Raymond Bain v The Attorney-General
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 26 June 2019 |
| Neutral Citation | BS 2019 CA 96 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No. 274 of 2018 |
| Date | 26 June 2019 |
IN THE COURT OF APPEAL
The Honourable Sir Hartman Longley, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
SCCrApp. No. 274 of 2018
In the Matter of Articles 20(2)(c) and 28 of the Constitution of The Commonwealth of The Bahamas
Mrs. Janet Bostwick-Dean with Mr. Tavarrie Smith, Counsel for the Appellant
Ms. Abigail Farrington, Counsel for the Respondent
Attorney General's Reference (No 1 of 1990) [1992] 3 All ER 169 applied
Jaroo v A-G of Trinidad and Tobago [2002] UKPC 5 applied
R v Heston-Francois [1984] 1 All ER 785 mentioned
R.B. (A Juvenile) v Attorney-General SCCrApp. No. 205 of 2015 applied
Stinchombe v R (1991) 35 CR considered
Sylvester Aritis and Mario Flowers v Regina SCCrApp. Nos. 174 & 178 of 2010 applied
Criminal appeal — Armed robbery — Stay of proceedings — Delay of trial in proceedings involving a juvenile — Time frame for the trial of a juvenile — Juvenile becoming an adult while awaiting trial — Disclosure of all materials to the defence to enable his preparation for trial — Whether a fair trial was still possible notwithstanding the passage of time — Article 40 of the United Nations Convention on the Rights of the Child — Child Protection Act
On 10 April 2015 the appellant and his co-accused were arraigned. On 28 April 2015 their trial was scheduled for 5 December 2016 with a backup trial date of 7 March 2016. During a case management hearing on 30 June 2015 the appellant's lawyers requested that certain items be made available to them. Subsequently, various case management hearings were held between 30 June 2015 and 5 December 2016 and some of the items requested were provided.
On 18 June 2018 the appellant filed a Notice of Motion seeking a declaration that his constitutional rights have been infringed and sought constitutional relief pursuant to Article 28 of the Constitution. He also sought that the proceedings be permanently stayed or, in the alternative, the respondent not be permitted to lead any evidence not disclosed. The trial judge did not grant the stay as he found that the appellant could still receive a fair trial and that the trial process would be sufficient to deal with all of the issues related to the delay, including the appellant having coming of age. The appellant appealed that decision.
Held: appeal dismissed.
The multiple issues in this appeal were distilled down to the simple question “was the Judge correct to find that the appellant could still receive a fair trial notwithstanding the passage of time?” and process it into two sub-questions: 1. What effect does the appellant being a juvenile have on the trial process? and 2. Was the Constitution properly engaged in the circumstances?
The Bahamas has committed to a regime for the treatment of juveniles who come into contact with the criminal justice system by signing on to the United Nations Convention on the Rights of the Child (UNCRC) and has set that commitment in virtual concrete by the enactment of the Child Protection Act.
The Judge appreciated the need for expedition in relation to prosecutions involving juveniles but he noted that unlike other jurisdictions that had adopted the language of the UNCRC in their domestic legislation, The Bahamas had elected not to place any time frame within which a juvenile must be tried. Nevertheless, it is implicit in The Bahamas' ratification of UNCRC that in matters involving young persons it is imperative that they are disposed of speedily; and that it is left to the discretion of the court to determine if there has been any breach of that imperative.
It is regrettable that the appellant's case was not afforded a speedier trial because he was a young person at the time he was charged and the fact that he was charged with an adult did not absolve the State from abiding by its obligations so readily entered into at the United Nations. All that being said, we saw no reason to differ from the Judge's view that although there was delay in the case the appellant's trials ought not to be stayed because he could still have a fair trial in the Supreme Court and in the juvenile court.
The appellant had been insistent in getting certain items from the Prosecution not all of which came into his hands; and while he was of the view that this should have led the Judge to conclude that this affected the possibility of him receiving a fair trial and contributed to his call for a stay of the prosecution, we did not consider that such a grave outcome was warranted in this case. It cannot be denied that the Defence ought to be provided with such materials as are necessary for the accused person to prepare his case. However, the failure to do so will not always result in the condign sanction of a stay of the prosecution.
