REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE IN THE MATTER OF THE BAIL ACT, CHAP. 4:60 OF THE LAWS OF TRINIDAD AND TOBAGO AND IN THE MATTER OF THE EXTRADITION (COMMONWEALTH AND FOREIGN TERRITORIES) ACT, CHAP. 12:04 OF THE LAWS OF TRINIDAD AND TOBAGO BETWEEN HASSAN ATWELL APPLICANT AND THE STATE RESPONDENT Mr. Selwyn R. Mohammed appears for the Applicant. Ms. Sunita Harrikissoon appears for the Respondent. RULING ON APPLICATION FOR BAIL 1. On April 6, 2011, counsel acting on behalf of the applicant wrote to the Registrar of the Supreme Court asking that an application for bail be heard by a Judge of the High Court. Written submissions on the issues surrounding the applicant s application were filed on May 19, 2011 and supplemented by oral submissions made on May 20. On May 27, 2011, I announced my decision to dismiss the applicant s application for bail. I indicated then that I would give my reasons subsequently. My reasons are set out hereunder. Page 1 of 12
2. The applicant was arrested on July 9, 2005 and charged with the kidnapping of two individuals. One of the alleged victims is of Vedesh Mohan, who is alleged to have been kidnapped in June, 2005. The applicant was placed on bail in relation to this offence. 1 3. Vedesh Mohan is a citizen of the United States. In March 2010 a request was made to the Attorney General of Trinidad and Tobago on behalf of the Government of the United States for the applicant to be extradited to that country to stand trial for the following charges: i. Conspiracy to commit Hostage Taking, in violation of Title 18, United States Code, Section 1203(a); ii. Hostage Taking, in violation of Title 18, United States Code, Section 1203(a); iii. Aiding and Abetting, in violation of Title 18, United States Code, Section 2 4. On September 14, 2010 the Ag. Chief Magistrate committed the applicant for extradition. He was remanded to custody. 5. On the basis of the material placed before me, it my understanding that the applicant has engaged the courts of Trinidad and Tobago at various levels seeking various forms of relief since the extradition proceedings were put in train against him: a. On May 5, 2010, the Chief Magistrate denied bail during the pendency of the extradition proceedings before him. The applicant thereupon applied to a judge in chambers. On May 14, bail was refused by Rampersad J. b. After he had been committed for extradition, the applicant filed a habeas corpus application and on October 1, 2010 applied for bail pending the hearing of that application. On October 15, 2010, bail was denied by Moosai J. c. The applicant appealed the decision of Moosai J. On October 22, 2010 when the application for leave to appeal came on before Bereau JA. in chambers in the Court of Appeal, it was withdrawn. 1 $250,000 para 8, Affidavit of Hassan Atwell sworn and filed May 12, 2011. Page 2 of 12
d. The application for habeas corpus was dismissed by Jones J on November 2, 2010. On November 4, 2010, the applicant appealed against this decision and filed an application to the Court of Appeal seeking bail pending the determination of his appeal. e. The application for bail pending determination of his appeal against the dismissal of his habeas corpus application was heard and determined on December 6, 2010. The application was dismissed. f. On December 15, 2010, the applicant filed a motion challenging the constitutional validity of the Extradition (Commonwealth and Foreign Territories) Act. A Case Management hearing in these proceedings is scheduled for September 29, 2011. 6. Counsel were asked to provide submissions on the issue whether this court has jurisdiction to hear an application for bail in the face of a refusal of bail by the Court of Appeal. Assistance in this regard was derived from the decision in Ferguson and Galbaransingh v The Attorney General 2. The issue of bail in the circumstances of the applicant s committal for extradition is governed by the Bail Act 3, which contains various considerations that are relevant to the grant or refusal of bail. The authorities make it clear that there is a general right to bail, which is usually referred to as a presumption in favour of bail, 4 and that a previous refusal of bail is not a bar to a renewed subsequent application. 5 7. In relation to a renewed application for bail, such an applicant has an obligation to demonstrate that on the renewed application, there are fresh or new considerations which he wishes to place before the court. In Hong Kong, the proposition had been described statutorily as a material change in relevant circumstances. 6 In HKSAR v Siu Yat Leung the proposition that a further application for bail could not be made without demonstrating a material change in relevant circumstances was described 2 Mon Désir J, December 22, 2010 3 Bail Act Chap 4:60, s 4(b) 4 N Corre and D Wolchover, Bail in Criminal Proceedings (3 rd edn, Oxford University Press, 2007) 34 5 R v Nottingham JJ, ex p Davies [1981] Q.B. 38 (DC); R v Reading Crown Court, ex p Malik (1981) 72 Cr App R 146 (DC) 6 HKSAR v Siu Yat Leung [2002] 2 HKLRD 147 Page 3 of 12
