World attention will continue to focus on Grenada especially in North America over the Oscar Bartholomew case in which five police officers have been implicated in his death just over a year ago.
The Grenadian-born man who became a Canadian citizen died in hospital after an altercation with several police officers who had detained him after an encounter with a female cop.
Attorneys for the charged officers have made a successful challenge to their bid to get a high court judge to stop the preliminary inquiry into the charges of Manslaughter brought against the suspects pending the holding of an inquest by a Coroner into the death.
High court judge, Septimus Rhudd ruled against the Director of Public Prosecutions (DPP), Christopher Nelson and Solicitor-General Darshan Ramdhani who both contended that the Commissioner of Police was legally entitled to proceed with the charge against the men under his jurisdiction.
Last week, the NEW TODAY brought Part 1 of excerpts from the ruling handed down by Justice Rhudd which focused on the arguments put forward by lawyers representing the accused police officers.
This week, the newspaper concludes with Part 11 of the judgment which dealt in main with the submissions of DPP Nelson and Ramdhani and the actual decision of the high court judge:
* That by virtue of the Coroner failing to take charge of the body of Bartholomew, she had abdicated her duty. That was a glaring omission in Paragraph 8 of the Affidavit, filed by Nakisha Lewis, on behalf of the Coroner in that the Coroner has given no reason as to why she did not have a mandatory duty to do so. That it was quite obvious that the Coroner did not apply her mind to the provisions of Section 9 of the Act.
* That the intention of Parliament was to make the process speedy and all embracing. It involved a question of the confidence of the public in that institution. It was Parliament’s intention to preserve that. That this was embodied even in the Oath to be taken by the jurors, as set out in Section 22 of the Coroners Act, where jurors would inquire into “when, where, how and after what manner” the deceased died.
This determination was not one to be made by the Director of Public Prosecutions or the Commissioner of Police. If the Commissioner of Police proceeded to act, he would be acting prematurely
* That section 42 of the Act imposed a penalty on the Coroner for neglecting his or her duty.
* That the inclusion of the list of offenses in the Act by Parliament was intended to protect the integrity of the Coroner’s inquiry and to ensure that all available evidence came to the fore. This was Parliament’s intention: to preserve the integrity of the institution.
* That the findings from a Coroner’s inquest are distinguishable from those in a preliminary inquiry. Section 105 of the Criminal Procedure Code, allowed other public officials to intervene. It allowed for the challenge before a judge. No such power existed with respect to the outcome of a Coroner’s inquest. The reason for this is that the jury, not the DPP or the Coroner, would have made a determination and Parliament intended to protect the integrity of the public institution.
* That a fair trial of the Claimants has been compromised by virtue of the actions of the Commissioner of Police. By their actions, the Defendants have poisoned the minds of the public towards the Claimants without allowing for the process, with all the information, being put in the public domain.
If the Court was to find that an inquest should take place, what would be the impact on the minds of the potential jurors if the Commissioner of Police had already charged five persons? That the Commissioner of Police and the Director of Public Prosecutions had usurped the authority of the Coroner’s inquest by singling out five persons and proceeding as if those five persons alone are involved. That, this was unfair to those five persons hence the application for an order of Prohibition.
* The effect of the decision of the Defendants included the indignity of arrest and interrogation, the imposition of bail conditions, bail being resisted by the DPP even though no inquest had been held, the matter occupying local and international publications, the Applicants’ names being submitted to INTERPOL and prejudice in their bail documents.
* That the Applicants were entitled to a fair hearing. This included the statutory requirement of the Coroner’s inquest being held as a pre-cursor to any other action. That the Court was to ascertain whether fairness had not been compromised and intervene as set out in the prayers of the Claim submitted by the Claimants.
