Barr v Attorney General et Al

JurisdictionBahamas
CourtSupreme Court
JudgeIsaacs, J.
Judgment Date16 Feb 2001
Docket Number157 of 1998

Supreme Court

Isaacs, J.

157 of 1998

Barr
and
Attorney General et al.

Practice and procedure - Stay of proceedings — Constitutional law — Fundamental rights and freedoms — Fair hearing within reasonable time — Applicant sought, inter alia, stay of proceedings commenced against him and for all orders appropriate for enforcing or securing the enforcement of his fundamental rights and freedoms — Whether trial of accused approximately 7 years after committal contravened his fundamental rights — Whether lapse of time involved was presumptively prejudicial — Delay caused by depositions laying in Registry of Supreme Court for years and inability to find applicant — Finding that case was not a complex one and ought to have been afforded an early trial — Proceedings stayed.

Isaacs, J.
1

The applicant, Albert Barn a.k.a. Albert Hanna, seeks, inter alia, to stay the proceedings commenced against him via Information No. 157/8/1998. On 15th February, 2001 he filed an Originating Motion; and sought to employ his affidavit filed on 15th August, 2000 as support for his application. There are five relief claimed but only the fifth need call for our attention as the others have been superseded by changed circumstances. The fifth relief reads: “All such Orders, Writs and Directions the court may consider appropriate for the purpose enforcing or securing the enforcement of the fundamental rights and freedoms to which the applicant is entitled under The Constitution of The Bahamas.”

2

Through the device of this omnibus plea counsel for the applicant, Miss Gina Morley, made her assault upon the Crown's attempt to prosecute her client despite the length of time that has elapsed between his committal for trial in the Supreme Court and the date set for his trial. Miss Money contends that the Crown's attempt breaches Art. 20(1) of the Constitution. That Article reads: “If any person is charged with a criminal offence, then, unless the case is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

3

The facts in this matter axe disclosed in the main by the applicant's affidavit. Paragraphs 3 to 12 are set out here:

  • “3. That on Tuesday 9th March, before Magistrate Court's #6, with Magistrate Cheryl Albury who conducted a Preliminary Inquiry, I was charged with several different offences on an Information Charge #1713198. Armed Robbery contrary section 360(2) of the Penal Code, Chap.74[sic]; Possession of a Firearm whilst committing an indictable offence.(See Exhibit A.B.1) The Preliminary Inquiry was scheduled to be held on March 9th 1993. It ended on November 30th 1993. Also, I was denied bail under paragraph (4) of the Bail Act.

  • 4. That in 1998, I pleaded guilty to illegal possession of a firearm and I was sentenced to four (4) years and six (6) months for that offence by Acting Magistrate Her Honour Ms. Renee McKay.

  • 5. That sometime in early July, 2000, I was served with a copy of Information 157/8/1998 while in Prison. That the Attorney General's Department served said document on me in Prison on July 7th, 2000.

  • 6. That I pleaded not guilty.

  • 7. That the said document was never served on me until July 7th, 2000.

  • 8. That I did not know a bench warrant was issued for me as I was in Prison.

  • 9. That I am known by two names in the system as Albert Barr and Albert Hanna.

  • 10. That on April 8th 1994, Magistrate Albury made a ruling on information 382/93 that there was a case to answer.

  • 11. That of August 11th, 2000, I would have served over six (6) years imprisonment without my case being called up.

  • 12. That on Tuesday, July 14th, 2000, I was brought before the Supreme Court on Information No. 157/8/1998 and I refused to plead because I was unrepresented and I verily believed my Constitutional Rights under Article 20(1) of the Constitution of The Commonwealth of The Bahamas to have been infringed.

  • 13. That I make this Affidavit in support of my application for constitutional relief.”

4

Such gaps as exist in the applicant's affidavit are filled in by the affidavit of Chief Inspector Reginald A. Gaitor, filed on 16th August, 2000 and made in support of the respondent's behalf. Inasmuch as there is some overlapping of the facts, I set out paragraphs 7 through 17 of Chief Inspector Gaitor's affidavit.

  • “7. That on the 13th January, 1994 the Applicant was granted bail in the amount of Four Thousand Dollars ($4,000.00) with one Surety.

  • 8. That the depositions in the matter were duly forwarded to the Supreme Court Registry on the 25th July, 1994. However, they were not forwarded to the Office of the Attorney-General until 6th May, 1998, almost four(40 years later.

  • 9. That having received the said documents The Attorney-General's Chambers moved with due diligence to filed [sic] an Information in this matter on the 13th August, 1998.

  • 10. That this matter was not the subject of the mass “quashing” of Informations in 1994, not having been included in the relevant Criminal Calendar for the then July Sessions of 1994.

  • 11. That although this matter was not quashed it was held in abeyance in the supreme Court's Registry in light of the decision of Thorne, J. (as he then was) in the decision of R. v. Allendo Dames regarding the non-compliance of The learned magistrate with the Criminal Procedure Code and in the result, the impropriety of the committals of all of the matters during this period.

  • 12. That on the 2nd October, 1998 the applicant was to be arraigned before The Honourable Chief Justice Dame Joan Sawyer, but he did not appear resulting in a warrant being issued for his arrest.

  • 13. That numerous attempts were made to contact the, applicant via the radio and through Her Majesty's Prison Record Department.

  • 14. That in 1998, 1999 and 2000 I forwarded to Her Majesty's Prison a copied list of outstanding Bench Warrants with applicant name Albert Barr on it, and in June 2000, I received certain information relative to the applicant.

  • 15. That as a result of this information on the 4th July, 2000 I went to Her Majesty's Prisons and asked for Albert Hanna the applicant was brought to me and said he is also known as Albert Barr.

  • 16. That on the 4th July, 2000 the applicant was served with the Depositions and the Warrant of Arrest.

  • 17. That on the 7th July, 2000 the applicant was arraigned in the Supreme Court before Allen, J., and the matter adjourned to the 29th July, 2000 for counsel to be appointed in light of the ruling of the Honourable Court of Appeal that all such matters ought properly to have court appointed brief.”

5

Thereafter Miss Money was appointed counsel and this application to stay the proceedings was made.

6

It is clear from the two affidavits that we are dealing here with a period of some seven years, i.e., from 12th May, 1993 to 7th July, 2000. The issue arising for determination is, therefore, is this period so long as to amount to a breach of Art. 20(1)? A plethora of cases in this jurisdiction and beyond have held periods of time that have elapsed between committal for trial and trial to be “presumptively prejudicial” as that term is understood in the American case of Barker v. Wingo (1972) 407 U.S. 514 and in the Privy Council's decision in Bell v. D.P.P. [1985] A.C. 937. Some of those periods were not as long as the six years and ten months in this case. The period found by Gonsalves Sahola, C.J. (as he then was) for the presumption to bite was twenty-two months in Stevenson Hanna v. A.-G., C.L.A. No. 430 & 560/89 (unrepo...

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