Roker v Attorney General

JurisdictionBahamas
CourtSupreme Court
JudgeGrant-Thompson, J.
Judgment Date20 Sep 2017
Docket Number2016/CRI/BAIL/157

Supreme Court

Grant-Thompson, J.

2016/CRI/BAIL/157

Roker
and
Attorney General
Appearances:

Mr. Murrio Ducille — counsel for the applicant

Mr. Uel Johnson — counsel for the respondent

Criminal practice and procedure - Bail Application — Murder — Whether applicant would be brought to the court without undue delay — Likelihood of applicant to abscond — Likelihood to commit another offence while on bail — Interference with witnesses or obstructing the course of justice — Nature and strength of evidence — Aggravating and mitigating factors.

Grant-Thompson, J.
THIS APPLICATION
1

This is the 4th Application for Bail on behalf of 36 year old Tavares Roker who is charged with the Murder of Jermaine Ferguson which is alleged to have occurred on the 31st December 2015 at Golden Palm Estates, off of Kennedy Subdivision. On the 7th March 2016, the applicant was arraigned in the Magistrates Court before Deputy Chief Magistrate Andrew Forbes before the matter was transferred to the Supreme Court. On the 1st of July 2016, the applicant was arraigned in the Supreme Court before Bethel J and pleaded not guilty.

TRIAL HISTORY
2

The applicant was arraigned on the Charge of Murder on the 7th of March 2016 before Deputy Chief Magistrate Andrew Forbes.

3

On the 1st of June 2016 a Voluntary Bill of Indictment was served on the applicant in the Magistrates Court.

4

The matter was transferred to the Supreme Court and on the 25th July 2016 a trial date was fixed for the 20th of August, 2018.

5

Since the commencement of the matter the applicant's Bail Application history has been as follows:

  • a. Summons on behalf of the applicant to be admitted to bail pursuant to the Bail Act filed April 26th 2016;

  • b. Affidavit of Tavares Roker in support of bail application filed April 26th 2016;

  • c. Affidavit In Response of Sergeant Barry Smith filed May 3rd, 2016

    • i. On the 17th May 2016 Bail was denied by Fraser J;

  • d. Summons on behalf of the applicant to be admitted to bail pursuant to the Bail Act filed July 271h, 2016;

  • e. Affidavit of Tavares Roker in support of bail application filed July 27th 2016

  • f. Affidavit in Response of Sergeant Barry Smith filed August 24th 2016

    • i. On 15th September 2016 Bail was denied by Grant-Thompson J;

  • g. The current application was made by Summons on behalf of the applicant to be admitted to bail pursuant to the Bail Act filed May 26th 2017;

  • h. This application is supported by the Affidavit of Tavares Roker filed May 26th 2017 in which he argues:

    • i. He is a single parent of 4 children and cares for his Nephew which he considers one of his children,

    • ii. That the evidence against him is frivolous at best and only established his presence during the night in question and nothing more,

    • iii. That there is evidence of two vehicles patrolling the area on the night and several individuals looking for the deceased, two of which were armed;

    • iv. That the deceased is a known thief and others may have had a motive to harm him;

    • v. Upon hearing that he was wanted for questioning, he turned himself in to the Police voluntarily;

    • vi. He is not a flight risk and willing to abide by any and all conditions of bail that may be imposed upon him;

    • vii. That the primary witness is anonymous, which he does not object to them remaining, however he verily believes that that witness is mistaken or untruthful; and

    • viii. He also relies on his previous Affidavits filed for his previous Bail Applications.

  • i. In opposition to the current bail application, the Affidavit in Response of Inspector Monique Turnquest was filed June 12th 2017 and submits the following arguments:

    • i. The applicant has made three other bail applications, all of which were denied and this is now the fourth;

    • ii. Since the applicant made the previous applications, there has been no change in circumstances;

    • iii. There is cogent evidence that the applicant was involved in the alleged offence;

    • iv. There is Identification Evidence by an anonymous witness that heard and saw the applicant arguing with the deceased over a gun and then fleeing the scene after having heard gun shots fired;

    • v. That the charge of Murder is a serious offence which increases the likelihood that the applicant will abscond if released on bail; and

    • vi. There is a fear that the applicant may interfere with witnesses or obstruct the course of Justice; therefore his bail should be denied.

