Beneby v Commissioner of Police

• Jurisdiction: Bahamas
• Judge: Sawyer. J.
• Judgment Date: 15 May 1995
• Court: Supreme Court (Bahamas)
• Docket Number: No. 28 of 1995
• Date: 15 May 1995

Supreme Court

Sawyer, J.

No. 28 of 1995

Beneby

and

Commissioner of Police

Appearances:

Mr. B. Macaulay, Q.C., Mr. E. Lockhart with him for the applicant

Mrs. C. Christie for the respondent

Criminal practice and procedure - Application for bail — Application by originating motion where applicants sought a declaration that Art 19, has been contravened in relation to him in having been arrested by the police on suspicion of having committed a criminal offence and not taken to court; that S. 3(1) Part A of the Bail Act, was contrary to Art 19 of the Constitution as those provisions prohibit bail even though a person arrested and detained may not be brought to trial within a reasonable time, in contrast to part B where this is allowed — In light of judges finding the Act was valid and it was not possible to say that the appellant would not be tried within a reasonable time — Preliminary inquiry to be completed with deliberate speed, if not it would be open for him to re-apply for bail at that time — Bail refused.

Sawyer. J.

1 This is an application by originating notice of motion filed February 28, 1995 in which the applicant seeks, inter alia, the following declarations:–

• “1. That Article 19 of the Constitution has been contravened in relation to BENJAMIN HORRACE BENEBY in that having been arrested by Police Officers under the command and discipline of the Commissioner of Police, the Respondent on the 5th day of February. 1995, on suspicion of having committed a criminal offence, kept the said BENJAMIN HORRACE BENEBY in custody until the 8th day of February, 1995, although there were several Courts open and sitting in the said Nassau on the 6th and 7th day of February, 1995, to which he could have been taken.

• 2. That section 3(1) and PART A of the First Schedule to the Bail Act, 1994 is contrary and/or inconsistent, directly and/or indirectly with Article 19 of the Constitution, as those provisions prohibit bail even though a person arrested and detained may not be brought to trial within a reasonable time, in contradistinction to section 4 and PART B of the First Schedule of the said Act, which mandates bail for persons charged with offences listed in PART B, if they cannot be brought to trial within a reasonable time.

• 3. That section 4 of the Bail Act itself is contrary and/or inconsistent directly and/or indirectly with Article 19 of the Constitution in that the said section 4 speaks of a person charged who cannot be brought to trial within a reasonable time’, whereas the fundamental right provision in the said Article speaks unequivocally and without any exception or qualification, that a person who ‘is not tried (nor cannot be tried) within a reasonable time’ shall be released with or without conditions.”

2 The application is brought under the provisions of Article 28(1) of the 1993 Constitution of The Bahamas (“the Constitution”) which paragraph enables a person who alleges that any of the provisions of Articles 16 to 27 of the Constitution “has been, is being or is likely to be contravened in relation to him” to apply to the Supreme Court for redress.

3 The background to this matter is as follows:

4 The applicant, a young man, was arrested at 7:00a.m. on 5th February, 1995 along with several other persons with whom he now stands charged indictably, with the offences of conspiracy to import dangerous drugs, conspiracy to possess dangerous drugs with intent to supply and conspiracy to export dangerous drugs, contrary to the relevant sections of the Dangerous Drugs Act (Ch. 213) (“the DDA”).

5 On the 8th February, 1995 when he appeared before one of the Magistrates sitting at the Nassau Street Magistrate's Court complex, he was granted bail in the sum of $200,000.00 with two sureties.

6 Acting under the provisions of section 8 of the Bail Act, 1994 (No. 20 of 1994) (“the Act”) the respondent applied to the Supreme Court for a review of the learned magistrate's decision to grant bail and the applicant was therefore remanded in custody under the Act to abide the outcome of that review.

