Kyasduncombe v Director of Public Prosecutions

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Forbes, J
• Judgment Date: 09 October 2024
• Docket Number: CASE NO. 2020/CRI/BAIL/FP/00055

Between

Kyasduncombe

Applicant

and

Director of Public Prosecutions

Respondent

Before:

The Honorable Mr. Justice Andrew Forbes

CASE NO. 2020/CRI/BAIL/FP/00055

IN THE SUPREME COURT

Criminal Division

Appearances:

Mrs. Ashley Carroll & Mr. Sean Smith c/o Director of Public Prosecutions

Mr. Parkco Deal c/o Kyas Duncombe

RULING ON BAIL

Forbes, J

BACKGROUND

1 The Court heard the application, rendered its decision and indicated the intention to provide the written reasons; does so now. The Applicant Counsel filed an application seeking consideration of the Court as to the question of bail on the 12 ^th September 2024. The Applicant in his Affidavit filed on the 12 ^th September 2024, indicated he resides on the Island of Jamaica and Bailey Town, Bimini. The Court is relatively certain that the Islands of Jamaica and Bimini are two distinct territories located in completely different geographic locations. Clearly Counsel for the Applicant meant that the Applicant was a resident of Bailey Town, Bimini one of the Islands of the Commonwealth of the Bahamas and no t the Island and Country of Jamaica. He ought to be very cautious in the material being placed before the Court as it may have adverse implications. Nonetheless, the Applicant notes he is currently on remand for Murder contrary to section. 291(b) of the Penal Code. He indicated that he is scheduled to appear in Magistrate's Court No. 2 Magistrate Charlton Smith for the service of his Voluntary Bill of Indictment on the 22 ^nd July 2024 and again on the 17 ^th September 2024 and that he was not served. He further avers he has no pending matters. He also stated that he is prepared to comply with any and/or all conditions should bail be granted and that he is innocent of these charges. That he has two (2) minor children for whom he is sole breadwinner. The Applicant Counsel also laid over submissions which the Court will refer to later.

2 The Respondent filed an Affidavit in Opposition on 8 ^th October 2024 and sworn by Corporal 3913 Harris Cash, he avers that the Applicant was arraigned before Magistrate Smith on the 3 ^rd April 2024 charged with Murder. That the Applicant has now been arraigned before the Supreme Court on the 8 ^th October 2024. Officer Harris further avers that there were several eyewitnesses who observed the incident and the statements of those witnesses were so exhibited namely; D/Constable 4527 Arrien. McDonald, D/Inspcctor Livingston Bevans Jr. and Damien Sherman. Officer Harris further avers that the Applicant has a history of illusive behavior and notes that in May 2017 the Applicant was arrested in the United States of America attempting to smuggle drugs.

3 Corporal Harris Cash further avers, that the Applicant was previously arrested, charged with murder and arraigned before Magistrate Debbyc Ferguson. Further, on the 26 ^th April 2023 a warrant was issued for the Applicant's failure to appear. Officer Harris further avers that the Applicant has antecedents which included being sentenced for assaulting a Police Officer and resisting arrest. That antecedent was duly exhibited.

4 Corporal Harris Cash avers further that the Applicant is not a fit and proper person for bail and that the evidence is cogent.

SUBMISSIONS

5 The Applicant was represented by Counsel Mr. Parkco Deal who provided written arguments which were laid over to the Court. Counsel for the Defendant asserts that rhe Applicant is presumed innocent until proven guilty and that the burden rest upon those seeking to take away the right of an accused person's liberty. He refers to the dicta of Isaacs JA in Seymour v. DPP SCCrApp. No. 115 of 2019. Counsel also refers to the case of Hubbard v. Police. Counsel failed to reference the citation or the principles articulated within the case. Also, Counsel referred to often cited case of Hurnam v. The State [2006] 3LRC370 and lord Bingham comments at paragraph 374.

