Huey Gowdie v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 22 November 2012
• Neutral Citation: JM 2012 CA 103
• Court: Court of Appeal (Jamaica)
• Docket Number: BAIL APPEAL NO 2/2012
• Date: 22 November 2012

Huey Gowdie

and

R

[2012] JMCA Crim 56

BAIL APPEAL NO 2/2012

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Bail - Application for - Leave to review resident magistrate's decision - CPR 2002, Rule 58.2 - Whether bail should be allowed - Charter of Fundamental Rights and Freedoms

Robert Fletcher and Mrs Nadine Atkinson-Flowers for the appellant

Miss Kerry Kemble for the Crown

IN CHAMBERS

Brooks JA

1 On 12 July 2012, at about 6:00 pm, the quiet of the up-scale, residential community of Beverly Hills, in the parish of Saint Andrew, was shattered by three explosions. The explosions came from the appellant, Mr Huey Gowdie's, licensed firearm. Mr Gowdie had used the weapon to shoot Mr Shango Jackson three times at close range. Both men had close connections to the premises where the shooting had taken place, and the circumstances of the shooting had all the characteristics of a domestic dispute.

2 Mr Jackson succumbed to the resultant injuries and Mr Gowdie was subsequently charged with murder. He appeared before the Resident Magistrates' Court for the Corporate Area and applied to the learned Resident Magistrate, then presiding, to be admitted to bail. The learned Resident Magistrate refused his application, and, on 15 August 2012, gave written reasons for her decision.

3 Mr Gowdie was dissatisfied with that decision and applied, pursuant to rule 58.2 of the Civil Procedure Rules 2002 (CPR) for a judge of the Supreme Court to review the learned Resident Magistrate's decision. The application came before Campbell J on 5 September 2012, but the learned judge also denied Mr Gowdie's application for bail. Mr Gowdie has appealed against Campbell J's decision. The appeal was scheduled for hearing before a single judge of this court.

4 When the bail appeal came on for hearing before me on 9 October 2012, no concern was expressed about the jurisdiction of a single judge to hear the appeal. Miss Kemble, for the Crown, informed me that the Crown knew of no basis on which bail should be denied Mr Gowdie. It was, therefore, not objecting to the grant of bail. I considered the witness statements that had been provided to the Resident Magistrate (although, curiously, not to Campbell J), and written and oral submissions from Mr Fletcher and Mrs Atkinson-Flowers, appearing for Mr Gowdie. I found, based on the statements, that the Crown's stance concerning bail was appropriate. I, therefore, at that time, made the following orders:

• ‘1) That the appeal is allowed.

• 2) That the Order of Mr. Justice Campbell refusing bail is set aside.

• 3) That bail is granted to the Appellant in the sum of Two Million Dollars (J$2,000,000.00) with one, two or three sureties.

• 4)The conditions of bail are:

  • a) The Appellant is prohibited from residing at, visiting or going within one kilometre of 50 Shenstone Drive, Beverley Hills in the parish of Saint Andrew;

  • b) The Appellant shall have no contact with any of the persons who have given statements in this matter with the exception of Annette Carrington-Jackson and Lauri-Ann Grant;

  • c) The Appellant shall surrender all travel documents to the Resident Magistrate Court for the Corporate Area;

  • d) A stop order shall be placed at all ports of exit for the island;

  • e) The Appellant shall report to the Matilda's Corner Police Station every Monday and Friday until the completion of his trial or further order of the Court.’

5 Appeals in respect of bail applications do not often come to this court and I have found no written judgments from this court, since the promulgation of the Bail Act in 2000, concerning such applications. This is an opportunity, therefore, to state the present law in relation to such applications. Having done so, I shall seek to apply the relevant principles to the instant case.