The Defendants’ Case
The Solicitor General’s submissions
Mr. Ramdhani, Solicitor General, having informed the Court that the Director of Public Prosecutions would deal with the issues of (a) whether the Commissioner of Police and the DPP had the power to charge the Claimants with Manslaughter before an inquest was held, and (b) whether the Commissioner of Police could properly suspend the Claimants on half pay, then made the following submissions on behalf of the First and Second Defendants:
(i) That the approach taken by Counsel for Ganness, Sylvester and Hazzard, during his submissions, was fallacious for a number of reasons. Specifically, under the provisions of Section 8 of the Constitution of Grenada, there was the presumption of innocence.
That, from a jurisprudential perspective, the Constitution was the logical starting point. This was “triggered” once a person was charged with a criminal offence.
The Constitution did not lay out any particular procedure to be followed in those circumstances. Instead, it allowed for those details (of procedure) to be dealt with by other pieces of legislation along with the common law.
(ii) That the critical question for consideration was whether the Corners Act provided sufficient details of due process so as to exclude the provisions of any other laws. In order words, do the provisions of that Act exclude other laws?
(iii) That, there was nothing in the Coroners Act that excluded the provisions of the Criminal Procedure Code, the Judges’ Rule, the statutory powers of the Police to prefer charges or the constitutional office of the Director of Public Prosecutions to institute charges in Grenada.
* That he was prepared to concede that Section 9 of the Coroners Act was relevant to the case at Bar as it concerned a death occurring at one of the places mentioned in the Section with that death having been attended by violent circumstances.
(v) That although considerable emphasis was being placed on the use of the word “shall” in order to find a mandatory obligation, having regard to the provision of Section 3 (5) of the Interpretation and General Provisions Act 13, the Court should not merely look at the word “shall” and leave it that.
The Court is required to look at the written law in its entirety to see if there is any contrary intention expressed. That the Court should look at both Sections 9 and 42 of the Coroners Act. That Section 42 made it clear that where there is a duty imposed on the Coroner he/she would be guilty of an offence unless he/she had a reasonable excuse for not exercising that duty.
* That notwithstanding the use of the word “shall” in Section 9, the Legislature can give a direction to persons on whom discretion is conferred. That the provisions of Section 42 revealed the granting of a discretion and answered the question whether Section 9 was mandatory or not.
* That the Court is required to put into context the “qualitative nature” of the Claimants’ actions in light of the provisions of the Coroners Act. That the public is not merely concerned about due process but also that the public needs to see that justice is done.
That the public would only be appeased when the ordinary criminal law process was engaged. Further, that the Claimants’ argument that an inquiry, and then an inquest, must be held is tainted and without merit. That there was a far more constitutionally sound process which should guide the present situation; that being a charge under the criminal law.
* That the real question to be asked was – “whether it made sense to say, from a criminal standpoint, that the Coroner would have a reason not to embark on an inquest? That, in a practical light, if the Coroner looked at the case and felt that the proceedings were duplicitous, having regards to charges already filed, not only would the Coroner be avoiding financial and administrative burden on the justice system but she would also be preventing situations of inconsistent verdicts.
* That there is nothing in the Coroners Act barring the Commissioner of Police or Director of Public Prosecutions from proceeding when there has been a “no verdict” ruling after the holding of an inquest. That there would be public consternation if the Coroner returned a decision of ” no verdict” and then the DPP returned a verdict of guilty.
That this interpretation lends credence to the view that a discretion is to be found from a reading of the Corners Act. That the Claimants can ask for no more than that due process is followed and the recognition of a discretion under the Coroners Act does not deny them due process.
(xi) That the whole issue be considered in a practical manner and that the Court should not allow the dual matters to proceed. Reliance was being placed on Section 42 of the Coroners Act where allowance is made for “reasonable excuse”.
* That, insofar as his representation of the Commissioner of Police is concerned, he asked the Court to have due regard to the provisions of the Judges Rules,17 specifically Paragraph (d) of Appendix A, which excluded the application of the Rules to the principle that
“when a police who is making inquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he or she would without delay cause that person to be charged that person to be charged or informed that he or she may be prosecuted for the offence.”
