Martin Seaman Applicant v Chief of Police Respondent Gemma Louis Applicant v Chief of Police Respondent Delvin Challenger Applicant v Chief of Police Respondent
| Jurisdiction | Dominica |
| Judge | Thomas |
| Judgment Date | 05 May 2015 |
| Judgment citation (vLex) | [2015] ECSC J0505-1 |
| Date | 05 May 2015 |
| Court | High Court (Dominica) |
| Docket Number | CLAIMS NOS. DOMHCV2015/0071, 73 AND 74 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIMS NOS. DOMHCV2015/0071, 73 AND 74
[1] Thomas, (Ag): Before the court are three notices of application filed on 27th March 2015 by Martin Seaman, Delvin Challenger and Gemma Louis, seeking bail in the context of charges for murder against all of them.
[2] The grounds upon which the applications are based are identical and those recorded in the application of Martin Seaman read as follows:
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1. That bail in the offence of murder can only be obtained by order of the Honourable Judge.
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2. That the Applicant has a fair chance of successfully defending the murder charge and moreover there is no evidence of murder.
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3. That the Applicant will attend trial,
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4. That the Applicant has them fixed place of abode in Dominica,1 and the availability of suitable persons willing to sign [as sureties]
[3] At paragraphs 12, and 11, respectively, the affiants depose that:
"That in the circumstances I am respectfully requesting that bail is granted to me with suitable surety (ies) and that the learned magistrate at the Roseau Court is directed to grant bail to me in a sum fixed by the court."
[4] In each application there is a further affidavit in support; by Natasha Scotland, clerk of the Law Firm of Dye and Dyer, deposing as follows at paragraph 2:
"That I am informed by the Solicitor for the Applicant and verily believe that the Chief of Police indicated that; as far as he is concerned, he has no objection to bail as the Applicants, (that is the other Police Officers jointly charged) have been at the Police Barracks for some time now and they have not attempted to abscond."
[5] On 30th March 2015 all three applicants filed supplementary affidavits in support. Again, the contents of the affidavits are similar and, in summary they speak to the following: the supplementary nature of the affidavit, the officers jointly charged with the murder of Joshua Ettienne, the complainant being acting Assistant Superintendant of Police, Matthew Cuffy; the alleged locus of the murder being the Portsmouth Police Station, while the applicants were on duty, denial of the alleged murder, the absence of disclosure, of being informed and verily believing that in the circumstances of such an allegation of an unlawful act the charge is manslaughter and not murder, the stay of proceeding being obtained upon application to the High Court for judicial review, the withdrawal of the said application and the joint charges being read [in the Magistrate's Court] and being remanded to barracks, despite "undertaking" [concerning remand at the barracks being] remanded to maximum security at the State Prison; during the hearing of the application for judicial review, being 12th August 2014 to 27th March 2015, the officers were allowed to go home and there was no issue of not attending trial; having a permanent place of abode in Dominica, there was never an issue of non-attendance at the trial; the belief there would be no objection will be made on non-attendance if bail granted; being informed by their solicitor and verily believe that the Chief of Police had indicated that, as far as he is concerned, he has no objection to bail being granted; the conditions at maximum security being characterized by threats being made by prisoners and objects being thrown into their cells at night by the said prisoners; and the matter being fixed for hearing in June 2015 before the Magistrate in Portsmouth.
[6] Finally, the affiants "respectfully request" that an order be made directing the Magistrate to grant bail.
[7] This affidavit is sworn to by Matthew Cuffy, Acting Assistant Superintendant of the Commonwealth of Dominica Police Force, on being so authorized by the Director of Public Prosecutions.2
[8] At paragraphs 2 and 3 of the said affidavit the deponent says that he is attached to the Criminal Investigation Department and is the Investigating Officer in the report of murder of Joshua Etienne against the applicants: Gemma Louis, Hayden Morgan, Martin Seaman, Delvin Challenger and Olan Vigille all of whom are jointly charged with the murder of the deceased. He further deposes that on 27th March 2015 the charge was read to the co-accused at the Roseau Magistrate Court where they were remanded pending trial.
[9] At paragraph 5 the deponent identifies the applicants and says that they were all co-accused and were on duty at the Portsmouth Police Station from 8 p.m. on 4th August 2014 to 8 a.m. on 5th August 2015.
