R v Ferguson
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 14 February 1996 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 34 of 1995 |
| Date | 14 February 1996 |
Supreme Court
Sawyer, J.
34 of 1995
Mr. Bernard Turner for the Crown/respondent.
Mr. Wayne Munroe for the accused/applicant.
Constitutional Law - Fundamental rights and freedoms — Right to be tried within a reasonable time — Applicant was arrested and charged with murder — Applicant sought a declaration that in the circumstance which happened his right to be tried. within a reasonable time under Article 20(1) of the Constitution had been infringed — Applicant sought a perpetual stay of the prosecution of the case against him on the ground that there was an abuse of the process of the court — Whether the delay of five years between arrest and start of trial in the circumstances of the case was a breach of the applicant's right under article 20(1) of the Constitution — Whether it was an abuse of the process of the court — Court found that the applicant's right to be tried within a reasonable time under article 20(1) was not infringed — Stay of prosecution was refused.
By his notice of originating motion, the applicant seeks a declaration that in the circumstances which have happened, his right to be tried within a reasonable time under Article 20 (1) of the Constitution of the Bahamas (“the Constitution”) has been infringed. He also seeks a perpetual stay of the prosecution of the case against him, presumably on the ground that there has been abuse of the process of the court.
A review of the circumstances which have happened is, therefore, I think, necessary for an understanding of the issues.
The applicant was arrested and charged with the murder of one Alexander Williams on 24th August, 1990. He appeared before Magistrate Roger Gomez on 28th August, 1990 and was remanded in custody pending a preliminary inquiry into that charge (“the first PI”) which was scheduled to begin on 4th December, 1990. It is a well-known fact (of which I take judicial notice) that during the relevant period very few, if any, of the magistrates had the assistance of trained court reporters. They would therefore have to record the viva voce evidence of the witnesses in manuscript, wait for those notes of evidence to be typed and then compare the typewritten copies with the original depositions for accuracy before certifying them and transmitting them to the Registrar of the Supreme Court (“the Registrar”) in accordance with section 134 of the Criminal Procedure Code Act (Ch., 84) (“The CPC”).
Progress on the hearing of the first PI was slow - there were approximately eight or nine adjournments - for reasons which do not appear on the record. It was not until 29th August, 1991 that the magistrate completed that healing and decided that the applicant should be committed to the next sessions of the Supreme Court (“the Court”) for trial on the charge of murder.
The originals and typewritten copies of the depositions taken during the first PI were transmitted to the Registrar on 10th September, 1992. It is at that point or shortly after, that the Attorney General's Office would have been supplied with copies of the depositions under section 134 of the CPC.
On 14th January, 1993, at the beginning of the next sessions after the depositions were transmitted to the Registrar, the applicant was assigned before N. L. Smith, Snr. J. (“Smith, Snr. J.”) on information No. 20/ 1/1993 containing one count of murder and another of attempted murder which was based on the depositions taken at the first PI.
On arraignment, the applicant pleaded “Guilty with explanation” to both charges. It appears from Smith, Snr. J.'s manuscript notes on that file, that he did not accept the guilty plea after hearing the applicant's explanation so he ordered that a plea of “not guilty” be entered to both charges. Counsel for the applicant who had represented him from the first PI, was not present when the applicant wad first arraigned before Smith; Snr. J. On a subsequent date, when counsel for the applicant was present, the applicant pleaded “:Not guilty” to both charges.
Again from the manuscript notes of Smith, Snr. J., on file No. 20/ 1/1993, it appears that he admitted, the applicant to bail on 18th February, 1993 in the sum of $75,000.00 with two sureties and on condition that he report to the Central Police Station every day before 10:00 a.m. A bail bond in those terms was signed on 24th March, 1993. However, according to an affidavit sworn by Mr. Munroe on 10th June, 1994 and filed the same day in support of an application by the applicant for reinstatement of bail, one of the sureties withdrew after signing the bond “for financial reasons” - see Bail file No. 95 of 1994.
It is not disputed that the general practice of the court is to refuse bail in cases of murder and treason unless there are exceptional circumstances. In recent years, the most usual ground relied on in application for bail where the charge is murder, is the inordinate delay between arrest and trial of the accused person or persons.
