Kingsley Adderley v The Director of Public Prosecutions
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 14 June 2021 |
| Neutral Citation | BS 2021 CA 95 |
| Docket Number | SCCrApp. No. 212 of 2018 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Madam Justice Bethell, JA
SCCrApp. No. 212 of 2018
Ms. Latia Williams, Counsel for the Appellant
Mrs. Cephia Pinder-Moss, Counsel for the Respondent
Albert Barr a.k.a. Albert Hanna v. The Attorney-General Criminal Case No. 33/1/96 mentioned Attorney General's Reference (No. 1 of 1990) [1992] 3 All ER 169 applied
Attorney General's Reference (No. 2 of 2001) [2003 UKHL 68 applied
Barker v Wingo (1972) 407 US 514 considered
Bhola v Attorney General and another [2016] 4 LRC 374 considered
Boolell v The State [2007] 2 LRC 483 mentioned
Culpepper (Kevin) v The State (2000) 58 WIR 420 applied
Director of Public Prosecutions and another v Jaikaran Tokai and Others [1996] A.C. 856 considered
Duke Knowles v. The Attorney-General Criminal Case No. 348 of 1996 (unreported) mentioned Dwyer v Watson [2004] LRC 577 mentioned
Frank Gibson v the Attorney General (2010) CCJ 3 mentioned
Kevin Stevenson Hanna v. The Attorney-General Criminal Case No. 430 of 1989 mentioned Martin v Tauranga District Court [1995] 2 LRC 788 applied
R. v. Campbell [2004] BHS J. No. 422 considered
R. v. Craig Nigel Higgs et. al. Criminal Case No. 119R/10/1988 mentioned
R. v. Ricardo Farrington Criminal Case No. 33/1/96 mentioned
Renvil Oneil Eccleston v. The Attorney-General [2003] BHS J. No. 7 considered
Sean Saunders, et. al. v. The Attorney-General Criminal Case No. 41/1/96 mentioned
Sookermany v. Director of Public Prosecutions (unreported) 1 May 1996 applied
Stephen Ronel Stubbs v the Attorney General SCCrApp. No. 153 of 2013 mentioned
Taione and Others v Kingdom of Tonga [2005] 4 LRC 661 considered
Tan v Cameroon [1992] 2 AC 205 applied
Tavari Dorsette v the Attorney General (2016) 1 BHS J. No. 58 mentioned
Constitutional Motion — Permanent stay — Stay of proceedings — Reasonable time — Trial within a reasonable time — Fair hearing — Fair trial — Breach of right to be tried within a reasonable time — Alibi evidence — Appropriate relief for breach of right to be tried within a reasonable time — Section 173 of the Criminal Procedure Code
On 19 February 2005 Brandon Pierre was stabbed to death. Two days later, on 21 February 2005, the appellant was arrested with respect to Pierre's murder. He was arraigned the following day. The matter proceeded to a Preliminary Inquiry and there were a number of delays leading to the magistrate granting a final adjournment on 4 April 2006. Thereafter, the matter was adjourned twice more. The appellant was eventually committed to stand trial on 14 December 2006. On or about 14 January 2015 the appellant was served with an indictment and summoned to appear before the Supreme Court on 16 January 2015 to be arraigned. Following a number of adjournments, the appellant was arraigned on 6 February 2015 and a trial date was set for 7 September 2015. The matter did not proceed on that date, nor did it proceed on 5 April 2016 or 5 February 2018. A new date of 12 August 2019 was set with a backup date of 7 May 2018. On 7 May 2018 the matter was adjourned to 16 July 2018 for trial. Three days before, on 13 July 2018, the appellant filed an Originating Notice of Motion seeking a permanent stay of the matter on the basis that he had not been tried within a reasonable time nor was he afforded a fair hearing. The learned judge below dismissed the appellant's Motion and the appellant now appeals that decision to this Court.
Held: appeal dismissed; judge's decision affirmed. The appellant's trial is to be fixed at the earliest practicable time and is to be afforded priority to cases of lesser vintage.
When considering the issue of whether the right to a trial within a reasonable time has been breached the court considers the following factors: length of the delay, the reasons for the delay, the accused's assertion of his rights and any prejudice to the accused as a result of the delay. The issue of prejudice is the most serious. In considering the effect of prejudice the judge ought to have regard to the impact of the delay on the fairness of the trial.
A court may stay proceedings where the delay is exceptional and the defendant can demonstrate that “he will suffer serious prejudice to the extent that no fair trial can be held, in other words that the continuance of the prosecution amounts to a misuse of the process of the court.” Permanent stays should be the exception rather than the rule.