as declaratory of the true common law position for the determination of a repeated bail application before the Court of First Instance. 7 8. The obligation on the part of an applicant to demonstrate a material change in relevant circumstances arises out of the true nature of a renewed bail application. On a renewed application for bail, part of the facts before the court will be the fact that another judge had previously considered an application for bail by the applicant and, having considered that application, had decided to refuse bail. 9. A court, in deciding whether to grant bail, must guide itself by the provisions set out in the Bail Act. If the offence with which a defendant is charged places him in a category where he is ineligible for bail, the court has no discretion. If the offence is one in respect of which a defendant may be admitted to bail, the Bail Act nevertheless gives the court a discretion to deny bail if it is satisfied that there are substantial grounds for believing that any of the events set out at s 6(2)(a) might occur, were the defendant to be released on bail. 10. A previous denial of bail must therefore, be regarded as having two significant consequences: (i) the previous judge was satisfied that there were substantial grounds for believing that one of the s 6(2)(a) events would occur; 8 (ii) that satisfaction on the part of the previous judge is to be treated, on the subsequent application as a finding of fact, analogous to res judicata. 9 11. It was therefore incumbent on the applicant to demonstrate either that there are changed circumstances attendant on his situation that are relevant to the issue whether a defendant should be admitted to bail, or 7 ibid [15] 8 Ferguson and Galbaransingh [16] 9 R v Nottingham JJ, ex p Davies [1981] Q.B. 38, 44 This "satisfaction" is not a personal intellectual conclusion by each justice. It is a finding by the court that Schedule 1 circumstances then existed and is to be treated like every other finding of the court. It is res judicata or analogous thereto. It stands as a finding unless and until it is overturned on appeal. Page 4 of 12
that there is material now available to the applicant or his advisers which is relevant in the same context but which had not been placed before the tribunal that heard and refused the previous application. 12. The application is supported by the affidavit of the applicant sworn on May 12, 2011. The applicant avers that during the time he has been in custody the business which he previously ran has deteriorated. There was a robbery at his store in December 2010. His wife attempted to carry on the business but ill health has prevented her from doing so. She was unable to undertake the twice-weekly trips to Port-of-Spain to purchase goods for the business. The store was closed in March, 2011. 13. The applicant further avers that his incarceration has had an adverse effect on his children, who are at various levels of the educational system. He was the sole breadwinner of his family, his incarceration has meant that his children have no one to provide them with the wherewithal to cotinine attending school. 14. In summarizing the matters raised in support of his application for bail, the applicant avers that there has been a drastic change in circumstances. 10 He refers to the fact that his wife s medical condition has deteriorated, his business no longer exists and his children will soon have to be taken out of school because of a lack of financial resources. 15. Are the drastically changed circumstances which the applicant relies on relevant in considering a renewed application for bail? I respectfully adopt and concur with the view expressed by Mon Désir J in Ferguson and Galbaransingh, 11 that references to change in circumstances or new considerations cannot require a court considering a renewed bail application simply to ask whether there have been any changes or new considerations. What the court must look for, and what the applicant 10 Applicant s affidavit, para [24] 11 para 21, 22 Page 5 of 12
must demonstrate, is that there have been changes which have an impact or bearing on the issue of bail, and the applicant s entitlement to it. 16. In summary, I must therefore approach the current application bearing in mind that the issue of bail has been examined by several tribunals since the request for the applicant s extradition. Each of those tribunals, in refusing to grant bail, must be taken to have reached its decision after addressing its mind to the issues set out in s 6(2) of the Bail Act. There have therefore been previous findings in the nature of res judicata. 17. The starting point must be the proposition that the applicant has the right to bail. That right or entitlement may be defeated if conclusions adverse to the applicant are arrived at when consideration is given to the matters set out in s 6(2)(a) of the Bail Act. It is plain that by far the most significant of the factors to be considered is whether the applicant may fail to surrender to custody (s 6(2)(a)(i)). I propose therefore to consider this issue. 18. In looking at the circumstances placed before the court on the instant application, it is difficult to avoid the conclusion that the matters alluded to by the applicant are almost the inevitable consequence of the continued detention of an individual in his circumstances. The issue to which I must direct my mind, however, is whether, and if so, what, bearing these circumstances have or may have on the issue of entitlement to bail. 19. In looking at the matters put forward by the applicant as being changed circumstances, I find nothing that makes a difference to the question of whether the applicant ought to be admitted to bail. Even after considering the matters raised by the applicant, it seems to me that the significant question remains whether the applicant may fail to surrender to custody. 20. The foregoing analysis has proceeded on the basis that this is a bail application simpliciter. That it is not. This is a renewed application for bail Page 6 of 12
