Ruling – Richard Robert Hurlston v. Cayman Islands Summary Court Cause No. G236 of 2010 15.07.10 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 HOLDEN AT GEORGE TOWN, GRAND CAYMAN 2 3 4 CAUSE NO. G236 of 2010 5 6 7 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW 8 PURSUANT TO GCR ORDER 53 9 10 11 AND IN THE MATTER OF: 12 13 14 RICHARD ROBERT HURLSTON 15 16 Applicant 17 18 19 CAYMAN ISLANDS SUMMARY COURT 20 21 Respondent 22 23 24 Before: Hon. Justice Henderson 25 26 27 Heard: July 15, 2010 28 29 30 RULING 31 32
The Applicant, Richard Robert Hurlston, seeks leave to apply 33 for judicial review of a decision of the Summary Court to 34 commit him to stand trial in the Grand Court on charges of 35 abduction, keeping a person in confinement, and blackmail. 36 The decision to commit was made following a long form 37 Ruling – Richard Robert Hurlston v. Cayman Islands Summary Court Cause No. G236 of 2010 15.07.10 preliminary enquiry at which several witnesses were called and 1 cross-examined. 2 3
After considering the papers, I endorsed the file with a note 4 saying that the application for leave (which was made ex parte) 5 is refused but the Applicant is at liberty to renew the application 6 in open court on an inter partes basis. The Applicant having 7 requested that I provide written reasons for this informal ruling, 8 I now do so. 9 10
As in the United Kingdom, judicial review proceedings (in 11 either criminal or civil matters) may be pursued only with leave 12 of the Court. Most of the Grand Court Rules do not apply to 13 criminal proceedings, but an exception is made for Order 53 14 (Applications for Judicial Review): see Grand Court Rules, 15 Order 1 Rule 2 (1) and (2). 16 17
Order 53 Rule 3 reads in part: 18 (1) No application for judicial review shall be made 19 unless the leave of the Court has been obtained in 20 accordance with this rule. 21 22 (2) An application for leave must be made ex parte to a 23 judge … 24 25 Ruling – Richard Robert Hurlston v. Cayman Islands Summary Court Cause No. G236 of 2010 15.07.10 1 (3) The judge may determine the application without a 2 hearing, unless a hearing is requested in the notice of 3 application, and need not sit in open court… 4 5 (4) Where the application for leave is refused by the 6 judge, or is granted on terms, the applicant may renew 7 it by applying to a single judge sitting in open court… 8 9 10
These provisions are identical to the comparable portions of 11 Order 53 in the United Kingdom, with the sole exception that a 12 renewed application for leave in that jurisdiction may go to a 13 Divisional Court. Thus, it can safely be said that the practice in 14 the Cayman Islands mirrors that in the United Kingdom. 15 16
The initial application for leave must be made ex parte. A 17 decision will normally be made on the papers, although the 18 presiding judge may call upon the applicant to make oral 19 argument. 20 21
The test to be applied upon a leave application is whether the 22 judge is “satisfied that there is a case fit for further investigation 23 at a full inter partes hearing of a substantial application for 24 judicial review”: Supreme Court Practice, 1999, volume 1, 25 paragraph 53/14/55. The editors of the White Book go on to 26 Ruling – Richard Robert Hurlston v. Cayman Islands Summary Court Cause No. G236 of 2010 15.07.10 observe that “if, on considering the papers, the judge cannot tell 1 whether there is, or is not, an arguable case, he should invite the 2 putative respondent to attend the hearing of the leave 3 application and make representations on the question whether 4 leave should be granted”; in support, the decision of the Court 5 of Appeal in R. v. Secretary of State for the Home Department 6 [1990] C.O.D. 107 is cited. An alternative order which leads to 7 the same result is to refuse the initial application and direct (as 8 the Court has power to do) that the renewed application must be 9 made inter partes: see Supreme Court Practice, op. cit., 10 paragraphs 53/14/2 and 53/14/3. 11 12
The Crown alleges that Mr. Hurlston was engaged in an 13 unlawful common enterprise and, as a consequence, the acts and 14 declarations of the other persons (whether indicted or not) who 15 participated in that enterprise are admissible against him. It 16 says that the evidence is admissible although the indictment 17 against Mr. Hurlston charges only substantive offences and does 18 not allege a conspiracy. 19 20
The Crown relies particularly upon the evidence of two 21 witnesses – Mssrs. Wright and Mullings – to show that Mr. 22 Ruling – Richard Robert Hurlston v. Cayman Islands Summary Court Cause No. G236 of 2010 15.07.10 Hurlston was a part of the unlawful common purpose. If he 1 was, then an exception to the rule against hearsay permits 2 evidence of the acts and declarations of the other participants in 3 furtherance of the unlawful common purpose to be adduced 4 against Mr. Hurlston as proof of his guilt. 5 6
The argument advanced by Mr. Hurlston is that there was no, or 7 alternatively insufficient, evidence before the Learned 8 Magistrate from which she could infer that he had participated 9 willingly in the abduction plan. That being so, Mr. Hurlston 10 says the evidence of Mssrs. Wright and Mullings was not 11 admissible and, as a consequence, there was insufficient 12 evidence to justify a committal for trial in the Grand Court. As 13 is customary at a preliminary enquiry, the Learned Magistrate 14 gave no reasons for her decision. 15 16
In support of his position, Mr. Hurlston has filed a twenty page 17 written argument (entitled “Grounds On Which Relief Is 18 Sought” which contains a detailed review of the evidence at the 19 preliminary enquiry. No transcript is available; Mr. Hurlston’s 20 review is based upon Counsel’s notes taken at the hearing. 21 22 Ruling – Richard Robert Hurlston v. Cayman Islands Summary Court Cause No. G236 of 2010 15.07.10
In these circumstances, the Court will naturally wish to hear 1 from Crown counsel before coming to a considered decision on 2 the merits of the application. Granting leave to proceed with a 3 judicial review of a Magistrate’s decision regarding committal 4 for trial where the argument rests heavily upon Counsel’s notes 5 of the evidence, without hearing from opposing counsel, is not 6 conducive to the orderly administration of justice. 7 8
For these reasons, the ex parte application for leave is dismissed 9 but the Applicant is at liberty to renew the application in open 10 court on an inter partes basis. 11 12 Dated this 15th day of July, 2010 13 14 15 Henderson, J. 16 Judge of the Grand Court 17