IN THE HIGH COURT OF JUSTICE IN THE MATTER OF A BAIL APPLICATION. Between MARLON BOODRAM AND THE STATE RULING ON APPLICATION FOR BAIL

Transcription

1 REBUPLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE IN THE MATTER OF A BAIL APPLICATION Between MARLON BOODRAM AND THE STATE Before the Hon. Mr. Justice Hayden A. St.Clair-Douglas Appearances Ms. Maria Lyons for the State. Mr. Criston J. Williams for the applicant. RULING ON APPLICATION FOR BAIL [1] The applicant, Marlon Boodram, having appeared at the Magistrates Court at Port of Spain in November 2014 and having been refused bail, applied to the High Court to be admitted to bail. He was charged with Possession of cannabis for the Purpose of Trafficking, contrary to s 5(5) of the Dangerous Drugs Act, Chap [2] Counsel for the prosecution resisted the application when it came before the High Court on January 16, 2015, submitting that the applicant was not entitled to be admitted to bail. The prosecution s contention was founded on the recent amendments to the Bail Act, Ch 4:60. In brief summary, counsel contended that the applicant was caught by s 5(8) of the Bail Act, which prohibits a court from granting bail to a person who has been

2 convicted of a scheduled offence and who is charged with a further scheduled offence within 10 years of completion of the sentence for the first scheduled offence. The Bail Act [3] It is useful, if only for the purpose of analysis, to set out subsection (8) to section 5 of the Bail Act: "(8) Notwithstanding subsection (2) and subject to subsection (9), a Court shall not grant bail to any person who (a) was, before, on or after the commencement of the Bail (Amendment) Act, 2014, convicted for an offence listed in Part II of the First Schedule; and (b) is, on or after the commencement of the Bail (Amendment) Act, 2014, charged with an offence listed in Part II of the First Schedule within ten years after the completion of the sentence including the payment of any fine imposed, if any, in respect of the conviction referred to in paragraph (a). (emphasis added) The Bail (Amendment) Act, 2014 established a Schedule of Specified Offences in respect of which the grant of bail became subject to the amended provisions of the Bail Act. The offence that was relevant to the applicant is set out at paragraph (g) of the Specified Offences in the First Schedule to the Bail Act: (g) an offence under the Dangerous Drugs Act which is punishable by imprisonment for a term of ten years or more; [4] As stated previously, the instant application was made because the Magistrate had refused to admit the applicant to bail on a charge of possession of cannabis for the purpose of trafficking, contrary to s 5(5) of the Dangerous Drugs Act. On the instant application the applicant s counsel informed the court that the provisions of s 5(8) of the Bail Act had been brought to the Magistrate s attention and the refusal of bail had been based on the fact of the applicant s previous conviction in 2012 for Page 2 of 9

3 possession of dangerous drugs (cocaine) for the purpose of trafficking. Despite the earlier conviction, counsel appearing for the applicant contended that he was not caught by s 5(8) of the Bail Act. Circumstances of the earlier conviction. [5] The applicant s earlier conviction had been at the Chaguanas Magistrates Court. Counsel informed the court that he had pleaded guilty. The record of conviction shows that he was fined $10,500.00, with an alternative term of imprisonment of 16 months on failure to pay the fine. [6] The offence of possession of a dangerous drug for the purpose of trafficking is established by s 5(5) of the Dangerous Drugs Act, Ch 11:25, which provides a penalty after conviction on indictment. Section 5(5) does not, however, provide a penalty on summary conviction of the offence. The penalty on summary conviction of possession of a dangerous drug for the purpose of trafficking is set out in s 5(7B) of the Dangerous Drugs Act. [7] Section 5(7A) of the Dangerous Drugs Act gives the Director of Public Prosecutions the power to elect for a summary trial where a person is charged with a drug trafficking offence. If the accused consents to be tried summarily, the trial will proceed at the Magistrates Court. By s 5(7B), a person convicted of an offence pursuant to ss (7A) is liable to a fine of $25, and to imprisonment for 5 years. The issue. [8] In the instant case, the issue of the applicant s entitlement to bail does not, in my view, arise out of the fact of his conviction alone. Given the circumstances of his previous conviction, the issue of the applicant s entitlement to bail became coterminous with the issue whether a person who has been convicted summarily of a drug trafficking offence is to be regarded as having been convicted of an offence under the Dangerous Page 3 of 9

