Rahming v Commissioner of Police et Al

• Jurisdiction: Bahamas
• Judge: Osadebay, J.
• Judgment Date: 02 May 1997
• Court: Supreme Court (Bahamas)
• Docket Number: Not stated
• Date: 02 May 1997

Supreme Court

Osadebay, J.

Not stated

Rahming

and

Commissioner of Police et al

Appearances:

Mrs. Albertha Bartlett for the Crown.

Accused, Philip Rahming, pro se.

Evidence - Treatement of fresh evidenc

Osadebay, J.

1 The accused/applicant, Philip Rahming, is indicted with the offence of murder, contrary to section 312 of the Penal Code, Chapter 77. Shortly before his trial began, I received from the Accused a letter dated 22nd. January, 1997, which had been forwarded through the authorities at H.M. Prison to the Registrar of the Supreme Court in which he had raised certain issues in the form of a Constitutional Motion with regard to his arrest and trial seeking to stay or dismiss the indictment against him. In that document, he sought a number of declarations. I therefore stood down the trial and allowed the accused to present his motion and submissions which seemed to have been prepared in readiness. Since the Crown seemed to have no previous notice of the motion or application, I allowed the Crown time to prepare and to reply. Upon the completion of the hearing of the application, I dismissed the application of Philip Rahming and promised to put in writing my reasons for my decision. I now do so.

2 In this Application the accused, Philip Rahming stated as follows:–

“Take Notice that the plaintiff is seeking redress pursuant to article 28 of the Constitution, that articles 17(1), 19( 1)(d), 19(3)(4) and 20(2)(c) of the Constitution have been, are being and is likely to be contravened in relation to himself, and as a result am seeking relief and redress from the Supreme Court of The Commonwealth of The Bahamas, namely:

• 1. A declaration that the plaintiff was arrested contrary to article 19(1)(d), and as a result detained at the Fox Hill Prison:

  • (a) the plaintiff has been made to suffer cruel and inhuman treatment while in police custody and also while in Fox Hill Prison;

  • (b) the plaintiff is remanded in appalling conditions while awaiting. trial.

• 2. A declaration that the plaintiff while in police custody was subjected to inhuman and degrading treatment and torture, contrary to article 17(1):

  • (a) that the plaintiff's intimate samples and specimens were taken without his consent, a further contravention of article 21 of the Constitution

• 3. A declaration that the plaintiff was held in police custody some 86 hours before being brought before a magistrate, violating article 19(3) and provisions of the Criminal Procedure Code, Ch. 84, section 17, and article 19(4);

• 4. A declaration that the plaintiff has been denied adequate facilities while in custody to prepare for his defence, a breach of article 20(2)(c) of the Constitution;

• 5. A declaration that the plaintiff is on record - with correspondence to verify in filing an appeal of the committal order with the Registrar Supreme Court, but was never afforded opportunity to be heard on the same, Contrary to section 231 of the Criminal Procedure Code, Ch. 84;

• 6. And a declaration that the charge contained in the information before this honourable Court against the plaintiff be dismissed.

• 7. An order that the plaintiff be discharged and that the defendants (each of them) release the plaintiff forthwith.

• 8. That such orders, writs, directions or further relief pursuant to article 28 of the Constitution, as the Court may deem to be appropriate in enforcing or securing the enforcement of any right or freedom to the protection of the plaintiff to which he is entitled. and take notice that the plaintiff will rely on his statement filed herein on the 22nd day January, 1997 in support of this application. It is my earnest prayer that the Court will be pleased to entertain this application for redress.

Dated this 22nd day of January, 1997

Philip Rahming (Signed)

Philip J. Rahming”

I Philip Joshua Rahming, presently imprisoned at Her Majesty's Prison, Fox Hill in the Eastern District of the island of New Providence one of the Islands of the Commonwealth of The Bahamas states as follows:

• 1. I am the plaintiff and I make this declaration in support of the Motion for Constitutional Redress filed herein on my behalf.

• 2. I depose hereto from own personal knowledge unless otherwise stated.

• 3. On the evening of May 22, 1995, following my inquires at the South Street Police Station I was arrested as a suspect in reference to one Theresa Albert, who I was told had not been seen since the 20, May, 1995. At which time I denied any knowledge of her whereabouts, and/or participation of her being missing.

