Dennis Robinson v The Parole Board

• Jurisdiction: Bermuda
• Judge: Subair Williams J,Shade Subair Williams J
• Judgment Date: 19 November 2019
• Neutral Citation: [2019] SC Bda 76 Civ ,BM 2018 CA 21
• Date: 19 November 2019
• Docket Number: CIVIL JURISDICTION 2019 No: 401
• Court: Supreme Court (Bermuda)

[2019] SC (Bda) 76 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2019 No: 401

Between:

Dennis Robinson

Plaintiff

and

The Parole Board

The Commissioner of the Department of Corrections

Defendants

Counsel for the Plaintiff: Mr. Mark Pettingill (Chancery Legal Ltd)

Counsel for the Defendants: Mrs. Shakira Dill-Francois (Deputy Solicitor General)

Judicial Review — Application for judicial review of first defendant's decision to recall plaintiff into prison custody and to detain applicant in breach of his rights against arbitrary detention as protection under section 5 (Schedule 2) of the Bermuda Constitution — Whether plaintiff was time barred from making an application for leave to apply for judicial review.

Final Hearing of Application for Judicial Review against Decision to Recall Prisoner from Release on Parole and keep in Detention — Differing applications of Sections 12 and 13 of the Prisons Act 1979 -Release on Licence in respect of a Sentence of Life Imprisonment

Common Law Rules and Principles of Natural Justice against Procedural Impropriety — Caution against Procedural Merges between Judicial Review Applications and Pleadings of Breaches of Fundamental Constitutional Rights

Refusal of Writ of Habeas Corpus

JUDGMENT of Shade Subair Williams J

Shade Subair Williams J

Introduction:

1 The Plaintiff is currently serving a life sentence of imprisonment under section 288(1) of the Criminal Code Act 1907, having been convicted for the offence of murder on 3 February 2006. The life sentence comprises of a statutory eligibility to parole for release on licence by the Parole Board, as established by the Parole Board Act 2001.

2 On 18 April 2016 the Plaintiff was granted parole by the Parole Board (intermittently referred to as “the Board”) on various conditions, the relevant portion being as follows:

(iv) Not to commit another offence against the Laws of Bermuda during the period of this Parole Order and to immediately inform the Parole Officer of any arrest or charge.

(viii) To refrain from activities and association with persons, places or things that may lead to illegal activities. This prohibition incudes but is not limited to maintaining an affiliation with any gangs or being in the company of gang members; being in possession of any weapons. Any written directive from the Parole Officer in terms of refraining from specific activities or associations must be adhered to.

3 On 15 November 2016, the Plaintiff and a second person were arrested on suspicion of being in possession of a controlled drug. The following day, the Plaintiff was recalled by the Board into prison custody. A Revocation Order purporting to be made under section 12(5) of the Prisons Act 1979, dated 21 November 2016, (“the Revocation Order”) was exhibited to the affidavit evidence of an administrative assistant to the Board. The Revocation Order states that the Board was satisfied that the Plaintiff failed to comply with the two above-stated conditions at (iv) and (viii).

4 On 6 January 2017, the Plaintiff was charged with possession of cannabis with intent to supply, contrary to section 6(3) of the Misuse of Drugs Act 1972. On 2 February 2017 he first appeared before the Magistrates' Court to be formally charged on Information 17CR00039.

5 What chronologically followed thereafter is amply outlined in the 13 September 2019 judgment of the learned Assistant Justice Mr. Delroy Duncan where a constitutional challenge was successfully made by the Plaintiff on the ground that his rights to a fair hearing in a reasonable timeframe under section 6(1) of the Bermuda Constitution had been infringed. The Magistrates' Court proceedings against the Plaintiff were accordingly stayed.

6 Duncan AJ, however, did not stay the criminal proceedings against the Plaintiff s co-accused. At paragraph 67 of the judgment, Duncan AJ held:

“In the case of the Second Plaintiff, she has not been in custody awaiting the outcome of her fate. Although the anxiety she has suffered pending the outcome of her charges is a relevant factor of prejudice, such prejudice as she has experienced, can be mitigated in the remedy the trial court can impose at the conclusion of the criminal proceedings. For example, by way of reduction of sentence. For this reason, despite my decision that the Second Plaintiff's Constitutional right to a fair trial has been breached, I do not order that her retrial be stayed or discontinued?”

