Gavin Scott Hapgood v R

• Jurisdiction: Anguilla
• Judge: Innocent, J
• Judgment Date: 12 July 2019
• Judgment citation (vLex): [2019] ECSC J0712-1
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Docket Number: CLAIM NO. AXAHCV 2019/0018
• Date: 12 July 2019

[2019] ECSC J0712-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

A.D. 2019

CLAIM NO. AXAHCV 2019/0018

Between:

Gavin Scott Hapgood

Applicant

and

Regina

Respondent

Appearances:

Mr. Thomas W. R. Astaphan, Q.C. instructed by Astaphan's Chambers of Counsel for the Applicant

Ms. Erica Edwards, Senior Crown Counsel, Attorney General's Chambers of Counsel for the Respondent

Bail application — CPR 58 — Review of decision of magistrate refusing bail — Manslaughter — American Citizen — Principles involved on grant of bail — Risk of absconding — CPR 11.6 (2) — Urgent applications — Whether the magistrate exercised his discretion to grant bail on proper legal principles — Approach to grant of bail — Anguilla Constitution Order, S.I. 1982 No. 334

1 Innocent, J (Ag.): This matter came on for hearing in the High Court on 17 ^th April 2019 upon an oral application made pursuant to the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (the ‘CPR’) Rule 58 and Rule 11.6 (2). The court agreed to hear the application orally and dispensed with the application being made in writing based on the representations made to the court by counsel on both sides. Mr. Astaphan, Q.C., urged the court that the application was an urgent one based on the fact that the applicant had previously been denied bail on the same day and had been remanded to Her Majesty's Prison (‘HMP’) on even date. Mr. Astaphan, Q.C. also impressed upon the court that there was a strong likelihood, that both the Crown and defence had reasonable grounds for believing that the applicant, if remanded at HMP, would face personal harm and that there was a clear and present danger that such risk existed. It was also intimated to the court that the application could not be filed electronically due to a systemic failure being experienced with the e-litigation portal. Counsel Mr. Astaphan, Q.C. gave the undertaking to file the necessary papers electronically as soon as the technical issues had been resolved. The court is satisfied that this undertaking has been carried out.

2 Ms. Erica Edwards, Senior Crown Counsel, who appeared for the Crown, indicated that the Crown had no objections to the grant of bail to the applicant. The court understood clearly the reasons for the Crown adopting this posture. Accordingly, bail was granted to the applicant with a promise to deliver written reasons subsequently. These are the reasons.

3 The applicant was charged with the offence of manslaughter contrary to section 192 of the Criminal Code, R.S.A. c. C140. 1 The charge arose in relation to an incident that occurred at a resort (the ‘Resort’) in Anguilla where the applicant, a citizen of the United States of America, was vacationing with his wife and minor children. The deceased was an employee of the Resort. The incident occurred in the applicant's hotel room. The substantive cause of death was stated to be positional asphyxiation. The applicant alleges that at the material time he was acting in self-defence.

Procedure

4 Rule 58.1 (1) of the CPR deals with applications to the court to review a decision by a magistrate about bail. Rule 58 (3) provides that:

“58.3 (1) The court may confirm, modify or reverse the decision of the magistrate.”

This clearly suggests that on the hearing of an application for the review of the decision of a magistrate denying bail operates as an appeal against the decision of a magistrate to the High Court. I think this is explicit in the language of Rule 58.3 (1).

5 The court wishes to consider the appropriate procedure to be followed on an application for the review of a decision by a magistrate about bail pursuant to Rule 58 of the CPR.

6 In the circumstances, the court is of the view that the application being in the nature of an appeal against the decision of the learned magistrate, is entitled to substitute its own findings for that of the magistrate who refused bail where he has failed to apply or had applied the relevant factors to be considered on an application for bail improperly. I am reminded that Anguilla has no Bail Act, unlike the Jamaican Bail Act which sets out the statutory procedure by which a person aggrieved by the refusal of a magistrate to grant bail may approach the High Court. There is no similar statutory provision in Anguilla. The Anguilla Magistrate's Code of Procedure Act (the ‘Act’) does not contain a similar provision setting out the procedure to be followed in such a case.

7 Section 67 of the Magistrate's Code of Procedure Act provides:

“67. (1) Where the offence with which the accused person is charged is an offence punishable with a fine or with imprisonment for any term not exceeding 2 years, the accused person is entitled to be admitted to bail as is hereinafter mentioned.

