Smith v Attorney General
| Jurisdiction | Bahamas |
| Judge | Hilton, J. |
| Judgment Date | 07 July 2016 |
| Docket Number | Cri/bal/0372/2015 |
| Court | Supreme Court (Bahamas) |
| Date | 07 July 2016 |
Supreme Court
Hilton, J. (Ag.)
Cri/bal/0372/2015
Stanley Rolle for the applicant
David Cox for the respondent
Richard Hepburn v. The Attorney General SCCr. App. No. 276 of 2014 — Hurnam v. The State [2006] 3 LRC 370 — Bell v. Director of Public Prosecutions [1985] AC 937 — Attorney General of Guyana v. Persuad (2010) 78 WIR 335
Articles 19(3); 20(2)(a) and 28 of the Constitution of The Bahamas — Sections 3 and 4(2)(a) or (b); 4 (2A) of the Bail Act, 1994 of the Bahamas as amended — Part A of the Schedule of the Bail Act. 1994 of the Bahamas as amended.
Criminal practice and procedure - Bail — Charged with burglary and armed robbery — Applicable principles as to whether bail should be granted considered — Whether the applicant should be granted bail where the offence charged was a serious offence — Evidence of an alleged confession which indicated that the Crown had sufficient grounds to charge the applicant — Bail with conditions granted.
Constitutional Law - Right to trial within a reasonable time — Whether the applicant's right to a trial within a reasonable time should be granted bail — Four years had passed between the date of arrest and trial — Multiple trial dates had been set and postponed through no fault of his own — Trial did not occur within a reasonable time — Constitutional right under Article 19(3) of the Constitution of the Bahamas breached.
Hilton, J., (AG)
The applicant is a Bahamian citizen. He is 24 years old and the father of a child. He has previous convictions for home breaking and stealing when he was a juvenile in 2008 and 2009.
The applicant is charged with Burglary and Armed Robbery and was remanded to the Bahamas Department of Corrections in June 2013. This is his firth Application for bail.
His previous applications for bail were denied in November 2013. June 2015, December 2015 and March 2016. He has had two trial dates which did not proceed in October 2015 and June 2016 due to no fault of his own.
His new trial date is now set for May 2017.
The applicant has now again applied for bail on the grounds that;
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a) He is presumed innocent under the provision of the constitution.
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b) His trial date now set for May 2017 infringes his constitutional right to be tried within a reasonable time.
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c) Four years between his arrest in June 2013 and his trial date set for May 2017 is a contravention of his constitutional right to liberty and amounts to pre-trial punishment.
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d) The facility of having reporting conditions and/or an electronic monitoring device are adequate means to ensure his whereabouts at all times and are sufficient safeguards to prevent any attempts at absconding.
The respondent has objected to the grant of bail on the following grounds:
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a) The charge of Armed Robbery and Burglary are serious charges for which bail should not be granted (unless there is unreasonable delay).
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b) The evidence against the applicant is strong and cogent as the applicant gave a written confession outlining his involvement in the offences.
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c) The penalty the applicant is liable to suffer (if convicted) is severe and gives the applicant a strong incentive to abscond or otherwise obstruct the course of justice.
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d) There has been no unreasonable delay attributable to the crown and no material change in circumstances since the last bail application.
In determining what is the appropriate decision in this application the court has reviewed the relevant provisions of Articles 19, 20 and 28 of the Constitution and the relevant sections of the Bail Act as amended and the case authorities.
The Court is of the view that it should only consider the application for bail if there is a change in circumstances which has arisen after a previous application was refused. In this matter the last application by the applicant was denied in March 2016 as his trial was imminent (which trial did not proceed). I am of the view that a new trial date set for May 2017 is a material change in circumstances which requires the court to consider a fresh the application for bail as it raises the important consideration of whether or not the applicant's constitutional rights are being infringed.
In bail applications the onus is upon the crown to satisfy the court that the accused person ought not to be granted bail and that the standard is on a balance of probabilities.
In the present application the applicant is charged with the serious offence of Armed Robbery. Although serious it is still bailable. The strength of the evidence is relevant to whether the accused would appear for his trial in the sense that one who knows that there is a good chance of being acquitted is less likely to abscond than one who anticipate certain conviction given the severity of the sentence attached to the offence of Armed Robbery.
However it is also accepted that the seriousness of the offence is not an independent ground for refusing bail but is a consideration in determining the issue of bail. The right to personal liberty is an important constitutional right and a defendant (who is presumed innocent) should remain at large unless it is necessary to refuse bail in order to serve one of the ends for which detention before trial is permissible. Each case is individual and needs an individual assessment.
The respondent alleges that there is cogent and strong evidence against the applicant. That the applicant gave a written confession outlining his involvement in the offences and asserts that the confession was coerced. It is not the function of the judge in bail applications to assess the probative value of the evidence and I do not do so in this case. However, I do find that the applicant's alleged confession indicates that the crown has sufficient grounds to charge the applicant.
In the applicant's previous bail applications he was denied bail as a result of the seriousness of the charge and evidence in support of it and there being no unreasonable delay. Had there been no change in circumstances I would also refuse bail. However, as a result of the applicant's trial being now set for May 2017 the issue of trial within a reasonable time must be considered.
In this regard I have found the decision of the Bahamas Court of Appeal in the case of Richard Hepburn v. The Attorney General S.C.Cr. App. No. 276 of 2014 very instructive. President of the Court Dame Allen delivering the majority decision had this to say in paragraph 5–11 and 16–27.
“5. Bail is increasingly becoming the most vexing, controversial and complex issue confronting free societies in every part of the world. It highlights the tension between two important but competing interests: the need of the society to be protected from persons alleged to have committed a crime; and the fundamental constitutional canons, which secure freedom from arbitrary arrest and detention and...
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