The challenge to the Coroner’s Act

Director of Public Prosecution (DPP) Christopher Nelson has formally agreed to challenge the ruling of a judge to quash a charge of manslaughter pending the holding of a Coroner’s Inquest.

The DPP told THE NEW TODAY newspaper that he intends to pursue the promise made earlier to challenge the decision handed down by High Court Judge, Justice Sptimus Rudd to quash the criminal proceedings against five Police Officers in connection with the death of Grenadian-born Peter Oscar Bartholomew in December 2011.

Bartholomew who gained Canadian Citizenship was visiting Grenada over the Christmas period with his Canadian wife, Dollette Cyr Bartholomew, when he was taken into police custody at the St. David’s Police Station where he was allegedly beaten by the Police Officers, and later succumbed to injuries he had sustained.

The five – 649 Edward Gibson, 675 Shaun Ganness, 237 Ruddy Felix, 748 Kenton Hazzard, and Rural Constable Wendell Sylvester – were each charged with manslaughter.

Justice Rudd ruled in favour of a team of defense lawyers who argued that there should first be a Coroner’s Inquest before any charge can be laid against the policemen.

After the ruling, DPP Nelson quickly made known his intention to challenge the judge’s decision once he read the written judgment of Rudd.

Now that the written judgement has been made available to the DPP, he told this newspaper he is even more convinced that the judge’s interpretation on the Coroner’s Act should not be allowed to stand.

According to DPP Nelson, he is in the process of putting together his legal documents to challenge Rudd’s decision before the Court of Appeal.

As a public service this newspaper reproduces an edited version of Justice Rudd’s judgment:

 

2012: October 8,9,10

2013: March

 

JUDGMENT

 

Rhudd, J (Ag).

 

These are three sets of claims for Administrative Orders for Judicial Review of certain decisions made by the Defendants. For Convenience, the matters were heard together as they all arose from the same series of events and essentially involved the same parties.

In claims Number GDAHCV2012/0021 and GDAHCV2012/0022 (hereinafter referred to as “the Felix Claim” and “the Gibson Claim”, receptively), by way of Fixed Date Claim Forms, the Claimants seek, inter alia the following reliefs-

 

* Administrative orders for Judicial Review of certain decision made by the Defendants and for orders of certiorari to quash as being ultra vires, null and void, invalid and of no effect in law, the decision of the Second Defendant the Commissioner of Police, by which the Commissioner laid charges for the offence of Manslaughter in the sudden death of Peter Oscar Bartholomew by unlawful harm, contrary to Section 232, Criminal Code, Cap. 1, Vol 1 of the 1994 Revised Laws of Grenada and suspended the Claimants with half-month’s pay.

 

* Administrative orders for prohibition to prohibit the First Defendant, the Magistrate, Eastern Magisterial District, St. David’s Magistrate’s Court, Petite Esperance, from proceeding with holding a preliminary inquiry in the charges as laid without the Magistrate, ex-officio Coroner for her district, and in compliance with the provisions of the Coroners Act, Cap. 69 of the 1990 Revised Laws of Grenada, inquiring into the cause of the said sudden death of the deceased and, on there being reasonable cause to suspect that such death occurred by violence, holding an inquest into the said death;

 

* In Claim No. GDAHCV2012/0037 (hereinafter referred to as “the Ganness Claim’) the three Claimants seek, inter alia, administrative orders for Judicial Review along the lines of those sought in both the Felix and Gibson Claims. Additionally, they seek the following declaration

 

* An interim declaration that the decision of the Commissioner to suspend the Claimants from duty on half month’s pay with effect from December 30, 2011 pending the completion of the hearing is premature, unreasonable, irrational and contrary to law.

 

* An interim order that the Claimants be reinstated to full pay forthwith and that all outstanding short payments effected from December 30, 2011 be given to the Claimants forthwith.

 

* A declaration that the decision of the Director of Public Prosecutions instituting or causing to be instituted, continuing, failing or refusing to discontinue proceedings against the Claimants before the conduct of an inquiry and inquest is ultra vires, unreasonable, irrational, contrary to law, unfair and likely to cause grave prejudice with respect to the just disposal of the matter.

