Williams v Attorney General
| Jurisdiction | Bahamas |
| Judge | Hilton J. |
| Judgment Date | 27 June 2016 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Cri/bal/0150/2014 |
| Date | 27 June 2016 |
Supreme Court
Hilton, J. (Ag.)
Cri/bal/0150/2014
Ian Cargill and Nathan Smith for the applicant
Anishka Hanschell for the respondent
Richard Hepburn v. Attorney General Bahamas Court of Appeal 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) and 28 of the Constitution of The Bahamas — Sections 3 and 4 (2)(a) and (b); 4 (2A) of the Bail Act 1994 as amended
Criminal practice and procedure - Bail — Charged with murder — Applicable principles as to whether bail should be granted considered — Whether the applicant should be granted bail where the trial date had been set three times in three years after the arrest of the applicant — Applicant's constitutional right to trial within a reasonable time potentially breached — Applicant granted bail with conditions.
Constitutional Law - Right to trial within a reasonable time — Whether the applicant should be granted bail where right to a trial within a reasonable time had been breached — Applicant had been arrested three years prior to this application for bail — Multiple trial dates had been set and postponed through no fault of the applicant — Applicant's trial did not occur within a reasonable time and this was against his right under Article 19 (3) of the Constitution of the Bahamas.
The applicant is A Bahamian citizen. He is 39 Years old and the father of two children and has no previous convictions.
The applicant is charged with Murder and was remanded to the Bahamas Department of Corrections in March 2014. This is his third application for bail.
His first application for bail was denied by Justice Watkins in May 2014 (and at that time his trial had been set for September 2015) on the grounds of the serious charge, and evidence in support of it and there being no unreasonable delay, or exceptional circumstances which would justify the court exercising its discretion to release him on bail.
For reasons not attributable to him, his trial did not proceed in September 2015 and a new trial date was set for March 2016. The applicant again applied for bail before me in December 2015 and his application was refused on the basis that there was no unreasonable delay and no material change in circumstances from his previous application for bail before Justice Watkins.
Again, unfortunately for reasons not attributable to him his trial in March 2016 did not proceed as the court was engaged in another Murder Trial which had commenced at the end of January 2016 and did not conclude until April 2016. As a consequence a new trial date was set for March 2017.
The applicant has now applied for bail again on the grounds that:
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a) He is presumed innocent under the provisions of the constitution.
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b) His Trial date now set for March 2017 infringes his constitutional right to be tried within a reasonable time.
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c) Three years between his arrest in March 2014 and his trial date set for March 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 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 murder is a serious charge 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 two witnesses identified him on an identification parade as the person firing a shot gun at the deceased on the day of the murder.
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c) The penalty the applicant is liable to suffer (if convicted) is severe and this gives the applicant a strong incentive to abscond or otherwise obstruct the course of justice.
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d) There is a real likelihood of the applicant interfering with theprosecution witnesses as the two “eye witnesses” are known to the applicant and the applicant allegedly had as altercation with one of them prior to his remand; and each of the two witnesses allege that they have been approached by family members of the applicant in the past seeking to have them not testify against the applicant.
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e) There has been no unreasonable delay attributable to the crown and no material charge 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 December 2015 when the applicant's trial was set for March 2016. I am of the view that a new trial date set for March 2017 is a material change in circumstances which requires the court to consider afresh 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 Murder. 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 anticipates certain conviction given the severity of sentence attached to the offence of murder.
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 two witnesses implicate him in the Murder. The applicant denies any involvement and asserts that the witnesses are either mistaken or lying and that he has an alibi. 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 statements of the witnesses indicate that the crown has sufficient grounds to charge the applicant.
In the applicant's previous bail application before me I denied him bail on the seriousness of the charge and...
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