It does not follow that a permanent stay is the remedy for breach of the right to be tried within a reasonable time. The breach of right is established by the delay and is not concerned with the prospective trial. Nevertheless, the appropriate relief where such a breach has been established is within the sole discretion of the trial judge and an appellate court will not interfere with that discretion unless it can be demonstrated that it is unreasonable in the Wednesbury sense.
Judgment delivered by the Honourable
. On 2 November 2020, we heard the submissions of Counsel in relation to an appeal against the decision of Madam Justice Deborah Fraser (“the Judge”) that had been delivered on 19 October 2018, in which the Judge had dismissed a Constitutional Motion brought by the appellant. We promised that we would render our decision in writing; and we do so now.
. This matter arises out of proceedings relating to the stabbing death of Brandon Pierre at the Mall of Marathon on 19 February 2005. A history of the proceedings in this case was provided in the submissions of the appellant and in those of the respondent. Both sets of facts are, in all material respects, similar. However, for the purposes of this judgment, I propose to refer to both, to a certain extent, because divergences do occur, and different interpretations are placed on certain events. The appellant's facts are as follows:
“Facts
2. On or about the 21st day of February, 2005, the Appellant was arrested and questioned by the Royal Bahamas Police Force (RBPF) with respect to a Murder.
3. On or about the 22nd day of February, 2005, the Appellant was charged and arraigned before the Magistrate's Court for Murder contrary to Section 291 of the Penal Code of The Bahamas.
4. The matter then proceeded to a Preliminary Inquiry before the Honourable Marilyn Meeres who was then sitting as the Magistrate for Court Number 5.
5. The Appellant pleaded not guilty to the offence for which he was charged and he is presently on bail pending the determination.
6. During the Preliminary Inquiry there were several delays due to the Prosecution not being ready to proceed to the extent that the Magistrate made an Unless Order for a final adjournment on the 4th day of April, 2006.
7. The Preliminary Inquiry was then adjourned to the 24th day of July, 2006 and was further adjourned to the 9th day of October, 2006.
8. On the 14th day of December, 2006 the Appellant was committed to stand trial.
9. On or about the 14th day of January, 2015, some 8 years and 1 month after the conclusion of the Preliminary Inquiry, the Respondent (sic) was served with an indictment.
10. The Appellant was then summoned to appear before the Supreme Court for the 16th day of January, 2015 to be arraigned.
11. On the 16th day of January 2015, the Court was not in possession of the Appellant's file. That for this, the Appellant's arraignment was adjourned to the 30th day of January, 2015.
12. The Appellant's arraignment was then further adjourned to the 6th day of February, 2015.
13. On the 6th day of February, 2015, the Appellant was arraigned and the trial was set for the 7th day of September, 2015. The trial did not proceed through no fault of the Appellant.
14. On the 5th day of April, 2016, the trial date was refixed for the 5th day of February, 2018.
15. Due to no fault on the part of the Appellant, the trial did not proceed on the 5th day of February, 2018. A back-up trial date was then set for the 7th day of May, 2018 and a substantive trial date was set for the 12th day of August, 2019.
16. On the 7th day of May, 2018, the trial did not proceed and the matter was, once again, adjourned to the 16th day of July, 2018 for trial.
17. On the 13th day of July, 2018, the Appellant filed an Originating Notice of Motion seeking for a declaration that he was not tried in a reasonable time and was not afforded a fair hearing. That for this, the Appellant sought for an Order that his trial be permanently stayed. The Appellant's Motion was supported by an Affidavit that was filed on the same date.”
. What is incontrovertible is that the delay in the appellant's case runs from 21 February 2005. The issues for determination by the Judge, as she identified them to be, were as follows:
“(a) whether there is a violation of the Applicant's right to a fair trial within a reasonable time;
(b) whether a trial of the Applicant at this time would amount to a violation of his right to a fair trial under Article 20(1);
(c) whether the Applicant can under the circumstances presented to this Court receive a fair trial;
(d) whether the remedy in this case should be a stay of the proceedings.”
This seems to be an accurate assessment of the issues she had to determine.
. The Judge outlined the submissions of Counsel and in doing so made reference to cases cited by the respondent: Tavari Dorsette v the Attorney General (2016) 1 BHS J. No. 58, Stephen Ronel Stubbs v the Attorney General SCCrApp. No. 153 of 2013 and Frank Gibson v the Attorney General (2010) CCJ 3. The Judge's view of the appellant's case was to the effect that he had no control of the prosecution of his case hence he was to a very small degree responsible for the delay that had occurred.
To continue reading
Request your trial