* That, in essence, all that is needed for the Police to institute a charge against any person is admissible evidence which could likely lead to a conviction. That the powers of the Police, to act in such circumstances, had not been excluded by the provisions of the Coroner Act. That, if such an exclusion was to be implied in the Act it would deal a tremendous blow to the Police in the country.
* That there may be occasions when one cannot ask the police to police themselves. That those arguments of the Claimants would have merit only where the police failed to do something. That in the event the police adopted an unfair approach and only brought charges against persons while leaving out others, then guidance could be sought from the constitutionally independent office of the DPP.
* That, in conclusion, a common sense approach should be taken by the Court to minimize any adverse public perception.
The Director of Public Prosecution’s submissions
* Mr. Christopher Nelson, Director of Public Prosecutions, made the following submissions;
* That there was no dispute that the charges against the Claimants were preferred on the direction of the Director of Public Prosecutions. That the DPP had constitutional powers to act in this manner, separate and distinct from the powers of the Police to act in their own right.
Section 71 of the Constitution of Grenada, which created the office of the DPP and set out his powers, was applicable.
* That the pith and substance of Mr. Hood’s submissions was that it was for the Coroner’s inquest to determine if criminal charges should be initiated and against whom. That the thrust of Mr. Hood’s submissions amounted to “legal heresy” since the DPP would only be entitled to proceed with the prosecutions after the Coroner’s jury had decided.
That in the Steadroy Benjamin v The Commissioner of Police and the Attorney General of Antigua case, Edwards, J.A. had pronounced that the DPP was the “gatekeeper, and so, in the instant case, the Coroner could not tell the DPP when to proceed.
That, by Mr. Hood’s submissions, he was suggesting that an ordinary piece of legislation (the Coroners Act) could override the provisions of the Constitution.
* That although the Coroner was a route through which criminal proceedings could be instituted, it was not the only route. Proceedings could also go through the Police and the DPP.
* To Dr. Alexis’ argument that the DPP had not issued a certificate to show that the he had taken over the proceedings, he was of the view that was not necessary although it was good practice. ASP Mason, in his affidavit had given evidence that the charges had been laid against the Claimants on the instruction and direction of the DPP. That, this had not been challenged by the Claimants.
* That Mr. Hood was not entirely correct in his submissions that the Coroners Act had in place “a criminal machinery”. That, the “criminal” intention was nothing more than a potential incidental outcome from the application of the provisions of the Act.
The true function of the inquest was to be found in the provisions of Sections 22 of the Act as embodied in the Oath of jurors to decide “when, where, how and after what manner”. That was not to be used to determine if a crime had been committed.
* That he disagreed with Mr. Hood’s position that it was for the Coroner’s inquest to determine if criminal charges should be initiated and against whom. That he could not agree with him that it was for the Coroners’ jury to decide and then the DPP would take over.
* That the Coroner was simply an old institution aimed at having some public inquiry into the death of someone in order to satisfy due process. Additionally, it is intended to inform public policy there is some infectious disease or procedure in the prison or mental health institution.
That it is not the law that the Coroner is the gate “gate keeper”, it was not the law and it is not intended to be law.
* That a well-equipped investigative machinery currently exists in the Police Force and the DPP. That the Court should pay scant regard to any position being advanced that a Coroner, with only incidental investigatory authority, must have precedence over authorities with specific powers.
* That in Canada, in England and in some of the sister islands of the Caribbean, the incidental criminal function of the Coroner had been removed. That the DPP ‘s involvement in these proceedings was not as a result of the Constitution but rather because the Claimants in the Ganness Claim, had involved the DPP by instituting certiorari proceedings.
That ASP Mason in his Affidavit had deponed that the DPP was the decision maker so that, naturally, if the Claimants succeeded in their claim that the Coroner was wrong in not holding an inquest then the prosecution brought by the DPP must be stayed or quashed pending the outcome of the inquest.
* That if the Court was to grant the relief prayed for, it would raise the question of the importance of Section 71 of the Constitution. That any attempt to stop the DPP from prosecuting and subjecting him to control and direction by a Coroner’s jury is tantamount to “constitutional contempt”.
