Jamal Mohammed Khan v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Nalini Singh
• Judgment Date: 13 December 2024
• Neutral Citation: TT 2024 HC 316
• Docket Number: CR-HC-BAIL-715-2022-1
• Court: High Court (Trinidad and Tobago)

In the Matter of the Bail Act Chap. 4:60 As Amended

Jamal Mohammed Khan

and

The State

Before

THE HONOURABLE Madame Justice Nalini Singh

CR-HC-BAIL-715-2022-1

IN THE HIGH COURT OF JUSTICE

CRIMINAL DIVISION

PORT OF SPAIN

REPRESENTATION:

Mr. Wayne Sturge, Ms. Danielle Rampersad and Mr. Enrique Singh appeared for the Applicant.

Ms. Norma Peters, Mr. Keston Abraham and Mr. Teriq Smith appeared for the Respondent.

RULING ON BAIL APPLICATION

Factual Background

1 On 31 ^st of March 2016, the applicant Jamal Mohammed Khan was received into custody after being charged with the murder of Andre McLeod.

2 On the 5 ^th of September 2024, counsel for the applicant, Mr. Wayne Sturge, filed submissions asking the Court to grant his client bail based on a material change in circumstances after the initial application was refused.

3 The Applicant was initially denied bail by this Court in January 2023 after the State objected, alleging that there was a substantial belief that if released, he would interfere with witnesses. To support this position, the State relied on witness statements and the fact that section 15C(1)(f) Evidence Act Chap. 7:02 applications had to be made for these witnesses at the preliminary inquiry. However, it was later discovered that the Committing Magistrate had ruled against the section 15C applications. This fact, which the State failed to disclose during the January 2023 bail hearing, is argued by the Applicant to be material and significant. Consequently, a renewed application for bail was filed on behalf of the Applicant. The matter came before this Court in July 2024 and was adjourned to September 2024.

4 When the matter came before the Court in September 2024, the State objected to the hearing of the application on the basis that the recent amendments to the Bail Act precluded the hearing of any application and the granting of bail unless it could be shown by section 5(2)(a) as amended by the Bail (Amendment) Act 2024 (hereinafter referred to as “the Bail Act as amended”) that there exists exceptional circumstances to justify the grant of bail. The Applicant challenged this interpretation by relying on the plain wording of subsections 5(2)(a), (3), (4), (5), and (8) of the Bail Act as amended.

The Arguments of the Applicant

5 The Applicant asserts that subsections 5(2)(a), (3), (4), (5), and (8) of the Bail Act as amended must be read together, as subsection 5(2)(a) of the Bail Act as amended expressly states that it is to be interpreted “subject to” the provisions of subsections (3), (4), (5), and (8) of the Bail Act as amended. The Applicant argues that subsections (3) and (4) of the Bail Act asamended, which specifically require exceptional circumstances to justify bail, do not apply to charges of murder.Subsection (5) of the Bail Act as amended, on the other hand, introduces two distinct conditions for considering bail. These conditions are: if 180 days have passed since the charge was laid and no evidence has been taken, or if evidence has been taken, but the trial has not been completed within one year. Nowhere in subsection (5) of the Bail Act as amended is there a requirement to show exceptional circumstances. The omission of such a requirement, the Applicant argues, is deliberate and intentional. This position is supported by the legal maxim expressio unius est exclusio alterius, which means that what is expressed excludes what is unspoken. The fact that exceptional circumstances are explicitly required in subsections (3) and (4) of the Bail Act as amended but omitted from subsection (5) of the Bail Act as amended suggests that no such burden exists under the latter.

6 Another plank of the Applicant's argument rests on Woolmington v. DPP[1935] AC 462 which was cited to reinforce the principle that a citizen charged with a criminal offence can only bear a legal burden where the statute expressly states so. The Applicant submits that since no such burden exists under subsection (5) of the Bail Act as amended, he is entitled as of right to make an application for bail.

7 The Applicant also addressed the issue of a change of circumstances, contending that the passage of the Bail (Amendment) Act 2024 itself creates a statutory basis for re-application.Subsection (5) of the Bail Act as amended introduced specific time-based entitlements to apply for bail, which arise where the trial is delayed beyond the stipulated timeframe. The Applicant argued that this statutory delay constitutes a legitimate change of circumstances that justifies the renewed bail application. Moreover, implicit in the wording of subsection (5) of the Bail Act as amended is a legitimate expectation that an accused person will be tried within the specified time limits. Failure to meet these statutory timeframes, the Applicant contends, amounts to a change of circumstances by operation of law.