brought by a person in respect of whom a magistrate has found that there is enough prima facie evidence to issue his warrant for extradition. 21. The foregoing analysis has sought to highlight the considerations rendered relevant by the fact that this is a renewed application for bail. In Re Gordon Young 12 the High Court of Belize dealt with an application made after the applicant had been committed to prison pending his extradition. Having set out the relevant considerations on such an application, the court set out a further factor that "In extradition cases, however, there is a fifth consideration which the court must take into account. This is the fact that in such cases there are treaties with foreign nations with their attendant obligations. 22. The considerations to which a court should have regard, bearing in mind that an extradition request is the result of an international treaty between this country and another, was explained by the Court of Appeal of Australia in the following terms: Where a person is found in Australia and an extraditable offence is alleged against him or her, this country is obliged to return that person to the country seeking extradition. Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned. Such a breakdown may do more than inhibit the apprehension of persons who have committed crimes against Australian law. If other countries think it not worthwhile to seek extradition from Australia, Australia may become a haven - at least for a time - for those who have committed 12 Belize Law Reports Vol 1, 220 Page 7 of 12
serious crimes in other countries. They may well commit similar offences here. 13 23. The matter was put thus in R v Phillips 14 : I do not assent to the second proposition that under the Extradition Acts a case of misdemeanor is, so far as the question of bail is concerned, upon the same place with misdemeanor committed within the jurisdiction. The reason is the reason given by Wright J in a single sentence in the case to which I have referred: Under the Extradition Acts the jurisdiction depends in all cases on treaties with foreign countries. What does that mean? It does not mean, of course, that we are to extend to foreigners a consideration which we deny to our own fellow subjects. What it means I think is this: that this country has entered into an agreement with a foreign country under the comity of nations and has deliberately taken upon itself the obligation, upon a charge properly made, to hand over to that foreign country a person in this country who is charged with the commission of an offence in that country. That is an obligation which this country has entered into, and the scrupulousness of conduct with which that obligation is regarded and performed is not measured by any particular tenderness shown to the foreign country, but is measured by the duty which, having entered into an obligation of that kind, we conceive to be owing to ourselves. It becomes a point of honour when a treaty of that kind has been made that special care should be taken to fulfill it. That does not mean, nor did the learned Attorney-General so contend, that in no case under the Extradition Acts is the question of bail to be considered. What it does mean is that where a case is under the Extradition Acts there is, in addition to the normal considerations which apply to a question of bail, an added ingredient due to the fact that a treaty has been made with a foreign country. 24. It is clear, on the basis of Phillips, that the fact that a person is the subject of extradition proceedings does not mean that an application on his behalf for bail will automatically be dismissed. It is equally clear, that the question of bail to a person in such circumstances ought to be approached with exceptional circumspection. The Privy Council has reminded judicial officers of this obligation in the following terms: 13 United Mexican States v Cabal 209 CLR 165, 189 [58] 14 [1921-25] Cox C.C.332, 335 (Lord Hewart, CJ) Page 8 of 12
[T]he judge did not appear to give sufficient weight either to the nature of the crimes alleged or to the risk of, and the advantage of, their fleeing. It is important that in this particular type of case, these considerations should be taken fully into account and it should only be in exceptional cases that bail as a matter of discretion is granted. 15 25. The applicant points out, both in his affidavit and in his submissions, that he has previously been on bail from July, 2005 when he had originally been charged with kidnapping. The point made is that he has never failed to attend court before. This aspect of what may be termed the past performance of the applicant in attending court is, in my view, important and commendable. However, it cannot provide sufficient counterweight to the preponderous considerations arising from the fact that the applicant now faces extradition, and that a prima facie case has been found to have been made out against him. 26. A similar submission had been made before Baird J in Ibrahim Noumeh v The State 16 the attitude of the Court to that contention is set out in the following passages: Mr. Peterson invited the Court to hold that the applicant s strict observation of the conditions imposed on the grant of bail was cogent testimony of the view that he would not abscond if he was admitted to bail in the instant application. He further indicated that the applicant had social ties in this country in that he has been staying at Victoria Gardens. The Court gave this matter anxious and urgent consideration. It considered that the applicant s situation when the extradition proceedings were pending had since altered considerably. The applicant has now been committed by the Magistrate. He has been drawn that much closer to trial and possible imprisonment. While extradition proceedings were pending this possibility, although no doubt real, would have been somewhat more remote. Standing now between him and a possible term of imprisonment is the success of his application for habeas corpus. As the Court sees it, these considerations could inspire focused motivation for absconding. And the likelihood of his failing to appear would be enhanced by the fact 15 Knowles v Superintendent of HM Prison Fox Hill [2005] 1 W.L.R. 2546, 2555 [27] 16 Ibrahim Noumeh v The State unreported, Trinidad and Tobago High Court, Baird J, March 31, 1999 Page 9 of 12
