Joel King –
THREE Appeal Court judges will determine if a master of the High Court in the criminal division has the power to grant bail to someone charged with murder.
It is the Director of Public Prosecutions’ (DPP) position that they do not since the criminal court rules only give the master the power to grant bail in line with the provisions of the Bail Act – which precludes the grant of bail for the capital offence – and the rules do not transfer the power of a judge to an officer of inferior status, such as a master or magistrate.
On Friday, Justices of Appeal Alice Yorke-Soo Hon, Gregory Smith and Mira Dean-Armorer heard submissions from attorneys on the DPP’s appeal of the $1.5 million bail granted to Joel King by Master Nalini Singh in March.
They have reserved their decision on the appeal.
King’s was the first successful bail application for murder in more than a century after the Court of Appeal, on February 17, ruled that Section 5(1) of the Bail Act of 1994, which prohibited bail for people charged with murder, was unconstitutional since it removed the jurisdiction of judges.
However, assistant DPP Nigel Pilgrim argued the Appeal Court’s ruling in Akili Charles in February meant that judges always had that inherent power to grant bail for offences, including murder, not the Bail Act. As a result, it was Pilgrim’s argument that since Akili Charles’s ruling did not strike down section 5 of the Bail Act, it stands that masters cannot grant bail for murder.
Pilgrim’s arguments also included a complaint that the master did not consider making an order for a bio-social report to get a clearer picture of King’s disciplinary record while in prison especially since, using what he referred to as the “penalty theory,” the offence of murder still carried the mandatory death penalty so the court had to engage in a more robust examination of all the factors before agreeing to bail.
On the DPP’s right of appeal to the Court of Appeal, Pilgrim said the State had such a right.
In response, King’s attorneys, led by Ravi Rajcoomar, argued that the master’s jurisdiction was set out in the Supreme Court of Judicature Act and was akin to a judge sitting in chambers (not open to the public), which is where bail applications are heard.
Rajcoomar also submitted that the definition of “court” in the Bail Act was wide and should be purposefully interpreted to include a judge and a master.
As for the DPP’s right to appeal a master’s decision, he said this would entail a concession by the State that a master had the jurisdiction of a judge sitting in chambers and if the court determined a master sits as an inferior tribunal, then the DPP’s appeal to the Appeal Court would be premature since the Bail Act only permits an appeal where the application starts in the magistrates’ court.
Also making submissions on the master’s jurisdiction to grant bail for murder were the Public Defenders Department (PDD), led by its chief Hasine Shaikh and her deputy Raphael Morgan, and the Law Association, led by former president Douglas Mendes, SC.
The PDD’s position mirrored those of King’s attorneys on the question of the master’s power to grant bail for murder and on the Court of Appeal not having the jurisdiction to entertain the DPP’s appeal. They also argued that reports from the prison on King’s disposition, conduct and associations, would have been of little use to the court even if they were relevant to the question of bail.
Mendes said although the Bail Act precluded a master from granting bail for murder when the sunset clause of the 2019 legislation kicks in by August this year, then a master will have that power.
King was committed to stand trial for the 2014 murder of Nkosi Harricharan in Belmont. He is yet to access the $1.5 million bail.
Although his was the first successful bail application in more than a century, there has since been another successful bail application granted by a High Court judge, not a master.
Earlier this month, Justice Carla Brown-Antoine was the first judge to grant bail to a man who has been waiting almost two decades to go on trial for a 2003 murder in Diego Martin.
And while the Akili Charles ruling by the Appeal Court opened the door for those charged with murder to have the opportunity to apply for bail, that ruling is being challenged by the State at the Privy Council. It comes up for hearing in June.
King’s attorneys also include Larry Williams, Shaun Morris and Toni Roberts and also appearing for the Law Association is attorney Peter Carter.