 

* A declaration that the decision of the Magistrate and Coroner to preside over a Preliminary Inquiry into the charge for the offence of Manslaughter laid against the Claimants for causing the death of Peter Oscar Bartholomew by unlawful harm without conducting an inquiry and inquest into the death of the said Peter Oscar Bartholomew is ultra vires, reasonable, irrational, without authority and contrary to law, unfair and likely to cause grave prejudice with respect to the just disposal of the matter.

 

* A declaration that as a direct result of the decisions and consequential actions of the Defendants, the just disposal of the matter has been so gravely prejudice that the matter is unable to receive a fair disposal with respect to the Claimants.

 

* An order of certiorai to quash the decision of the Director of Public Prosecutions instituting or causing to be instituted, continuing, failing or refusing to discontinue proceedings against the Claimants before the conduct of an inquiry or inquest.

 

* An order of certiorari to quash the decision of the Commissioner of Police to suspend the Claimants from duty on half month’s pay pending the completion of the hearing with respect to the offence of Manslaughter.

 

* An order of prohibition to prohibit the Defendants from continuing with any further proceedings against the Claimant pursuant to the charge of manslaughter that has already been laid against the Claimants and/or from taking any further action against the Claimants as a result of the death of the said Peter Oscar Bartholomew until further or other order of the Court.

Background

 

* The five Claimants are all members of the Royal Grenada Police Force (“the RGPF”). Roddy Felix. Edward Gibson, Shawn Ganness and Kenton Hazzard are designated as Police Constables, while Wendelll Sylvester is designated as a Rural Constable.

Constables Felix, Sylvester and Hazzard were attached to the St. David’s Police Station, located at Petite Esperance in the Parish of St. David’s. Constables Ganness and Gibson were attached to and stationed at the Traffic Department, Carenage in St. George’s. They were all on active duty December 26, 2011.

 

* On that date, Peter Oscar Bartholomew, (“Bartholomew) was taken into custody and detained at the St. David’s Police Station as a result of an incident occurring between him and a female Police Constable who had previously been in the company of Constables Ganness and Gibson.

In the process of taking him into custody, it is alleged that Bartholomew was being aggressive towards the police officers. It was further alleged that the Claimants, at different points in time, participated in subduing and placing him under arrest at the Police Station, and in so doing, used unlawful force on his person. As a result, Bartholomew collapsed and had to be taken to the General Hospital in St. George’s where he subsequently died on the morning of December 27, 2011.

 

* An investigation was subsequently conducted by the RGPF and all the Claimants were eventually detained, questioned and then charged on different dates between December 31, 2011 and January 1, 2012, with the offence of Manslaughter in respect of the death of Bartholomew.

On January 3, 2012 each of the Claimants received a letter from the Commissioner of Police notifying him that, as a result of the charge having been laid against him, he was suspended from duty on half month’s pay with retroactive effect from the end of December, 2011.

 

* On January 6, 2012, the First Defendant commenced proceedings on a preliminary inquiry at the Magistrate’s Court at St. David’s in respect of the charge of Manslaughter preferred against the Claimants. Bail applications were made further proceedings were adjourned to January 26, 2012.

On the resumption, both Dr Alexis and Mr. Clouden, Counsels for the Claimants Gibson and Felix, respectively, challenged the Magistrate’s decision to proceed with the preliminary inquiry without a Coroner’s inquiry or inquest being first conducted. Those challenges were opposed by the Director of Public Prosecutions.

 

* As a result of the First Defendant’s decision to proceed with the Preliminary inquiry, the Claimants sought and obtained leave to apply for judicial review for the orders of certiorari, prohibition and the several other declarations earlier referred to.

 

* The Claimants, by their Fixed Date Claim Form applications, have, in essence, contended that, by virtue of the fact that Bartholomew’s death resulted from an incident which occurred at a place of lawful detention, that is, the St. David’s Police Station, there should properly, be an inquiry conducted by the Coroner, pursuant to the provisions of the Coroner’s Act.

The Claimants contended further that the Coroner had a mandatory obligation to hold an inquiry, and if necessary, conduct an inquest as first steps in the proceedings. Unless and until such steps have been taken, the Claimants hold the position that there can be no proper basis in law for criminal charges to be laid against them, as has been done by the Commissioner of Police, acting under the direction of the Director of Public Prosecutions.

Further, the Claimants contend that the decision of the First Defendant to proceed with the preliminary inquiry was ultra vires, null and of no effect in law.