* That if the criminal machinery is properly engaged and the DPP is entitled to continue to prosecute the charges, wherever the evidence leads, then to what end is the holding of the Coroner’s inquest? That the Coroner’s inquest and its imposition would amount to nothing more than a brutum fulmen.
Claimants’ rebuttal submissions
“The Gibson Claim”
By the way of rebuttal, Dr. Alexis submitted as follows:
(i) That, in essence, both the DPP and the Solicitor General were asking the Court to repeal, or ignore, the Coroner’s Act. According to the Solicitor General, compliance with the provisions of the Act will result in a financial burden on the State, while, according to the DPP, the “potential incidental criminal function” of the Act has been repealed “left, right and center”. Inherent in that approach is that the Court should ignore the law of the land or to repeal it.
* That the Solicitor General’s reliance on Section 42 of the Act for justification for the exercise of a discretion is misguided. That on the Contrary, that Section imposes a mandatory duty on the Coroner. That the thrust of the Solicitor General’s case was the provisions of Section 42, the inconvenience that was likely to be caused and the costs.
* That the Court should always be wary of arguments about inconvenience to the State. Those arguments should have no place in the Court’s determination of the issues in the instant cases. If it is deemed necessary, actions should be taken to have the law repealed.
* That it was noteworthy that the Defendants had made no attempt to analyse Section 9 of the Coroners Act. They focused their attention on Section 42 instead. That they failed to give the Court an analysis of the Act.
* That from the Affidavit of ASP Mason, it was clear that the DPP did not institute the prosecutions. That it was clear that there were no references to instructions being given by the DPP.
“The Felix Claim”
Mr. Clouden, essentially, adopted the rebuttal submissions of Dr. Alexis and added the following points:
* That the provisions of the Coroners Act not only provided a protective mechanism so as to ensure fairness of its proceedings but was also intended to carry out the intention of Parliament. That it was incumbent on the Court to get at the intention of Parliament and to determine the scope of the statute to be considered.
* That the issue at hand was not the question of the DPP’s powers or the exercise of those powers. What was before the Court was whether the Magistrate, as Coroner, neglected her duty to act mandatorily in these matters.
* That neither the DPP or the Solicitor General advanced the position that the Coroners Act had no place in the adjudication process and was worthless and should be repealed or expunged. That he was fortified in his interpretation of the procedure laid down in the Act.
* That the exercise of powers of the DPP was not being questioned. That was not the issue before the Court. That what was in issue was whether the Magistrate, as Coroner, neglected to do her duty in keeping with the requirement to act mandatorily in these matters.
* That the actions were brought in the name of the Police and there was nothing in the record to show that the DPP had anything to do with them. The Claimants would be prejudiced if the Magistrate, as Coroner, failed to act in the manner that the law demanded. That as Coroner, she was subject to the law of the land and was expected to obey the law with scrupulous regard to all its provisions.
“The Ganness Claim”
Mr. Hood made the following submissions in rebuttal:
* That, having heard both the DPP and the Solicitor General, nothing had been said by them to displace the proposition about the DPP instituting proceedings.
Having heard the arguments from the Claimants and the Defendants, a convenient starting point for a consideration of the several issues raised is the legislation that stands at the centre of each claim, the Coroner’s Act.
The provisions of Sections 9, 10 and 42 of that Act have featured prominently throughout this hearing. A true interpretation and understanding of these Sections is critical to a determination of the primary issues, as identified in Paragraph (10) above.
The Sections are set hereunder in their entirety. Both sections 9 and 10 fall under that part of the Act dealing with the “Duties of Coroners and others in cases of Sudden or Suspicious or Unnatural Death” while Section 42 falls under that part of the Act dealing with Offences.
Inquiry into cause of death of persons confined in prisons, lunatic asylums, etc.
* (1) The keeper or other person in charge of any prison, mental hospital, or other place of lawful detention, shall forthwith report to the Coroner of the district the death of any person confined in any such pubic institution.
