Boodram v the State
| Jurisdiction | Trinidad & Tobago |
| Judge | St. Clair-Douglas J. |
| Judgment Date | 14 April 2015 |
| Neutral Citation | TT 2015 HC 133 |
| Court | High Court (Trinidad and Tobago) |
| Date | 14 April 2015 |
High Court
St. Clair-Douglas, J.
Ms. Maria Lyons for the State.
Mr. Criston J. Williams for the applicant.
Statute - Interpretation — Possession of cannabis for purpose of trafficking — Bail — Whether a person who had been convicted summarily of a drug trafficking offence was to be regarded as having been convicted of “an offence under the Dangerous Drugs Act which was punishable by imprisonment for a term of ten years or more” as set out in the First Schedule to the Bail Act — Rules of Statutory Interpretation — Whether the Bail Act or the amendment could be properly considered as penal statutes where the acts were merely regulating the entitlement to bail — Applicant entitled to be admitted to bail-Finding that the Bail Amendment Act was penal in nature.
St. Clair-Douglas J. The applicant, Marlon Boodram, having appeared at the Magistrates' Court at Port of Spain in November 2014 and having been refused bail, applied to the High Court to be admitted to bail. He was charged with Possession of cannabis for the Purpose of Trafficking, contrary to s 5(5) of the Dangerous Drugs Act, Chap 11.25.
Counsel for the prosecution resisted the application when it came before the High Court on January 16, 2015, submitting that the applicant was not entitled to be admitted to bail. The prosecution's contention was founded on the recent amendments to the Bail Act, Ch 4:60. In brief summary, counsel contended that the applicant was caught by s 5(8) of the Bail Act, which prohibits a court from granting bail to a person who has been convicted of a scheduled offence and who is charged with a further scheduled offence within 10 years of completion of the sentence for the first schedUled offence.
It is useful, if only for the purpose of analysis, to set out subsection (8) to section 5 of the Bail Act:
The Bail (Amendment) Act, 2014 established a Schedule of Specified Offences in respect of which the grant of bail became subject to the amended provisions of the Bail Act. The offence that was relevant to the applicant is set out at paragraph (g) of the Specified Offences in the First Schedule to the Bail Act:
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“(8) Notwithstanding subsection (2) and subject to subsection (9), a Court shall not grant bail to any person who—
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(a) was, before, on or after the commencement of the Bail (Amendment) Act, 2014, convicted for an offence listed in Part II of the First Schedule; and
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(b) is, on or after the commencement of the Bail (Amendment) Act, 2014, charged with an offence listed in Part II of the First Schedule within ten years after the completion of the sentence including the payment of any fine imposed, if any, in respect of the conviction referred to in paragraph (a).” (emphasis added)
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(g) an offence under the Dangerous Drugs Act which is punishable by imprisonment for a term of ten years or more;
As stated previously, the instant application was made because the Magistrate had refused to admit the applicant to bail on a charge of possession of cannabis for the purpose of trafficking, contrary to s 5(5) of the Dangerous Drugs Act. On the instant application the applicant's counsel informed the court that the provisions of s 5(8) of the Bail Act had been brought to the Magistrate's attention and the refusal of bail had been based on the fact of the applicant's previous conviction in 2012 for possession of dangerous drugs (cocaine) for the purpose of trafficking. Despite the earlier conviction, counsel appearing for the applicant contended that he was not caught by s 5(8) of the Bail Act.
The applicant's earlier conviction had been at the Chaguanas Magistrates' Court. Counsel informed the court that he had pleaded guilty. The record of conviction shows that he was fined 10,500.00, with an alternative term of imprisonment of 16 months on failure to pay the fine.
The offence of possession of a dangerous drug for the purpose of trafficking is established by s 5(5) of the Dangerous Drugs Act, Ch 11:25, which provides a penalty after conviction on indictment. Section 5(5) does not, however, provide a penalty on summary conviction of the offence. The penalty on summary conviction of possession of a dangerous drug for the purpose of trafficking is set out in s 5(7B) of the Dangerous Drugs Act.
Section 5(7A) of the Dangerous Drugs Act gives the Director of Public Prosecutions the power to elect for a summary trial where a person is charged with a drug trafficking offence. If the accused consents to be tried summarily, the trial will proceed at the Magistrates' Court. By s 5(7B), a person convicted of an offence pursuant to ss (7A) is liable to a fine of 25,000.00 and to imprisonment for 5 years.
In the instant case, the issue of the applicant's entitlement to bail does not, in my view, arise out of the fact of his conviction alone. Given the circumstances of his previous conviction, the issue of the applicant's entitlement to bail became coterminous with the issue whether a person who has been convicted summarily of a drug trafficking offence is to be regarded as having been convicted of “an offence under the Dangerous Drugs Act which is punishable by imprisonment for a term of ten years or more” as set out in the First Schedule to the Bail Act.
When the Director of Public Prosecutions invokes his power under s 5(7A) and elects to proceed with the summary trial of a person charged with a drug trafficking offence, the maximum penalty which can be imposed upon conviction is 5 years. What should be the approach to an application for bail by a person who has been summarily convicted of a drug trafficking offence and is currently charged with the same offence? Was that summary conviction a conviction of an offence punishable by imprisonment for a term of ten years or more? How are the relevant provisions of the Bail Act to be interpreted?
On the issue of statutory interpretation, the search for the plain or literal meaning of the statutory provision is usually stated to be the first approach. Maxwell expresses it as one of the general principles of interpretation:
The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical...
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