Glenville Nkomo Kenyatta Hodge v The Commissioner of Police

JurisdictionAnguilla
JudgeInnocent, J.
Judgment Date07 May 2020
Judgment citation (vLex)[2020] ECSC J0507-1
CourtHigh Court (Saint Christopher, Nevis And Anguilla)
Docket NumberCLAIM NO. AXAHCV 2020/0008
Date07 May 2020
[2020] ECSC J0507-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

A.D. 2020

CLAIM NO. AXAHCV 2020/0008

Between:
Glenville Nkomo Kenyatta Hodge
Applicant
and
The Commissioner of Police
Respondent
Appearances:

Mr. Tim Prudhoe and Mr. Carlyle Rogers of Counsel for the Applicant

Mr. Thomas W. R. Astaphan, QC. with him Ms. Erica Edwards, Senior Crown Counsel, Attorney General's Chambers of Counsel for the Respondent

Murder — Bail — Sections 67 (3) and (4) and section 72 Magistrates' Code of Procedure Act, R.S.A. c. M5 — Section 3 Anguilla Constitution Order, S.I. 1982 No. 334 — Renewed bail application — Principles to be applied on renewed applications for bail — Whether court having jurisdiction to hear renewed application for bail on substantially the same facts and legal arguments as in previous bail application — Whether applicant has triggered the court's jurisdiction to hear renewed application for bail — Whether substantial change of circumstances exist — Prosecution relying on evidence of police officer in relation to evidence from a confidential source not disclosed on applicant in opposition to bail — Whether breach of applicant's constitutional right to a fair hearing — Whether substantial change of circumstances permitting court to revisit previous factual and legal arguments in previous bail application

Innocent, J.
1

This is a renewed application for bail made by the Applicant. The Applicant had previously applied for the grant of bail to this Court, which was refused by the court. On the previous bail application, the court held that it was satisfied that there were substantial grounds for believing that the Applicant, if granted bail, was likely to abscond and fail to surrender to custody and was likely to be a danger to himself.

2

The Application is opposed by the Respondent on the grounds that the court has no jurisdiction to entertain a fresh application for bail on the grounds that there are no new or substantially new circumstances that have arisen since the previous refusal of bail, and that the present application seeks to invite the court to review its previous decision and essentially exercise an appellate jurisdiction which it does not possess.

3

On the contrary, the Applicant contends that this is a stand-alone application and not a review of the previous refusal which must be considered on its merits as it relates to circumstances that have arisen since the refusal of bail. Essentially, the Applicant contends that he is entitled to make a fresh application for bail and it is for the Respondent to show that there are substantial grounds for believing that one or more of the risks militating against the grant of bail exist.

4

The court initially heard the preliminary point taken by the Respondent and then heard argument by the Applicant in relation to what has been described as a stand-alone application. This course was taken to ensure that the Applicant was not prejudiced if in fact there was a substantial change of circumstances warranting the hearing of the fresh bail application which the court was capable of granting.

Point in Limine
5

The present application for bail is opposed by the Respondent. The main thrust of the Respondent's opposition to the grant of bail is contained in the written submissions filed by the Respondent and canvassed in oral argument by Mr. Astaphan, QC. The Respondent argued that the present application for bail is “doomed to failure and ought to be dismissed”. According to the Respondent, it is trite law that where bail has been denied by an Applicant on a prior application for bail, any renewed application must be premised on new relevant material which was not available at the prior hearing and/or a change of circumstances which arose since the hearing of the prior refused application.

6

In support of the above contention the Respondent relied on the decision in Huey Gowdie v R 1 at paragraph [31] where Brooks JA said:

“Applications should therefore not be renewed on each occasion that the accused is brought before the court unless there is new material to be considered which was not before the court at the time of the previous application.”

7

The Respondent also argued that none of the affidavits in support of the application disclose any new, relevant material which came into being after the previous bail application and/or any change of circumstances that occurred after the initial refusal of bail to the Applicant.