 

The issues:

 

* The primary issues for the Court’s consideration are set out below:

 

* Whether Section 9 of the Coroner’s Act, Cap 69 imposes on the Coroner a mandatory requirement to conduct an inquest in the circumstances of this case; and

 

* Whether the Commissioner of Police and the Director of Public Prosecutions had power to charge the Claimants with Manslaughter without a Coroner’s inquiry and inquest having first been held pursuant to the provisions of the Coroner’s Act.

 

* Dr. Alexis, QC, in arguing the matter on behalf of Edward Gibson, made the following submissions:-




 

* That the Claimant Edward Gibson (“Gibson”) was seeking a review of the decision of the Magistrate, Eastern Magisterial District, St. David’s to proceed with the holding of a preliminary inquiry into the charge of Manslaughter by unlawful harm laid against Gibson and the other Claimants.

 

* That on the premise that the alleged harm had been done at the St. David’s Police Station, a public institution, which was a place of lawful detention, the Magistrate had to take certain steps before proceeding with the preliminary inquiry.

He pointed out that the “controlling element” for the Magistrate’s action was the fact of the alleged harm having taken place in a public institution. By virtue of that occurrence, it was mandatory that the Magistrate (ex officio Coroner) take certain steps before proceeding with the holding of the preliminary inquiry.

 

* Those steps involved the holding on an inquiry into the cause of the death of Bartholomew and, based on the results of that inquiry, to then conduct an inquest into the death.

 

* That the application was based on the provisions of the Coroner’s Act, Cap 69 of 2010 Revised Laws of Grenada.

 

* That section 10 (1) of the Act, which concerned deaths generally, obliged a Coroner to inquire into the cause of every sudden death occurring within her district where there is reasonable cause to suspect that such death was occasioned by either accident or violence.

 

* That Section 9 specifically concerned death of persons confined in any public institution such as place of lawful detention. That it was put into the laws to deal specifically with the fact situation that was now before the Court.

 

* That the generality of Section 10 could not derogate from the specificity of Section 9 so that, in a case where there is the death of a person confined in a public institution such as a place of lawful detention, the governing provision must be Section 9.

 

(VIII) That an application of the provisions of Section 9 of the Act involved two stages; firstly the Coroner having a duty to inquire into the cause of every such death and, secondly, where there is reasonable cause to suspect that such death was occasioned by accident or violence, the Coroner having a duty to hold an inquest.

That the words “every such death” as they occur in line 1 of sub-section 9(2) referred back to the words “death of any person ” in sub section 9(1)

 

* That once the foundation had been laid, that foundation being the death of a person in a place of lawful detention, then subsection 9(2) operates. In that sub-section, attention was to be paid to the use of the words “shall” and “duty”.

 

* That since the charge alleged that “harm” had been done to Bartholomew, and particularly since ASP Ignatius Mason in Paragraph 9 of his Affidavit of April 19, 2012, made on behalf of the Commissioner, stated that excessive force was used by the Claimant, then there was reasonable cause to suspect violence.

This statement should, inevitably, lead to the Coroner exercising the duty to hold an inquest. That both the Commissioner of Police and the Director of Public Prosecutions would have become bound by the affidavit evidence of ASP Mason that death occurred by violence.

 

* That notwithstanding this, the Court should, however, only be concerned principally with the first stage of Section 9, that is, whether there was a duty on the Coroner to inquire into the cause of Bartholomew’s death, it being a death of a person confined in a place of lawful detention.

 

* That it is vital to the Rule of Law and the administration of justice that any death occurring by violence in a place of lawful detention be inquired into by jurors and a Coroner. That was to be considered as “open justice”.

 

* That section 9 was intended to deal with a situation where security forces should be “protective”. Parliament was, in effect, saying that in these circumstances, there should be an inquiry. This is to be contrasted with Section 10 (1) where the words “if necessary” are used. This Section is intended to deal with deaths as opposed to the specific circumstances identified in Section 9 of the Act.

 

* In support of his submission, Dr Alexis called in aid the Canadian case of Batary v Attorney-General for Saskatchewan, the English case of Re Cook and the Zambian case of Oliver John Irwin v The people to illustrate the importance of the Coroner’s role and the necessity to have the Coroner’s inquiry before the holding of a preliminary inquiry.

