Court of Appeal.
On Wednesday, Chief Justice Ivor Archie and Justices of Appeal Nolan Bereaux and Peter Rajkumar upheld the appeal of the Director of Public Prosecutions (DPP) against the July 5, 2021, decision of Justice Eleanor Donaldson-Honeywell.
Donaldson-Honeywell had ruled the murder indictment against Kevon Nurse, also known as Kevon Benoit, should be set aside on the basis of extraordinary delay.
Nurse has been in jail for over two decades and has, over the years, appeared before some 25 judges both for five trials and status hearings, and was expected to face the sixth trial before he challenged the DPP’s intent to proceed.
In upholding the DPP’s appeal, Rajkumar, who wrote the decision, held his judicial review claim should not have progressed as Nurse had effective and timely alternative remedies in the criminal justice process to advance his complaints.
Rajkumar also made it clear nothing in the decision should be taken as an indication of what the outcome of any application Nurse may choose to make when he appears before a criminal judge, should be.
As a result of the Appeal Court’s ruling, Nurse will face his sixth trial at which he could raise his complaints about its unfairness because of delay.
In her ruling, Donaldson-Honeywell noted there was no constitutionally protected right to a fair trial within a reasonable time, but the failure of the DPP to discontinue the prosecution was unreasonable because of delay, the multiplicity of trials and failed convictions.
In their ruling, the Appeal Court said even after more than 20 years of prosecution, there were always available to him “effective and timely” the alternative remedy of asking the trial court for a stay of the proceedings against him on the ground of inordinate delay resulting in an abuse of process and the inability to obtain a fair trial.
Rajkumar said this remedy was available especially as the matter was being case-managed by a Master in the Criminal Court.
“The application for judicial review failed to take into account that a case-management Master is partnered with a judge, who can hear such an application without having to await the recommencement of jury trials, and without full preparation for such a trial being completed.”
He also said if such an application failed, then there were other remedies in the trial process which provided additional safeguards as opposed to seeking to have the DPP’s wide discretion to prosecute reviewed.
Rajkumar said the same review the court in the civil jurisdiction was asked to make, the same could be done by a judge in the criminal jurisdiction to ensure the fairness of the trial process.
In Nurse’s case, Rajkumar held he had not demonstrated, despite extraordinary delay, his was an exceptional case that required bypassing the specialised jurisdiction of the trial court.
“That trial court was equipped on an application before it to consider the issue of whether a fair trial was still possible in light of the extensive delay.”
He was also critical of Nurse’s judicial review application especially when he had indicated to the Master case managing his matter, he wanted to seek a stay of the indictment against him.
In setting aside all Donaldson-Honeywell’s orders, the Appeal Court also ordered Nurse to pay the DPP’s legal costs in the appeal.
The DPP was represented by Ian Benjamin SC, Keston McQuilkin, and Nairob Smart. Nurse was represented by attorneys Shaun Morris and Fayola Sandy while the Public Defenders’ Department was represented, as an interested party, by attorneys Raphael Morgan, Michelle Gonzales, Michael Modeste and Tonya Thomas.