Salim Richardson v The Commissioner of Police
| Jurisdiction | Anguilla |
| Judge | ‘Innocent, J.’ |
| Judgment Date | 11 February 2020 |
| Neutral Citation | AI 2020 HC 6 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 11 February 2020 |
| Docket Number | CLAIM NO. AXAHCV 2019/0058 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
A.D. 2020
CLAIM NO. AXAHCV 2019/0058
CLAIM NO. AXAHCV 2019/0059
Consolidated with:
Mr. Carlyle Kevin Rogers, Carlylerogers of Counsel for Salim Richardson
Mr. D. Michael Bourne, Sagis LP of Counsel for Shaquille Gumbs
Mr. Ivor Greene, holding papers for Ms. Erica Edwards, Senior Crown Counsel, Attorney General's Chambers of Counsel for the Respondent
Bail — Sections 67 (3), 67 (4) and 72 Magistrate's Code of Procedure Act, R.S.A. c. M5 — Sections 3 and 9 Anguilla Constitution Order, S.I. 1982 No. 334 — Court's inherent jurisdiction — Murder — Section 187 (1) Criminal Code — Principles to be applied on consideration of the grant of bail — Seriousness of the offence — Likelihood of risk of absconding — Defendants jointly charged with commission of same offence — Principal and accomplice — Preliminary inquiry into offence incomplete — Whether likelihood of delay in completion of preliminary inquiry — Whether delay in completion of preliminary inquiry factor to be taken into account when considering the grant of bail — One defendant charged with offence of murder while on bail for grievous bodily harm — Whether previous offending bar to the grant of bail for subsequent offending — Whether likelihood of the risk of reoffending while on bail — Whether likelihood of interference with witnesses and the due administration of justice — Whether in the public interest to withhold bail — whether likelihood of risk of harm to defendants — Whether bail should be denied for protection of applicants — Whether imposition of conditions on the grant of bail likely to curb the likelihood of any of the risk attendant on the grant of bail occurring
This is an application for the grant of bail made pursuant to the court's inherent jurisdiction and section 67 (4) of the Magistrate's Code of Procedure Act (the MCPA).
On 16 th December 2019, Mr. Shaquille Gumbs (‘Mr. Gumbs’) and Mr. Salim Richardson (‘Mr. Richardson’), (jointly referred to as ‘the applicants’), each filed a Notice of Application and; on 14 th January 2020 the applicants each filed an Amended Notice of Application for their admission to bail (the ‘Bail Applications’).
On 17 th December 2019, the Honourable Attorney General (the ‘Attorney General’) filed a Notice of Non Objection to the Bail Applications. Notwithstanding the posture adopted by the Attorney General, the court held the considered view that the decision for the grant or refusal of bail was ultimately a matter of the exercise of the court's inherent discretionary power. Therefore, the applicants' admission to bail would not follow as a matter of course merely because the Attorney General had no objection.
On 24 th January 2020, the Attorney General filed affidavits and written submissions in opposition to the grant of bail to the applicants.
On 23 rd January 2020 and on 6 th February 2020, the court heard oral submissions from counsel for the applicants and the Attorney General and reserved its decision.
Both applicants were arrested and charged on 12 th November 2018 with the offence of murder contrary to section 187 (1) of the Criminal Code in relation to events that occurred on 7 th November 2018 at Island Habour, Anguilla resulting in the death of Mr. Lofton Foreman (‘Mr. Foreman’).
It is alleged that on 7 th November 2018 at Garlin Bottom, Island Habour, Anguilla, one of the applicants shot Mr. Foreman who was at the time a passenger travelling in the back of a pickup truck. Mr. Foreman subsequently died as a result of the gunshot wounds that he sustained.
It is also alleged, that the applicants alighted from the motorcar in which they were travelling and had a verbal exchange with Mr. Foreman. During the course of this verbal exchange, Mr. Foreman was shot multiple times. After the shooting the applicants fled the scene on foot and the motorcar in which they were travelling was left abandoned on the roadside.
The motor car in which the applicants were travelling was registered to Mr. Richardson. The firearm used in the commission of the offence was never recovered.
Mr. Foreman died on 8 th November 2018, while undergoing surgery. A post mortem examination on the body of Mr. Foreman revealed that he died of hemorrhagic shock secondary to three gunshot wounds.
