Desmond Rocque v The Chief of Police
| Jurisdiction | Dominica |
| Judge | Floyd J. |
| Judgment Date | 31 March 2023 |
| Judgment citation (vLex) | [2023] ECSC J0331-3 |
| Docket Number | CLAIM NO: DOMHCV 2023/0008 |
| Court | High Court (Dominica) |
CLAIM NO: DOMHCV 2023/0008
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
Ms. Zena Moore-Dyer and Mr. Wayne Norde, Counsel for the Applicant
Ms. Sherma Dalrymple, Director of Public Prosecutions, Counsel for the Respondent
This is an application for bail. The applicant was born in the Commonwealth of Dominica on 31 st December 1990. He is 32 years of age. He is charged with possession of a prohibited weapon, possession of ammunition, and converting (modifying) a prohibited weapon. After being arrested for those offences, he was charged with assaulting police, threats, and wounding. The applicant is also charged with two separate murders, for which he was on bail at the time.
The applicant made a bail application in Magistrates' Court. The learned Magistrate Laudat, declined to grant bail, and the applicant renews his application in this court.
The applicant was granted bail by the learned Justice Stephenson on 12 th July 2018 for the offence of murder. A bond in the amount of $100,000.00 with two sureties was ordered. Condition 2 (d) requires the applicant to “lead an honest and industrious life and be of good behaviour” (emphasis added).
The applicant was charged with a second murder and was again granted bail, this time by the learned Justice Roberts, on 10 th July 2020. A bond in the amount of $300,000.00 with two sureties was ordered. Condition 8 requires the applicant to “ lead an honest and industrious life and be of good behaviour” (emphasis added). Condition 9 indicates that “ bail will be revoked upon breach of any of the above conditions.”
On 27 th June 2022, officers of the Commonwealth of Dominica Police Force received information that caused them to establish a presence on the roadway in Layou. At approximately 3:30 pm, a vehicle was seen approaching their position. The vehicle was directed to stop, but failed to do so. Instead, it increased speed, mounted the sidewalk, and collided with a bridge. The driver, later identified as the applicant, exited the vehicle, and fled. He was observed to take an object from under his shirt and throw it to the ground. He was apprehended, and the object was recovered. It was a loaded Glock pistol, with a magazine containing thirteen rounds of ammunition. The pistol had been modified, converting it into a prohibited weapon. The serial number on the firearm had been obliterated. The applicant was not licensed to possess firearms. He was arrested and charged accordingly
On 29 th June 2022, while in police custody, the applicant was uncooperative with police during a search of his person. He fought with two officers, injuring one and threatening to kill another. He was again arrested and further charged accordingly.
On 22 nd February 2023, learned counsel for the applicant, Ms. Moore-Dyer, advised the court that, although she had filed the original application and supporting material, she would be withdrawing from the case, and passing it over to new counsel for the applicant, Mr. Norde. The hearing was adjourned to 24 th March 2023. No formal application to be removed from the record was filed by Ms. Moore-Dyer.
On 24 th March 2023, Mr. Norde advised the court that he was prepared to take over the case, however, he needed some additional time. That was granted, and on 27 th March 2023, a supplementary affidavit from the applicant was filed.
Learned counsel for the applicant submits that he is entitled to bail. It should be granted as he is a citizen of the Commonwealth of Dominica, having been born here. He is a farmer, cultivating the land and owning livestock. He is assisted in that occupation by his father and brothers. He also operates a registered business known as O.T.F. Farmers Crew. He has a residence in Grand Bay with his mother and father. The applicant has two young children, whom he supports. Overall, he has significant ties to the community.
The applicant is currently housed in the maximum-security section of the State Prison, and describes the conditions as inhumane and unbearable.
The applicant presents himself, in his affidavit, as a person of good character with no criminal record. However, counsel for the respondent produced a criminal record for the applicant with entries in 2012 and 2014 for wounding, battery, indecent language, threats, and intimidation. The sentences consisted of monetary penalties.
Affidavits from two proposed sureties were filed in support of the application. The applicant is well known to them. The proposed sureties also provided confirmation of assets by way of title deeds and property valuation, in order to support their positions.
Counsel for the applicant submits that there has been substantial delay in proceeding with the murder cases. The preliminary hearing in one case was postponed due to the retirement of the Magistrate seized with the matter. Disclosure remains outstanding in both cases, causing further delay. The evidence that has been provided is insufficient to prove the allegations. Disclosure also remains outstanding for the most recent charges that the applicant faces, and there will be a substantial delay in dealing with those charges in Magistrates' Court, due to scheduling issues and case volume.
The most recent affidavit from the applicant points out that a number of accused persons charged with firearms offences have been granted bail in this jurisdiction. Eight cases are listed in support of that position. Each application for bail must, however, be determined on its facts, on a case-by-case basis. The court is aware, for example, that in some of the cases tendered, State counsel did not object to the granting of bail. While not a determining factor, that is a consideration. For it indicates that the chief law enforcement officer does not have concerns about court attendance or flight by the applicant, nor the protection and safety of the public, if the applicant is released. That is not, however, the position of State counsel in this case.
Learned State counsel for the respondent submits that the case for the most recent charges is complete, and disclosure has been provided. It is ready for trial. With regard to the murder charges, State counsel submits that disclosure is also complete, with the exception of the statement from a pathologist witness. Contrary to the position of the applicant, counsel for the respondent submits that there is substantial evidence to support the charges, including eyewitness statements.
State counsel submits that it is not in the public interest to grant bail to the applicant, and that he should be detained.
Having outlined the positions of the parties, the court turns to general principles. The entitlement to judicial interim release or bail, arises from the right to liberty and the presumption of innocence. This is entrenched at the pre-trial stage by the right not to be denied reasonable bail without just cause. In Dominica, this flows from the Bail Act and the constitution. Section 1 (a) of the Constitution of the Commonwealth of Dominica, indicates that every person in Dominica is entitled to fundamental rights and freedoms including life, liberty, security of the person and the protection of the law. Section 3 (1) confirms that a person shall not be deprived of his personal liberty save as may be authorized by law, and s. 3 (5) confirms that anyone arrested or detained in relation to a criminal offence, and not tried within a reasonable time, is entitled to release, either unconditionally or upon reasonable conditions.
While the full benefits of the constitution must be recognized, the right to judicial interim release is governed by the Bail Act 1. The provisions of that Act must be interpreted as requiring a fair and proper procedure, free from arbitrariness, which recognizes the presumption of innocence, and the fundamental right to personal liberty. This presupposes a right to be admitted to bail, which can be...
To continue reading
Request your trial