A man from Dominica accused of smuggling 18 people into Montserrat earlier this year, has had his request for dismissal of all charges rejected in high court.
Crawford Sabaroche argued that he was remanded in custody without a warrant and failed to be brought before the Magistrate’s Court within 72 hours of being charged.
However, Justice Dale Fitzpatrick said that even if technically it could be said that his rights were violated, the accused had neither suggested nor established any prejudice.
The acting high court judge said dismissal of charges should be reserved for only the “most serious, flagrant breaches of an accused rights” and he ruled against his application.
The case came before Montserrat High Court on 19 July and Fitzpatrick delivered his ruling, which contained background to the case, on 29 July.
Alleged captain
Over six months ago, on 30 January, the Royal Montserrat Police Service discovered Sabaroche and 18 other men, women and children aboard a boat drifting off the island’s coast.
Officers from the Marine Unit intercepted the vessel, which was in the exclusion zone, and towed it into port where immigration officers apprehended the boat’s occupants.
The Immigration Department then led an investigation into the arrival, which made them suspect Sabaroche of being the boat’s captain, the ruling said.
Police arrested him on 31 January and he was jailed at the police headquarters before being moved to His Majesty’s Prison.
Officers interviewed him on 3 February, when he gave a “no comment” response, and read his charges to him on 9 February.
Hospital visit
When police next visited on 11 February, Sabaroche was lying on the floor, complaining of stomach pain, with a plastic bottle containing dish washing fluid next to him.
“It appeared to the officers present that the accused had consumed the liquid causing his stomach pain,” Fitzpatrick said in his ruling, published online on 15 August.
Sabaroche denied this claim and in his filed materials said he was taken to hospital and had no memory of anything that occurred before “been blackout”.
He remained in hospital until 19 February when he was brought before Magistrate’s Court for a bail hearing.
Chief Magistrate Vashti Chatoor denied bail and he was taken back to His Majesty’s Prison.
Sabaroche returned to Magistrate’s Court on 5 March where he was read his charges and his case was marked as transferred to high court.
Multiple charges
The Crown’s draft indictment charges Sabaroche with 18 counts of smuggling migrants with other related offences.
This is an indictable class of offence that carries a potential sentence of 20 years in prison and a $500,000 fine per count.
The accused filed an application on 13 May seeking dismissal of all charges.
He said this was on the basis he was remanded in custody without a warrant and failed to be brought before the Magistrate’s Court within 72 hours of being charged.
Crown counsel denied any infringement related to Sabaroche being held in custody or the timing of his attendance before the magistrate.
Court’s decision
The acting judge said he was satisfied police lawfully detained the accused without a warrant from 31 January until the chief magistrate ordered him into custody on 9 February.
“Similarly, this court is satisfied that the accused was lawfully detained without a warrant by the Immigration Department from 30 January to the present,” he added in his ruling.
On the second claim, Fitzpatrick said police or prosecution did not violate the rights of the accused in terms of a timely appearance before the Magistrate’s Court.
“The only reason that the accused was delayed in appearing before the Magistrate’s Court was addressing his acute health issues and related timing,” he wrote in his ruling.
He added that, even if technically it could be said that his right was violated, Sabaroche has neither suggested nor established any prejudice flowing from this technical breach.
He stressed that “any remedy must be measured in proportion to the circumstances of the violation”.
Legislative amendments
Justice Fitzpatrick, in his ruling, said that wording of parts of the applicable legislation is “clumsy” and confusing.
He described a “legislative maze…that one must travel in an effort to find rationality, in particular pertaining to the detention without warrant issue”.
During the delivery of the ruling, the Crown agreed with the court’s characterisation of the law and asked that written reasons be provided, highlighting the need for amendment.
“The court wholeheartedly commends this approach by the Crown and acknowledges the related importance here for the accused to have written reasons,” Fitzpatrick wrote.
He said, in his ruling, that the path to decide on rights violations should be “well-travelled and clear”, but added that this is not the reality in Montserrat.