(2) Where an offence with which an accused person is charged is an offence, other than an offence mentioned in subsection ( 1) or (3), the Magistrate may in his discretion admit the accused to bail as hereinafter provided.

(3) The Magistrate shall not admit to bail any person charged with treason or murder.

(4) A Judge of the High Court may order the Magistrate to admit a person to bail in any case.”

8 It appears therefore that section 67 of the Act merely grants a judge of the High Court the general power to grant bail where a magistrate has denied bail. Clearly, the section merely preserves the inherent jurisdiction of the High Court.

9 The court is further fortified in this view by the provisions of section 72 of the Act, which provides:

“72. In all cases of indictable offences or suspicion of indictable offences and in all cases of summary offences when an accused person has been committed for trial as hereinbefore provided by this Act or by any Act relating to the duties of Coroners, any Judge of the High Court may on application made to him for that purpose and on notice to the Attorney General or in his absence to the officer, if any, for the time being in charge of the Police Force in Anguilla, order the accused person to be admitted to bail on entering into recognizances with sufficient sureties before the Magistrate in such amount as the Judge directs and thereupon the Magistrate shall issue a warrant of deliverance and shall attach thereto a copy of the order directing the admission of the person to bail.”

Again section 72 of the Act simply confers power on the High Court to grant bail in certain circumstances. It does not deal with a situation where a person has been aggrieved by the decision of a magistrate to refuse bail.

10 Therefore, it appears that sections 67 and 72 of the Act does not permit a judge of the High Court to exercise an appellate jurisdiction. The operation of sections 67 and 72 of the Act seems to invoke the inherent jurisdiction of the court and is distinguishable from the procedure set out pursuant to Rule 58. The court is fortified in this view by the judgment of the Supreme Court of Judicature of Jamaica in the case of Phillip Stephens v Director of Public Prosecutions 2 where Sykes J. clearly distilled the principles involved when the High Court is called upon to exercise its appellate power and the correct approach to be adopted by the court on that occasion.

11 Having arrived at the conclusion that the court is entitled to review the decision of the magistrate and treat such a review not as a rehearing of the actual application but rather to review the manner in which the learned magistrate arrived at his decision. That is whether he correctly applied the principles related to bail, and to apply the relevant and proper legal principles in determining whether the applicant ought to have been granted bail.

12 It appears that when the applicant appeared before the magistrate there was no objection by the prosecution to the grant of bail. Having regard to the relevant issues to be considered in this decision it will be necessary to recite in full the learned magistrate's reasons for refusing bail. The magistrate's reasons for denying bail as appears from the magistrate's notes filed along with the application were as follows:-

“Gavin Hapgood is charged with manslaughter contrary to section 192(1) of the Criminal Code of Anguilla. He was a visitor at the time. The incident allegedly occurred at Malliouhana Hotel. Learned QC, Mr. Astaphan, made an application for him to be granted a cash bond consistent with the Magistrate's court case of Commissioner of Police v. Scott Proctor but in a sum that this Court deemed appropriate to ensure the attendance of Mr. Hapgood to court. Learned QC, Mr. Astaphan, also submitted that he is instructed that Mr. Hapgood is determined to return to clear his name inter alia. Mr. Astaphan also submitted as the Prosecution is not objecting to bail suggested they have confidence Mr. Hapgood will return.

Inspector Millette for the Prosecution confirmed that the Prosecution is not objecting to bail.

Section 67(2) of the Magistrate's Code of Procedure Act provides for the Magistrate to grant bail in his discretion for any offence other than treason or

murder. Therefore, the court has a discretion in this matter. While it is not unusual for the Prosecution not to object to bail for an accused person they are not required to give any reasons as if they were objecting.

In this case, like the Scott Proctor case, Mr. Hapgood is not a native and has no ties to Anguilla. However, the court must be satisfied that there is a good reason for bail to be granted and that the accused will return for his case. This Court has to balance the accused' interest against the public's interest and the interest of justice. The Court must ensure that “The community contravening interest is seeking to ensure that the course of justice is not thwarted by the flight of the suspect or the defendant…” Thelston Brooks v. AG, George-Creque J., quoting from Lord Bingham of Cornhill.

While the onus is on the...