DPP v Kevin Adams

• Jurisdiction: Jamaica
• Judge: Mangatal JA (Ag)
• Judgment Date: 31 July 2014
• Neutral Citation: JM 2014 CA 76
• Docket Number: BAIL APPEAL NO 2/2014
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2014

[2014] JMCA Crim 38

JAMAICA IN THE COURT OF APPEAL

BAIL APPEAL NO 2/2014

Between

The Director of Public Prosecutions

Appellant

and

Kevin Adams

Respondent

Richard Small , Mrs Ann-Marie Feurtado-Richards and Miss Yanique Gardener for the Director of Public Prosecutions

Mrs Valerie Neita-Robertson , Oshane Cousins and Andrew Wildes for the respondent

CRIMINAL LAW - Bail appeal - Allegation of murder - Right of appeal granted to the prosecution - Bail Act, s. 10(2)

IN CHAMBERS

Mangatal JA (Ag)

1 This is a bail appeal filed by the Director of Public Prosecutions (“the DPP”) in relation to the decision of Her Honour Miss Maxine Ellis, Resident Magistrate for the Corporate Area, holden at Half Way Tree, in the parish of Saint Andrew. On 30 June 2014, the learned Resident Magistrate granted bail to the respondent Kevin Adams (“Mr Adams”) in respect of four murder matters, in relation to Adiff Washington, Sylvester Gallimore, Anthony Trout and Andrew Bisson, in respect of which Mr Adams was charged. The terms and conditions of the order made in relation to bail were as follows:

• ‘1. Five Million Dollars bail with one or two sureties.

• 2. To report to the Area III Headquarters in Mandeville on Mondays and Fridays between the hours of 6:00 a.m. and 6:00 p.m.

• 3. Stop order at airport and other ports of entry and departure.

• 4. Surrender travel documents.

• 5. Curfew order between 8:00 p.m. and 6:00 a.m. daily.’

2 On 10 July 2014, after considering arguments advanced over several days by the Crown and on behalf of the respondent, I made the following orders:

• ‘1. The appeal is allowed.

• 2. The decision/order of Her Honour Miss M. Ellis made on the 30 ^th June 2014, granting bail to the respondent Kevin Adams in respect of the four murder matters of Adiff Washington, Sylvester Gallimore, Anthony Trought, and Andrew Bisson, is set aside.

• 3. The respondent is remanded in custody.’

I had promised that my written reasons would follow at the earliest possible time. These are my reasons for having allowed the appeal. I have produced them urgently because of the nature of the matter and because the end of this court term is upon us. However, numerous submissions were made to me and I regret that I have not had more time to condense and streamline my discussion of them here. Thus, I apologize in advance for the length of this judgment.

3 Section 10(2) of the Bail Act (“the Act”) provides for the prosecution to have a right of appeal to a judge of the Court of Appeal in chambers in respect of a decision of a Resident Magistrate or a Supreme Court judge granting bail to a defendant. Neither I nor counsel for either side were able to find any written decisions from this court in relation to the prosecution's right of appeal since this right was first introduced into law in 2010. I trust that it may therefore prove useful to state the law and principles relevant to this area of the law, and their application to the circumstances of this case. This lack of written precedent is somewhat similar to the circumstances that obtained when Brooks JA delivered his decision in Huey Gowdie v R [2012] JMCA Crim 56. In that decision, Brooks JA provided admirable guidance. Brooks JA specifically addressed appeals from a Supreme Court judge or a Resident Magistrate's refusal of bail as the matter which came before him involved a refusal of bail.

4 As I did at the hearing when I handed down my decision, I wish to commend counsel on both sides for their invaluable assistance. They have obviously conducted wide-ranging research and have provided comprehensive and thoughtful submissions.

5 Section 3(1) of the Act provides that subject to the provisions of the Act, every person who is charged with an offence shall be entitled to be granted bail. However, section 3(4A) states that bail shall be granted to a defendant in relation to an offence specified in the Second Schedule, ‘only if the defendant satisfies the Court that bail should be granted’. It is interesting to note that section 3(4A) was added to the Act in 2010, at the same time as the prosecution's right to appeal set out in section 10(2), was added to the statutory provisions. The first offence specified in the Second Schedule is murder. Mr Adams was at the time of the bail application made on his behalf before the court facing four murder charges.