[10] With respect to the affidavits in support filed by Delvin Challenger and Gemma Louis filed 27th March 2015, paragraphs 1,2,3,4,7,8, 9 and 20 the deponent neither admits nor denies. The same applies to the same paragraphs of the affidavit in support of Martin Seaman of even date, plus paragraphs 11 thereof.
[11] At paragraphs 10 to 12 of his said affidavit, A.S.P. Cuffy chronicles some of the evidence obtained in the matter, including a copy of the autopsy report relating to the death of the deceased. Also mentioned is a specific response obtained from the co-accused regarding the presence or absence of injuries on the deceased at the time when he was placed in the cell at Portsmouth Police Station.
[12] Two propositions are posed at paragraphs 13. The first is that the evidence does not disclose self defence and the second is that there is reasonable suspicion and strong circumstantial evidence to sustain a charge of murder against the co-accused except Hayden Morgan.
[13] In the premises the deponent is asking the court to deny the application for the bail sought by the co accused.
[14] In their affidavit in reply filed on 9th April 2015 the applicants set out to cast doubt on the evidence which A.S.P Cuffy deposed that he had gathered. And the evidence is characterized as being "unreliable" and "does not establish murder".3
[15] But the applicants take the matter to another level by pointing out contradictions in the evidence of Josey Jno Lewis and Alison George4 and go on to describe two witnesses, Allison George and Keith Baron, as "notorious criminals"5 and the belief that the two witnesses have "implicated" them "in keeping with their attitude of being anti-police"6
[16] At the hearing in chambers the submissions by learned counsel, Mrs. Zena Moore-Dyer, made reference to the affidavit in support and supplementary affidavits and then made the following submissions, as summarized by the court:
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(1) There was an absence of evidence respecting reasonable suspicion and circumstantial evidence.
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(2) There was no evidence of the basic requirement of the applicants not attending trial. Cases cited wereNordally v Attorney General and Thelston Brooks v Attorney General, Commissioner of Police.
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(3) The prosecution has no reasonable suspicion of criminal offence.
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(4) There is no evidence to show that the applicants will not attend trial.
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(5) There must be identifiable evidence to show attempts by the applicants to flee.
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(6) Automatic inferences are forbidden by virtue of cases decided by European Court of Human Rights. Among the cases cited were:B v Austria A 175 (1900), Matzenetter v Austria (1969), Neumeister v Austria (No.1) 1968, Tomasi v France (1995), W. Switzerland A. 254 (1993) 17 EHHR 60, Matter v France 1997-II, p, 374, p. 43, Morgani V France (No. 1) (1995) 21 EHRR 34
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(7) The Humam case says that tampering with evidence and interfering with witnesses requires evidence of an idenfiable risk
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(8) The applicants were free for eight months and remained in the jurisdiction.
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(9) There is no evidence that Seaman drove off in a vehicle with the deceased on it.
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(10) The affidavit evidence must show evidence and the case law does not support detention. Since charges were preferred no attempt was made to leave the state or otherwise indicate that they will not attend there trial. Bail should therefore be granted
In written submissions on behalf of the three applicants, Learned Counsel, Mrs. Zena Moore-Dyer makes reference to the fundamental right to liberty as set out in section 3 of the Constitution of the Commonwealth of Dominica. Particular emphasis is placed on sections 3 ( 1) and 3 (5) of the said Constitution. Reference is also made to section 9 (5) of the said Constitution relating the presumption of innocence, with reliance placed on the judgment of Madame Justice Georges Creque (as she then was) in the unreported case ofThelston Brooks and the Attorney General and Commissioner of Police7. In that case the learned judge referred to the decision of the Privy Council decision in Davenaranath Hurnam v The State of Mauratius8 in which Lord Bingham of Cornhill, speaking for the Board, provided some guidance with respect to consideration of bail and enunciated the principles which should guide the courts of Mauratius in exercising their discretion
to grant or withhold bail. In this connection learned counsel noted that the case of Hurnam was considered and applied in the case of Thelston Brooks9[18] Learned counsel for the applicants in further submissions, cited the case of Noordally v Attorney General10 in which the "proper test" regarding the grant of bail was identified and its relevance even today. Learned counsel also noted that the test was applied in the Thelston Brooks case, and much earlier, in the case R v Cymbalisty11 and Reg v Dubois12
[19] After...
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