Sharmarz Brown v Director of Public Prosecutions

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Forbes. J.
• Judgment Date: 11 April 2023
• Docket Number: CASE NO. CRI/BAIL/FP/00026/2021

BETWEEN

Sharmarz Brown

Applicant

and

Director of Public Prosecutions

Respondent

Before:

The Honorable Mr. Justice Andrew Forbes

CASE NO. CRI/BAIL/FP/00026/2021

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

Criminal Side

Appearances:

Mr. Ellsworth Darling along with Mrs. Copper-Rolle c/o Director of Public Prosecutions

Mr. Shamarz Brown Pro Se

RULING ON BAIL

Forbes. J.

BACKGROUND

1 The Applicant filed an application seeking consideration of the Court as to the question of bail on the 6 ^th February 2023. The Applicant stated to the Court during the hearing that he was remanded on the charge of Possession of a Firearm with Intent to Put Another in Fear (2 Counts); that he has close ties to the local area in #64P Frobisher Circle, Freeport, Grand Bahama. He also stated that he is prepared to comply with any and/or all conditions should be bail be granted and that he was previously released on Bail for Murder (2 counts) by this Court in June, 2021.

2 The Respondent filed an affidavit in response on 16 ^th March 2023 and sworn by Corporal 771 Anastacia Rolle. She avers that the Applicant when arrested was discovered to be in possession of a firearm and the arresting Officer report was exhibited. The Report of Detective Constable 3494 Burrows notes that while on patrol on the 6 ^th January 2023 and acting on information about shots being fired, proceeded to the area and received information form persons in the area and then observed shell casings. That he received additional information regarding two (2) vehicles that he observed the vehicles and observed an individual he knew as Trevor Reckley. That he observed as Mr. Reckley ran and he gave chase. That with use of his flashlight he observed a male with what he suspected to be a firearm. That this male tripped and fell. That he conducted a search of the area and discovered a black and silver .40 firearm. That he then arrested and cautioned the male who had tripped and fallen who gave his name as Sharmaz Brown of Frobisher Circle. That Brown said “Officers I ain't bust them shots by Capricorn, I just heard them and then we pushed out.”

3 Corporal Rolle also avers that the Applicant is alleged to have gang affiliations. Presented was an Affidavit by Assistant Superintendent of Police Nicolas Johnson was avers that he is attached to the Criminal Investigations Department in the serious crime area. That based on intelligence information that the Applicant is affiliated with a gang known as “Nike Gang”. Although when the Applicant was questioned by the Court he denied any gang affiliations. Further, that the Applicant was granted bail by this Court on the 18 ^th June 2021; that the conditions were bail in the sum of Thirty Thousand Dollars ($20,000.00) with two sureties; that the Applicant was required to be outfitted with an Electronic Monitoring Device (EMD); to report to the Central Police Station, Freeport, Grand Bahama each Monday, & Friday before 6 pm; not to interfere with witnesses either himself or through any other person and to remain in his home after 8pm on weekdays and 10pm on weekends until 6am in the morning (Emphasis added).

4 Corporal Rolle further avers that on the day of the alleged incident there was a public discharge of a firearm that occurred at 11pm and as such was a violation of the Applicant's conditions of bail. She further asserts that there were further violations of curfew observed as there was exhibited reports from Metro Security which evidenced the Applicant's Global position as determined by the EMD worn by the Applicant. It was noted that at 11:23pm on the 6 ^th January 2023 the Applicant was said to be on east Sunrise Flighway, Freeport, Grand Bahama; also on the 6 ^th January, 2023 at 11:45pm the Applicant was said to be on East Sunrise Flighway, Grand Bahama. It is noted that when the Applicant was initially outfitted with the EMD on the 12 ^th December 2021 at 11:19 am the Applicant identified his home address as Frobisher Circle, Freeport Grand Bahama.

5 During the hearing when questioned by the Court about these violations of curfew the Applicant admitted the January 6 ^th 2023 incident and indicated that he went to the local restaurant known as “Pepper Pot” to get food. As for the other incidents the Applicant appears not to offer any explanation as to why he was not at his residence. The Court having heard the application for bail indicated its intention to render a decision and does so now. The issue for consideration given the current facts is whether this Court should grant this Applicant bail in his pending matter?

6 There was a further application sought by the Crown and that was the application seeking to revoke the bail previously granted by this Court and have the suretor forfeit the sums owed to the Crown for the alleged violations by the Applicant.

7 Also was an informal application by the suretor represented by Ms. Pleasant Bridgewater in which the suretor was seeking to withdraw herself as suretor for the Applicant's previous bail.

SUBMISSIONS

8 The Applicant being unrepresented was unable to provide any submissions save to deny the allegation contained within the Affidavit filed by the DPP and to reiterate that he is innocent of the alleged crime. The Court however notes the Court of Appeal decision of Stephon Davis and the Director of Public Prosecution SCCrApp. No. 108 of 2020.

9 The DPP filed its submissions on the 16 ^th March 2023 and noted the serious nature of the allegations against the Applicant and whether there any conditions this Court can impose that will restrain this Applicant from committing additional crimes. The DPP refers the Court to the comments made by the Judge at first instance in Stephon Davis v the Director of Public Prosecutions (supra) and the comments made at paragraph 24 by the Court of Appeal in Tyreke Mallory v. Director of Public Prosecutions SCCrApp. No.142 of 2021 where the Court adopted the comments of the Judge at first instance. Counsel for the DPP submits that the Applicant is unfit person for bail.

THE LAW

10 The Court must now consider the rational for the denial of bail to the Applicant and consider whether he will refuse or fail to surrender for trial. The Court must also take into consideration that the suretor now wishes to be allowed to withdraw notwithstanding it is at the last moment and perhaps motivated by the Crown application of forfeiture. And whether to accede to the Crown's application to revoke the previous bail granted to this Applicant for violating the terms of that bail.

11. Section 4 (1) of the Bail Act provides:-

“(1) Notwithstanding any other enactment, where any person is charged with an offence mentioned in Part B of the First Schedule, the Court shall order that that person shall be detained in custody for the purpose of being dealt with according to law, unless the Court is of the opinion that his detention is not justified, in which case, the Court may make an order for the release, on bail, of that person and shall include in the record a statement giving the reasons for the order of release on bail: Provided that, where a person has been charged with an offence mentioned in Part B of the First Schedule after having been previously convicted of an offence mentioned in that Part, and his imprisonment on that conviction ceased within the last five years, then the Court shall order that that person shall be detained in custody .

12 Sections 4(2) and (3) of the Bail (Amendment) Act, 2011 provides:-

“(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...