Jevon Atiba Sylvester v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Justice Lisa Ramsumair-Hinds |
| Judgment Date | 19 September 2022 |
| Neutral Citation | TT 2022 HC 212 |
| Docket Number | CR-HC-SDO-IND-53-2022-1 |
| Court | High Court (Trinidad and Tobago) |
| Year | 2022 |
IN THE MATTER OF THE BAIL ACT, CHAP 4:60
Before The Honourable Justice Lisa Ramsumair-Hinds
CR-HC-SDO-IND-53-2022-1
IN THE HIGH COURT OF JUSTICE
Mr Dane Halls for the Applicant
Ms Danielle Thompson for the State
By an application filed on 01 April 2022, the Applicant urges me to exercise my discretion and admit him to bail.
The Applicant has been accused of the murder of Dominic Bernard on 15 June 2014. He has been on remand since that very date, some 8 years ago.
It is now accepted that this Court has an unfettered discretion to grant bail to persons charged with the offence of murder 1.
The starting point remains the oft-quoted opinion of the Privy Council delivered by Lord Bingham of Cornhill in Hurnam v The State 2:
“… the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions pending his trial. Such decisions often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried will inevitably prejudice him and in many cases his livelihood and his family. But the community has a countervailing interest in seeking to ensure that the course of
justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence and that he does not take advantage of the inevitable delay before trial to commit further offences”.
The plain fact remains that of the possible criminal charges that the State may prefer against someone, murder is inarguably the most serious. Bail applications in such matters require careful preparation by the police, as well as Counsel for both the Applicant and the State. A meticulous approach is required of the Court and needless to say, the approach might involve more time than is consumed in respect of bail applications involving charges other than murder 3. At paragraph 85 of the judgment in Sharman Rosemond v PC Charles and Ors 4, Edwards J had this to say, with which statement there can be no demur:
“The discretion of the Court to grant bail in murder cases must be exercised responsibly. This is a very serious crime and it is in the public interest that a person alleged to have committed such a crime and whose guilt may be proved should be available to stand trial …”
Even so, and regardless of the charge, every single bail application ought to be subject to an exacting process, as the decided cases 5 suggest that fresh applications ought not to be made unless some new consideration can be placed before the Court demonstrating a material change in the relevant circumstances.
Section 6 (2) of the Bail Act, Chap 4:60 (as amended) provides the circumstances that the Court must consider, within its discretion, to deny bail. These grounds for refusal to release on bail are enumerated from (a) to (g) and include:
a) where the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail would:
i. fail to surrender to custody;
ii. commit an offence while on bail; or
iii. interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person
Section 6(3) of the Bail Act provides the factors, which the Court may consider in the exercise of its discretion to grant bail where the offence or one of the offences of the Accused is punishable with imprisonment 6. These include:
These are not grounds in themselves, but are considerations to be weighed in the balance.
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a) the nature and seriousness of the offence or default and the probable method of dealing with the defendant for it;
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b) the character, antecedents, associations and social ties of the defendant;
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c) the defendant's record with respect to the fulfilment of his obligations under previous grants of bail in criminal proceedings;
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d) the strength of the evidence of his having committed the offence or having failed to surrender to custody; and
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e) any other factor which appears to be relevant.
The language of the legislation (when read with the Constitution) underscores the contemporary position that liberty is the normative position and detention has to be justified by those who would deny a person their human right. It is not for the person charged to justify why they should be set free. The Court begins therefore with the high constitutional norm of liberty and therefore will lean in the favour of granting bail (the restoration of the constitutional norm).
The next step involves an assessment of whether any of the grounds noted in section 6 of the Bail Act for denying bail arise. Even where one or more of the section 6 (2) (a) grounds arise, the court must assess whether they are substantial. As it relates to the section 6 (2) (a) grounds, the inclusion of the particular qualifying adjective suggests that the legislature expects that the grounds must be, not only rationale, but weighty 7.
As to the standard of proof, the Court need not be satisfied that the consequences will in fact occur in the event that bail is granted, nor even be satisfied that those consequences are more than likely not to occur. Regarding the section 6 2 (a) to (c) grounds, it is the existence of the substantial belief, not the belief itself which is the crucial factor 8. The burden is on those opposing the grant of bail to show why bail should be denied.
But, that is not the end. Even where the court finds that grounds arise, such as to justify a refusal of bail, the court is under an obligation to assess the risks and to manage them, where possible, by the imposition of appropriate conditions 9. In Maloupe v District of Grand Port 10, the court noted that:
“The rationale of the law at pre-trial stage is that a person should normally be released on bail if the imposition of conditions reduces the risks … (of absconding, risk to the administration of justice, risk to society) to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance.”
Therefore, the final step in the bail consideration process (where substantial grounds arise) involves an assessment of whether the risks can be mitigated or managed by the attachment of conditions and stipulations. As Brooks JA put it in the Jamaican Court of Appeal ruling in Huey Gowdie v R:
“The section does not stipulate that if an undesirable situation does exist or has a potential of occurring, that bail must be denied; the word used is “may”. It would seem that the section contemplates that bail may still be granted if conditions can be imposed which would prevent the occurrence of such a situation or at least minimise an unwelcome impact of such a situation.”
The language of our Bail Act makes it quite clear that even where substantial grounds exist, the decision to deny bail is discretionary.
Even as I consider sections 6 (2) (a) and 6 (3) (a) of the Bail Act, I note the position since 1852 in Ettiene Barronet and Edmund Allain 11, where in expressing his reasons for refusing bail, Coleridge J noted:
“I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him, so as to make it proper that he should be tried, and because the detention is necessary to insure his appearance at the trial. The guilt of the party charged is not the direct ground on which he is detained in custody; and that the strength of the evidence of guilt, even when it amounts to a confession, is not conclusive as to the propriety of bailing. But it is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point, three elements will generally be found to be the most import: The charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted.”
Objectively considered, there is an undoubted correlation between the gravity of the offence charged and the temptation to abscond. The more serious the offence, the longer the sentence is likely to be and therefore
the greater the incentive to avoid attending court. This matter becomes even graver when one acknowledges that, unlike many of the jurisdictions from which we consider precedent, even if only persuasively, the offence of murder in this jurisdiction has no categories of degree and the penalty of death by hanging automatically attaches 12The DPP has suggested that the nature and seriousness of the charge and the ‘telling’ nature of the penalty are significant factors as it relates to an assessment of the likelihood of the Applicant to abscond. There is a very recent decision from the Court of Appeal of the Bahamas, delivered on 22 January 2022, which captures the law on this point quite succinctly. In Tyreke Mallory and the DPP 13, under the heading “Likely to Abscond/Nature and Seriousness of the Offence/Nature and Seriousness of the Evidence”, the Court had this to say:
“Seriousness of an offence is not a free-standing ground for the refusal of a bail application, but it is a consideration in determining whether the Accused is likely to appear for his trial … the Accused was charged for murder, which carries a serious penalty. It is for this very reason that it is not...
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