Both applicants surrendered themselves into police custody on 9 th November 2018. They were both arrested and charged for the offence of murder. The applicants were remanded into custody at Her Majesty's Prison (‘HMP’) on 12 th November 2018.
Although, the court had ordered that the respective Bail Applications be consolidated, the court will deal with the issues related to the grant of bail in relation to each applicant separately.
On hearing an application for the grant of bail the court is required to proceed on the assumption that there is a presumption in favour of the grant of bail. This presumption emanates from the presumption of innocence which has its underpinnings in the Constitution.
The Magistrate's discretion to grant bail is proscribed by section 67 (3) of the MCPA. The High Court is granted the discretionary jurisdiction to grant bail pursuant to sections 67 (2) and 72 of the MCPA.
The High Court's decision, whether to grant bail is discretionary and the manner in which this discretion is exercised, for the purposes of proceedings in Anguilla, is not derived from statute. Anguilla does not have in force a Bail Act, therefore, it will be necessary to apply the common law as it relates to the basis and the principles upon which the court must exercise its discretion.
The general approach is that the court must proceed on the basis that there is a presumption in favour of the grant of Bail; and that it is for the party seeking to persuade the court that bail should be refused to satisfy the court on the balance of probabilities of the justice of their case.
In Devendranath Hurnam v The State 1 the Privy Council dealt with the issues as they arose from the jurisdiction of Mauritius. The Mauritian Constitution 2 also adopted the identical rights and freedoms in its Constitution as Anguilla.
In Hurnam the following principles were identified. First, the onus should be on the party seeking to deprive a defendant of liberty to make their case. Second, the seriousness of the offence and the severity of the penalty likely to be imposed on conviction will not of themselves provide sufficient grounds to refuse bail but it is a
It can be distilled from the case law that there are five grounds as recognised by the common law for refusing bail. First, the likelihood of the risk of the defendant absconding; second, the likelihood of the risk of the defendant interfering with the course of justice; third, preventing crime and the preservation of public order; fourth, the necessity of detention to protect the defendant and fifth the protection of the public. These principles were re-iterated by the Eastern Caribbean Supreme Court in the case of Maduro v The Commissioner of Police 4.
When approaching the discretionary exercise as outlined by the Jamaican Court of Appeal in DPP v Adams 5 the Court may wish to consider a number of factors, namely; (1) the nature and seriousness of the offence, (2) the defendant's character and community ties, (3) previous bail records (4) the strength of the evidence regarding the offence charged, (5) the likelihood of the defendant failing to surrender to custody, (6) whether the defendant is a repeat offender and (7) any other factor which the court considers it appropriate to consider in the exercise of its discretion.
This position is distilled in the authority of Gowdie v R 6 by the Jamaican Court of Appeal. 7
There needs to be substantial grounds for believing that one of the grounds for refusing bail is present 8. This principle is reiterated in the judgment of Ramdhani J. (Ag) in the Eastern Caribbean Supreme Court in the matter of Huggins v The Commissioner of Police 9.
Otherwise described as ‘an unacceptable risk’ that the defendant would act out one of the grounds for refusing bail. The court is guided by the dicta of Wallace J. in the Eastern Caribbean Supreme Court case of Jesper Qvist v The Commissioner of Police 10 where it was held that:
“In considering these principles and balancing them against the public good and the presumption of innocence, the Court has to assess whether granting bail in these circumstances would be an unacceptable risk. Such a determination is made where the court is satisfied that there is an unacceptable risk either that (a) the accused person, if released on bail would fail to surrender himself into custody in order to answer his/her bail or (b) he would commit an offence while on bail. It must be noted however that the burden of establishing either such risk lies on the Respondents.
In the Caymanian case of R. v Whorms and R. v Clarke the court considered who had the evidential burden on whether or not to grant bail. Although in that particular case the court was considering the application in light of the statutory provision in relation to bail, it provides some guidance with respect to this issue. There, Smellie, CJ after referring to the Convention for the Protection of Human Rights and Fundamental Freedoms and how it affects domestic law of the Cayman Islands went on to say:
“The burden may not, therefore, be reversed, by placing it upon a defendant, without infringing that principle and the presumption of innocence itself. If a person is...
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