Shamar Moss v Director of Public Prosecutions
| Jurisdiction | Bahamas |
| Judge | Forbes. J. |
| Judgment Date | 11 October 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | CASE NO. CRI/BAIL/FP/00131/2015 |
The Honorable Mr. Justice Andrew Forbes
CASE NO. CRI/BAIL/FP/00131/2015
IN THE SUPREME COURT
Attorney Mrs. Erica Kemp c/o Director of Public Prosecutions
Attorney Mr. Parkco Deal c/o Shemar Moss
The Applicant has filed an application on the 28 th July, 2022, seeking consideration of the Court as to the grant of bail and filed an Affidavit in Support dated the same. The Respondent opposes the application for the grant of bail.
It is alleged that sometime on Saturday, the 25 th December 2021 while at Les Fountain Plaza, located on East Sunrise Highway, Freeport Grand Bahama.
The Applicant along with another, intentionally shot and killed Torry Henfield, the deceased and attempted to shoot and kill another.
The allegation arose from a single witness who alleged that he observed the Applicant fire a weapon in the direction of himself and the deceased.
The Applicant in his Affidavit avers that he was born on the 10 th November, 2000 in Freeport; is twenty-one (21) years of age and is a Bahamian citizen.
He further avers that he was remanded on the charges of Murder, Contrary to Section 291 (1) (d) of the Penal Code and Attempted Murder Contrary to Section 292 of the Penal Code.
That he appeared before Deputy Chief Magistrate Debbye Ferguson on the 25 th July 2022 to be served with his Voluntary Bill of Indictment (“VBI”).
That there has been numerous delays (over five months) with him not being served with his VBI and each time he was scheduled to be brought down was due to circumstances beyond his control.
He continues that he has been advised by his Attorney and verily believes that the unforeseen delays that has delayed him from being served with his VBI will constitute to the possible delay of his trial.
That he has been in custody since the 26 th December, 2021, and that he is innocent of all of the charges alleged against him.
As it relates to other pending charges, the Applicant avers that he is presently on bail for possession of an unlicensed firearm with intent to endanger life, a charge he states he is innocent of.
That the police only charged him for that offence, because he was unable to tell them who fired the said gun and that once that matter goes to trial, the evidence will show that he never held a firearm that night while at the premises connected with that allegation.
The Applicant asserts that he has no previous convictions; maintains that he will reside with his mother at her residence in Chesapeake, Lucaya, Freeport, Grand Bahama.
Prior to being detained, he was employed by his father's company JB's Auto, Freeport, Grand Bahama, as a mechanic and will return to the said employment if granted bail.
He continues that he believes two named individuals are willing and able to provide surety for him in regard to the said charges in a reasonable amount.
That he is currently the holder of a valid passport and is prepared to surrender the same and that he has no previous breaches of bail.
The Applicant asserts that the evidence the Crown intends to rely on to prove their case is very weak and tenuous at best; and states in part that the only witness that told the police that he saw the Applicant shooting a firearm at the place and time in question was also shot.
That he does not know the said witness and his evidence given to the police is built on pure falsification and speculation.
That he is presumed innocent until proven guilty, or plead guilty to any offence alleged agains t him.
In support of his application, the Applicant exhibited two Affidavits which appear to be alibi witnesses.
The Police Detention Record, evidence of what he alleges shows that at the time of his arrest, his hand was bandaged. The police statement from the alleged victim and photographs taken while at the Bahamas Department of Corrections of what he alleges is abuse by prison officers.
Further, that he has no intention of absconding, that he is the father of a five (5) year old son and a three (3) year old daughter who he is very attached to emotionally and their wellbeing is solely depended on his financial income and that his children were in his sole custody prior to being detained, as their mother left them and move to Nassau.
Lastly, he avers that he is a good candidate for bail and request the Court admit him to bail, pending his further court appearances.
The Respondent filed an Affidavit in response on the 10 th August, 2022 and sworn by Sergeant 2169 Prescott Pinder.
He avers that he is the Liaison Officer of the Director of Public Prosecutions;
That the Applicant was charged on the 30 th December 2021 with the offences of Murder, Contrary to Section 291(1)(b) of the Penal Code and Attempted Murder, Contrary to Section 2929 of the Penal Code.