I infer that that is the ground on which Smith, Snr. J. admitted the applicant to bail on 18th February, 1993.
In view of the applicant's application of 10th Tune, 1994 for reinstatement of bail, it is unclear whether he was ever released from custody following his admission to bail on 18th February, 1993.
It is clear, however, that he was in custody from mid-1993 to mid-1994 because both the applicant and the respondent's evidence show that lie received psychiatric care in mid-to late 1993 while at Her Majesty's Prison, Fox Hill. Neither side has provided me with a copy of the doctor's report so I do not know whether that care was necessitated by stress brought on by the delay between arrest and trial or whether it was an ongoing condition or disease unless I rely on the ipse dixit of the applicant.
I would have thought it was important for me to see such a report since I do not think a court can act without professional evidence in such a matter and in light of the applicant's apparent reliance on the fact of his having received psychiatric care to show that the delay between arrest and trial has prejudiced him. However, I bear in mind I must conduct this pre-trial exploration of the possibility of there being no fair trial for the applicant on the material produced by the prosecution and defence and from the court's own records - see e.g. Regina v. Manchester Crown Court ex parte Cunningham and others Archbold News Issue 10, November 29, 1991.
Following that episode (it is not clear how long it lasted) the prosecution fixed the case for trial on 14th March, 1994. Due to the Continuation of a previous fixture before the trial judge, the trial of information No. 20/ 1/1993 did not start on that date.
It appears that thereafter the case was traversed to the April, and then to the July, 1994 sessions without objection by or on behalf of the applicant.
There is no explanation from the respondent as to why the case was not set down for trial during the April 1994 sessions.
It appears that on the 7th and 8th June, 1994, respectively, informations 77/ 4/1993 and 19S/10/1992 were quashed - apparently because there had not been compliance with the ipissima verba of subsection 10(2) of the Preliminary Inquiries (Special Procedure) Act (Ch. 85) (“Ch. 85”) in respect of the former, and subsection 120(1) of the CPC in respect of the latter. The first mentioned case was Regina v. Allendo Dames and the latter was Regina v. Jay Oliver Thompson. It should be noted that while written reasons were given in Allendo Dames' case, no such reasons were given in Jay Oliver Thompson's case.
It should also be noted that the offences charged in Allendo Dames' case allegedly occurred on 24th January, 1991 while that in Jay Oliver Thompson's case allegedly occurred on 2nd October, 1990 and that both of those cases were in process of being tried when they were stopped - Thompson's cast for the second time. The offences alleged in these two cases were not as serious as those alleged in information No. 20/1/1993.
It was apparently as a result of those two decisions that the prosecution (who had no right to appeal them since they were neither convictions nor acquittals although they could have raised the point de novo before a different judge of equal jurisdiction with the judge who decided those two cases) decided to apply to a judge of the court (to be assigned by the Chief Justice) to quash the remaining 200 plus serious criminal cases. A judge was assigned to the task and between the 12th and 13th July, 1994 all of the then pending informations were quashed on the application of the prosecution, including information No. 20/ 1/1993. The procedure adopted in dealing with those informations was not completely in accord with either section 148 of the CPC nor with the following passages from Archbold's Pleadings, Evidence and Practice in Criminal Cases 1992 Edition Volume I, paragraphs 1-270 - 1-273:–
“If the application is made on the part of tire prosecution, the court will quash the indictment in all cases where it appears to be so defective that the defendant cannot be convicted on it, and where tire prosecution appears to be bona fide, and not instituted from malicious motives, or for the purposes of oppression.
An Application to quash may, it would seem, be made upon the part of the prosecution at any time before the defendant has been actually tried upon the indictment: see R v. Webb (1764) 3 Burr. 1468. But if judgment has been given for the defendant on demurrer (sec post, 4-99), the indictment cannot afterwards be quashed at the instance of the prosecutor: R. v. W. Smith, 2 M. & Rob. 109.
There is somewhat ancient authority for the following propositions: Before an application to quash is made on the part of the prosecution, a new bill for the same offence must have been preferred...
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