Alex Barr v Director of Public Prosecutions

CourtSupreme Court (Bahamas)
JudgeForbes. J.
Judgment Date13 June 2023
Docket NumberCASE NO. CRI/BAIL/FP/00018/2022
Alex Barr
Director of Public Prosecutions

The Honorable Mr. Justice Andrew Forbes

CASE NO. CRI/BAIL/FP/00018/2022



Criminal Side


Attorneys Mrs. S. Cooper-Rolle & Mr. E. Darling c/o Director of Public Prosecutions

Attorney Mr. Stanley Rolle c/o Alex Barr

Forbes. J.

The Applicant has filed an application seeking consideration of the court as to the question of bail and in support of this application the Applicant Counsel filed a Summons to admit to bail on the 11 th April 2023 and his Affidavit in Support was filed on the 11 th April 2023 in which the Applicant avers that he was a self-employed Construction worker as well as a diver and fisherman. That he was arrested on 12 th May 2022 and charged with Harboring a Fugitive and Possession of Dangerous Drugs. That at trial the Harboring a fugitive charges were dropped and the Drugs charge was further adjourned to the 28 th September 2022. That on the 20 th May 2022 he was charged with Murder remanded on the charges by Magistrate Charlton Smith. That I was to be served my Voluntary Bill of Indictment (VBI) on 12 th July 2022, but it was not ready I was again to be served with my Voluntary Bill of Indictment on the 28 th September 2022 again it was not ready at date of this hearing I have not been served my VBI. The Applicant further avers that he has been in custody since May 2022. That he is innocent of the charges. That the Applicant avers that he has no pending matters. That he never participated in an identification parade but believes that the Police utilized a Photo array. That he provided his blood voluntarily. The Applicant avers that he has a previous conviction for a Possession of an Unlicensed Firearm in 2017 in which he was convicted and sentenced to 3 and Half years in Bahamas Department of Corrections (BDOCS). The Applicant asserts he resides in Red Bays Andros and that has no intention to interfere with witnesses and is not a fight risk and is a fit and proper person for bail and has no previous convictions.


The Respondent filed and affidavit in response dated 30 th May 2023 and sworn by Woman Corporal 771 Anastasia Rolle who avers that she is the Liaison Officer of the Director of Public Prosecutions and that the Applicant was charged on 20 th May 2022 with the Offence of Murder. That the Applicant was arraigned before Magistrate Charlton Smith and was not required to enter a plea. Bail was denied and the Applicant remanded that a copy of the charge sheet is exhibited. That there is an eyewitness Mr. Cecil McPhee who identifies the Applicant as the individual who causes the unlawful death of Javon Pinder, a copy of his statement is exhibited hereto. That the Applicant has antecedents which was exhibited hereto. That the Applicant is a not a fit and proper person for bail. That there has not been no unreasonable delay. The conviction related to Possession of Unlicensed firearm which occurred in November 2017 which the Applicant was convicted and sentenced to forty two months and fined three thousand dollars ($3000.00) and in default a further two(2) years at BDOCS.


The Applicant's Counsel has argued that notwithstanding the allegations, the Applicant has denied the allegations and maintains his innocence. Applicants Counsel notes that in fact his client was served his VBI and the Trial is scheduled for 2025. Counsel notes that the primary consideration of the Court is whether the Applicant will attend his trial. In support Counsel cites the decision of Quiento Carey a.k.a Cyber v. The Director of Public Prosecutions [2020] 1 BHS. J No. 93 where at paragraph 8 the Applicant's Attorney notes that the Court said, Every person who is charged with a criminal offence (a) shall be presumed to be innocent until he is proved or has plead guilty.” He further cited the Court of Appeal decision of Dennis Mather and Director of Public Prosecutions SCCrApp. No. 96 of 2020. Noting the comments of President of Appeal Barnett where he said as follows: This Court has on many occasions stated that “bail may only be denied if the State is able to demonstrate that there are substantial grounds for believing that the applicant would not surrender to custody or appear for trial.” Counsel also notes the comments by Justice of Appeal Osadebay in Bradley Ferguson etal v. The Attorney General SCCrApp. No. 57,106,108 & 116 of 2008 where he said the following: The first is In re Barronet and Allain 1 El and Bl 2, 118 ER 338 where Coleridge J, said: “…I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him, so as to make it proper that he should be tried, and because the detention is necessary to insure his appearance at the trial.” Counsel for the Applicant further cited the decision of Jonathan Armbrister v. The Attorney General SCCrApp. No. 145 of 2011, and the comments of Justice of Appeal John where he said as follows: The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial, and that bail is not to be withheld merely as punishment. Counsel also noted the comments of Hall J (as he then was) in the case of Commissioner of Police v. Beneby [1995] BHSJ No. 17. The court notes that while at principle hearing date the Court invited parties to forward submissions. The court notes it received submissions from the Applicants Counsel some two (2) clear days ahead of intended Ruling. However the Court, never received any submissions from the Respondent who elected to stand on the Affidavit in Response filed on the 30 th May 2023. In examining that Affidavit it points to a witness who purports to identify the Applicant via a photo array. And indicated that he observed the Applicant as the man who shot the deceased. Clearly there will be significant challenges mounted against this witness and his identification and substantial questions asked as to why it was done via photo array given the comments of the Privy Council in Maxo Tido v. The Attorney General [2011] UKPC 16 where at paragraph 17 the Court said: “Dock identifications are not, of themselves and automatically, inadmissible. In Aurelio Pop v The Queen [2003] UKPC 40 the Board held that, even in the absence of a prior identification parade, a dock identification was admissible evidence, although, when admitted, it gave rise to significant requirements as to the directions that should be given to the jury to deal with the possible frailties of such evidence – see paras 9 et seq. In particular, the Board considered in that case that the failure to adhere to what was the normal practice in Belize of holding an identification parade should have led the judge to warn the jury of the dangers of identification without a parade. Delivering the advice of the Board, Lord Rodger of Earlsferry said at para 9: “[The judge] should have gone on to warn the jury of the dangers of identification without a parade and should have explained to them the potential advantage of an inconclusive parade to a defendant such as the appellant. For these reasons, he should have explained, this kind of evidence was undesirable in principle and the jury would require to approach it with great care: R v Graham [1994] Crim LR 212 and Williams (Noel) v The Queen [1997] 1 WLR 548.” The Court also notes the Court of Appeal comments in the headnote of Rolin Alexis v. Regina SCCrApp. & CAIS NO. 121 of 2020, This is a case which turned on the quality of the identification evidence and ground one of the proposed appeal attacks the learned judge's handling of the evidence relative to that evidence. The identification evidence led in this case was of good quality save for the mistake made by the police in showing the photo gallery to Bernard Dorsett and the failure of the trial judge to properly address the same. It was therefore incumbent on the trial judge to advise the jury that in the absence of the ability to reconcile the difference, they had to choose to reject the identification...

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