Carey v Attorney General
| Jurisdiction | Bahamas |
| Judge | Isaacs, J. |
| Judgment Date | 18 November 2011 |
| Date | 18 November 2011 |
| Court | Supreme Court (Bahamas) |
| Docket Number | PUB/CON/ 13 of 2011 |
Supreme Court
Isaacs, J.
PUB/CON/ 13 of 2011
Mr. Jerome Roberts for the applicant.
Mr. Bonaby for the respondent.
Constitutional Law - Stay of criminal proceedings — Whether there was a breach of Article 20 of the Constitution.
On 22 October 2011 I heard the Originating Notice of Motion of the applicant, Arthur Carey which sought a number of constitutional reliefs he wished to be granted, including one for a stay of the criminal proceedings pending against him before Stipendiary and Circuit Magistrate Ferguson-Pratt. I had delivered a brief oral decision but promised to give my decision in writing at a later date; and I do so now.
The applicant filed his Originating Notice of Motion on 10 October 2011 wherein he requests the following reliefs:
“1. A Declaration that the applicant's case has not been afforded a fair hearing, same being in breach of Article 20 of The Constitution.
2. A Declaration that the applicant has not been given adequate facilities for the preparation of his defense, same being in breach of Article 20 (2)(C) of The Constitution.
3. An Order that any further prosecution of the applicant upon Charge Sheet 879–11 be stayed.
4. Such Orders, Writs and or Directions, pursuant to Article 28 of the Constitution as the Court ay consider appropriate for the purpose of enforcing or securing the enforcement of the provisions of the said Article 20 to the protection of which the applicant is entitled.”
He provides one ground only for his application, to wit. “That notwithstanding the defence's requests, the Prosecution has failed to disclose material which can assist the defence, particularly a video recording of the applicant's interview”.
Article 28 of the Constitution of the Commonwealth of The Bahamas (hereinafter referred to as “the Constitution”) is the engine which drives actions claiming breaches of those Articles relating to fundamental rights, i.e., Articles 16 to 27. Article 28 provides:
“28. (1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction-
(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this Article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.”
The applicant's case rests on Article 20 of the Constitution so I set it out in part as follows:
““20. (1) 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.
(2) Every person who is charged with a criminal offence —
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his defence;”
The applicant's affidavit in support of his application was filed on 10 October 2011 also. It reveals that he was arrested around 12 March 2011 and subsequently charged for offences against the Firearms Act. He was arraigned before Stipendiary and Circuit Magistrate Joyann Ferguson-Pratt on 14 March 2011. The Magistrate did not grant bail to the applicant and the case was adjourned to 28 March 2011.
On the adjourned date D/C 839 Robinson, the arresting officer, told the Court that while in a club, he had observed the applicant remove what later was found to be a firearm, from his waist area and place it behind some speakers. This is pivotal to the applicant's defence because he alleges that he was wearing sweatpants at the material time and the waistband of those pants could not support the weight of the alleged firearm. Thus it was that on 29 March 2011 Counsel for the applicant requested any material, e.g., photographs, which could confirm what the applicant was wearing at the time. He was provided with two photographs, commonly known as “mug shots”, that showed his upper body only.
When D/Cpl. 1477 McKinney came to give his evidence on 15 June 2011 he revealed that when he was interviewing the applicant he tried to have the applicant place the gun in the applicant's waist; and that while he was doing this they “were in CDU interviewing suite in front of two cameras that was (sic) recording at the time”. (See page 9 lines 15 – 19 of the Transcript). This information grounded another request for disclosure by the Defence except this time they wanted the detention record relating to the applicant and a copy of the tape made during the interview.
A copy of the detention record was provided to the Defence by the Prosecution on 19 July 2011 but a copy of the tape was not. A day later Officer McKinney continued his evidence and testified that as he had not obtained the consent of the applicant to a taping of the interview he had not put a cassette in the video machine. Thus, there had not been a recording done by the machine and no tape produced. Officer McKinney did testify that a Digital Video Recorder system (hereinafter referred to as “the DVR”) records all the activities in the building. The applicant said he understood that to mean the building where his interview was conducted; hence he believes his interview was recorded. It should be noted that the witness did not elaborate on those portions of the building which may have been under the surveillance of the DVR.
The respondents sought to counter the averments by the applicant through an affidavit sworn to By Detective Sergeant 1492 Dale Strachan filed on 18 October 2011 and to demonstrate the applicant's belief was unfounded. In it, Sergeant Strachan averred that he is the lead Technician in the Technical Unit of the Central Detective Unit...
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