Bastian v Government of the United States of America and Commissioner of the Bahamas

JurisdictionBahamas
CourtSupreme Court
JudgeWinder, J.
Judgment Date12 Sep 2017
Docket Number2015/CRI/con/00011

Supreme Court

Winder, J.

2015/CRI/con/00011

Bastian
and
Government of the United States of America and Commissioner of the Bahamas
Appearances:

Murrio Ducille for the applicant

Neil Brathwaite with Viola Barnett for the respondents

Criminal practice and procedure - Application for a Writ of Habeas Corpus — Whether it would have been an abuse of process of the Court to extradite applicant to the United States of America after a delay of 10 years since the charges were made and the extradition proceedings instituted — Delay occasioned in seeking the extradition of applicant — Whether there was insufficient evidence before the Court to implicate applicant for the offence — Whether Magistrate wrongly arrived at a decision that the evidence was sufficient to commit applicant.

Winder, J.

This is my decision on the application of Nyahuma Anthony Bastian (“the applicant”) for a Writ of Hapeas Corpus following the decision of Senior S & C Magistrate Guillimina Archer-Minns (as she then was) that he be committed to the keeper of the Prison at Fox Hill to await his extradition to the United States of America.

BACKGROUND
1

The applicant was arrested in Denton County Texas United States, on 26 April 2001 for the offence of aggravated sexual assault against Tenise Sallie. The applicant and Sallie had previously been engaged in an intimate relationship.

2

The applicant was admitted to bail on 3 May 2001.

3

On 12 July 2001 the grand jury for the United States District Court for the County of Denton in the State of Texas returned an indictment charging the applicant with the offence of Aggravated Sexual Assault in violation of Texas Penal Code 22.021. The indictment which charges in one count alleges that the applicant committed the following offence:

“intentionally and knowingly causing the penetration of the female sexual organ of Tenise Sallie by his sexual organ, without the consent of Tenise Sallie; and by acts or words threatening to cause, or placing Tenise Sallie in fear that, death or serious bodily injury would be imminently inflicted upon her, such acts or words occurring in the presence of Tenise Sellie, in violation of Texas Penal Code Section 22.021.

4

The offence of Aggravated Sexual Assault is similar to the offence of Rape under the Sexual Offences and Domestic Violence Act.

5

The applicant travelled back and forth to the United Stated and attended hearing in August September and November of 2001. The applicants jury trial was scheduled to commence on 19 February 2002. The applicant did not attend causing a warrant for his arrest to be issued.

6

The applicant says that he did not attend Court in Texas because his US Fl Visa was cancelled when he sought to renew it in February 2002. On the morning of the jury trial the applicants US attorney Gerard Rosso filed a motion for a continuance of the trial. The terms of the motion were as follows:

No. F-2001–0723-A

STATE OF TEXAS IN THE DISTRICT COURT

vs 16TH JUDICIAL DISTRICT

NYAHUMA ANTHONY BASTIAN DENTON COUNTY TEXAS

MOTION FOR CONTINUANCE

TO THE HONOURABLE JUDGE OF THE SIAD COURT:

Now comes NYAHUMA ANTHONY BASTIAN, Defendant, and files this Motion for Continuance of this cause from its present setting of February 19th 2002 and shows the following:

  • 1. This motion in filed in accordance with Article 29.03 of the Texas Code of Criminal Procedure.

  • 2. During the last trip to the United States by the Defendant, who currently is on a F-1 student Visa, was told by American Customs to have a letter or some proof that he was currently attending school in the United States. The Defendant is currently not attending school in the United States. In anticipation of having a problem with his F-1 Visa this trip, the Defendant applied for a B-2 visa last week, which has no requirement of attending school. Because of procedures implemented since September 11, 2001, what used to take 1 day now takes 3 days. The Defendant's visa application will not be decided until February 20, 2002. Once his visa is granted, the Defendant intends on returning to face trial on these charges.

