Hepburn v The Attorney General
| Jurisdiction | Bahamas |
| Judge | Allen, P.,Honourable Mrs. Justice Allen, P.,Adderley, J.A.,Honourable Mr. Justice Adderley, J.A.,Conteh, J.A. |
| Judgment Date | 20 February 2015 |
| Neutral Citation | BS 2015 CA 10 |
| Docket Number | SCCRAPP & CAIS 276 of 2014 |
| Court | Court of Appeal (Bahamas) |
| Date | 20 February 2015 |
Court of Appeal
Allen, P.; Conteh, J.A.; Adderley, J.A.
SCCRAPP & CAIS 276 of 2014
Mr. Murrio Ducille for the appellant.
Mr. Gordon Soles for the respondent.
Armbrister v. The Attorney General SCCrApp No. 145 of 2011 followed
Attorney General v. Ferguson and other SCCrApp Nos. 57, 106, 108, 116 of 2008 considered
Attorney General of Guyana v. Persaud (2010) 78 W.I.R. 335 applied
Bell v. Director of Public Prosecutions [1985] A.C. 937 applied
Hurnam v. The State [2006] 3 L.R.C. 370 mentioned
Hurnam v. The State [2005] U.K.P.C. 49 applied
Criminal - Appeal against the decision of the trial judge to deny the appellant's application to be admitted to bail — Murder — Whether the appellant's right to be tried within a reasonable time had been or was likely to be breached — Whether the trial judge took the right matters into account — Whether the trial judge took extraneous matters into account — Whether the trial judge applied the law correctly — Dissenting judgment.
The appellant was one of a group of young men involved in a fracas outside a nightclub in which the deceased was fatally stabbed. The appellant was identified as being the assailant, and was charged with the offence of murder on 26 June 2014. An application for bail was made and refused on 17 October 2014. Subsequently, a trial date of 19 June 2017 was set. The appellant appealed the trial judge's decision to deny him bail.
(Conteh, J.A. dissenting): appeal dismissed.
The concept of bail highlights the tension that exists between certain constitutional rights of an accused person and the public interest. The Constitution, in addition to the statutory provisions, reveal two distinct rights to bail; a general right to bail where there are insufficient reasons not to grant it and an absolute right to bail where the constitutional right of the accused to be tried within a reasonable time has been or is likely to be breached. The appellant did not show that his right to be tried within a reasonable time had been or was likely to be breached, thereby entitling him to bail. With regard to the appellant's general right to bail the appellant did not show that the judge erred in determining the question of bail; consequently, it could not be said that the learned judge acted unreasonably when he exercised his discretion not to grant bail to the appellant.
Held per Adderley, J.A.: the role of an appellate court is not to substitute its own decision for that of the trial judge. The judge exercised his discretion judicially and there can be no interference with his decision.
Held per Conteh, J.A.: The period of time which will elapse before the appellant is brought to trial is unreasonable. Therefore, consistent with the Constitution, he ought to be released on reasonable conditions that will ensure his attendance at trial.
This appeal was launched against the decision of Mr. Justice Turner, who on 17th October 2014 denied the appellant's application to be admitted to bail. On 2nd December, 2014 we dismissed the appeal, affirmed the learned judge's decision and undertook to give our reasons at a later date. This is our reasoned judgment.
The appellant is charged with the murder of Charlton Robinson which is alleged to have taken place on 14th June, 2014. The following facts are not in dispute between the parties:
i. Between the night of 13th June, 2014 and the early morning of 14th June, 2014 the appellant and the deceased attended a graduation party at Vanity Night Club, hosted by the C. V. Bethel Class of 2014.
ii. As a result of the amount of fights happening during the party it was forced to end early. Subsequently, there was another fight in the club's parking lot in which a group of young men were involved, and the deceased was allegedly stabbed to death by the appellant.
iii. On 26th June, 2014 the appellant was arraigned in the Magistrate's Court where he was advised that any application for bail would have to be made to the Supreme Court.
iv. The appellant's application to be admitted to bail was refused on 17th October, 2014.
v. The appellant was formally arraigned in the Supreme Court on 7th November, 2014.
vi. The appellant's trial date is set for 19th June 2017.
The appellant filed four grounds of appeal as follows:
i. “The Learned Judge erred when he denied bail to appellant despite the weakness of the respondent's case against him.
ii. The decision is unreasonable having regard to the fact that there is no evidence to support any concern of witness interference or perversion of the course of justice.
iii. The decision is unreasonable having regard to the fact that there is no evidence that the appellant is a flight risk and would abscond particularly in light of the fact that he has no previous convictions.
iv. The Learned Judge erred when he denied bail to the appellant given all the circumstances unique to him.”
The appellant further asserted at the hearing of the appeal that his 2017 trial date demonstrates that he is not likely to be tried within a reasonable time.
Bail is increasingly becoming the most vexing, controversial and complex issue confronting free societies in every part of the world. It highlights the tension between two important but competing interests: the need of the society to be protected from persons alleged to have committed a crime; and the fundamental constitutional canons, which secure freedom from arbitrary arrest and detention and serve as the bulwark against punishment before conviction.
Indeed, the recognition of the tension between these competing interests is reflected in the following passage from the Privy Council's decision in Hurnam v The State [2006] 3 L.R.C. 370. At page 374 of the judgment Lord Bingham said inter alia:
“… the courts are routinely called upon to consider whether an unconvicted suspect or defendant shall be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is, of course, to remain at liberty, unless or until he is convicted of a crime sufficiently serious to deprive him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and his family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence and that he does not take advantage of the inevitable delay before trial to commit further offences…”
The objective of detaining an accused person is to secure his appearance for his trial and to ensure he is available to be punished if found guilty. Indeed, if a person's presence at trial can be reasonably ensured otherwise than by his detention, it would be unjust and unfair to deprive him of his liberty.
Moreover, even if a person's appearance could not be so ensured, he is entitled to be released either unconditionally or on reasonable conditions if he is not put to his trial within a reasonable time, or if it is unlikely that he will be so tried.
Accordingly, bail is the right of a person charged with a criminal offence to be released from custody on his undertaking to appear for his trial at a specified time, and to comply with any conditions that the court may think fit to impose.
The relevant law on bail is found in articles 19(3), 20(2)(a) and 28 of the Constitution, and in sections 3, and 4 of the Bail Act 1994, as amended (“the Act”). It is immediately apparent from a reading of those provisions that two distinct rights to bail are given, namely, a general right to an un-convicted person to be released on bail unless there is sufficient reason (Part A of the Schedule) not to grant it; and the absolute right of such a person to be released on bail if his constitutional time guarantee is breached or is likely to be breached.
The general right to bail clearly requires judges on such an application, to conduct a realistic assessment of the right of the accused to remain at liberty and the public's interest as indicated by the grounds prescribed in Part A for denying bail. Ineluctably, in some circumstances, the presumption of innocence and the right of an accused to remain at liberty, must give way to accommodate that interest.
The provisions of the Constitution to which I previously referred, state:
“19. (1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases–
(d) upon reasonable suspicion of his having committed, or of being about to commit, a criminal offence;
(3) Any person who is arrested or detained in such a case as is mentioned in subparagraph (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.” (Emphasis added).
20. (1)…
(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;
28. (1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has Been, or is likely to be contravened in relation him, then, without...
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