Described by Full Court as unreasonable, ultra vires and perverse
THE Full Court of the Supreme Court in the ‘Pink Suit case’ drug  trafficking and conspiracy case  ruled on Wednesday  that the advice by the DPP  that two persons should be charged with conspiracy to traffic in narcotics was  unreasonable, ultra vires and perverse.
The applicants, Frederick Peterkin, and  Maurice Smith, with the exemption of Shemika Tennant and Moniram Persaud,  who had applied for writs  of Certiorari  and Mandamus were present in Court and heard that the DPP’s decision about conspiracy will be quashed.
Each of the applicants will be granted bail in the sum of $150, 000.00.
The Full Court was constituted by Justices William Ramlall  and Roxanne George. Justice George had come out from leave to give the decision.
Justice George, who delivered the unanimous decision of the Court, noted that the applicants, Maurice Smith and Roderick Peterkin, had approached the court, by way of  prerogative  writs, for orders of certiorari directed to the Director of Public Prosecutions (DPP)for her to show cause why her decision of March 8, 2010, to recommend and or institute a charge of conspiracy  to traffic in narcotics  contrary to section 95 (b) of the Narcotic and Psychotropic Substances (Control) Act, 1988 should not be quashed  on the ground that the decision was unreasonable, ultra vires and / or perverse.
An Order Nisi having been refused by Justice Gregory Barnes, the applicants approached the Full Court, with a fresh application for the said orders by way of motions with affidavits in support.   The nisi orders in relation to both applications were granted on April 23, 2010, by this Court calling on the DPP to show cause.
On the returnable date, by consent of the parties, the motions were heard together.  Mr. Doodnauth Singh, for the DPP, then raised preliminary points regarding the jurisdiction of this court to hear the applications.   He based his submissions on the grounds that the application was without jurisdiction as the rubric was incorrect.
Continuing her judgment, Justice George said, “ In this case, the applicants are asking the Court to consider two main issues, that the decision of the DPP as contained in the advice which had been exhibited , is unreasonable and therefore  ultra vires and/or perverse, and that in addition, in the case of Smith, the issue of bias, or the appearance of bias, looms large so that the DPP should have recused herself from advising on the charge; and that having not recused herself, her decision, as contained in her advice, is ultra vires.
The judge went on to say that Shemika Tennant is alleging that she did not search the suitcase as she ought to have done because her supervisor, Muniram Persaud, told her not to search the suitcase since the person was his family and that money was in the suitcase and he had the Customs documents. It is one of Tennant’s duties to make an entry of all suitcases searched.  All entries made for the Delta flight are in the same colour ink and Dorothy Sear’s entry is in a different colour ink, which suggests that it was not done at the time it ought to have been done. According to the evidence which includes photographs that were received from the US, based on the size of the suitcase and the quantity of bricked objects found in the suitcase
After delving into the pros and cons of the case, Justice George explained, “This court is not pronouncing on the guilt or innocence of the applicants, but is merely making a finding that on the face of the advice, the decision arrived at can be said to be irrational and therefore obviously unreasonable and ultra  vires, given the reasoning of the DPP  as evidenced  in her advice,  and in the case of Smith, also tainted with the real possibility of bias.”
Concluding the unanimous judgment,the judge added, “ In sum in both the applications by Smith and Peterkin, the DPP’s decision as evidenced  by her written advice to the police is irrational  in  the application of the law  to the facts  concerning the offences  of conspiracy  to traffic  in narcotics and  aiding and abetting  the traffic in narcotics .
“This case is one of those rare or extreme cases in which the advice of the DPP has been found to be properly reviewable because there are patent errors on the face of the record, namely, the DPP’s advice. Her conclusions in the assessment of the evidence as disclosed in the advice are irrational and therefore obviously unreasonable and ultra vires.”
According to the Judge, “Based on the foregoing, this Court quashes the DPP’s decision of March 8, 2010, to advise the institution of the charge against both applicants, Maurice Smith abd Roderick Peterkin.   Accordingly, the nisi orders granted by the Court in both applications made by Smith and Peterkin are hereby made absolute.
Each applicant is granted costs in the sum of$150,000.

Justice George said that having regard to the findings and decisions of this Court, justice and commonsense would dictate that as regards these applicants, Smith and Peterkin, the Police should not proceed with the charge for conspiracy into traffic in narcotic which clearly flows from the now quashed advice.
Mr. Nigel Hughes, for the applicants, had questioned the quantum of costs to his clients which he thought was inadequate.
Miss Sonia Joseph, counsel of the DPP Chambers who represented the DPP on Wednesday, has given Notice of Appeal.