Hepburn et Al v Attorney General of the Bahamas

• Jurisdiction: Bahamas
• Judge: Sawyer, J.
• Judgment Date: 09 November 1994
• Court: Supreme Court (Bahamas)
• Docket Number: No. 765 of 1991
• Date: 09 November 1994

Supreme Court

Sawyer, J.

No. 765 of 1991

Hepburn et al

and

Attorney General of the Bahamas

Appearances:

Mr. F.R.M Smith with Mr. R. Johnson for the plaintiffs

Mr. Jon Isaacs for the defendant

Constitutional law - Delay in hearing case — Application by plaintiff that as a result of delays in the administration of justice as their cases and were not dealt within a reasonable time their constitutional rights of due process were infringed — Responsibility for the delay lay on the side of the prosecution, actions of magistrate and the juvenile panel over whom the prosecution had no control — Prosecution directed to start the trial of plaintiffs on the information during criminal sessions — Too premature to make any decision with regard to the alleged infringement of the plaintiffs register.

Sawyer, J.

1 The plaintiffs apply, under Article 28 of the Constitution, by an originating motion filed December 5th, 1991 for declarations and consequential orders for the alleged infringement of their rights under Articles 20(1), 15, 19, 21 and 23 of the Constitution.

2 I shall deal with their claim for relief in respect of the alleged infringement of their rights under Article 20 (1) of the constitution first.

3 Article 20(1) of the constitution provides that if “any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law.”

4 I understand the plaintiffs' complaint under Article 20(1) of the constitution, it is that they were arrested and charged more than 5 years ago (at the time motion first came on for hearing before me) in respect of a number of serious criminal offences and they yet been tried on two sets of those charges. (Those two sets of charges form the basis of informations numbers 77/7/92 and 128/7/92 which were filed on June 29th, 1992 (“the informations”).

5 The evidence in support of their contention is found in a number of affidavits filed on their behalf.

6 The first such affidavit in point of time is the Joint affidavit of the plaintiffs sworn 13th November, 1991 and filed December 5, 1991. In that affidavit, under the heading “Delays in Administration of Justice” the plaintiffs state:–

• “60. It looks like our cases will never finish. We come up and down, up and down. Sometimes they bring us for our cases and sometimes they don't. Sometimes when we come, there's no magistrate or no juvenile panel.

• “61. Sometimes we are there from the morning in the jail at Central with plenty other people. It is packed and hot. Court doesn't start until 11:00 a.m. or 12:00 o'clock and they don't call our case until 3:30 p.m. or 4:00 o'clock other cases begin and when ours start it finish at 5:00 p.m.

• “62. With all of our cases only 1 has been finished since 1989. We will be in prison forever waiting to start and finish the other cases.

• “63. We are advised by our counsel that we are being denied our right to fair trial within a reasonable time in accordance with the Constitution.

• “64. We have applied for bail until our appeal referred to in paragraph 6 of our Originating Motion is heard but it has been refused.

• “65. We have on many occasions in the past applied for bail through our counsel on the other charges but it has always been refused. We are so confused about all the cases and charges on the charge sheets that we don't even know what cases we have to be tried on.”

7 On the prosecution's side, with regard to the allegation of delay in the administration of justice, an affidavit sworn on 4th March 1992 and filed March 5, 1992 by Sgt. 594 Wendell R. Deveaux contains the following statements:–

“The applicants Darrell and Anthony Hepburn are accused of a number of offences for which they were charged and arraigned before Court No. 1 and 2. From my investigation, there are Seven (7) outstanding matters against the said applicants. They are as follows:–

• (1) 56/89 Darrell and Anthony Hepburn are charged with Shopbreaking Sec 383 of Ch. 77 and Stealing from a Shop Sec. 361 (5);

• (2) 143/89 Anthony Hepburn is charged with Kidnapping Sec. 291 Ch. 77, Rape Sec. 283 (1), Possession of a Firearm Whilst committing an Indictable Offence Sec. 34(4) of the Firearms Act Ch. 198;

• (3) 144/89 Darrell and Anthony Hepburn are charged with Stealing from a Vehicle Sec. 366 of Ch. 77;

• (4) 145/89 Anthony and Darrell Hepburn are charged with Assault With a Deadly Instrument Sec. 265(5) Ch. 77;

• (5) 146/89 Darrell and Anthony Hepburn are charged with Poss. of Unlicenced Firearm Sec. 15(2) of the Firearms Act Ch. 198; Poss. of Shortened Firearm Sec. 16(3) of the Firearms Act Ch. 198;

• (6) 148/89 Anthony Hepburn is charged with the offences of Kidnapping Sec. 291 Ch. 77, Rape Sec. 283(1), Poss. of Firearm Whilst Committing an Indictable Offence Sec. 34(4) of the Firearms Act Ch. 198;

• (7) 435/89 Darrell and Anthony Hepburn are charged with Assaulting a Police Officer Sec. 247 Ch. 77.