The proviso to Article 28 of the Constitution provides that the Supreme Court shall not exercise its power under this paragraph if it is satisfied that adequate means of redress are or have been available under any other law. In the present case the Judge was comfortable with the fact that the ordinary trial process would meet any concern about attempts by the Prosecution to adduce evidence not previously provided to the appellant. Hence, there was no need to invoke the Constitution or to have recourse to its Article 28. This Court found no fault with the Judge's reasoning.
Delivered by the Honourable
. On 21 May 2019 we heard the submissions of Counsel for the appellant and the respondent and despite the request of Mrs. Bostwick-Dean to render an ex tempore judgment due to the imminent trial date, reserved our decision. Implicit in so doing was the promise of a quick rendition of our judgment. Thus, on 23 May 2019 we rendered our decision dismissing the appeal. Our reasons for doing so are set out in our judgment.
. The appellant and his co-accused, an adult, were accused of being involved in an armed robbery and of leading the police on a high-speed car chase while in a shootout with the police, which resulted in the appellant being shot three times and his co-accused also being shot. It was unclear at what point in the incident he sustained his injuries. The appellant was fifteen years old at the time.
. While he was in custody the appellant was placed on an identification parade. There was an issue as to whether this event had any relevance to the appellant's case before the Judge but that was cleared up by the respondent producing an affidavit from Fania Joseph on 27 June 2018 which explained that the parade pertained to an unrelated criminal case. However, the lack of a timely explanation for the parade had caused the appellant to request the production of material relating to that parade in the belief it was a part of the case before the Judge.
. The appellant and his co-accused were arraigned before then Stipendiary and Circuit Magistrate Joyann Ferguson-Pratt on 25 November 2014 for multiple offences; and on 24 March 2015, a voluntary bill of indictment was presented containing one count of Armed Robbery, one count of Receiving and two counts of Possession of a Firearm with Intent to Endanger Life.
. On 10 April 2015, the appellant and his co-accused were arraigned before Mr. Justice Bernard Turner (“the Judge”) and the matter was sent to Madam Justice Vera Watkins (“Justice Watkins”) for trial. On 28 April 2015 they appeared before Justice Watkins and preparations were set in train for the trial.
. During a case management hearing on 30 June 2015 the appellant's lawyers requested that the following items be made available to them:
“a) Detention record for the applicant;
b) Copy of the compact disc and digital photos taken by Detective Sergeant 1212 Sherman, along with the accompanying photo albums;
c) Copy of the digital video of the record of interview for the Applicant on November 21 st 2014;
d) Lab results taken by Detective Javod Frazier; and
e) Lab results for FSS-14-003436.”
. Items b) and c) were provided on 24 May 2016. Thereafter, Counsel for the appellant continued to press for access to the vehicle. We merely note at this juncture that responses to requests for materials which are deemed necessary for the preparation of a defendant's case ought to occur with alacrity; and that what transpired in this case, that is, the apparent lag time between request and response, is not what is to be expected from those charged with the prosecution of criminal offences. Nevertheless, a partial response was received, albeit not timeously.
. At case management hearings the Defence maintained their request for the outstanding items. The rest of the chronology is taken from the appellant's affidavit filed in the court below and is contained in paragraphs 39 to 42:
“39. That on the 15th day of June, 2018, during my case management hearing before Justice Bernard Turner, Ms. Abigail Farrington appeared for the Respondent and informed the Court that they were seeking leave to amend the information and voluntary bill of indictment as is before the Court. She informed the Court that in regards to count two, the application was to delete the words “Raymond Bain and”, this effectively withdrawing the charge of count two against me and the Court acceded to her application. She then informed the Court that in regards to counts three and four and that based on the Bahamian Court of Appeal decision in Chevaneese Sasha Gaye Hall And Attorney General SCCrApp & CAIS No. 179 of 2014 and the Judicial Committee of the Privy Council in The Attorney General (Appellant) v Hall (Respondent) (Bahamas) [2016] UKPC 28, that counts three and four be quashed against me and remitted back to the Magistrate's Court and that since I was a juvenile at the time of...
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