Re Cox et Al

• Jurisdiction: Grenada
• Judge: Moore, J.
• Judgment Date: 10 November 1994
• Neutral Citation: GD 1994 HC 11
• Date: 10 November 1994
• Court: High Court (Grenada)
• Docket Number: 489, 492 and 502 of 1994

High Court

Moore, J.

489, 492 and 502 of 1994

Re Cox et al

Practice and procedure - Bail — Principles governing grant

Moore, J.

1 The applicant Michael Cox was charged indictably with the following offences:

Magistrate's Court No. 1350/94

Jointly with Michael Mitchell and Clark John with:

• 1. Attempting to export a controlled drug to wit Cannabis contrary to Section 38(1) of the Act.

Magistrate's Court No. 1352/94

Jointly with Clark John with:

• 2. Having in his possession a Controlled Drug to wit Cannabis contrary to Section 6(2) of the Act.

The applicant Michael Mitchell was charged Indictably with the following offences:

Magistrate's Court No. 1350/94

Jointly with Michael Cox and Clark John with:

• 1. Attempting to Export a Controlled Drug to wit Cannabis contrary to Section 38(1) of the Drug Abuse (Prevention and Control) Act No. 7 of 1992 (hereinafter referred to as the Act).

Magistrate' s Court No. 1351/94

Solely with:

• 2. Knowingly handling a Controlled Drug to wit Cannabis which was intended for supply to another contrary to Section 7(1) of the Act.

The applicant Clark John was charged with the following offences:

Magistrate's Court No. 1350/94

Jointly with Michael Mitchell and Michael Cox with:

• 1. Attempting to Export a Controlled Drug to wit Cannabis contrary to Section 38(1) of the Act.

Jointly with Michael Cox with:

• 2. Having in his possession a Controlled Drug to wit Cannabis contrary to Section 6(2) of the Act.

2 The quantity of the illegal drug involved in these cases is 150.25 lbs. This is a large traffic-able quantity. The minimum weight of a traffic-able quantity of Cannabis as set out in Column 2 of the second schedule of the Act is 15 grammes.

3 The maximum penalties for these offences as set out in the fifth schedule of the Act if prosecuted on Indictment (as they are being prosecuted) is, in each case, a fine of $500,000.00 or imprisonment for 20 years or both. Thus, each applicant faces a maximum penalty of a fine of $1,000,000 or imprisonment of 40 years, or both.

4 According to their affidavits, the applicants were arrested on Saturday 15th October last and appeared before Her Worship Miss Patricia Mark on the 17th October, 1994. The learned magistrate refused bail to the applicants and remanded them to prison until the 4th November, 1994 for their trial which duly commenced on the 4th November as scheduled. It has been adjourned to the 22nd November, 1994 for continuation.

5 The police opposed bail when the applicants appeared in the Court below on the 17th October, 1994. The following matters were relevant for the consideration of the learned Magistrate in refusing bail:

• 1. The gravity of the offences charged and the severity of the sentences provided.

• 2. The opposition of the police to the grant of bail.

• 3. The prevalence of the offences; Grenada being increasingly used as a trans-shipment point for Drug Traffickers.

• 4. The strength of the Prosecution cases.

• 5. Grenada being a tri-island State, the ease with which persons have travelled illegally in and out of Grenada.

• 6. The likelihood of the accused absconding and not appearing to stand their trial.

• 7. The quantity of the illegal drug involved i.e. 150.25 lbs of Marijuana.

• 8. The fear of the police that if released on bail, the accused might tamper with witnesses.

6 Being dissatisfied with the decision of the learned magistrate, the applicants approached the High Court for bail under the provisions of Section 52 of the Criminal Procedure Code Cap. 77 of the Revised Laws of Grenada. It is doubtful whether those proceedings were in a “criminal cause or matter”. Section 52 reads where relevant as follows:

“A judge may at any time order any person charged with any offence except treason to be admitted to bail ….”

7 But before considering the power of the High Court under Section 52, it is germane to consider the right of an accused person to bail under section 50 of Cap. 77.

8 Before the passage of the Criminal Procedure Code (Amendment) Act, 1992, Act No. 9 of 1992, section 50(1) of Cap. 77 made it clear that. bail was a right to which an accused person was entitled if the offence with which he was charged was punishable with fine or with imprisonment not exceeding two years. In those circumstances, said subsection (1) “the accused shall be entitled to be admitted to bail.”

9 Section 50(2) was however of entirely different import. It read:

“Where the offence with which the accused is charged is punishable with imprisonment exceeding two years, the Magistrate may, in his discretion, admit the accused to bail ….” (underlining mine).

10 Thus where, as in the instant cases, the offences charged were punishable with imprisonment exceeding two years, the accused no longer had a right to bail which, with the exception of certain treasonable offences and murder, lay in the discretion of the magistrate.

11 The Criminal Procedure Code (Amendment) Act 1992 repealed and replaced section 50 of the Criminal Procedure Code, Cap. 77.

12 Subsection (1) of the amended Section 50 reads as follows:

“50.(1) Subject to subsection (2), where a person is accused of having committed any offence that is punishable with a fine or with imprisonment for any period whatsoever, the Magistrate may, in his discretion, admit the accused person to bail, so that in relation to any such offence bail shall in every ease be in the discretion of the Magistrate.”

13 Thus, the magistrate's discretion in the matter of the grant or refusal of bail has been expanded to include “any offence that is punishable with a fine or imprisonment for any period whatsoever” and is no longer fettered in cases where the offence is punishable with fine or with imprisonment not exceeding two years. In other words, a person charged with such an offence is no longer entitled to bail as of right.

14 Accordingly, when the learned magistrate refused bail to the applicants on the 17th October, 1994, she was exercising a judicial discretion conferred upon her by the amended section 50(1) of the Criminal Procedure Code which the law requires that she exercise judicially as well as judiciously. Referring to the magistrate's statutory and common law inherent discretion to allow the prosecution to reopen their case to lead further evidence, Haynes, J. A. as he then was, in Persaud v. Jaitoon (1975) 23 W. I. R....