Burke (Chief Personnel Officer) v Sam

• Jurisdiction: St Vincent and the Grenadines
• Judge: Baptiste JA
• Judgment Date: 15 September 2015
• Neutral Citation: VC 2015 CA 2
• Docket Number: SVGHCVAP 2014/0002
• Court: Court of Appeal (Saint Vincent)
• Date: 15 September 2015

Court of Appeal

Baptiste, J.A.; Michel, J.A.; Webster J.A. (Ag.)

SVGHCVAP 2014/0002

Burke (Chief Personnel Officer)

and

Sam

Appearances:

Mr. Grahame Bollers for the appellant

Mr. Jomo Thomas for the respondent

Civil practice and procedure - Appeal against findings of fact — Whether it was open to the trial judge to disbelieve the uncontroverted evidence of the Chief Personnel Officer that the decision was made by the Public Service Commission, when the bases upon which he was to be disbelieved were not put to him — Opportunity to explain — Irrelevant considerations — Irrelevant considerations into account in coming to her findings of fact — Whether the rule in Browne v Dunn, (1893) 6 R. 67 at 70—71 was applicable where this was a challenge of a judge's fact finding rather than the actions of counsel in cross examination — Whether the judge's findings could be successfully impugned where there was an absence of documentary evidence — Judge's decision found to be reasonable and justifiable — Appeal is dismissed.

The respondent, Mr. Otto contended by way of judicial review proceedings that he was transferred by letter written by the appellant, the Chief Personnel Officer of the Government of St. Vincent and the Grenadines from the post of Head Teacher to the National Emergency Management Organization (NEMO). The Chief Personnel Officer testified that the decision to transfer Mr. Sam was made by the Public Service Commission (“PSC”) and that he wrote the letter on the instructions of the PSC. In his affidavit evidence, he had stated that the letter was written at the instance of the Permanent Secretary in the Ministry of Education who had advised that the Permanent Secretary in the Ministry of National Security had requested someone to be temporarily assigned to NEMO. Gertel Thom J held that a public officer could be appointed or designated to NEMO but that that had to be done by the PSC. The learned judge also stated that she did not believe the Chief Personnel Officer's testimony that the decision to transfer Mr. Sam had been made by the PSC and held that based on the evidence before her, it was not done by the PSC and was therefore unlawful. The learned judge therefore ordered that the decision of the Chief Personnel Officer to transfer Mr. Sam was illegal and irrational.

The Chief Personnel Officer being dissatisfied with the decision of the learned judge appealed. The main grounds of appeal advanced were that the learned judge erred in making adverse findings that the appellant was not speaking the truth buttressed by the fact that no minutes of the meetings of the PSC reflecting that the decision was made to transfer Mr. Sam were exhibited. The question on appeal was whether it was open to the trial judge to disbelieve the uncontroverted evidence of the Chief Personnel Officer that the decision was made by the Public Service Commission, when the bases upon which he was to be disbelieved were not put to him. The appellant contended that the Chief Personnel Officer's evidence was not subject to cross-examination nor was it disputed by the respondent and in such circumstances, it was not open to the trial judge to reject evidence.

Held: dismissing the appeal and awarding costs to the respondent in the sum of $2,500.00 that:

• 1. The rule in Brown v Dunn that if a party proposes to invite a jury to disbelieve the evidence of a witness, this should be made clear to the witness so that he has the opportunity to offer an explanation which he may have for what he says and to show if he can that his evidence is reliable is inapplicable in this case. The rule in Browne v Dunn is speaking to the actions of counsel in cross-examination as opposed to the judge in his fact-finding role.

Browne v. Dunn (1894) 6 R 67 at 70-71 (HL) distinguished;

• 2. Where a finding turns on the judge's assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence, which is not available to an appellate court. It is therefore rare for an appellate court to overturn a judge's finding as to a person's credibility. Where any finding involves an evaluation of facts, an appellate court must take into account that the judge has reached a multi-factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined, for instance, by challenging the weight the judge has given to elements in the evaluation unless it is shown that the judge was clearly wrong and reached a conclusion which on the evidence he was not entitled to reach. In other cases, where the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court must in general make up its own mind as to the correctness of the judge's finding.