7 On 16th February, 1995, Hall, J., ruled, inter alia,

8 “As regards the respondent Beneby, I consider that should he make the necessary application in proper form to this Court, the court should not exercise its discretion to admit him to bail because, notwithstanding that he has appealed his conviction for an offence of a similar nature which has not yet been heard, unless and until that conviction is reversed on appeal it stands and it would be wrong in principle for him to be released on bail upon being charged with these offences, Different considerations may arise if at some future date it could he shown that his trial could not be held within a reasonable time.”

9 Bail was therefore refused because of the fact that the applicant had a previous conviction for a similar offence in 1989 which is the subject of a pending appeal. The applicant had been released on bail pending the appeal under what was then section 234 of the Criminal Procedure Code Act (Ch. 84) (“CPC”).

10 I think it important at this stage to mention the sociological and historical background to the promulgation of the Act.

11 There is little doubt, according to the sociologists, that drug-trafficking has brought in its train the attendant evils of a sharp increase in the severity and number of serious criminal offences of all kinds and of the corruption of persons in positions of public trust.

12 Indeed, in a report presented to the Governor-General on the 14th December, 1984, the Commission of Inquiry into “the Illegal use of The Bahamas for the transshipment of dangerous drugs destined for the United States of America” headed by Sir James A. Smith, had this to say with regard to the law and practice relating to bail in The Bahamas:–

• “1. Ample evidence has been placed before us to illustrate the manner in which the laws of The Bahamas relating to bail have operated in favour of foreign drug traffickers. In numerous cases, bail set at six figures has not deterred smugglers from absconding. They apparently consider large sums lost in forfeited bail as part of the cost in operating their illegal enterprises. Arrest warrants are issued but defendants are not brought to trial because of their failure to appear.

• 2. Magistrates take the position that they do not have a discretion not to grant bail when it is apparent that the accused cannot be brought to trial within a reasonable time. This conclusion is based upon the provisions of Article 19 of The Constitution of the Commonwealth of The Bahamas (1973) the relevant parts of which read as follows:

  • ‘(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases:

    • (c) for the purpose of bringing him before a court in execution of the order of a court;

    • (d) upon reasonable suspicion of his having committed, or of being about to commit, a criminal offence;

  • (3) Any such person who is arrested or detained in such case as is mentioned in sub-paragraph (1) (c) or (d) of this Article and who is not released shall be brought without undue delay before a court; and if any person arrested or detained in such a case as is mentioned in the said sub-paragraph (1)(d) is not tried within a reasonable time he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.'

• 3. It is most often the case in The Bahamas that on the first appearance of an accused drug trafficker, the prosecution is not ready to proceed with the charge. That, coupled with crowded court calendars, means that that the hearing is adjourned from time to time and often the matter is not disposed of for many months. Having regard to the requirements of the Constitution, in these circumstances magistrates feel they have no option but to grant bail. Records indicate that in the majority of cases cash bail has been accepted without a surety or sureties. This practice appears to be based upon the provisions of section 69 of the Criminal Procedure Code. The relevant parts of that section read as follows:–

  • 69.(1) When any person, other than a person accused of murder or treason, appears or is brought before a court, or when committed for trial by any such court, and is prepared at any time or at any stage in the proceedings before such court to give bail, such person may be admitted to bail with or without a surety or sureties.'

  • (2) The amount of bail in any case to which the provisions of subsection (1) of this section apply shall not be excessive, and any court may accept a deposit of cash in lieu of any security.'

• 4. It appears to us this legislation is not interpreted or applied to serious drug trafficking cases in a way that would ensure the appearance of the offenders at the trial. In that regard, we have considered the law and practice relating to bail in other countries with a common law background.”

13 The Commissioners then went on to summarize their views of the bail provisions of England, Queensland, Australia and the United States of America as follows:–

• ‘5. The Bail Act, (1976) of England provides a general right to bail of accused persons, subject to the provisions of schedule I to the Act which applies to defendants accused of or convicted of imprisonable offences. The paragraphs of the Schedule that are relevant to our consideration of bail read as follows:–

• 2 The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:–

  • (a) fail to surrender to custody, or

  • (b) commit an...