  • 3. This motion is not made for the purposes of delay but that justice may be done.

7

The applicant did not at anytime subsequent to the 19 February 2002 attend for his trial in Texas and on 9 April 2002 a warrant was issued for his arrest.

8

The 1st Respondent says that its local Sherriff department in Denton County Texas was unsuccessful in locating and apprehending the applicant until 2008 when the Federal Bureau of Investigation located him in The Bahamas. The request for his extradition was made in April 2010 by the United States of America. The Authority to Proceed was issued on 10 May 2010.

9

Committal proceedings ensued before Senior Magistrate Archer-Minns and on 18 March 2015 the applicant was committed to await extradition to the United Sates.

10

By Originating Notice of Motion the applicant commenced these proceedings on 25 March 2015. The Originating Notice of Motion is settled in the following terms:

TAKE NOTICE that the Supreme Court sitting in Bank Lane, Nassau N, P, Bahamas will be moved before [ ] on [ ] the [ ] day of [ ] AD 2015 at o' clock in the noon or so soon thereafter as counsel can be heard on behalf of NYAHUMA BASTIAN, the applicant, for an Order that a Writ of Habeas Coprus do issue to the Commissioner of the Bahamas Department of Correctional Services at Fox Hill Road, New Providence, to have the body of Nyahuma Bastian before the Supreme Court at such time as the judge may direct upon the grounds set out in the Affidavit of Nyahuma Bastian and the exhibits therein respectfully referred to used on the application for such order, copies of which Affidavit and exhibits are served herewith.

ISSUES
11

The Motion is supported by the Affidavit of the applicant also dated 25 March 2015 from which the grounds of his application may be distilled. These issues are

  • (1) Delay occasioned in seeking the extradition of the applicant.

  • (2) The nature of the offence is one which ought to be corroborated, however there was no medical evidence or corroborative evidence before the learned magistrate to consider.

  • (3) The evidence of the Complainant at its highest was nebulous. Therefore the learned magistrate wrongly arrived at a decision that the evidence was sufficient to commit the applicant.

DELAY
12

The principal complaint of the applicant was that it would be an abuse of process of the Court to extradite him to the United States of America, having regard to the unreasonable delay of roughly ten (10) years that has elapsed since the charges were made and the extradition proceedings instituted. The applicant says that the learned magistrate failed to consider this issue.

13

Article 20(1) of The Constitution of The Bahamas, provides that “if any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law. In Cancino v. AG 2008/CRI/jrv/00011, and Darmalingum v. The State of Mauritius 2000 UKPC 30 prosecutions were stayed with respect to prosecutorial delays of 7 and 15 years respectively. In each case the Court was satisfied that as a result of the delay, the continuation of the prosecution prejudiced the right to a fair trial within a reasonable time. None of those cases were extradition proceedings however.

14

In Rhett Fuller v. AG of Belize 2011 UKPC 23, the Judicial Committee of the Privy Council, on an appeal from Belize, considered the question of delay with respect to extradition proceedings. In Fuller, the appellant was wanted on an arrest warrant for the 22 March 1990 murder of one Larry Miller who was killed in Miami, Florida. The appellant was not apprehended and subsequently left the United States for Belize. On 28 January 1998, a Grand Jury in Florida indicted the appellant for the first degree murder of Miller. The United States Embassy in Belize made a formal request for the appellant's extradition to the United States. He was arrested and remanded in custody on 21 October 1998. On 26 February 1999, after a hearing, the Chief Magistrate ordered his extradition, remanding him to prison to await his surrender.

15

The complaints of the appellant in Fuller were similar to that of the applicant in this case. Fuller complained, inter alia, that there was an about 13 year period which elapsed between the alleged offence and the extradition request, notwithstanding the fact that his presence in Belize was known to the US authorities. Lord Phillips, who delivered the opinion of the Board stated at paragraph 75 as follows:

75. Mr. Fitzgerald has put at the forefront of his...

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