That evidence commenced on or about the 19th April, 1989 and continued on through to the 3rd March, 1992, taken on divers days. In the process, we have completed Six (6) matters and of the Six (6), Two (2) were committed to the Supreme Court for trial; they are 147/89 and 149/89.

150/89 Convicted and Sentenced;

57/89 Acquitted;

54/89 Convicted on 2 counts of stealing and 4 counts of Shopbreaking and 1 count of Housebreaking; and

53/89 Shopbreaking, Stealing from a Shop — Convicted and Sentenced.

“That since there were a number of matters before the Courts, I, as prosecutor, decided to give the more serious offences priority. At the commencement of the trial in relation to docket no. 150/89, counsels were Mr. James Thompson and Mr. Fayne Thompson. It was after a discussion with counsels and the Court that the accused persons wanted to wait and see what the outcome of the said trial was, and based on that they would consider adopting a particular course. Having regard to that understanding, much time and attention was devoted to docket 150/89, which in my estimation lasted well over one (1) year. They were convicted and sentenced.

“That sometime in December 1990, Mr. Fred Smith appeared and represented the accused persons and he advised them not to continue along the course, that previous counsels had indicated to the Court.

“That in addition, there were occasions when the Court was not able to accommodate the matters due to its over-burdened Calender. Further, there were occasions when the accused persons even though proper documentation was sent to Nassau (Her Majesty's Prison) requesting their attendance for Court in freeport for reasons unknown the applicants were not sent for or one or the other was missing and in these circumstances, the trial did not proceed.”

8 In response to that affidavit, a further affidavit was filed on behalf of the plaintiffs on April 1, 1992. That affidavit was sworn by Mr. Fayne Thompson, a counsel and attorney on 31st March, 1992. The material paragraphs that affidavit as read follows:–

• “2. I was initially retained by the plaintiffs to act for them in defending the multiplicity of prosecutions brought by the Commissioner of Police and on June 20, 1990, the plaintiffs retained Frederick R.M. Smith.

• “3. I can state unequivocally that there was no discussion with Wendel R. Deveaux, or the Court, on behalf of either of the plaintiffs that the plaintiffs’ ‘wanted to wait to see the outcome of the trial’ in relation to Docket No. 150/1989. It was never suggested by me or the plaintiffs that they would as stated by Sergeant Deveaux, consider ‘adopting a particular course’.

• “4. There was accordingly no agreement with Wendell R. Deveaux, or the Court, to delay the commencement of the multiciplicity of other matters thereby prioritising Docket No. 150/89. There was no discussion or agreement by me on behalf of the plaintiffs to give more serious attention to Docket No. 150/89, thereby diminishing the importance or timely and expeditious hearing of the remaining matters.

• “5. Indeed, Darrell Hepburn was not a defendant in Docket No. 150/89 and it is therefore incorrect to state that he would, for whatever purpose, ‘consider adopting a particular course’ upon the outcome of Anthony Hepburn's trial.

• “6. I have read paragraph 60 to 65 of the plaintiff's affidavit filed herein on December 5, 1991, and I confirm and corroborate the constant, numerous and repeated delays in the hearing, or timely hearing of the plaintiffs' matters.

• “7. I would add that further reasons for the delay in hearing the plaintiffs' matters were the failure on the part of the prosecution to have its various witnesses available at different times when other matters were to be commenced and heard; the fact that on occasion there was no duly constituted juvenile panel, and the fact that when the Juvenile Panel was constituted and did hear any matter, it began its hearing late in the morning and then it heard numerous first pleas throughout the morning. It commenced late again in the afternoon, thus reducing the available time to deal with the plaintiffs' matters.

• “8. Further, the plaintiffs were on some occasions not sent or brought from Nassau for their hearings.”

9 It will be seen from the above extracts from the affidavits, that there is a dispute about one of the causes of the delay — i.e. whether the plaintiffs by themselves or their counsel ever indicated that the trial on docket No. 50/89 should take priority after the other charges laid against the plaintiffs at the same time.

10 In light of that dispute and because none of the deponents were cross-examined, I can make no finding of fact on that disputed issue.

11 A chronology of the material dates and events is helpful to an understanding of the issues raised by paragraph 1 of the plaintiffs' motion so I set it out here.

12 By the 8th...