Marcus Saunders v Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Neil Brathwaite
• Judgment Date: 22 October 2024
• Docket Number: 2020/CRI/bail/00219
• Court: Supreme Court (Bahamas)

Between

Marcus Saunders

Applicant

and

Director of Public Prosecutions

Respondent

Before:

The Hon. Justice Neil Brathwaite

2020/CRI/bail/00219

IN THE SUPREME COURT

CRIMINAL LAW DIVISION

Appearances:

Ms. Cassie Bethel for the Applicant

Mr. Calnan Kelly for the Respondent

RULING ON BAIL

1 The Applicant is a thirty-eight year old Bahamian male who was arraigned in the Magistrate's Court on 2 ^nd April 2024 on charges of Possession of an Unlicensed Firearm, Possession of Ammunition, Resisting Arrest, and Possession of Dangerous Drugs. Prior to his incarceration, he indicates that he was employed at Higgs Construction. He states that he has previous convictions, and pending charges of Resisting Arrest and Assaulting a Police Officer, but maintains his innocence on the present charges, and states that he will be disadvantaged in his ability to prepare his defence and assist his family if denied bail.

2 In seeking to oppose the application, the Respondent proffered the affidavit of Tanesha Forbes, Counsel in the Office of the Director of Public Prosecutions, from which it can be gleaned that the Applicant was chased and arrested after officers responded to information that the Applicant was at a nightclub in possession of a firearm. During his arrest the Applicant is alleged to have violently resisted, and was found with a pistol and five rounds of ammunition, as well as a quantity of suspected marijuana. The Criminal Record Antecedent Form of the Applicant is also exhibited, and shows three previous convictions for possession of dangerous drugs, and one for causing grievous harm. The form also indicates that the Applicant has a pending matter of attempted murder and possession of an unlicensed firearm with intent to endanger life, as well as another charge of disorderly behavior, disorderly behavior in a police station, resisting arrest, obscene language, and assaulting a police officer.

3 Counsel on behalf of the Applicant submits that there is no evidence that the Applicant is a flight risk or will interfere with witnesses, and notes that the Applicant has been on bail before and has complied with the conditions attached. It was further submitted that, while the Applicant has previous convictions, the penalties imposed were all fairly minor, and little weight should therefore be attached to those convictions.

4 In response, the Respondent submits that the evidence is cogent, as the Applicant was reportedly caught “red-handed”. It is submitted that the Applicant should be kept in custody to protect public order and to prevent the risk of re-offending, as the Applicant has a number of previous convictions and pending matters. It was also noted that the Applicant was on bail at the time he was charged with the present offence, exacerbating the risk of re-offending.

LAW AND ANALYSIS

5 The tensions surrounding an application for bail have been considered in many cases. In Richard Hepburn and The Attorney General SCCr. App. No 276 of 2014, Justice of Appeal Allen opined that:

“5. 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 crime; and the fundamental constitutional canons, which secure freedom from arbitrary arrest and detention and serve as the bulwark against punishment before conviction.”

6. Indeed, the recognition of the tension between these competing interests is reflected in the following passage from the Privy Council's decision in Humam The State [2006] LRC 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 whole. The interests of the individual is, of course, to remain at liberty unless or until he is convicted of 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 prejudice him and, in many cases, his livelihood and his family. But the community has countervailing interests, 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…”

6 At paragraph 11 she further noted that

“The general right to bail clearly requires judges on such an application, to conduct realistic assessment of the right of the accused to remain at liberty and the public's interests 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.”

7 The presumption of innocence is enshrined in Article 20(2)(a) of the Constitution of The Bahamas which 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 Furthermore, Article 19(l)provides as follows:

“ 19. (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases-

(a) in execution of the sentence or order of a court, whether established for The Bahamas or some other country, in respect of a criminal offence of which he has been convicted or in consequence of his unfitness to plead to a criminal charge or in execution of the order of a court on the grounds of his contempt of that court or of another court or tribunal;

(b) in execution of the order of a court made in order to secure the fulfilment of any obligation imposed upon him by law;

(c) for the purpose of bringing him before a court in execution of the order of a court;

(d) upon reasonable suspicion of his having committed, or of being about to commit, a criminal offence;

(e) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;

(f) for the purpose of preventing the spread of an infectious or contagious disease or in the case of a person...