* It shall be the duty of the Coroner to inquire into the cause of every such death and, where there is reasonable cause to suspect that such death was occasioned by accident or violence, or in the case of a sudden death of which the cause is unknown, to hold an inquest.
Neglect of duty by Coroner
42. Every Coroner who refuses or neglects, without reasonable excuse, to hold any inquest or inquiry which it is his or her duty to hold, or to perform any duty which he or she is required by this Act to perform, shall be guilty of an offence and liable on conviction on indictment to a fine of five thousand dollars.
The Defendants have made references to, and placed heavy reliance on the provisions of Section 71 of The Constitution of Grenada and Part IV of the Police Act, Cap 244.
Section 71 of the Constitution of Grenada deals with the office of the Director of Public Prosecutions and the powers given to the holder of that office. Part IV of the Police Act sets out in details the powers and duties of police officers. I do not consider it necessary to set out these provisions in details.
Having considered the several submissions from the Claimants and the Defendants, having referred to the authorities cited and having reviewed the provisions of the Coroners Act, with particular attention being paid to Sections 9, 10 and 42, I am in no doubt that the provisions of Section 9 (2) does impose a mandatory duty on the Coroner to conduct an inquiry where death occurs in any of the places therein identified, namely “any prison, mental hospital or other place of lawful detention”.
Applying the provisions of the Interpretation and General Provisions Act in relation to the construction to be placed on the use of the word “shall” as it occurs in sub-section 9 (2), I have no difficulty in arriving at the conclusion that the word is mandatory and creates a duty on the Coroner to conduct an inquiry.
The provisions of Section 9 (2), read in conjunction with the provisions of Section 9 (1) of the Act to my mind, makes it clear that any death occurring in these circumstances should be treated differently from deaths occurring in those circumstances contemplated in Section 10.
The two situations are clearly distinguishable and it must, logically, have been the intention of Parliament that, the death of a person, who has been lawfully detained, should be inquired into by the Coroner.
If upon inquiry, it is found that the death occurred accidentally, violently or for some sudden and unknown cause, then an inquest should, logically, then be held. There is no room any contrary interpretation of these sub-sections.
That Parliament has seen it fit to create two separate and distinct categories for the conduct of inquiries by the Coroner reinforces in my mind that it must have been its intention to create an added safeguard for persons being held within those named facilities or institutions, who, more often than not, do not have say in relation to their liberty or the circumstances of their confinement.
A death occurring in the circumstances detailed in Section 10 of the Act clearly allows the Coroner a discretion as to whether or not to hold an inquest. This can be gleaned from the use of the words “if necessary” occurring within that sub-section.
The omission of those, or similar, words in Section 9 is a clear indication that the Coroner was duty bound to act in a particular manner once the conditions referred to in the Section were found exist. There is not, in my mind, any room for the exercise of any discretion in the application of the provisions.
I am not persuaded by the submissions of the learned Solicitor General that the use of the words “without reasonable excuse” in Section 42 allows for a discretionary application of the Coroner’s duty under Section 9 (2).
I do not agree that those words would provide justification to a Coroner for avoiding the mandatory duty imposed.
I have noted from the Affidavit of Nakisha Lewis that the Magistrate had formed the impression that the Coroners Act was discretionary, and that she, therefore, felt that she had a discretion as to whether to undertake the inquest if she had “reasonable reason ” not to do so.
The Solicitor General has placed much weight on this. I do not share his views in this regards.
On this score, I am of the view that the Magistrate was misguided and thereby fell into error. She was not, in my view, in a position to exercise a discretion as to the conduct of an inquiry in respect of the death of Bartholomew.
The fact of his death,in a place of lawful detention, should have triggered an automatic inquiry. I have paid particular attention to the concession by the learned DPP during his submissions that the provisions of Section 9 do, in fact, apply to the circumstances in these cases.
I have heard the arguments advanced by both the learned DPP and the learned Solicitor General in relation to the constitutional role of the DPP insofar as the commencement of proceedings is concerned.