• 4. Later I was turned over to C.I.D. - 22 May, 1995, - at which time I was told I was then a suspect for murder in the death of the same Theresa Albert, this being without any physical evidence of murder or for that matter that any crime had been committed with my involvement and/or knowledge.

• 5. I declare and firmly believe that my arrest was occasioned because of visible scratch marks to the face, and also my failure to verify the source of scratch marks to my body resulted in my being held and declared a murder suspect, in the absence of any reasonable grounds to suspect me of the same, contrary to article 19(1)(d) of the Constitution.

• 6. I declare and firmly believe that (a) with regard to the circumstances no one could have been lawfully suspect of causing the death of Theresa Albert - before the discovery of her body; and (b) nor was there reasonable lawful ground to conclude that Theresa Albert had been kidnapped.

• 7. That at no time was I consulted by the police with regard to being taken to the hospital and/or having intimate samples and specimens removed from my body, nor did the attending medical practitioner consult me to ascertain the same, as evidenced by the lack of a procedural form by the police to verify the same; amounting to a breach of article 21 of the Constitution.

• 8. That for some eighty-six (86) hours I was held in police custody before being brought before a magistrate, contrary to article 19(3) of the Constitution and section 17 of the Criminal Procedure Code, Chapter 84.

• 8. That my arrest and subsequent detention is a breach of article 19(4) of the Constitution, and therefore compensation ought to be awarded me.

• 9. That in all circumstances deposed hereto I verily believe that the manner in which I have been arrested, investigated, detained, as well as the departure from the Criminal Procedure Code and also the Constitution of The Commonwealth of The Bahamas, has been and continues to be a grave miscarriage of justice on my behalf. I respectfully pray that my Motion filed herein be granted.

Dated this 22 day of January, 1997 A.D.

(Signed)

Philip J. Rahming”

3 Even though the second part of Rahming's document reproduced above was unsworn to, however, it was accorded all due privileges and attention of a proper affidavit in view of the applicant's circumstances.

4 In support of his application, Rahming stated and submitted as follows:–

1

On the 22nd May, 1995, sometime in the evening, on learning that the police were looking for him he, on his own accord went to the Police Station to ascertain why they were looking for him. He was detained on his arrival at the Police station “as a suspect in a missing person ‘s case relative to one Theresa Albert who it was alleged had not been seen since the 20th May, 1995, some two days prior. “He was handed to the Criminal Investigations Department where on the 23rd. May, 1995, he was treated as a murder suspect with regard to the said Theresa Albert. He stated that he was told that he was suspected of causing the death of Theresa Albert between the 20th and 23rd. May, 1995. He stated that at that time, the Police had neither the physical evidence i.e. the dead body of Theresa Albert, nor a confession from him. The Police therefore had “no legal ground for reasonable suspicion” that he “had committed or participated in Theresa Albert's murder.” He submitted that that was a violation of the rights conferred on him by Article 19(1)(d) of the Constitution of the Bahamas. 2. He was taken to Princess Margaret Hospital “without being consulted and subjected to having intimate body samples removed” from him without his consent. He submitted that that was in breach of the law. He refers to Blackstone's Criminal Practice (1995), paragraph F. 18 at page 22. “Identification of Body Samples, Swabs and impressions.” He denied that he gave consent. He submitted that the Police could not produce any consent in writing given by him. 3. He stated that he was arrested on the night of 22nd May, 1995, kept in police custody and was taken before the S. & C. magistrate on the 26th May, 1995 in the morning. That was in breach of Article 19(3) of the Constitution of The Bahamas and also section 17 of the Criminal Procedure Code Act, Chapter 84. He contended that there was on the part of the Police “a wilful neglect to comply with not only section 17 of the Criminal Procedure Code” but also the provisions of the Constitution. 4. He contended that while in custody, he was denied adequate opportunity and facilities to prepare his defence. That he alleged was in breach of Article 20(2)(c) of the Constitution. He was confined in a cell 6x10 with 3 other persons which made it physically and mentally uncomfortable to concentrate. He was not allowed adequate time for the preparation of his defence. Although he was informed of the existence of a law library at the prisons, he was not afforded the opportunity to avail himself of it. 5. He alleged that at the hearing of the Preliminary Investigation into the charge before the S. & C. magistrate, he made a submission of no case which was overruled by the magistrate without proper consideration. The magistrate “did not give sufficient concern” to his argument.

5 In answer to the allegations made by Philip Rahming, the Crown filed an affidavit sworn to on the 16th. April, 1997, by Leon Bethel, an...