Langsam v. Beachcroft LLP [2012] EWCA Civ 1230 applied; Watt (Thomas) v. Thomas [1947] AC 484 applied.

• 3. In the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.

Henderson v. Foxworth Investment Limited [2013] UKPC 41 considered.

• 4. A public authority impleaded as a respondent in judicial review proceedings owes a duty of candour to disclose materials which are reasonably required for the court to arrive at an accurate decision and this duty applies throughout the proceedings. The learned judge in this case was deeply concerned about the absence of documentary evidence to support the Chief Personnel Officer's evidence that he was instructed to write the letter to Mr. Sam by the Public Service Commission. The learned judge's criticisms and observations about the fact that the letter did not state that approval was given by the Public Service Commission were well-founded.

R v. Lancashire County Council ex p Huddleston [1986] 2 All ER 941 applied. Guidance on Discharging the Duty of Candour in Judicial Review Proceedings, Treasury Solicitor's Department of England, January 2010 considered.

• 5. It was within the competence of the learned judge to make adverse findings against the Chief Personnel Officer, given the circumstances of the case. Where as in this case there was a clear conflict of evidence between the Chief Personnel Officer and Mr. Sam regarding who had actually made the impugned decision, reference to the objective facts and documents, to witnesses' motives and to the overall probabilities can be of very great assistance to the judge in ascertaining the truth. The learned judge tested the Chief Personnel Officer's evidence against all the other material available to her and in her fact-finding task, was understandably swayed by and attached much weight to the absence of contemporary documentation to confirm his oral evidence. The learned judge was entitled to and was correct to test the appellant's evidence by reference to both the contemporary documentary evidence and its absence.

The Ocean Frost [1985] 1 Lloyd's L.R. 1 applied; Wetton v. Ahmed and Others [2011] ECWA Civ. 61 applied.

• 6. Although cases are decided on evidence, the Court is entitled to draw adverse inferences from the unexplained absence of evidence from witnesses, or in the form of documents, which it would be reasonable to expect would be before the Court. The learned judge was therefore entitled to draw adverse inferences from the Chief Personnel Officer's failure to produce documentary evidence in support of his oral evidence that he acted on the instructions of the Public Service Commission.

Wisniewski v. Manchester Central Health Authority (“The Wisniewski principle”) [1998] ECWA Civ. 596 applied; Western Trading Ltd. V. Great Lakes Reinsurance (UK) PLC [2015] EWHC 103 QB applied.

Baptiste JA

1 This appeal comes by way of judicial review proceedings in which the respondent, Mr. Sam, contended that he was transferred by letter written by the appellant, the Chief Personnel Officer of the Government of St. Vincent and the Grenadines, from the post of Head Teacher to the National Emergency Management Organisation (NEMO). The Chief Personnel Officer, who penned the letter, testified that the decision was made by the Public Service Commission and that he wrote the letter on the instructions of the Public Service Commission, as that was his administrative role. Gertel Thom J. stated that a public officer could be appointed or designated to NEMO but it must be made by the Public Service Commission. The learned judge further stated that she did not believe the Chief Personnel Officer's testimony that the decision was made by the Public Service Commission and accordingly held that, based on the evidence, it was not done by the Public Service Commission and was therefore unlawful. The learned judge also found that “no sensible person who considered the task to be performed at NEMO would remove a qualified and experienced Head Teacher and assign him to perform such tasks for an indefinite period. I therefore find that the decision was irrational.” The learned judge made an order that the decision of the Chief Personnel Officer in the letter dated 17th August 2010 is illegal and irrational.

2 The Chief Personnel Officer has advanced several grounds of appeal against the decision and challenged important findings of fact. Mr. Bollers, counsel for the Chief Personnel Officer, contends that the learned judge erred in making adverse findings that he was not speaking the truth and buttressed her findings by the fact that no minutes of any...