Notwithstanding those submissions, and within the context of the operation of the provisions of Section 9 of the Coroners Act, I do not think that the DPP’s involvement as this stage of the proceedings is either appropriate or warranted.
The Coroner’s inquiry must be allowed to take place in accordance with the Act.
Indeed, the decision of the Commissioner of the Police (and I do find, as a matter of fact, that the decision was that of the Commissioner of Police) to prefer charges leading to the commencement of the preliminary inquiry proceedings is also premature.
The provisions of the Coroners Act must be adhered to. I do not consider that a strict adherence to the provisions of the Act undermines or usurps the role and function of the DPP or the Commissioner of Police.
Upon completion, by the Coroner, of the process contemplated by that Act, the Commissioner of Police and/or the DPP can then take such actions as they deem appropriate and are legally entitled to take.
What is important and, in my view, beyond dispute is that the Coroner is duty bound to hold that inquiry and, where there is reasonable cause to suspect that the death was occasioned in the circumstances set out in the Act, conduct an inquest in accordance with the provisions of the Act.
As Mr. Hood, Counsel in the Ganness claim, has observed, the bases of the Claimants’ suspension are the charges that have been preferred against them. It follows therefore that since I have concluded that the decision by the Commissioner of Police to charge the Claimants has been made prematurely, then of necessity, those charges will have to be withdrawn at this stage.
The suspension letters, with the accompanying reduction in salaries, must be withdrawn.
The final decision of the Court is as follows:
In respect of Claim No. GDAHCV2012/0021 (“the Felix Claim”) it is hereby ordered as follows:
(a)The claim for an Order of Certiorari to quash as being ultra vires, null and void, invalid and of no effect in law the decision of the Second Defendant (Commissioner of Police) to charge the Claimant Ruddy Felix with the offence of Manslaughter to Peter Oscar Bartholomew and to suspend him with half pay is granted.
(b) The claim for an Order of Prohibition to prohibit the First Defendant, the Magistrate, Eastern Magisterial District, St. David’s from proceeding with holding a preliminary inquiry in respect of the charge of the offence of Manslaughter to Peter Oscar Bartholomew by unlawful harm without the Coroner inquiring into the cause of the said death is granted.
In respect of Claim No. GDAHCV2012/0022 (“the Gibson Claim”) it is hereby ordered as follows:
(a) The claim for an Order of Certiorari to quash as being ultra vires, null and void, invalid and of no effect in law the decision of the Second Defendant to charge the claimant Edward Gibson with the offence of Manslaughter to Peter Oscar Bartholomew is granted.
(b) The claim for an Order of Prohibition to prohibit the First Defendant (Magistrate) from holding a preliminary inquiry into a charge of the offence of Manslaughter to Peter Oscar Bartholomew by unlawful harm without the Coroner inquiring into the case of the said sudden death is granted.
In respect of Claim No. GDAHCV2012/0037 (the Ganness Claim”) it is hereby ordered as follows:
(a) The claim for a Declaration that the decision of the Second Defendant to suspend the Claimants from duty on half months pay with effect from December 30, 2011 is premature and unreasonable and contrary to law is granted.
(b) 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.
(c) The claim for an Order of Certiorari to quash as being ultra vires, null and void, invalid and of no effect in law the decision of the Second Defendant to charge the Claimants Shawn Ganness, Wendell Sylvester and Kenton Hazzard with the offence of Manslaughter to Peter Oscar Bartholomew is granted.
(d) The claim for a Declaration that the decision of the First Defendant in refusing to conduct an inquiry and an inquest into the death of Peter Oscar Bartholomew is ultra vires, unreasonable and contrary to law is granted.
(e) The claim for an Order of Prohibition to prohibit the First Defendant from holding a preliminary inquiry into a charge for the offence of Manslaughter to Peter Oscar Bartholomew by unlawful harm without the Coroner first inquiring into the cause of the said sudden death is granted.
The Court apologises for the delay in the delivery of the decision and extends its appreciation to Counsel on both sides for their assistance and patience.