Further, that the Applicant was arraigned before Magistrate Debbye Ferguson.
That he was not required to enter a plea; that bail was denied and the Applicant was remanded to the Bahamas Department of Corrections.
Sergeant 2169 Pinder asserts that the Applicant is a person of bad character and exhibited a copy of the Applicant's antecedents, which include Possession of an Unlicensed Firearm and Possession of Ammunition, both which occurred in March 2019, which the Applicant was convicted and fined.
Additionally, convictions for fighting firstly in January 2021, where he was fined and another conviction for fighting in August, 2021, where he was sentenced to the Bahamas Department of Corrections for one (1) month, and the final matter which occurred in December 2021, for causing damage and the Applicant was ordered to compensate the Virtual Complaint.
Sergeant Pinder also avers that the Applicant confessed in an out of court statement that he is affiliated with gang members who are his “friends” (the said out of court statement is contained in the Record of Interview which is also exhibited to the Affidavit).
That two witnesses assert that they are aware of the Applicant being affiliated with gangs and their statements have also been exhibited.
That the Applicant has pending matters before the Court, namely two (2) counts of Possession of a Firearm with the Intent to Endanger Life, whereby, he was charged in April 2021; and one (1) count of Causing Harm, whereby he was charged in July, 2019 and the respective dockets for the said offences were also exhibited.
Counsel for the Applicant in his Written Submissions filed on the 13 th September, 2022 has argued that, notwithstanding the allegations, the Applicant has denied the same and maintains his innocence.
In fact, Counsel for the Applicant suggested that the evidence of Mr. Hanna, (the sole witness of the said alleged offences and alleged victim) is dubious as the Applicant's hand at the alleged time of the offences had been in a white cast several days prior to the shooting and remained in the cast when he was arrested by the police, a fact he submits that is missing from the statement of Mr. Hanna casting doubt as to its accuracy.
He further suggests that the Affidavit of the Respondent has sought to label the Applicant negatively without a scintilla of evidence.
In support of the submissions, Counsel cites the New Zealand case of Hubbard v Police (1986) 2 NZLR 738, in which the Court noted that the test to be applied on bail, was whether the Applicant will appear for trial and wheth er the public interest is at risk.
Counsel then referred the Court to the provisions of the Bail Act and relied on the cases of Hurnam v. The State (Mauritius) 2005UKPC 49 Cordero McDonald v. Attorney General SCCRApp. No 195 of 2016 in support of his submissions. Counsel for the Applicant highlighted paragraph 34 of Cordero McDonald v. Attorney General SCCRApp. No 195 of 2016, where President of the Appeal Court Allen P, said:
“34. As this Court has said on many occasions, it is not the duty of a judge considering a bail application to decide disputed facts or law. Indeed, it is not expected that on such an application, a judge will conduct a forensic examination of the evidence. The judge must simply decide whether the evidence raises a reasonable suspicion of the commission of the offences by the appellant, such as to justify the deprivation of his liberty by arrest, charge, and detention. Having done that he must then consider the relevant factors and determine whether he ought to grant him bail.”
Counsel for the Respondent did not provide the Court with Written Submissions however, during the said hearing, the oral submissions of the Respondent in summary amounted to that Applicant, is a person of bad character because of his previous convictions.
The unresolved matters before the court and finally that the offence is of such a heinous nature, that it is an affront to public safety.
In this regard the Respondent sought to rely on the case of Stephon Davis and Director of Public Prosecution SSCrApp. No 108 of 2020, where Davis was charged with, one (1) count of Murder and two (2) counts of Attempted Murder.
He appeared before a Judge of the Supreme Court and was denied bail on the basis that he was a threat to public safety.
The matter was appealed and the Court of Appeal in consideration of the reasons for the denial of bail given by the Judge in the lower court and the evidence provided by the Crown quashed the Judge's decision to refuse bail and granted Davis bail with conditions.
The Applicant faces charges involving murder, an offence that has been included in Part C of the First Schedule of the Bail Act Part C which states, inter alia:-
“PART C (Section 4(3)) Kidnapping — section 282, Ch. 84; Conspiracy to...
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