Raymond Bain v The Attorney-General of the Commonwealth of the Bahamas

• Jurisdiction: Bahamas
• Judge: Turner, J.
• Judgment Date: 03 December 2018
• Date: 03 December 2018
• Docket Number: Matter of Article 20(2) (c) and 28 of the Constitution
• Court: Supreme Court (Bahamas)

Supreme Court

Turner, J.

Matter of Article 20(2) (c) and 28 of the Constitution

Raymond Bain

and

The Attorney-General of the Commonwealth of the Bahamas

Appearances:

Ms. Lisa Bostwick-Dean and Mr. Tavarrie Smith for the Applicant

Ms. Abigail Farrington for the Respondent

Constitutional Law Fundamental rights and freedoms — right to be given adequate time and facilities for preparation of defence — Whether respondent failed to give full and frank disclosure thereby breaching the applicant's constitutional rights — Alternative redress.

Turner, J.

1 By an Originating Notice of Motion filed 18 June 2018 in the Supreme Court, the applicant herein sought the following:

• 1. A declaration that:

  • a. The Applicant's constitutional right has been infringed;

  • b. Article 20(2)(c) of the Constitution of The Commonwealth of The Bahamas which affords the Applicant the right to be given adequate time and facilities for the preparation of his defence has been infringed due to the Respondent's failure to give full and frank disclosure of four material items:

    • i. Results of Laboratory analysis from the Applicant's blood collected by Detective Corporal 63 Javod Frazer and marked as collected and marked JF1A and JF1B;

    • ii. Results of Laboratory analysis for two (2) bullets removed from the Applicant by surgeon Dr. Madhu at Princess Margaret Hospital which were then handed over to the Police;

    • iii. Findings from the Identification Parade conducted on or about the 21st day of November, 2014, with the Applicant; and

    • iv. Access to the vehicle recovered at the scene and photographed by Detective Sergeant 1212 Lavardo P. Sherman.

    • 2. The Applicant be afforded constitutional redress pursuant to Article 28 of the Constitution of The Bahamas;

    • 3. That the proceedings be permanently stayed, or, in the alternative, that the Respondent not be permitted to lead any evidence not disclosed, namely evidence as to:

      • a. Blood samples and/or DNA evidence of the applicant;

      • b. The alleged identification of the Applicant by the virtual complainant;

      • c. Any offensive instrument to wit a firearm; and/or,

      • d. Crime scene photos of the vehicle recovered at the scene and photographed by Detective Sergeant 1212 Lavardo P. Sherman.

      • Further, or in the alternative

      • 4. That proceedings before the Juvenile Panel on the former counts 3 and 4 of the Voluntary Bill of Indictment be permanently stayed.

AND TAKE NOTICE that upon the hearing of this Motion the Applicant will rely on the Affidavit of RAYMOND BAIN sworn on the 18th day of June, A.D., 2018 and the exhibits herein referred to.

AND FURTHER TAKE NOTICE that the grounds of this application are:

• 1. That the present information is an abuse of the process of the Court.

• 2. That the failure to give full and frank disclosure of the material items is presumptively prejudicial to the Applicant.

• 3. That no reasonable explanation has been given for the failure to give full and frank disclosure.

• 4. That the Applicant has been severely prejudiced in the preparation of his defence by reason of the said failure.

• 5. That the failure to give full and frank disclosure of the material items is likely to result in an unfair trial and a miscarriage of justice.

• 6. That the failure to give full and frank disclosure of the material items is likely to result in a breach of natural justice.

• 7. That the Applicant has lost the benefit of being treated as a juvenile if convicted before the Juvenile Panel.

• 8. That the time which the Applicant has spent on remand at the Department of Corrections exceeds any sentence which he could have been given by the Juvenile panel if he had been convicted there of those offences.

2 During the course of the hearing of this Application, counsel also applied for and was granted leave to amend the Motion, by adding as paragraph 2 the following:

“2. Article 20(1) of the Constitution of The Commonwealth of The Bahamas which affords the Applicant the right to be given a fair hearing within a reasonable time.”

3 In support of the Motion the applicant filed on the same date as the Motion a lengthy affidavit (some 51 paragraphs stretching over 12 pages, with 8 exhibits attached), relevant portions of which state:

3. That on Tuesday the 18th day of November 2014 I was arrested along with another after having been a passenger in a police chase that resulted in my being shot three times by the police officers. I was eventually arrested and detained by the police on allegations.