7 The Plaintiff's continued detention under the Revocation Order is the subject of complaint before me.

8 Taking flight from the Court's decision to stay the Magistrates' Court proceedings against the Plaintiff, the Plaintiff's Counsel appeared before this Court on an ambitious application filed on 9 October 2019 for a writ of habeas corpus ad subjiciendum pursuant to Order 54 of the Rules of the Supreme Court 1985 (RSC). The application was supported by affidavit evidence sworn by the Plaintiff.

9 The application sought for this Court to determine, ex parte, whether the Second Defendant was unlawfully detaining the Plaintiff. The Plaintiff s application was bound for defeat as the grounds advanced wholly depended on the dicta of Duncan AJ in his 13 September judgment. I summarily dismissed the application for an ex parte order of release as the question of the lawfulness or unlawfulness of the Plaintiff s continued detention was arguable. However, I directed that such a question was a matter which ought only to be determined by way of an inter partes application for judicial review in an expedited timeframe.

10 On 15 October 2019, Mr. Pettingill filed a Form 86A under RSC Order 53/3 for leave to apply for judicial review on two grounds:

• 1. The Respondents ‘ Decision to unlawfully recall the Applicant between 15 ^th November 2016 an present day; (and)

• 2. The Respondents ‘ Decision to unlawfully detain the Applicant between 13th September 2019 and present day.

11 Counsel for both sides subsequently appeared before me on 16 October 2019 and sensibly agreed that the Form 86A would be treated and argued as if it were a final inter partes hearing of an Originating Motion on the basis that leave for judicial review had been granted by me (at least implicitly) at the 9 October hearing.

12 The relief prayed under the Form 86A was as follows:

• 1. An Order of mandamus to the Respondents directing ordering them to release the Applicant from custody with immediate effect;

• 2. An Order for a declaration riding that the Respondents acted in breach of natural justice and in contravention of the Bermuda Constitution 1968 Section 5 (protection from arbitrary arrest or detention);

• 3. An Order for a declaration ruling that the Respondents acted unlawfully when they failed to offer the Applicant a hearing or provide any reasons for their decision to recall him on 15th November 2016;

• 4. An Order for a declaration ruling that the Respondents acted with procedural unfairness when they failed to offer him a hearing or provide any reasons for the decision to recall the Applicant on 15th November 2016;

• 5. An Order for a declaration ruling that the Respondents acted with procedural unfairness when they failed to offer him an oral hearing or provide any reasons for their refusal to release the Applicant from custody on or after 13th September 2019;

• 6. An Order for damages;

• 7. An Order for costs on an indemnity basis;

• 8. Any further or other relief

13 At the hearing before me, I permitted Mr. Pettingill to expand the prayer for relief to include an order of certiorari to quash the Board's decisions to recall the Applicant on 15 November 2016 and to detain the Applicant between 13 ^th September 2019 and present day.

14 Full submissions were made by both sides and I reserved judgment which I now provide with the reasons herein.

The Plaintiff's Evidence

15 I have considered the unsworn 1 affidavit evidence of the Plaintiff (“the Plaintiff s affidavit”) and refer in particular to paragraphs 3 and 4:

• 3. Approximately one week later (following the 15 November 2016 arrest), I was taken without any notice from Westgate to a meeting with the Parole Board. I was told at that meeting that I would be recalled. I asked for reasons and at first I was not provided with any reasons. I was later told that it was because I had been charged with a criminal offence, which was not accurate — I was not charged until 6 ^th January 2017. I was also told the decision was based on a letter received from the Ministry. I asked to see the letter or to be provided with a copy of that letter, but those requests have been ignored and denied. I have still never seen a copy of that letter.

• 4. At that meeting:

  • (i) I was not given an opportunity to speak to anything related to my recall either in writing or verbally and I was never given any formal reason for me being recalled as it related to any breach of condition;

  • (ii) I was not invited to have an attorney or “friend” present to protect my legal interests or witness proceedings;

  • (iii) I was not shown any documents that the Board might have relied on, including the aforementioned letter;

  • (iv) The provisions of the Criminal Code Amendment (No 2) Act 2014 were never raised or pointed out to me.

16 At paragraph 7 of the Plaintiff's affidavit it is stated that Mr. Pettingill wrote to the Board to request sight of the letter. On the third page of the unnumbered exhibit documents, there is a 15 November 2017 letter from Chancery Legal to the Board. In that letter Mr. Pettingill advised that the Plaintiff unequivocally denied the charge and pointed out that his co-accused had acknowledged responsibility for the offence in Court and that the matter was fixed for trial in January (2018).

17 In the final part of the two-paragraph letter, Mr. Pettingill stated:

“We take the view that this is unfair on our client...