6 Counsel asserts that the Applicant ought to be granted bail as he is a Bahamian who is gainfully employed. That he, notw ithstanding his pending matters, is presumed innocent. Counsel for the Applicant contents that the Crown's Affidavit merely appear to be relying upon the seriousness of the Offence and the nature and strength of the evidence. He asserts that no person actually observed the Applicant shoot the deceased but merely observed the Applicant perusing the deceased through the crowd with a firearm and firing at the deceased. Counsel then refers the Court to the case of R v. I urnbull [1977] QB 224 and argues that eyewitnesses' evidence is unreliable. He further suggest that the trial is the stage where the evidence ought to be tested and not at the stage of the bail hearing cit ing Dame Anita Allen then President of the Court of Appeal in Cordero McDonald v. The Attorney General. It should again be noted that Counsel for the Applicant again failed to provide any citation. Counsel suggests that the arrest in the United States of America has no weight on the current application and is not of similar nature. Counsel also asserts that in the previous Murder matter there was a misunderstanding regarding the Applicant's appearance; however, the matter was subsequently withdrawn. That the Applicant has no intention of absconding and intends to appear at his pretrial hearings. That the Crown has failed to establish that Applicant will or has the propensity to abscond. Counsel cites the case of Vasyli v. The Attorney General for the principle the concern of the Court should be whether the person will appear. Here again, Counsel fails to provide the citation. He further contends that the Applicant is the sole provider for the two minor children and that he is gainfully employed. Counsel for the Applicant asserts that the evidence is weak and that the Applicant is a fit and proper person for bail.

7 The DPP emailed its arguments. Mrs. Carroll noted the serious nature of the allegations against the Applicant and whether there are any conditions this Court can impose that will restrain this Applicant from committing additional crimes. The DPP refers the Court to the comments made by the Justice of Appeal Evans in Stephon Davis v. the Director of Public Prosecutions SCCrApp. No.108 of 2021 and the comments made particularly at paragraph 25. Also, the comments made by Justice of Appeal Jones in Davis case at paragraph 19. Mrs. Carroll also cites the dicta in Donovan Collie v. Direcror of Public Prosecution SCCrApp. No. 132. Counsel for the DPP submits that the Applicant is an unfit person for bail. That the Court is mandated to consider the nature and seriousness of the Offence and the strength of the evidence. Counsel for the Crown asserts that Murder is a serious offence. That the nature of the evidence raises more than reasonable suspicion. It is asserted that the Applicant if released on bail will commit further offenses. And that 1he safety of the public must be a primary consideration. Counsel for the Crown suggest that the Applicant has failed to attend Court in the past and whether there are not any conditions which the Court may impose which will restrain this Applicant. Counsel for the Crown in their arguments refers to the Affidavit of Prescott Pinder certainly Counsel was mistaken and meant Harris Cash.

THE LAW

8 The Court must now consider the rationale for the denial of bail to the Applicant and consider whether he will refuse or fail to surrender for trial.

9 Section 4 (1) of the Bail Act provides:-

“ (1) Notwithstanding any other enactment, where any person is charged with an offence mentioned in Part B of the First Schedule, the Court shall order that that person shall he detained in custody for the purpose of being dealt with according to law, unless the Court is of the opinion that his detention is not justified, in which case, the Court may make an order for the release, on bail, of that person and shall include in the record a statement giving the reasons for the order of release on bail: Provided that, where a person has been charged with an offence mentioned in Part B of the First Schedule after having been previously convicted of an offence mentioned in that Part, and his imprisonment on that conviction ceased within the last five years, then the Court shall order that that person shall be detained in custody.

10 Sections 4(2) and (3) of the Bail (Amendment) Act, 2011 provides:-

(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 time;

(b) is unlikely to he tried within a reasonable time; or

(c) should be granted bail having regard to all the 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 purpose of subsection (2) (a) and (b) —

without limiting the extent of a reasonable time, a period of three years from the date of the arrest or detention of the person charged shall be deemed to be a reasonable time; delay which is occasioned by the act or conduct of the accused is to be excluded from any calculation of what is considered a reasonable time .

(2B) For the purpose 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 or antecedents of the person charged, the need to protect the safety of the public or 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.

(3) Notwithstanding any...