He submitted that, from these cases one could extrapolate that the Coroner’s inquiry/inquest should be given priority. If there was to be any departure from this, there must be clear statutory language such as existed in Irwin to show a contrary intention as referred to in the Interpretation and General Provisions Act.

 

* He contended that, whereas the principle coming out of Re Cook was that, where a person is committed for trial under a magistrate’s warrant, the High Court could have that person brought before a Coroner, he submitted that, placed in proper context, the Judge was merely saying that, although the Court had the power, it was rarely used.

He submitted further that in the instant case, that was not the situation as the charges had been laid by the Commissioner of Police. Although the Director of Public Prosecutions undoubtedly had the power, there was no process or instrument before the Court to show that the Director of Public Prosecutions had exercised or purported to exercise his power in these proceedings.

 

* Dr Alexis reiterated that the Gibson claim was concerned only with the interpretation of Section 9 (2) of the Coroners Act. As a result of this, Section 71 (2) of the Constitution of Grenada, insofar as it relates to the powers of the Director of Public Prosecutions to, inter alia, institute, take over and continue criminal proceedings, was irrelevant.

 

* He concluded by submitting that any departure from the position, as currently exists in Section 9 (2) of the Act, would require clear and strong language from Parliament as occurred in Irwin.

 

“The Felix Claim”

 

* Mr. Clouden, in arguing the matter on behalf of the Claimant Roddy Felix, indicated his acceptance, mutatis mutandis of the arguments advanced by Dr. Alexis. His Skeleton Arguments, filed on June 6, 2012, on which he relied and upon which he relied and upon he expanded, covered the following points:

 

* That Section 9 of the Coroner’s Act explicitly stated the duties of Coroners in cases of sudden death or suspicious or unnatural deaths in places of lawful detention.

 

* That Section 10 (1) of the Coroners Act imposed the general duty on the Coroner to hold an inquiry into sudden deaths.

 

* That the subject matters in his application are entirely dependent on the interpretation of Section 9 of the Coroners Act, rather than on a construction of Section 71 of the 1973 Constitution of Grenada. Section 71 of the Constitution dealt with the office of the Director of Public Prosecutions and the exercise of his powers.

 

* That, based on the charge laid against Felix, the alleged unlawful harm occurred at the Saint David Police Station, both a public place and a place of lawful detention and, by virtue of this, it was mandatory, and not merely directory, that the Coroner conducted an inquiry.

If the result of the inquiry established reasonable cause to suspect that the death was occasioned by accident or violence, the Coroner was mandated to then hold an inquest into the death of Bartholomew.

 

* That the holding of the inquiry was a critical procedural step and by abrogating it, the Claimant Felix has been placed in jeopardy. The importance of the duty and work of the Coroner cannot be dismissed because the performance of, or failure to perform such duty would significantly affect the Claimants’ rights and the course of any criminal proceedings.

 

“The Ganness Claim”

 

* Mr. Hood, on behalf of the Claimants Shawn Ganness, Wendell Sylvester and Kenton Hazzard, like Mr. Clouden before him, also indicated his adoption of the submissions of Dr Alexis. Additionally, Mr. Hood made the following submissions:

 

* That the main issue before the court was whether the duty placed upon the Coroner by Section 9 of the Act was mandatory or whether the first Defendant had a discretion in the matter.

 

* That the Director of Public Prosecutions (“DPP”) had been joined in his action as he (the DPP) should have stopped the proceedings and not have allowed them to continue.

 

* That there could be no factual dispute as to whether the situation before the Court fell within the provisions of Section 9 of the Act.

 

* That there was a glaring omission from the evidence of the Defendants. Section 9 (1) of the Coroners Act required that, once a death had occurred (as it had on December 27) a report was to be made. That, as far as he was aware, he had not seen anything to suggest that a report had been made. That neither the Coroner, the Police nor the Director of Public Prosecutions had addressed their minds to the provision of the Act and the mandatory requirement for the report.

 

* That the Court was being asked to deal with an ordinary piece of legislation.

That the import of Section 9 was the very first person who must be contacted, once someond died in a place of lawful detention, was neither the Commission of Police nor the Director of Public Prosecution. Instead, once someone died in a place of lawful detention and before any person is suspected, the Coroner was to be contacted.

(To be continued)

 

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