4. That on or about the 21st day of November, 2014, I was placed in an identification parade while at the Central Detective Unit (CDU) and the officers only told that “this parade was for you” and that I was picked out. My attorneys have repeatedly requested the results of the identification parade from was early as 2015 and the Respondent has simply said that there was nothing on the file to show that I was placed in an identification parade. I told my lawyers that they made me sign something in the front of my mother before I could participate and my lawyers would ask for a copy of whatever I signed or the results of that parade.

6. The Respondent has denied any and all knowledge of an identification parade which was recorded on my detention record. However, on reviewing my detention record, my counsel confirmed that I was part of an identification parade. A copy of the relevant page from the detention record is now produced and shown to me marked as “Exhibit RB2”

7. That on or about the 25th day of November, 2014, when I was 15 years old, I was formally charged before the learned Stipendiary and Circuit Magistrate Joyann Ferguson-Pratt with the following offices:-

• a) one count of Armed Robbery — contrary to section 339(2) of the Penal Code, Chapter 84;

• b) one count of Receiving — contrary to section 358(2) of the Penal Code, Chapter 84; and

• c) two Counts of Possession of Firearm with intent to endanger life — contrary to section 33 of the Firearms Act, Chapter 213.

12. That during my case management hearing on the 30th day of June, 2015, one of my attorneys made requisitions for the following items in open court:

• 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 21st, 2014;

• d) Lab results taken by Detective Javod Frazier; and

• e) Lab results for FSS-14–003436.

  and the matter was then adjourned to the 6th day of October, 2015 for further case management.

18. That it was not until the 2nd day of November, 2015 that I was finally admitted to the Princess Margaret Hospital for removal of two bullets from the anterior chest wall and the left forearm by surgeon Dr. Madhu. This was confirmed by a letter from Dr. Cherilyn Hanna-Mahase, Deputy Medical Chief of Staff at the Princess Margaret Hospital dated the 14th day of April, 2016 which was disclosed to my counsel as evidence that the surgery had been conducted and that the bullets removed from me were both handed over to the police. My attorneys immediately began requesting that these bullets be submitted for ballistic tests removed from me will match the shell casings found at the scene of the crash on the night in question and fired from a police officer's gun, casings which the Respondent is alleging as evidence that I or my co-accused were shooting, which is absolutely false. A copy of the correspondence is now produced and shown to me marked as “Exhibit RB-6”.

22. That it was not until on or about the 24th day of May, 2016 that my attorneys finally received the following items:

• a) Album of print photos taken by Detective Sergeant 1212 Lavado Sherman; and

• b) A Copy of the digital video (CD) from the record of interview (ROI) for Raymond Bain for November 21st, 2014.

23. That after receiving and reviewing the photo album of the crash scene it became clear to me that certain information I had given my attorneys about distance, seating, the state of the windows, the paint splatter, the point of impact, and the reclining angle of the front passenger seat were not visible in the album and I informed my attorney Mr. Smith who said that he would request the digital album to see if we can blow up the pictures for a clearer view. We did receive the compact disc of photos but they were of no assistance to me because it was impossible to identify those things which I told my attorneys about in the photos.

24. It is my honest belief that if we could the evidence clearly it would show that it was impossible for the incident to have happened as described by the police witnesses, I could not possibly be shooting at the police from a reclined chair while sustaining shots in the back.

25. That since September of 2016, my attorneys have continuously requested access to the vehicle and have not been given a definitive response by the Respondent yet as to whether the vehicle would be available for inspection and/or examination by an independent expert in necessary.

26. That given the ruling by the Court of Appeal on September 21st 2016, concerning the conduct of Justice Vera Watkins towards me during my case management hearing, the written ruling of Justice Vera Watkins when she denied me bail and certain obiter dictum by Justice Vera Watkins, I then informed my attorneys that I did not feel I would get a fair trial before her and I instructed to file a Notice of Motion for Case Transfer. As she refused to do so and as a result the Notice filed on the 2nd December 2016. We were informed by Justice Vera Watkins that she will hear the application on the 5th day of December, 2016 at 10:00am and that at that time we should still be ready to proceed with the trial which was to commence on that date.

27. When we appeared before Justice Vera Watkins on the 5th day of December...