6 Sections 4(1) and (2) of the Act, which bear the marginal note ‘Circumstances in which bail may be denied’, provide as follows:

‘4.-(1) Where the offence or one of the offences in relation to which the defendant is charged or convicted is punishable with imprisonment, bail may be denied to that defendant in the following circumstances —

(a) the Court, a Justice of the Peace or police officer 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;

(b) the defendant is in custody in pursuance of the sentence of a Court or any authority acting under the Defence Act;

(c) the Court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this section for want of time since the institution of the proceedings against the defendant;

(d) the defendant, having been released on bail in or in connection with the proceedings for the offence, is arrested in pursuance of section 14 (absconding by person released on bail);

(e) the defendant is charged with an offence alleged to have been committed while he was released on bail;

(f) the defendant's case is adjourned for inquiries or a report and it appears to the Court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody.

(2) In deciding whether or not any of the circumstances specified in subsection (1)(a) exists in relation to any defendant, the Court, a Justice of the Peace or police officer shall take into account —

(a) the nature and seriousness of the offence;

(b) the defendant's character, antecedents, association and community ties;

(c) the defendant's record with regard to the fulfillment of his obligations under previous grants of bail;

(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having failed to surrender to custody;

(e) whether the defendant is a repeat offender, that is to say, a person who has been convicted on three previous occasions for offences which are punishable with imprisonment; or

(f) any other factor which appears to be relevant including the defendant's health profile.’

7 Sections 10(2), (3), (4), (5), and (6) of the Act provide as follows:

‘Right of appeal

10(1)….

(2) Where bail is granted to a defendant by a Court pursuant to this Act, the prosecution may, in the manner set out in subsection (3), appeal to a Judge of the Court of Appeal in Chambers in respect of the decision.

(3) Where the prosecution intends to appeal a decision to grant bail to a defendant, the prosecution shall —

• (a) at the conclusion of the proceedings in which the decision was communicated and before the release from custody of the defendant, give oral notice to the Court of that intention: and

• (b) give to the Court and the defendant, within twenty-four hours after the conclusion of the proceedings referred to in paragraph (a), a written notice of the appeal, setting out the reasons therefor.

(4) Subject to subsection (5), upon the receipt of the oral notice referred to in subsection (3) (a), the Court shall remand the defendant in custody until the appeal is determined.

(5) Where the prosecution fails to file a written notice of appeal in accordance with subsection (3) (b), the order for the grant of bail shall take immediate effect.

(6) The hearing of an appeal under this section shall be commenced within seventy-two hours (excluding Saturdays, Sundays and days declared to be Public General Holidays under section 2 of the Holidays (Public General) Act), or such longer period, as the Court may in any particular case consider appropriate, after oral notice is given under subsection (3) (a).’

8 The written speaking notes provided by the prosecution indicate that upon the ruling of the learned Resident Magistrate on 30 June 2014, the prosecution orally indicated their intention to appeal the decision to grant bail. A written notice of appeal was filed by the DPP on 1 July 2014. The stated grounds of appeal are as follows:

‘1. The learned Resident Magistrate erred by exercising her discretion unreasonably in granting bail.

2. We respectfully seek this Honourable Court's leave in filing supplemental grounds upon receiving the written reasons of the learned Resident Magistrate.’

9 At the hearing of the appeal, the prosecution did not in fact seek leave to file supplemental grounds. However, the sole ground was particularized very helpfully under a number of heads under which the Crown's submissions have been grouped below.

Background

10 Detective Corporal Kevin Adams has been charged with four offences, namely the murder of Adiff Washington in respect of which he is charged alone ( R v Kevin Adams ), and three other murders in respect of which he is jointly charged, i.e. Sylvester Gallimore ( R v Kevin Adams and Pete Samuels ), Anthony Trought ( R v Kevin Adams and Jerome Whyte ) and Andrew Bisson ( R v Kevin Adams, Carl Bucknor and Howard Brown ). All of these are cases in which the Independent Commission of Investigations (“INDECOM”) has carried out investigations. INDECOM is a Commission of Parliament set up under the...