8 Further, the Applicant highlighted the procedural unfairness arising from the State's reliance on a failed section 15C application. While the State had referenced the outcome of the section 15C application in its written arguments, it did not raise this point during oral submissions at the initial bail hearing. The Applicant argues that the failure to disclose the Committing Magistrate's ruling at the time of the initial application amounts to material non-disclosure. It is further submitted that the witnesses who were the subject of the section 15C application came forward, testified, and remained at large without further complaint. This, it was argued, undermines the State's objection to bail and raises questions about the validity of its claims of interference. Finally, the Applicant asserted that allowing the State to rely on a failed section 15C application at this stage constitutes an abuse of process.

9 I understand the argument to be, ultimately, that the State's failure to disclose material facts, combined with the statutory delays outlined in subsection (5) of the Bail Act as amended, provides a strong basis for applying for bail.

The Arguments of the State

10 The State disputed the Applicant's interpretation of section 5(5) of the Bail Act as amended and argued that section 5(5) of the Bail Act as amended establishes the conditions under which an accused may apply for bail, but it does not dispense with the requirement to demonstrate exceptional circumstances under section 5(2)(a) of the Bail Act as amended.

11 Further, the term “subject to” in section 5(2) of the Bail Act as amended means that the Applicant must satisfy the additional condition of exceptional circumstances even after meeting the threshold in section 5(5) of the Bail Act as amended. According to the State, section 5(8) of the Bail Act as amended further reinforces this by placing the burden of proof on the Applicant to show exceptional circumstances on a balance of probabilities.

12 The State relied on case law, such as R v. Price[1964] 2 QB 76, to argue that the word “may” in section 5(5) of the Bail Act as amended, signifies a right to apply for bail, but it does not automatically entitle the Applicant to bail. Instead, the Court must consider whether exceptional circumstances exist before exercising its discretion to grant bail.

13 Additionally, the State rejected the Applicant's submission that the passage of time — specifically the 180-day or the one-year period, constituted a change in circumstances sufficient to justify reconsideration of bail. The State maintains that a change in circumstances must have a material impact on the factors originally considered by the Court when bail was refused. The mere expiration of time does not alter the risks previously identified, such as the likelihood of interference with witnesses. The State relied on the bail application in the matter of Steve Ferguson and Ishwar Galbaransingh v. The Attorney General dated 22nd of December 2010, where it was held that a change in circumstances must relate directly to the issue of bail and not arise merely from the effluxion of time. The point raised by the State is that the original denial of bail was based on credible evidence that there were substantial reasons for believing that the Applicant if released on bail would interfere with witnesses. This concern remains valid and has not been negated by the passage of time.

14 The State emphasized that the Bail Amendment Act sought to strike a balance between the constitutional right to liberty and the need to safeguard public safety, particularly in cases involving serious offences like murder. During Parliamentary debates, the Attorney General highlighted concerns about repeat offenders and the need for stricter guidelines to ensure that bail decisions serve the public interest. The amendment, therefore, codifies a reversal of the burden of proof, requiring accused persons to demonstrate exceptional circumstances to justify bail. The State argues that this approach aligns with similar provisions in other jurisdictions and is necessary to address the growing prevalence of violent crime. The State then cited decisions of coequal jurisdiction, including In the Bail Application of Chikezie Jordan CR-HC-POS—BAIL—2024-266-1 and In the Bail Application of Ramesh Victor Marcano CR-HC-SDO-2024-501-1, where the courts held that the 180-day or the one-year threshold in section 5(5) of the Bail Act as amended allows an accused person to apply for bail, but it does not absolve them of the burden to show exceptional circumstances. Further, the amendments have removed the presumption in favour of bail for persons charged with murder and have imposed an enhanced burden on such applicants. These decisions, while not binding, are presented as persuasive authority supporting the State's position.

15 In summary, therefore, the State submits that under the Bail (Amendment) Act 2024 the expiration of the 180-day or the one year period under section 5(5)...