The Director of Public Prosecutions v Mark Mckenzie aka “Kenzil Higgins”

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Williams J
• Judgment Date: 13 March 2023
• Docket Number: Cri/vbi/l22/5/2017

The Director of Public Prosecutions

Applicant

and

Mark Mckenzie aka “Kenzil Higgins”

Respondent

Before:

The Honourable Mr. Justice Franklyn K M Williams KC

Cri/vbi/l22/5/2017

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

Criminal Division

Appearances:

Ms. Jacklyn Burrows for the Applicant

Ms. Miranda Adderley for the Respondent

Williams J

Introduction

1 On Monday 9 January 2017, Carlos Adderley Jr was shot and killed at the rear of Chapel on the Hill, off of the Tonique Williams Darling Highway, Baillou Hills, New Providence. The following day 10 January 2017, Alpha 1 gave a statement to the police by which they purported to identify the respondent as the shooter. Witness Alpha 1 subsequently identified the respondent during an identification parade conducted on 9 March 2017.

2 The respondent was subsequently charged with the murder of Carlos Adderley Jr.

3 The trial of the matter was scheduled to commence 17 April 2023.

4 On 11 May 2017, a Stipendiary and Circuit Magistrate ordered:

• i) That the names and other identifying details of the witnesses Alpha 1 and Alpha 2 be withheld from the respondent and his legal representative;

• ii) That the witnesses names and other identifying details be removed from materials and not be disclosed to any party in these proceedings;

• iii) That the witnesses be screened and that the witnesses voice be subject to modulation.

5 The Director of Public Prosecution applied to have that Order continued and to so facilitate by live television or video link pursuant to … sections 11(1) and (2) and 12 (l) of the Criminal Evidence (Witness Anonymity) Act and section 78 (b) (l) (a), (b) and (c) of the Evidence Amendment Act respectively.

6 Having given an oral ruling, in which I acceded to both applications, and having undertaken to provide a written ruling, I now do so.

The issue

7 Whether the conditions of the Criminal Evidence (Witness Anonymity) Act, 2011 have been met for the grant of the applications sought by the Director of Public Prosecutions.

The Application

8 The crux of the case of the applicant is that the witness Alpha 1 observed the actual shooting of the deceased by the respondent, whom he identified to the police. In other words, their evidence directly links the respondent to the commission of the crime. Alpha 2 is said to have been in the vicinity, having seen and heard things corroborative of Alpha 1's evidence.

Affidavit of Inspector Monique Turnquest

9 Inspector Monique Turnquest averred:

“6. Witnesses, Alpha 1 and Alpha 2 have agreed to give information to the police and testify in the criminal proceedings on the condition that neither their identity or their whereabouts are revealed, and have stated to the police that they are in fear of their lives, and they are of the view that they may be killed or suffer serious harm should their identities be revealed.

7. In the circumstances, in order for Witnesses, Alpha 1 and Alpha 2 to give testimony, the following measures should be taken:

• a. That the identities of Witness Alpha 1 and Alpha 2 should be withheld;

• b. They should be referred to by pseudonyms;

• c. They should be screened; and

• d. Their voices should be subjected to modulation.

8. Further, I am informed and verily believe that Mark Mckenzie aka “Kenzil Higgins” is known to the police.” (emphasis mine)

10 During the hearing of the application, Ms. Burrows for the Director of Public Prosecutions (“the DPP), laid before the Court the antecedents of the respondent which included a conviction for murder alleged to have been committed on 4 March 2017 (date of conviction 10 June 2022) before Fraser J.

11 Ms. Miranda Adderley for the respondent denied that the respondent had been so charged and convicted. Ms. Burrows then laid before the Court the sentencing decision of Fraser J in the case of The Director of Public Prosecutions v Mark Mckenzie aka Kenzil Higgins Cri/vbi/83/8/2017 of whom I am satisfied is the respondent

Discussion

12 The Court must decide whether, on the evidence before it, i)to grant an order anonymizing the witnesses Alpha 1 and Alpha 2, and if granted whether the respondent may receive a fair trial, and ii) whether to permit the testimony of same by live television link.

13 The Court of Appeal in Attorney General v Leroy “Shaddy” Smith et al SCCrApp No.95 of 2014 held:

“31. Furthermore on the authorities, although the Anonymity Statutes have amended the common law in relation to the appearance of witnesses at trials, with proper safeguards to ensure fair proceedings built into the legislation, as in the case of the Anonymity Act, they are not in breach of Article 20(l) of the Constitution which guarantees a fair trial to a person accused of a crime.”

14 Section 12 of the Act sets out the procedure for applying for an anonymity order. Section 13 mandates the pre conditions for making the order including, inter alia, evidence that the witness will not testify unless he/she receives identity protection, that the witness testifying will prevent real harm to the public interest, and that the measures imposed would be consistent with the defendant receiving a fair trial:

“13. Conditions for making an order.

(1) Upon an application pursuant to section 12, the court may make a witness anonymity order only if it is satisfied that the following conditions are met-

(a) that the measures to be specified in the...