Prosecutors are seeking to appeal a Supreme Court decision to halt charges against two police officers accused of sexual offences against a colleague.

Puisne Judge Juan Wolffe stayed proceedings before the two defendants were arraigned in the Supreme Court but the Director of Public Prosecutions called on the Court of Appeal to overturn the decision.

However, counsel for the defendants argued that the DPP could not bring the matter to the Court of Appeal because the matter was halted before they were asked to enter a plea.

The three officers involved in the case cannot be identified for legal reasons.

Adley Duncan, for the Crown, argued that the DPP had a general right to appeal decisions in addition to options specified in the Court of Appeal Act.

He said that in addition to Section 17 of the Act, which sets out the right to appeal, Section 16 stated that “any person aggrieved by a judgment of the Supreme Court in any criminal proceeding” can appeal to the Court of Appeal in criminal cases.

While Mr Duncan said that the present interpretation of Section 17 prohibited the DPP from bringing cases to the Court of Appeal when a trial had not formally begun, he argued that the DPP could do so under Section 16.

He said that otherwise the courts would not have ways to challenge judges who had thrown out cases before indictment based on errors or even corruption.

“If that application is made before arraignment and a judge, being a human being, makes an error and rules, that is the end of the matter,” he said.

Mr Duncan said that while defendants could apply to have their cases quashed before they are indicted on the basis of a lack of evidence or an abuse of process, the DPP should be able to appeal the decision.

“It must have been codified that the DPP would have the right to ask the court to scrutinise the decision,” he said.

He added: “In this case, we say the judge made a clear error.”

However, Jerome Lynch, KC, counsel for the accused officers, said the DPP could not take their complaint to the Court of Appeal because the trial had not legally begun.

He argued that the legislation did not include a general right for aggrieved parties to appeal decisions and such an interpretation could open the doors for appeals on matters of fact in addition to matters of law.

“It simply cannot be the case that it was intended that the section extend that far,” Mr Lynch said.

He said the interpretation of Section 16 suggested by the DPP would render Section 17 irrelevant.

“If it had been the intention of Parliament to grant a more general right of appeal, surely they would have had something in the Act itself to grant the court the right to dispose of it,” he said.

Mr Lynch said that the DPP could submit a voluntary bill of indictment with new information or different charges to address concerns of the Supreme Court with the original filings.

The complainant, a male police officer, had alleged that he was invited to play cards with two other male officers at one of their homes in April 2019.

He claimed the game turned into strip poker and consensual sexual activity.

But he alleged the situation escalated and the two officers “tried to rape him” as he rebuffed their advances.

He remained at the house afterwards as the other two officers engaged in sexual activity before one of them drove him home.

No complaint was made about the incident until November 2019, about seven months after the alleged event, when another officer reported the matter.

Charges against the defendants were approved in 2020. However, Larry Mussenden, then the Director of Public Prosecutions, determined that the case should not go forward.

The complainant himself launched a judicial review of the decision but it was upheld by Chief Justice Narinder Hargun.

Mr Mussenden was replaced as DPP later that year by Cindy Clarke, who approved charges against the two men in January 2021.

The defendants appeared in Supreme Court later that year but called on the courts to stay the prosecution on the basis of an abuse of process.

Mr Justice Wolffe found that the defendants had been disadvantaged by the decision to prosecute them after they had received assurances by the former DPP that they would not be charged.

“Seven months is not an insignificant amount of time and so it is understandable that during that period the defendants would have likely steered their thoughts and efforts away from the prospects of facing a trial,” the judge said.

“This would have likely involved the discarding of both mental and physical evidence which may have existed at the time or by not pursuing the acquisition of evidence which might have assisted them in their defence.”

He said the prosecution of the defendants should have been halted after the ruling of the Chief Justice unless the DPP’s office received new and relevant information pointing to the commission of the offence.

In the circumstances, Mr Justice Wolffe found the proceedings should be stayed to protect the integrity of the criminal justice system.

A decision in the matter will be delivered at a later date.

• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers