Yewill Soto Moreta v Director of Public Prosecutions

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Neil Brathwaite
• Judgment Date: 30 October 2024
• Docket Number: 2024/CRI/bail/00153

Between

Yewill Soto Moreta

Applicant

and

Director of Public Prosecutions

Respondent

Before:

The Hon. Justice Neil Brathwaite

2024/CRI/bail/00153

IN THE SUPREME COURT

CRIMINAL LAW DIVISION

Appearances:

Mr. Geoffrey Farquharson for the Applicant

Ms. Shaneka Carey, Ms. Kara Butler-Wight, Ms. Xandrell Bain for the Respondent

RULING ON BAIL

1 The Applicant in this matter seek bail on one count of Possession of an Unlicensed Firearm and two counts of Possession of Ammunition, on which he was arraigned before the Magistrate's Court in July 2024. He has no previous convictions or other pending matters, and had previously been admitted to bail on conditions, and an application to vary those conditions, to remove an Electronic Monitoring Device had been refused. That decision was appealed, but prior to the hearing of that appeal, the Applicant alleges that he was arrested at the instance of the magistrate and again brought before the Magistrate's Court on 26 ^th September 2024, where his bail was revoked as the magistrate indicated that there were concerns with the identity documents of the Applicant. He therefore seeks bail afresh.

2 In seeking to oppose the application, the Respondent filed the affidavit of Brent McNeil, Counsel in the Office of the Director of Public Prosecutions, to which is exhibited a number of reports, and documents. With respect to the evidence against the Applicant, it is alleged that the Applicant was arrested following a routine traffic stop during which a 9mm pistol and 10 live rounds were discovered. The Applicant's home was then searched, and a further 20 rounds of 223 ammunition were reportedly found.

3 The affidavit further states that a condition of the bail granted to the Applicant by the learned Magistrate on 1 ^st July 2024 was that he surrender all travel documents to the court, and that a Dominican Republic Passport and a Certificate of Naturalization purportedly issued by the Bahamas Department of Immigration were duly surrendered. However, the Respondent alleges that on 31 ^st July 2024 the Applicant presented a Bahamian passport to the Supreme Court in the course of the application to remove the EMD. The affidavit in response exhibits a report from a Chief Immigration Officer which states that the Certificate of Identity presented by the Applicant is fraudulent, as a certificate bearing that number was actually issued to a Haitian female, and that the Bahamian passport was obtained using that fraudulent Certificate of Identity.

4 On behalf of the Applicant, counsel took issue with a number of matters, including the revocation of bail by the learned Magistrate, suggesting that this application was essentially an appeal of the Magistrate's decision to revoke bail. It was submitted that the Magistrate erred by investigating the matter and convicting the Applicant without trial. Counsel further submits that having regard to the presumption of innocence, the default position is that the Applicant is entitled to bail, and that there is nothing before the court on which the court should be satisfied that bail should be refused, as there was no evidence that the Applicant was a flight risk or would interfere with witnesses or otherwise undermine the system of justice.

5 The Applicant relies on the authority of Dennis Mather v DPP SCCrApp 96 of 2022 at paragraph 20 with respect to the proper considerations for the court in considering the grant of bail, as well as the reference at paragraph 26 of that decision to Jeremiah Andrews SCCrApp No. 163 of 2019 in support of the contention that there must be real evidence before the court that the Applicant is a flight risk, or will interfere with witnesses or obstruct the course of justice, before a refusal of bail would be justified. Counsel further suggested that if the Applicant had intended to flee he could have done so while on bail, with or without an EMD, and that the Applicant instead signed in when required to do so. It was submitted that the actions of the Applicant do not support an inference of a risk of flight.

6 Finally, counsel submits that any decision to refuse bail must be rational, and that even if there is evidence to support the risk of flight, interference with witnesses, or interference with justice, the court would still be required to consider whether conditions could be imposed to mitigate the risks. In the instant case, as it is submitted that there is no evidence of any risk, the Applicant should be released on bail without conditions.

7 In response, counsel for the Respondent relied on the contents of the affidavit in response, and submitted that the offences are serious and the evidence cogent. Counsel further suggested that the Applicant had been in breach of his bail conditions by being in possession of the Bahamian passport after having been granted bail, as he was required to surrender all travel documents. To the rejoinder that the Applicant did not obtain that document until after his release on bail, the Respondent submits that in those circumstances the conditions of bail required the Applicant to surrender that document whenever it was obtained, which he failed to do.

8 The Respondent further submits that the Applicant has no status in the Bahamas, as the evidence is that the Applicant had been granted a work permit which was cancelled, and that no application had been made for the Certificate of Registration which he used to obtain a passport. Counsel emphasized that the Applicant obtained bail, then obtained a passport based on fraudulent documents, and that sought to have the EMD removed. It was submitted that this evidence from which it can be inferred that the Applicant was preparing to flee. It was therefore submitted that the Applicant is a significant flight risk, which is bolstered by the likelihood of a custodial sentence if the Applicant is convicted, and that that no conditions could be imposed to ensure the attendance at trial of a person who has already taken such steps. The court is therefore urged to refuse bail.

LAW AND ANALYSIS

9 The tensions surrounding an application for bail have been considered in many cases. In Richard Hepburn and The Attorney General SCCr. App. No 276 of 2014, Justice of Appeal Allen opined that:

“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 crime; and the fundamental constitutional canons, which secure freedom from arbitrary arrest and detention and serve as the bulwark against punishment before conviction.”

6. Indeed, the recognition of the tension between these competing interests is reflected in the following passage from the Privy Council's decision in Hurnam The State [2006] LRC 370. At page 374 of the judgment Lord Bingham said inter alia:

“…the courts are routinely called upon to consider whether an unconvicted suspect or defendant shall be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as whole. The interests of the individual is, of course, to remain at liberty unless or until he is convicted of crime sufficiently serious to deprive him of his liberty”. Any loss of liberty before that time, particularly if he is acquitted or never tried, will prejudice him and, in many cases, his livelihood and his family. But the community has countervailing interests, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence and that he does not take advantage of the inevitable delay before trial to commit further offences…”

10 At paragraph 11 she further noted that

“The general right to...