4 Drugs Act which is punishable by imprisonment for a term of ten years or more as set out in the First Schedule to the Bail Act. Discussion [9] When the Director of Public Prosecutions invokes his power under s 5(7A) and elects to proceed with the summary trial of a person charged with a drug trafficking offence, the maximum penalty which can be imposed upon conviction is 5 years. What should be the approach to an application for bail by a person who has been summarily convicted of a drug trafficking offence and is currently charged with the same offence? Was that summary conviction a conviction of an offence punishable by imprisonment for a term of ten years or more? How are the relevant provisions of the Bail Act to be interpreted? [10] On the issue of statutory interpretation, the search for the plain or literal meaning of the statutory provision is usually stated to be the first approach. Maxwell expresses it as one of the general principles of interpretation: The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rules of grammar. The rule of construction is to intend the Legislature to have meant what they have actually expressed. The object of all interpretation is to discover the intention of Parliament, but the intention of Parliament must be deduced from the language used, for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law. 1 [11] According to Bennion, the interpreter is required to search the words used by the legislator in an attempt to arrive at the legal meaning: 1 P. St. J. Langan, Maxwell on The Interpretation of Statutes (12 th edn, N. M. Tripathi Private Ltd 1969) 28. Page 4 of 9

5 The interpreter is required to determine and apply the legal meaning of the enactment, that is the meaning that correctly conveys the legislative intention. This usually corresponds to the grammatical meaning of the verbal formula that constitutes the enactment. If however the verbal formula, in its application to the facts of the instant case, is ambiguous the legal meaning will be in doubt. Even where the verbal formula is not ambiguous, there may be real doubt as to the legal meaning because the relevant factors drawn from the criteria laid down by law as guides to the legislative intention tend in different directions. 2 [12] Though it may be said that a plain or literal reading of s 5(8) of the Bail Act, and its application to the facts of the instant application, suggests the conclusion that the applicant should not be caught by its provisions, it is nevertheless possible to entertain a degree of uncertainty and to wonder whether the legislative intention was that a person in the applicant s position should be ineligible for bail. One therefore wonders whether the relevant factors drawn from the criteria laid down by law as guides to the legislative intention tend in different directions. This uncertainty may arise from a perusal of the Bail (Amendment) Act, 2014 as a whole. [13] The amending Act is expressly stated to be inconsistent with ss 4 and 5 of the Constitution of Trinidad and Tobago, which deal with fundamental human rights and freedoms and the protection of those rights and freedoms; it was passed in both Houses of Parliament with the votes of not less than three-fifths of the members of each House. A reading of the amending Act gives the clear impression that its purpose and intent were to deal with perceived problems of recidivism and of individuals who offend while on bail awaiting trial for other offences. The means by which this problem was sought to be dealt with was to remove the common law eligibility for bail and to provide, using the Americanism, that certain 2 Oliver Jones, Bennion on Statutory Interpretation (6 th edn, LexisNexis 2013) 421. Page 5 of 9

6 individuals who already had one strike of conviction for certain types of offences are statutorily ineligible for bail when charged with an offence that, upon conviction, would result in their second strike. A perusal of the Specified Offences set out in the Schedule to the Bail Act reveals that they are firearm offences, offences against the person, drug offences and sexual offences they are the type of offences that society regards as being rampant and which the relevant authorities are struggling to control. The legislative intent and purpose are therefore fairly obvious; but Maxwell s proposition may appropriately be paraphrased to state that the beliefs, assumptions and intentions of those who frame Acts of Parliament cannot make the law. 3 In any event, consideration of the beliefs and intentions of the framers does not constitute a cannon of statutory construction and the nascent uncertainty expressed above dissipates when regard is had to other cannons of construction. [14] Even if the search for the literal meaning to section 5(8) of the Bail Act is inappropriate, there is another cannon of construction which leads to the same conclusion, though by a different route. As noted at [13] above, the clear intent of the amending Act is to restrict and remove the eligibility of a certain class of persons for bail. In an attempt properly to construe s 5(8) and to apply that section to the circumstances of the instant application for bail, the resolution of the issue might be said to depend on whether the section should be given a wide or a narrow construction. [15] On the basis of the approach to construction suggested by Bennion, I form the view that section 5(8) ought to be construed narrowly. Bennion sets out the principle against penalization under a doubtful law in the following manner: 3 See Note 1 above. Page 6 of 9

