Garnett Thompson v Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Williams J
• Judgment Date: 06 June 2023
• Docket Number: 2023/CRI/BAL/00588
• Court: Supreme Court (Bahamas)

Between

Garnett Thompson

Applicant

and

Director of Public Prosecutions

Respondent

BEFORE:

The Honourable Mr. Justice Franklyn K M Williams KC

2023/CRI/BAL/00588

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

Criminal Side

APPEARANCES:

Ms. Cassie Bethel for Thompson

Ms. Jacklyn Burrows for the Director of Public Prosecutions

RULING

Williams J

1 The applicant, twenty four(24) years, is charged with the offences of burglary contrary to section 363 of the Penal Code Act, Chapter 84 and rape contrary to section 6(a) of the Sexual Offences Act, Chapter 99. The offences are alleged to have occurred on Friday 18 November 2022.

2 The offences, as alleged, occurred whilst the applicant was on bail for burglary, alleged to have been committed on Friday 25 October 2019.

3 All of the offences are alleged to have been committed at Cargill Creek, Central Andros, Bahamas.

4 The applicant avers, inter alia,:

“8. I do not have any pending matter(s) before the Court(s) in the Bahamas.”

and

“12. I respectfully request that this Honourable Court admit me to bail …for the following reasons:-

c. That, I will be disadvantaged in my ability to support myself, and assist my family.”

5 The applicant, according to criminal records antecedent form, was on bail for burglary alleged to have been committed prior to the charge to which the present application appertains. Further, the applicant does not indicate to what or whom the word family refers i.e. dependents; in fact, the applicant in a previous iteration averred:

“ 5. That I reside with my father Garnett Thompson Sr. who is employed at Small Hope Lodge situate at Small Hope, Andros Island .

6. That I am single with no children .”

Affidavit of Garnett Thompson 3 ^rd December 2019

6 There is no evidence that the facts then averred have changed; it appears that the applicant's now averments lack candor.

THE LAW

7 The applicant is presumed innocent of the charge the subject matter of this application. Article 20(2)(a) of the Bahamas Constitution states:

“ Every person who is charged with a criminal offence — (a) shall be presumed to be innocent until he is proved or has pleaded guilty”.

8 Article 19(1)(b) provides that no person shall be deprived of personal liberty, save upon reasonable suspicion of having committed a criminal offence.

9 In relation to part C offences for which rape is included, section 4 of the Bail Act, Chapter 103 states:

“ 4. (2) Notwithstanding any other provision of this Act or any other law, any person charged with an offence mentioned in part C of the First Schedule, shall not be granted bail unless the Supreme Court or the Court of Appeal is satisfied that the person charged – (a) has not been tried within a reasonable or (c) should be granted bail having regard to all relevant factors including those specified in Part A of the First Schedule and subsection (2B), and where the court makes an order for the release, on bail, of that person it shall include in the record a written statement giving the reasons for the order of the release on bail.

(2A) For the purposes of subsection (2) (a)… without limiting the extent of a reasonable time, a period of three years from the date of arrest and detention of the person charged shall be deemed to be a reasonable time; (b) delay which is occasioned by the act or conduct of the accused is to be excluded from any calculation of what is considered to be a reasonable time .

(2B) For the purposes of subsection (2)(c), in deciding whether or not to grant bail to a person charged with an offence mentioned in Part C of the First Schedule, the character and antecedents of the person charged, the need to protect the safety of the public order and where appropriate, the need to protect the safety of the victim or victims of the alleged offence, are to be primary considerations .”

10 The factors to consider are:

“ PART A

In considering whether to grant bail to a defendant, the Court shall have regard to the following factors-

• (a) Whether there are substantial grounds for believing that the defendant, if released on bail, would-

  • (i) fail to surrender to custody or appear at his trial;

  • (ii) commit an offence while on bail; or

  • (iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

• (b) whether the defendant should be kept in custody for his own protection or, where he is a child or young person, for his own welfare;

• (c) whether he is in custody in pursuance of the sentence of a Court or any authority acting under the Defence Act;

• (d) whether there is sufficient in forma tion for the purpose of taking the decisions required by this Part or otherwise by this Act;

• (e) whether having been released on bail in or in connection with the proceedings for the offence, he is arrested pursuant to section 12;

• (f) whether having been released on bail previously, he is charged subsequently either with an offence similar to that in respect of which he was released or with an offence which is punishable by a term of imprisonment exceeding one year;

• (g) the nature and seriousness of the offence and the nature and strength of the evidence against the defendant”

11 Both burglary and rape are serious offences, the latter no doubt a horrendous offence, both physically and mentally.

12 In the Court of Appeal decision of Jonathan Armbrister v AG SCCrApp. No. 45 of 2011, the stated that:

“ The seriousness of the offence, with which the accused is charged and the penalty which it is likely to entail upon conviction, has always been, and continues to be an important consideration in determining whether bail should be granted or not. Naturally, in cases of murder and other serious offences, the...