Re Stewart v R (Application for Bail)
| Jurisdiction | Jamaica |
| Judge | Sykes J |
| Judgment Date | 05 June 2014 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2014HCV0216 |
| Date | 05 June 2014 |
[2014] GCCCD 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
MISCELLANEOUS
CLAIM NO. 2014HCV0216
Miss Nicole Burgher for the appellant
Mr Jeremy Taylor , Senior Deputy Director of Public Prosecutions for the respondent
APPEAL — BAIL APPEAL FROM REFUSAL BY RESIDENT MAGISTRATE — PRINCIPLES APPLICABLE — REASONS FOR REFUSAL
Mr Joseph Stewart is a police officer. On February 13, 2014, he went to the parish of St Elizabeth. He came with two other persons. He was eventually arrested and charged with illegal possession of firearm, illegal possession of ammunition, possession of ganja, dealing in ganja and trafficking in ganja. He was first placed before the Resident Magistrate's Court for the parish of St Elizabeth on February 19, 2014. Bail applications were made twice before His Honour Mr Chester Crooks one of the Resident Magistrates for the parish of St Elizabeth. Both applications were refused. He applied for bail for the other Resident Magistrate, Her Honour Mrs Sonya Wint Blair. He feared no better. He appealed. This is the appeal.
The appeal is supported by two affidavits. These are affidavits from his two attorneys, Miss Tamar Greene who made all three applications. The other is from Miss Nicole Burgher. Miss Greene's affidavit outlined what happened in St Elizabeth regarding to three unsuccessful bail applications. Miss Burgher's affidavit speaks her instructions from Mr Stewart. On May 9, 2014, this appeal was dismissed. The reasons are now presented.
Miss Burgher indicated that Mr Stewart, on his arrival in St Elizabeth, received some information which caused him to conduct enquiries into what was believed to be illegal activities. It is said that those enquiries led to the recovery of vegetable matter resembling ganja and a firearm. Mr Stewart took possession of the firearm and discharged it, by firing the round in the chamber, because he could clear the round from the chamber. The St Elizabeth police arrived shortly after, took Mr Stewart in custody despite his protestations that he was a police officer on a legitimate visit to the parish.
The prosecution put the matter differently. They say that Mr Stewart and his two companions traveled to St Elizabeth as part of an organised purchase of ganja from ganja farmers or ganja wholesalers who may not have farmed the product. Having completed his purchase, he decided to take possession of more ganja by the use of force. The Crown also say that one of Mr Stewart's alleged accomplices gave a statement which, unsurprisingly, sought to place most or all the blame at the feet of Mr Stewart. This alleged accomplice stated Mr Stewart was the prime mover behind the robbery of the ganja vendors. He says that all three of them went to St Elizabeth to purchase ganja and after the purchase, Mr Stewart pulled his own firearm and decided to rob the vendor. The vendor, somehow, was able to raise an alarm. Mr Stewart was arrested.
Her Honour Mrs Sonya Wint Blair in her reasons, indicated that Mr Stewart's account was less than impressive. Her Honour indicated that Mr Stewart's account failed to explain why a shot was fired from his licensed firearm since he ought to know how to clear the chamber of live rounds. The learned Resident Magistrate also held that Mr Stewart did not explain why he and the two alleged accomplices left from Kingston to make the enquiries he did without the aid of other police officers but with two civilians.
Her Honour concluded that Mr Stewart was a flight risk and not likely to return to face his trial. It was also said that there was a substantial likelihood of interference with the complainants as well as a strong likelihood that he may attempt to pervert the course of justice.
Miss Burgher has launched a strong challenge to the reasoning and reasons of the leaned Resident Magistrate. Counsel submitted that the note of reasons provided by the Resident Magistrate does not show any analysis of the allegations and tying them in linear manner, moving from premise to premise in order to arrive at the conclusions stated. What was present was a narrative of the allegations of the Crown and the defendant's version followed by the conclusion with nothing to tie it all together.
It is fair to say that Miss Burgher's examination of the reasons of the learned Resident Magistrate is well founded. This court has observed that the Resident Magistrate is not unique in her approach. Having seen a number of these appeals from different parishes it may be fair to say that the methodology of compiling the reasons is common enough throughout the island.
The terseness or absence of analysis is understandable. The Resident Magistrate's Court is a high volume court with too many cases and too little time. Understandably, in an effort to dispose of the matter with some dispatch and to provide the reason so that the defendant can pursue his appeal, brevity has become the order of the day.
The judgment of Brooks JA in Huey Gowdie v R [2012] JMCA Crim 56 has laid down the methodology for bail applications. His Lordship stated that bail applications are to proceed in a coherent, rational and systematic way. The application must be carefully considered and reasons given for the refusal or grant of bail.
The primary reasons for this systematic approach are (a) the fundamental rule is that prima facie every person is entitled to liberty and (b) every person is presumed innocent until found guilty whether by trial or plea. These fundamental norms are now guaranteed rights in the Charter of Rights. Indeed, under the new bill of rights, it is expressly stated that 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” (my emphasis).
It is well established in constitutional jurisprudence that when a right is elevated to receiving protection by a constitution then that right is no ordinary right. The legislature decided that that right, because of its importance in the particular society, must receive special protection. Since the right to bail is now explicitly protected by the Constitution of Jamaica it necessarily means that the dictum of that outstanding judge Carberry JA in Grant v DPP (1980) 30 WIR 246, 271 must be taken seriously. His Lordship observed:
The court may grant new and additional remedies, despite the existence of common law remedies covering the same ground; the only question that may arise is whether the adequacy of the existing remedies is such that no further additional remedy is necessary.
His Lordship was speaking in the context of the previous bill of rights which had the proviso to section 25 (2) which provided that the court:
“shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”
It is true that there is strong authority for the proposition that even without this proviso, constitutional remedies should be seen as last resort ( Kemrajn Harrikissoon v Attorney General (1979) 31 WIR 348, 349 ). Section 19 (4) of the new bill of rights states that the court may decline to grant redress if adequate remedies exist under other law. The difference between the previous section 25 (2) and current section 19 (4) is that in the case of the former the court must decline jurisdiction if adequate remedies existed under other law whereas under the latter the court is given a discretion to grant or refuse a constitutional remedy. The point being made is that once a right is given constitutional protection it is possible for the Constitutional Court to create remedies not available under other laws if the other remedies are not adequate which means that any right that is so protected is necessarily a special right.
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