STANDARD FOR REPEAT BAIL APPLICATIONS
6

In Micheal Mackey and Edward Johnson v. Regina SCCrApp Nos 288 and 289 of 2015, the Court explained in response to the position of Hall J in Keith Patton et al v. Commissioner of Police 1992 Nos. 149 & 150 (unreported) that “No policy created by magistrate or judge can lawfully restrict a person's undoubted right, as authorized by the Constitution and the Bail Act, to apply to the Court for bail as often as he wishes or to have the application fully considered.”

7

The Learned President of the Court of Appeal, The Honorable Dame Anita Allen in Richard Hepburn Jr v. The Attorney General (No. 2) SCCrimApp & CAIS No: 135 of 2016 held that “Every application for Bail pending trial should be considered afresh. A judge considering the application should cast his or her mind to the usual consideration pertinent to the decision to grant bail. The judge must “… have regard to the previous finding on the application for bail, consider whether there is any new material relevant to the question of bail; and also consider whether there were existing circumstances at the time of the previous application which were not brought to the Courts attention and are relevant to the grant of bail.”

8

Crane-Scott JA in a dissenting opinion emphasized that “… Once the Court on the subsequent application demonstrates that it has considered the fresh application on its merits, it is clearly fulfilling its constitutional and statutory mandate and its decision to deny bail will not likely be impugned.”

LAW ON GROUNDS FOR THE GRANT/REFUSAL OF BAIL
9

Article 19 of the Bahamas Constitution provides:

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

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

“19(3). Any person who is arrested or detained in such a case as is mentioned in subparagraph 1(c) or (d) of this Article and who is not released shall be brought without undue delay before a Court; and if any person arrested or detained in such a case as is mentioned in the said subparagraph 1(d) is not tried within a reasonable time he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon reasonable conditions including in particular such conditions, as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.”

10

Article 20 of the Bahamas Constitution provides:

“20(2). Every person who is charged with a criminal offence-shall be presumed innocent until he is proven guilty or has pleaded guilty;”

11

First Schedule (Section 3) Part A Bail Act Chapter 103 (as amended)

“In considering whether to grant bail to a defendant, the Court shall have regard to the following factors— (a) whether there are substantial grounds for believing that the defendant, if released on bail, would:

  • a. fail to surrender to custody or appear at his trial;

  • b. commit an offence while on bail; or

  • c. interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(g) the nature and seriousness of the offence and the nature and strength of the evidence against the defendant.”

12

Section 4(2), 2A & 28 of the Bail (Amendment) Act 2011 states:

“(2) Notwithstanding any other provision of this Act or any other law, any person charged with an offence mentioned in Part C of the First Schedule, shall not be granted bail unless the Supreme Court or the Court of Appeal is satisfied that the person charged –

  • (a) has not been tried within a reasonable time;

  • (b) is unlikely to be tried within a reasonable time; or

  • (c) should be granted bail having regard to all the relevant factors including those specified in Part A of the First Schedule and subsection (2B), and where the Court makes an order for the release, on bail, of that person it shall include in the record a written statement giving the reasons for the order of the release on bail.

(2A) For the purpose of subsection (2)(a) and (b) –

  • a. without limiting the extent of a reasonable time, a period of three years from the date of the arrest or detention of the person charged shall be deemed to be a reasonable time;

  • b. delay which is occasioned by the act or conduct of the accused is to be excluded from any calculation of what is considered a reasonable time.

(2B) For the purpose of subsection (2)(c), in deciding whether or not to grant bail to a person charged with an offence mentioned in Part C of the First Schedule, the character or antecedents of the person charged, the need to protect the safety of the public or public order and, where appropriate, the need to protect the safety of the victim or victims of the alleged offence, are to be primary considerations.

TRIAL WITHIN A REASONABLE TIME— NO UNREASONABLE DELAY
13

As mentioned above, Article 19 (3) of the Constitution of the Bahamas mandates that a person who is arrested or detained should be brought to Court without undue delay and should be tried within a reasonable time or released. Section 4(2)(A)(a) of the Bail (Amendment) Act 2011 states that “a period of three years from the date of arrest or detention of the person charged shall be deemed a reasonable time.”

14

Therefore, in this case with the accused having been arrested on the 2nd March 2016 and his date for trial...

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