8

The Respondent also sought to reinforce its position by relying on the proposition that the present application seeks to have the court exercise an appellate power which it does not possess by inviting the court to review its own previous decision of refusing bail. It was argued by the Respondent that a judge of the High Court cannot sit either in review of a final decision of his court, or on an appeal from a final decision of his court. This point was further reinforced by the proposition that to invite the court to sit in review of its own previous decision regarding the previous refusal of bail to the Applicant was an affront to the generally accepted principle that there is no appeal against the refusal of bail by the High Court. 2

9

In the circumstances, the Respondent argued that on the totality of the points of objection taken by the Respondent the present application could not have been truly meant to be a fresh application for bail and was therefore likely to lead one to the conclusion that “this current application is, in net effect, at its highest, a ‘backdoor’ attempt to have this Court review its very own decision”. Accordingly, the Respondent contended that the present application in the context of the grounds of

objection advanced by the Respondent was an abuse of process, frivolous and vexatious, and ought to be dismissed in limine
The Applicant's response to the preliminary objection
10

Notwithstanding the Respondent's preliminary objection, the court, for reasons of fairness and out of an abundance of caution, reserved its ruling on the preliminary point and permitted the Applicant to pursue the substantive application in order to determine whether there was in fact a substantial change of circumstances that would render the renewed bail application permissible or, at the very least, to determine whether there existed any grounds for departing from the general common principle. In any event, this was after the court heard submissions from Mr. Prudhoe in response to the points in limine raised by Mr. Astaphan, QC.

11

The Applicant's response to the preliminary objections raised by the Respondent was premised on the substance of the Applicant's Notice of Application which they argued clearly showed that the renewed bail application was based on matters that were not before the court on the previous bail application.

12

In order to fully appreciate the posture adopted by Mr. Prudhoe in response to the point in limine and the Respondent's argument in relation to the points of objection raised by them, it will be necessary to examine, in some detail, the Notice of Application and the evidence filed in support thereof.

The Notice of Application
13

The grounds that are setout in the Applicant's Notice of Application that are relevant were as follows: Firstly, that bail was sought in the previous bail application filed on 19 th November 2019, and which was denied on 16 th December 2019 after a full hearing on 9 th December 2019; secondly, that the denial of bail to the Applicant was premised on evidence adduced from confidential sources relied upon by the witnesses for the Respondent 3. This second ground makes direct reference to the evidence contained in the affidavits of Deputy Commissioner of Police Mr. Elliott Forbes (‘Mr. Forbes’), Police Constable Brandon Pinard (‘Mr. Pinard’), and Superintendent of Prisons Ms. Carise Sasso (‘Ms. Sasso’), and which was relied on by the Respondent in opposition to the grant of bail to the Applicant. Incidentally, Mr. Rogers, counsel who appeared for the Applicant at the previous bail hearing, sought leave of the court to cross-examine these witnesses and the court permitted him to do so.

14

In the circumstances, it appears that the Applicant's contentions in relation to the grounds contained in the Notice of Application are directly related to the court's findings at the previous bail hearing, that based on the evidence presented there were substantial grounds for believing that the Applicant, if granted bail, is likely to abscond and fail to surrender to custody and is likely to be a danger to himself, and that the imposition of conditions were incapable of alleviating the likelihood of those risks occurring. 4 In the submissions filed in support of the present application, the Applicant contends that “The first application was rejected on the grounds that the Applicant (1) represented a danger to himself and (2) was a flight risk. The basis for these findings were ‘confidential sources’” 5.

15

In support of the present application, the Applicant relied on the matters contained in the affidavits filed by the Applicant himself, his mother Mrs. Joan Hodge (‘Mrs. Hodge’), his sister Mrs. Cherise Smith (‘Mrs. Smith’), and two affidavits sworn to by Mr. Carlyle Rogers (‘Mr. Rogers’), who incidentally appears as counsel for the Applicant in the present proceedings.

16

The court is in total agreement with Mr. Astaphan, QC when he described the affidavits of Mrs. Hodge and Mrs. Smith as adding nothing new to the renewed bail

application and that they merely sought to rectify matters of a formal nature in the affidavits sworn by them at the previous bail hearing. It is the court's considered view that these two affidavits are of no relevance to the issues to be decided on the preliminary point, although they would be relevant to the issue of the ability of the Applicant to provide...

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