7 It is a principle of legal policy that a person should not be penalized except under clear law The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to preserve this principle. It should therefore strive to avoid adopting a construction which penalizes a person where the legislator s intention to do so is doubtful, or penalises him or her in a way which was not made clear. In some cases however the court may find that the intention to impose the detriment was so strong as to require the doubt to be overridden. 4 [16] The first question is whether the Bail Act, or the 2014 amending Act, may properly be considered as penal statutes, having regard to the fact that they do not impose or prescribe penalties, but merely regulate the entitlement to bail. 5 On this issue, Bennion makes it clear that any law which inflicts hardship or deprivation of any kind is in essence penal: ''... the true test is now considered to be whether a particular construction inflicts a detriment, or greater detriment, on persons affected. A law that inflicts hardship or deprivation of any kind on a person is in essence penal. There are degrees of penalisation, but the concept of detriment inflicted through the state's coercive power pervades them all. The substance, not the form, of the penalty is what matters. The law is concerned that a person should not be put in peril of any kind upon an ambiguity; hence the principle against doubtful penalisation. 6 Applying Bennion s criteria, the Bail Amendment Act obviously is penal in nature in so far as it seeks to use the State s coercive power to deprive certain persons of the ability to apply to the courts for bail. In these circumstances, the presumption against doubtful penalisation would appear to 4 Oliver Jones, Bennion on Statutory Interpretation (6 th edn, LexisNexis 2013) The long title of the Bail Act is An Act to amend the law relating to release from custody of accused persons in criminal proceedings and to make provision for legal aid for persons kept in custody and for connected purposes. 6 Hallsbury s Laws (4 th edn reissue) vol 44, para Approved in R (on the application of the Crown Prosecution Service) v Bow Street Magistrates' Court (James and others, interested parties) [2006] EWHC 1763 (Admin), [2006] 4 All ER 1342 [47]. Page 7 of 9

8 be apposite a person should not be deprived of a right or put in peril unless the statute which seeks to do so expresses the legislative intention in pellucid, clear terms. [17] The principle against doubtful penalisation is stated in general terms, but in the context of the instant application it is important not to lose sight of the fact that the intent and purpose of the amending Act was to deprive certain individuals of their liberty by removing their ability to ask a court to admit them to bail. The effect of the amendment is that the court shall not grant bail once a person who has one strike has been charged with an offence which, on conviction, will result in a second strike. On the issue of the statutory restraint of the person, Bennion makes it clear that the physical liberty of a person should not be curtailed or interfered with except under clear authority of law. [18] This principle of freedom from unwarranted restraint of the person is a consequence of the adoption of Magna Carta into English law and is applicable in all Common Law jurisdictions. Thus even if the intent or purpose of the legislation is expressly to restrict or curtail a person s freedom of movement, the principle against doubtful penalisation, and the strict construction to be applied to penal statutes, have the effect that the words used by the legislature in the relevant statute must clearly have brought about that expressed intention. There is 'a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention'. A statutory power to curtail a person's freedom of movement must be 'compellingly clear'. It follows that this principle in favour of physical liberty carries great weight, and an enactment is not lightly to be held to contravene it. 7 7 Oliver Jones, Bennion on Statutory Interpretation (6 th edn, LexisNexis 2013) 758, citing R v Hallstrom, ex p W (No 2) [1986] QB 1090, per McCullough J at 1104; B (a minor) v DPP [2000] 1 All ER 833 at 839; R (on the application of W) v Metropolitan Police Comr (Secretary of State for the Home Department, interested party) [2006] EWCA Civ 458, [2006] 3 All ER 458 at [20]. R (on the application of G) v Chief Constable of West Yorkshire Police [2008] 1 WLR 550, 559. Page 8 of 9

9 [19] I therefore concluded that the provisions of s 5(8) of the Bail Act do not have the effect of ineligibility for bail where a person who has a summary conviction of possession of a dangerous drug for the purpose of trafficking is charged with the same offence contrary to s 5(5) of the Dangerous Drugs Act. [20] It was on the basis of my interpretation of the relevant provisions of the Bail Act that I ruled that the applicant was entitled to be admitted to bail. Consequent on my ruling, counsel appearing for the State indicated that the State had no objection to the applicant being granted bail. He was therefore admitted to bail in an appropriate sum with attendant conditions. Dated this 14 th day of April, HAYDEN A. ST.CLAIR-DOUGLAS Judge Page 9 of 9