Director of Public Prosecutions, Christopher Nelson, QC, has appealed the March 2013 order of High Court Judge, Justice Septimus Rudd to squash Manslaughter charges brought against five police officers in connection with the December 2011 death of Grenadian-born Canadian citizen, Oscar Bartholomew following an incident at the St. David’s Police station.
The order resulted in the officers – 649 Edward Gibson, 237 Ruddy Felix, 675 Shaun Ganness, 748 Kenton Hazzard and Rural Constable Wendell Sylvester – being reinstated into the Royal Grenada Police Force (RGPF) after they were suspended.
The Eastern Caribbean Court of Appeal last week Thursday took the decision to reserve its decision on the matter following several legal arguments put forward by Counsel for state, Thomas Astaphan QC from Anguilla and Dr. Francis Alexis, QC, who represented the policemen.
The state’s appeal challenges the relationship between Section 9 of the pre-Constitutional Coroner’s Act and Sec. 71 of the 1973 Constitution of Grenada, as interpreted by Justice Rudd in handing down his ruling.
Justice Rudd’s order was based on Sec. 9 of the Coroners Act, which prohibits the Commissioner of Police (CoP) from laying any charges before a Coroner’s Inquest is conducted, in the event that a person dies while in police custody.
The deceased, who was vacationing with his Canadian wife, was allegedly beaten to death by the police officers at the St. David Police Station.
A Preliminary Inquiry (PI) into his death commenced at the St. David’s Magistrate’s Court in early 2012 but defense attorneys for the accused policemen made representation to the sitting Magistrate, Nevlyn John for a Coroner’s inquest to be conducted.
However, the Magistrate allowed the PI to continue.
The matter was then taken to the High Court and Justice Rudd took the position that a Coroner’s Inquest should have been held and completed before the Police commissioner laid charges against the officers and before the PI commenced into Bartholomew’s death.
The Coroner’s Inquest, which commenced in April 2013, is scheduled for completion this Friday at the St David’s Magistrate’s Court.
Arguing the state’s position on the issue before the Court of Appeal at the No. 2 High Court in St George’s, QC Astaphan who was assisted by Solicitor General Dwight Horsford said, while the state concedes with Sec. 9 of the Coroner’s Act, it does not prevent the Director of Public Prosecutions (DPP) from investigating the incident or the CoP from laying charges against the officers involved.
He contended that the Coroner cannot infringe on the authority of the DPP, pointing out that both the PI and the Coroner’s Inquest could have been held simultaneously and that the DPP in his discretion, has the authority to put the charges on hold pending the outcome of the inquest.
“The Judge (Justice Rudd) ordered for the charges to be squashed and that the Coroner’s (Inquest) must take place first – we are saying that this is wrong in law,” the Anguillan QC declared.
In response, Alexis, QC maintained that the laying of the charges before the Coroner’s Inquest is held was “not proper in law.”
In an interview with THE NEW TODAY after the matter was heard, Dr. Alexis described the appeal as a “very interesting issue.”
He stressed that Sec. 9, of the Coroner’s Act makes it “mandatory” and that it is the “duty of the Coroner to inquire before the charges are laid.”
Sitting on the Bench were Justices of Appeal, Jamaican-born Madam Justice Louise Blenman, Justice Mario Michel and Justice Paul Webster, also from Jamaica.
Madam Justice Blenman emphasised that the Coroner’s inquest is intended to determine how and where the person died, whether it was by accident or an act of violence, but is not authorised to identify who is responsible for the death.
“The Coroner is not allowed to identify who is responsible (for Bartholomew’s death or) to say Mr. A is responsible,” the female Justice said.
Having listened to the arguments put forward by both sides, an order was issued for both the appellants and the respondent to file their submissions in writing for consideration by the Appeals Court.
The Court of Appeal is expected to receive the submissions from both sides for consideration within seven days from the date the order was issued and has reserved its decision for a date to be announced.