that he is not a citizen of this country. Having given this matter its best consideration, and with the injunction of Lord Russell for care and caution uppermost in its mind, the Court holds that the application must be refused. 27. A similar submission was made in the High Court of Belize, where it was dealt with in the following fashion: Of more weight is the fact that he had been on bail on a charge of drug trafficking for two and a half years before he was arrested on the provisional warrant. He did not flee or absent himself. Therefore, it is argued, he will not flee to avoid being extradited. There readily come to mind two opposing responses to this argument. In favour of the petitioner it can be said that the one thing he wants is to remain in Belize. He does not wish to go to the USA, for certain. Therefore, if he is admitted to bail, the petitioner will remain in Belize. Against the petitioner it can be said that the one thing that he wants is to keep away from the USA. With the prospect that Belize will extradite him to the USA, his homeland has now become no longer a place to remain. Therefore, if he is admitted to bail, the petitioner will flee. It seems to me that the fact that the petitioner did not jump bail when he was at risk of conviction in Belize for drug trafficking is no basis to conclude that he would not jump bail now that he is at risk of extradition to the USA and conviction in that jurisdiction for drug trafficking. It is no trifling offence for which the petitioner is wanted. If convicted the penalty, it may be presumed, will be severe. That last factor has always been a relevant consideration in the exercise of the court s discretion whether to grant bail pending a trial. It is equally relevant on this application. 17 I am of the view that the above-quoted observations of Barrow J are entirely apposite in the circumstances of the instant application. It is no trifling offence for which the applicant is wanted in the United States. I would wish respectfully to adopt the approach of Barrow J, while substituting Trinidad and Tobago for Belize, and the kidnapping and hostage-taking charges faced by the instant applicant for the drug trafficking charges faced by the applicant in Hertular. 17 Re Hertular No 2 (2004) Belize Law Reports 137, Barrow J Page 10 of 12
28. When the applicant was arrested on July 9, 2005 and charged with kidnapping he would have made an all-around assessment of the situation he faced; he would have considered the likelihood of the most favourable outcome as well as that of the worst that could happen. Having assessed the pros and cons, the applicant would have made the decision to attend his trial with that assessment in mind. 29. In April 2010, upon his arrest pursuant to the extradition request, he would have done the same type of assessment of the situation. He could not have concluded that assessment with the sanguine sentiments that informed his views of his previous situation. I therefore take the view that the applicant s past record of attendance has very little bearing on my current assessment of whether he will attend court when required to do so. 30. The applicant s affidavit and the submissions made on his behalf make prominent mention of the applicant s wife and three children, his wife s deteriorating health, the closure of his business, and the imminent reduction of his family to penury. These matters are put forward as reasons why he should be released on bail. It appears to me, however, that these matters must not only be looked at from the perspective suggested by the applicant. 31. Having regard to the fact that I must give especial consideration to the question whether the applicant will surrender to custody, it is, in my view, appropriate to consider the matters put forward on his behalf from the perspective of incentive or disincentive to surrender to custody. 32. It appears to me that it is well within the experience of our courts that a person in the applicant s circumstances, having been released on bail, is likely to consider all the matters alluded to at paragraph (30) above, and come to the conclusion that it would be better for him not to surrender Page 11 of 12
when required to do so. He might reason that he cannot provide for his family while incarcerated, so that it might be better to remain at large, or abscond and provide for his family as a fugitive, than to surrender to custody and not be in a position to provide. In those circumstances, it appears to me that I am entitled to have regard to those matters in determining whether they might constitute grounds for believing that the applicant if released on bail, would fail to surrender to custody. In my view, those are precisely the type of considerations that may cause a man to decide that he will not surrender to custody. 33. In all the circumstances, I have taken into consideration the relevant provisions of the Bail Act, as well as the fact that the instant application is made in the context of extradition proceedings. I have considered the approach of the courts in respect of similar applications in the past. Having looked at all the circumstances as well as the applicable law, I find myself satisfied that there are substantial ground for believing that the applicant would fail to surrender to custody if released on bail. I am of the view that all of the relevant factors and considerations point against the exercise of my discretion to admit the applicant to bail. It was for those reasons that I refused the applicant s application. Dated this 7 th day of June, 2011. HAYDEN A. ST.CLAIR-DOUGLAS Judge Page 12 of 12