State appeals judge's ruling on prosecution delays in rape case

When the High Court ordered the State to put mechanisms in place and allocate sufficient resources to ensure a rape trial is completed expeditiously, did it ascribe rights to a victim of crime that are not provided for under the Constitution?

Justice Avason Quinlan-Williams made the order in September 2023, when she declared that the failure to ensure criminal cases involving child victims were expeditiously concluded was a breach of their right to protection of the law.

Before the judge was the constitutional claim of a a rape victim who sued the State for the inordinate delay in treating with sexual offences.

The State has appealed the judge’s ruling.

Now, the Court of Appeal has to determine whether the judge correctly identified that victims of crime have rights, in particular the right to a speedy trial.

Attorneys for the State have asked Justices of Appeal Mark Mohammed, Peter Rajkumar and Maria Wilson to vacate Quinlan-Williams’s ruling.

However, the victim’s attorneys insist the judge was correct to find she did have rights under the Constitution for protection by the law and a speedy trial.

“This is an important case...the court is being asked to consider the rights of a victim,” attorney Lee Merry argued in response to the State’s appeal. He contended that the judge recognised child victims were deserving of special protections by the State.

“The status of victims cannot be disputed…(nor) the duty of the State.

“The State needs victims to come forward, otherwise a perpetrator can continue to perpetrate crimes against others.

“The parties – the State and a victim – are interdependent on each other. It is complicated…But it is in the State’s interest the victim come forward. The State has a good reason to treat victims in a dignified manner, and speedy trials would encourage more victims to come forward.

“All of this is in the State’s interest.

“Do victims of crime have rights under the Constitution? This cannot be disputed.

"The State says no, they do not, the rights only apply to the accused.”

However, Merry maintained the rights afforded to a victim of crime were broader than those which specifically speak to an accused.

“The Constitution bestows rights to an individual. She (the victim) is an individual, a person who has rights. Why can’t she not enjoy the protection of the law and due process? The Constitution does not exclude victims. The State has not said why they (victims of crime) should be excluded,” he submitted.

Merry accused the State of attempting to “pigeonhole” the rights victims had.

“The court has to apply these rights broadly. Individual civil liberty concerns speedy trials,” he maintained.

Merry said the 4(a) right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law also applied to victims of crime; so, too, the 4(b) right of protection of the law.

“These rights (of the individual) are broad rights impossible to encapsulate in the Constitution…You cannot pigeonhole these rights…Where the law doesn’t provide a remedy, the Constitution does.”

Merry said the court had to apply the rights of the individual to the specifics of each case before it.

On the issue of trial delays, he said while it was not unique, the court had to consider if the Constitution only afforded rights only to an accused.

“Section 5 of the Constitution specifies the rights of an accused but the other rights are broader and are not just for an accused but encompass victims.

“The man on the street would be flabbergasted to know an accused had rights but not a victim.”

Senior Counsel Rishi Dass, who leads the State’s appeal of the 2023 judgment, urged the appellate court to satisfy itself that there was a breach of protection of the law, as the judge contended, since, he said, it was not clear what that exact breach was.

He said delay in criminal cases was not a separate right.

Dass also said of concern to the State was the need to balance the right of an individual presumed to be innocent and that of a victim, reminding that a trial is that of an accused.

“It is one trial.”

Dass said section 4(a) of the Constitution was all about fair process.

“You can’t complain of not having a speedy trial if you can have a fair trial. If due process in a criminal trial is achieved, then you cannot suffer a loss under 4(a)..Nothing in 4(a) speaks to a right to a speedy trial,” he said, as he maintained there was a distinction between a fair and a speedy trial.

“It is not to say it is not desirable to expedite a trial…but, not every unlawful action is a breach of a right. Not because an action is contrary to public law is it a breach,” he said. He also said it was for the legislature to develop policies if it wanted to single out a specific type of crime.

Dass said it would be “unfair” to single out sexual assault crimes when the criminal justice system, its policies and rules already had special provisions and protections for these types of offences and victims.

In the specific case, Dass said the alleged victim did not ask for an expedited trial which was refused by the magistrate, so there could be no suggestion of arbitrary conduct on the part of the judicial officer or the prosecution.

“There was no public-law wrong here. It was inappropriate to say the judiciary, the DPP, acted irrationally and breached a public-law duty.”

On the judge’s finding that the matter could have been referred to the Children’s Court, Dass said it would be counterintuitive for every case involving a child victim to be heard by that court. As he referred to the Family and Children Division Act, which established a special court to deal with family matters and criminal offences committed by children under the age of 14, he said it was designed to keep child offenders out of the regular criminal justice system and not burden that court with adult offenders.

Despite this, he said, there are provisions in the law for a judicial officer to refer a case to the Children’s Court if there is a concern but reminded there were already provisions in sexual-offences cases to protect a victim, including a minor, by having these cases heard in camera, for example.

Dass also said it was wrong for the judge to instruct the State to “allocate sufficient resources to ensure criminal matters can be concluded expeditiously.

“That is an overreach.”

In the case before Quinlan-Williams, the alleged victim complained of the delay by the court in dealing with her case since 2018. She spoke of the trauma of attending court and facing her alleged attacker.

In her ruling, the judge said, “The ongoing court proceedings has added to her existing PTSD symptoms by re-traumatising her in court.”

Quinlan-Williams detailed the evidence and held although the damage to the claimant’s psychological integrity stemmed from her alleged attack at 16, it was “accentuated by the trauma from the ongoing court proceedings.”

However, in the appeal, the State said there was no specific evidence detailing the trauma.

The judge also said in her ruling that the record of the proceedings “showed...the criminal case lumbered through the court without regard to claimant being a child.

“Having regard to law as obtained with regard to children matters, the court was satisfied that the claimant was not afforded the protection of the law.”

Quinlan-Williams also ordered the State to ensure the claimant receives psychological counselling while the case against her alleged rapist is pending and to provide half-yearly reports to the registrar on these arrangements.

The alleged victim will also receive $60,000 in compensation.

This was also appealed by the State.

The judges have reserved their ruling.

Also appearing for the State were Sasha Sookram, Coreen Findley and Rachael Jacob. Rebecca Rafeek and Larry Boyer appeared for the alleged victim.