The Law

a. The Constitutional basis

6 The fundamental principles for the consideration of an application for bail are firstly, that every citizen is prima facie entitled to his liberty and, secondly, when charged with a criminal offence, is presumed to be innocent until he has been proved or has pleaded guilty. These common law principles, which form part of the underpinnings of our legal system have established that ‘the proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial, and that bail is not to be withheld merely as a punishment’ (see Noordally v Attorney-General and Another [1987] LRC (Const.) 599 at page 601d).

7 The principles of the liberty of the subject and the presumption of innocence became enshrined in Chapter III of the Constitution of this country in 1962. The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 (hereinafter called ‘the Charter’), which replaced Chapter III, has not derogated from the principles that were enshrined in 1962. In fact, the Charter has retained those concepts in almost the same terms by which they were expressed in Chapter III.

8 At least two sections of the Charter demonstrate the retention of those concepts. Section 14(1) sets out the right to liberty. It states, in part:

‘No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances-…’

Section 15(5) of the Charter speaks to the presumption of innocence. It states:

‘Every person charged with a criminal offence shall be presumed innocent until he is proven guilty or has pleaded guilty.’

9 In addition to those sections, section 14 (3) of the Charter, as did Chapter III, demonstrates that even before a person accused is brought before a court he is entitled to be:

‘…released either unconditionally or upon reasonable conditions to secure his attendance at the trial or at any other stage of the proceedings’

10 Unlike Chapter III, however, the Charter expressly stipulates the right to bail. It also requires the party seeking to deprive an accused person of his right to liberty, to show sufficient cause for keeping him in custody. Section 14(4) of the Charter states:

‘Any person awaiting trial and detained in custody shall be entitled to bail on reasonable conditions unless sufficient cause is shown for keeping him in custody .’ (Emphasis supplied)

As a result of their constitutional bases, the personal liberty of the subject, his right to freedom of movement and his right to bail, must be considered the norm to be presumed and enforced. It must be borne in mind, however, that these rights are not absolute, but are subject to conditions.

11 In Hurnam v The State PCA No 53/2004 ( delivered 15 December 2005 ), the Privy Council, while considering the equivalent, in the Mauritian Constitution, of section 14 of the Charter, quoted, without demur, from the decision of Noordally, in these terms:

‘…that the suspect's remaining at large is the rule: his detention on ground of suspicion is the exception and, even then, if he is not put on his trial within a reasonable time he has to be released.’ (see paragraph [5] of Hurnam )

The derogation of those fundamental rights should only be allowed for cogent reasons.

b. The statutory basis

12 It is against this Constitutional background that the provisions of the Bail Act (the Act) must be considered. Section 3 of the Act states:

‘(1) Subject to the provisions of this Act, every person who is charged with an offence shall be entitled to be granted bail by a Court, a Justice of the Peace or a police officer, as the case may require.

(2) A person who is charged with an offence shall not be held in custody for longer than twenty-four hours without the question of bail being considered.

(3) Subject to section 4 (4), bail shall be granted to a defendant who is charged with an offence which is not punishable with imprisonment.

(4) A person charged with murder, treason or treason felony may be granted bail only by a Resident Magistrate or a Judge.

(5) Nothing in this Act shall preclude an application for bail on each occasion that a defendant appears before a Court in relation to the relevant offence.’ (Emphasis supplied)

13 For the purposes of the ensuing analysis, only offences which are punishable with imprisonment shall be considered. Subsection (3) above, makes it clear that where the offence is not punishable with imprisonment, the accused shall (subject to very limited circumstances) be granted bail.

14 Section 4 of the Act also sets the tone for the consideration of an application for bail. It stipulates the circumstances in which bail may be denied a person who is charged with an offence that is punishable with imprisonment. The section reinforces the Constitutional provision that the onus is on those, who wish to deprive that accused person of his liberty, to show why bail should be denied. The section states, in part:

‘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) …’ (Emphasis supplied)

The rest of the subsection speaks to other circumstances in which bail may be denied. The section does not stipulate that if an undesirable situation does exist or has the 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...