The Director of Public Prosecutions v Christopher Lyn
| Jurisdiction | Jamaica |
| Judge | Foster-Pusey JA |
| Judgment Date | 16 May 2023 |
| Neutral Citation | JM 2023 CA 55 |
| Docket Number | PARISH COURT BAIL APPEAL NO COA2023BA00001 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Crim 21
Foster-Pusey JA
PARISH COURT BAIL APPEAL NO COA2023BA00001
IN THE COURT OF APPEAL
Jeremy Taylor KC for the appellant
Ashford Meikle for the respondent
This is an appeal by the Director of Public Prosecutions (‘the DPP’ or ‘the Crown’) against the grant of bail to Christopher Lyn (‘the respondent’) by Her Honour M Harrison (‘the learned Parish Court Judge’) on 3 May 2023.
The appeal is made pursuant to section 10 of the Bail Act, which provides:
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“(1) A defendant to whom section 9 applies may appeal to a Judge in Chambers.
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(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.
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(3) Where the prosecution intends to appeal a decision to grant bail to a defendant, the prosecution shall–
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(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
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(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.
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(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.
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(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.
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(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).” (Emphasis supplied)
The respondent is before the Parish Court on a number of informations relating to robbery with aggravation, conspiracy to robbery, possession of prohibited weapon, possession of a firearm with intent to injure and unauthorized possession of ammunition. The charges emanate from two incidents — one on 7 March 2023 and the others over the period 4–5 April 2023.
The respondent was brought before the Parish Court on 26 April 2023 and his defence counsel, Mr Meikle, who also appeared for him in this appeal, applied for bail. The prosecution objected to bail on a number of bases.
On 3 May 2023 the learned Parish Court Judge granted bail to the respondent in the sum of $900,000.00 with one to two sureties on the following conditions:
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“i. [The respondent] is to report to Mandeville Police Station, Mondays to Saturdays 6am to 6pm.
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ii. [The respondent] is to reside at Eden Street, New Green with Joanne Hall.
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iii. [The respondent] is not to contact or interfere with the Crown witnesses.
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iv. Curfew order 8pm to 5am daily.
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v. [The respondent] is to surrender his travel documents.
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vi. A stop order is imposed.”
The clerk of the courts immediately gave oral notice of an intention to appeal the grant of bail.
In light of the oral notice that was given, on 4 May 2023, the following day, the learned Parish Court Judge provided her written reasons as to why she granted bail to the respondent. For the purposes of this judgment a short reference to the reasons is sufficient.
The learned Parish Court Judge referred to the respondent's “constitutional right to bail in the absence of sufficient cause shown to keep [the respondent] in custody” (see para. 7 of her reasons). She noted the prosecution's argument that the respondent would be likely to abscond if granted bail on the basis that the respondent could not be found for more than one month after the first incident; opined that without more it did not appear to be a sound basis for the refusal of bail in light of the fact that the prosecution did not outline the efforts taken to locate the respondent; noted that the respondent was ultimately found in a public place; and that there was no allegation that he attempted to flee and explanations were given for his “varying addresses”. The learned Parish Court Judge stated that, in view of the constitutional principle that the respondent is to be seen as innocent until proven guilty, the outline of the two sets of allegations did not, without more, show a likelihood that the respondent would commit an offence if granted bail. After indicating that she considered the seriousness of the offences, the learned Parish Court Judge stated that she did not consider that any of the grounds outlined in section 4(1) of the Bail Act had been established so as to cause her to exercise her discretion to refuse bail. In addition, the learned Parish Court Judge stated that the conditions she imposed were adequate to manage the risks raised by the prosecution in the particular case.
On Friday, 5 May 2023, the DPP filed an appeal against bail in this court. In the document, the DPP contended that the decision of the learned Parish Court Judge should be revoked as there were substantial grounds for believing that the respondent, if released on bail, would commit an offence and the decision was contrary to the “public interest and the policy behind the Firearms Act 2022”. The DPP also indicated in its appeal that the learned Parish Court Judge exercised her discretion improperly in light of the nature and seriousness of the offences and the strength of the prosecution's case. There was a document outlining the allegations attached to the appeal.
Upon receiving the notice of appeal on 5 May 2023, the appeal was placed before me and I made the following orders on the same day:
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“i. The appeal against bail is set for hearing inter partes on Monday 8 May 2023 at 2pm by Zoom.
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ii. The Prosecution is to provide proof that the pre-conditions outlined in section 10 of the Bail Act were satisfied and indicate the current status of [the respondent].
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iii. Written submissions by the prosecution and [the respondent] (who was granted bail) are to be filed and served on or before 9:00am on 8 May 2023.”
The court's registry communicated by email with counsel for the parties.
On 8 May 2023 the DPP filed two bundles included in which were the various documents in the Parish Court file touching and concerning the two sets of allegations against the respondent, as well as skeleton submissions.
When the matter came on for hearing Mr Taylor KC appeared on Zoom. Counsel for the respondent, who was contacted by telephone when he did not appear, indicated that he had not seen the email that was sent to him with the various documents relating to the appeal, and had not been formally retained for the appeal but was willing to represent the respondent. He also indicated that he was not well and was not in a position to participate in the hearing. He, therefore, asked for the matter to be adjourned.
The hearing was adjourned to Friday 12 May 2023 at 10:00 am. Mr Meikle filed written submissions on behalf of the respondent before the hearing.
The hearing proceeded on 12 May 2023. In the course of the proceedings, the court asked counsel to make submissions on R (on the application of Cardin) v Birmingham, Crown Court and another [2017] EWHC 2101 (Admin) a decision of the Queen's Bench Division of the Administrative Court, as that case appeared to be useful. The date for the decision of the court was set for Tuesday, 16 May 2023 at 2:00 pm.
Mr Meikle took a preliminary point that this court should deny the appeal as the DPP had not complied with the mandatory procedural requirements of section 10(3) of the Bail Act. Counsel noted that the DPP acknowledged that it had “run afoul” of sections 10(3)(b) and 10 (5) of the Act which would extinguish its appeal before this court. Counsel submitted that the prosecution ought to have been prepared in the event that the learned Parish Court Judge granted bail. He stated that at the expiration of the 24-hour “written notice period” the respondent ought to have been released from custody as the written notice of appeal had not been served within time. Counsel highlighted that the Crown served its written notice on the respondent while he was in custody at the Mandeville Police station lock-up, 48 hours after it had given oral notice of appeal. Counsel urged that the respondent's constitutional right to liberty and freedom of movement had come at the expense of the Crown's “impunity of the law” resulting in the respondent being in custody for over a week since the learned Parish Court Judge admitted him to bail. Counsel submitted that it was in the interests of justice that the appeal be dismissed and the order of the learned Parish Court Judge, made on 3 May 2023, restored.
Mr Taylor, in the skeleton submissions filed by the DPP as well as in his oral submissions, acknowledged that the requirement for written notice of appeal to be given to the Parish Court and the respondent within 24 hours after the conclusion of the proceedings...
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