Malcolm Maduro Applicant v The Commissioner of Police Respondent
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 18 April 2007 |
| Neutral Citation | VG 2007 HC 5,[2007] ECSC J0418-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHCV2006/0262 |
| Date | 18 April 2007 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim No. BVIHCV2006/0262
In the Matter of Section 60 (4) of the Magistrate's Code of Procedure Act, Cap. 44 of the revised edition 1991 of the Laws of the Virgin Islands
And In the Matter of an Application for the grant of bail by Malcolm Maduro
Mr. Hayden St. Clair Douglas for the Applicant
Mr. Terrence F. Williams, Director of Public Prosecutions for the Respondent
This is the fifth attempt by the Applicant, Malcolm Maduro seeking bail pending his trial for the offences of unlawful possession of a controlled drug, inciting the supply of a controlled drug and blackmail.
On 28 October 2006, two of the witnesses in this case were the captain and crew on a vessel when they discovered a dinghy containing some bags floating in Sir Francis Drake Channel. They tied the dinghy to their vessel and towed it into Cooper Island, a lonely island off Tortola with no police station or outpost. At Cooper Island, they searched for identification on the bags and having found none, one of them opened one of the bags and he spotted a number of shiny bricks in plastic bags. He became suspicious and immediately telephoned the Virgin Islands Sea & Air Rescue (VISAR). Subsequently, members of the Royal Virgin Islands Police Force arrived. The bags were taken to the Police Marine Base where they were examined. The bags contained 169 kilograms of a white powdery substance which was suspected to be cocaine with an estimated street value of $16.9 million.
On 3 November 2006, one of the witnesses was at Cooper Island when he was approached by Mr. Maduro and another man demanding their cocaine declaring that there were 9 bags of cocaine and only 7 bags were turned over to the police. They inquired about the other witness and waited for more than 3 hours until he returned. Upon his return, they demanded their cocaine or the money if the cocaine was sold. One of the witnesses recognised Mr. Maduro as someone he knew for 6 years. They threatened the witnesses that if they did not get their cocaine then they would have "to do things the hard way" and they would see them soon. They subsequently left. The witnesses reported the alleged incident to the Police that same day.
The Police saw Mr. Maduro at Cooper Island on 6 November 2006. He was invited to the police station and he went voluntarily. Later, he was arrested and charged with the offences of (i) Unlawful Possession of a Controlled Drug contrary to section 7 (1) of the Drugs (Prevention of Misuse) Act, 1995 (as amended), (ii) Inciting the Supply of a Controlled Drug contrary to section 6 (2) of the Drug (Prevention of Misuse) Act; and (iii) Blackmail contrary to section 225 of the Criminal Code, 1997.
On 8 November 2006, Mr. Maduro appeared before the Magistrate. His application for bail was refused. The following day, he appeared before a Judge of the High Court seeking to be admitted to bail. His application was heard on 13 November 2006 and bail was refused. On 29 November 2006, he again appeared before the Magistrate. Mr. Douglas appearing as Counsel for Mr. Maduro made yet another application for bail. The Crown objected to bail on essentially the following grounds: (i) Mr. Maduro was a flight risk; (ii) police investigations into the matter were incomplete; (iii) there were concerns that Mr. Maduro might interfere with potential witnesses and impede the investigation and (iv)the witnesses were concerned and afraid for their personal safety. Again, the Magistrate refused to admit Mr. Maduro to bail.
The matter was adjourned to 29 January 2007. On that day, the Crown was not ready to proceed with the case and Mr. Douglas made another endeavour to persuade the Magistrate to admit Mr. Maduro to bail. The Magistrate adjourned her decision to 14 February, 2007 when once more, she refused to admit him to bail. On that occasion, it appeared that the Magistrate was of the opinion that she lacked jurisdiction to admit Mr. Maduro to bail since he had made a previous application to the High Court. She declared herself functus officio. The case was adjourned to 13 April 2007. It appears that the Crown is now ready to commence. In the interim, Mr. Maduro was remanded in custody.
Mr. Maduro has now made yet another attempt to be admitted to bail pursuant to section 60 (4) of the Magistrate Code of Procedure Act, Cap. 44 which expressly states that "a Judge of the High Court may order a Magistrate to admit a person to bail in any case." The application is also made pursuant to the Civil Procedure Rules. CPR 58.1 outlines the procedure by which bail applications are made to the High Court. The English Supreme Court Rules expressly provides that where an application for bail is made to the High Court and refused, then another application cannot be made. Our Rules do not contain such an expressed provision and in my opinion, do not exclude such an application to be made again. In any event, Mr. Douglas submitted that since the refusal of bail by both the Magistrate and the Judge, there have been changed circumstances.
Learned Counsel submitted that the investigation is now complete and Mr. Maduro has been served with the statements of the witnesses upon whom the Crown seeks to rely. According to Mr. Douglas, there can no longer be said that there is any possibility of impeding or interfering with the investigation since it is complete and in any event, Mr. Maduro has pleaded not guilty to the allegations of threats and has denied the very making of those threats. Mr. Douglas adumbrated that it cannot be said that Mr. Maduro demonstrated any animosity against any of the witnesses at any time subsequent to that occasion out of which these charges arise.
Mr. Douglas elaborated that Mr. Maduro has been incarcerated for the past four months and he has maintained the peace. Thus, the allegation of fear on the part of the Crown is a fanciful thought which is not couched in any hard facts that the Crown can rely on. He emphasized that this must amount to a changed circumstance as the Crown can no longer assert that there is fear of interference with the investigation and fear of threatening of the witnesses.
Learned Counsel next submitted that the fact that the Crown was not ready on two previous occasions namely 29 January and 14 February 2007 respectively must be a relevant consideration in deciding whether or not to admit Mr. Maduro to bail.
In summary, the changed circumstances that Mr. Douglas referred to can be encapsulated thus: (i) the investigation is now complete and as such, there cannot be the fear of interference with the investigation and (ii) the fear of threatening of witnesses is merely whimsical and the Crown has not produced any hard evidence to support it.
Mr. Douglas relied extensively on the Anguillan case of Thelston Brooks and (1) The Attorney General and (2) The Commissioner of Police 1 and particularly, paragraph 12 of that judgment. This is what George-Creque J had to say:
"…the exercise of a judge's discretion in admitting an accused person to bail calls for a balancing of the scales by weighing the interests of an accused person and his fundamental rights as guaranteed under the Constitution on the one hand, and the interest of the rights and freedoms of others and the public interest, being the sole qualifications on the said rights, on the other. Lord Bingham of Cornhill in delivering the opinion of the Privy Council in Devendranath Hurnam v The State 2
on appeal from the Supreme Court of Mauritius, succinctly stated the proposition thus "the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before the time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and his family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witness or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences."
In addition, Learned Counsel submitted that the Court must have regard to the following five grounds when considering whether or not a defendant should be admitted to bail namely:
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(1) the risk of the defendant absconding;
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(2) the risk of the defendant interfering with the course of justice;
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(3) preventing crime;
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(4) preserving public order; and
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(5) the necessity of detention to protect the defendant.
Mr. Douglas fought hard to persuade the Court to apply the reasoning of the learned trial judge in the Brooks case and admit Mr. Maduro to bail. Learned Counsel emphasized that even where a person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful inducement to abscond or interfere with potential witnesses, the court could impose appropriate conditions which will seek to counter those situations. He concluded that this Court should admit Mr. Maduro to bail subject to the imposition of stringent conditions which it may consider appropriate in the circumstances.
In his concise and eloquent submissions, the Learned Director of Public Prosecutions, Mr. Williams reiterated the reasons given by the Crown when it objected...
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