The Courts: 2013 In Review
On November 2, 2013, family and friends gathered at Christ Church Cathedral to say farewell to a man they described as kind, supportive and generous.
The George Street Anglican Church was filled to capacity, with standing room only for the dozens of people who gathered both inside and out of the church to remember a man who, according to the Rector of Holy Spirit Church, was “snuffed out from the prime of his life”.
“My brothers and sisters, we should not be here this morning. In fact, not only for the late Kurt McCartney, but we’re here today when parents are burying another child,” Fr Peter Scott told the mourning family, friends and well-wishers.
“And this is happening far too often in our country where parents have to come in church to these services and bury their loved ones snuffed out in the prime of life.
“Something is terribly wrong in our nation,” Father Scott said.
Since these words of frustration were uttered, more than a dozen new more murders have occurred.
However, it was the brutal and gratuitous violence visited upon community members on the evening of December 27 at Freedom Park that appears to have been the last straw for the public.
Three men and a woman were killed and four others were seriously injured in a drive-by shooting at Freedom Park in Fox Hill.
Police Commissioner Ellison Greenslade personally came to the scene to find a community crying out in anguish and anger at the realisation that what had transpired was not a dream but a living nightmare.
After being briefed on the events and the state of the investigation, the commissioner confirmed to reporters what had already begun circulating via social media moments after more than a half a dozen shots were fired.
The victims were, according to the police chief, “simply enjoying a peaceful evening which is their right to do, when people came into this community and left death in their wake. This is totally unacceptable in the Bahamas. This is totally tragic, and we are going to ensure with every ounce of my being that we pursue these people until we find them and bring them to justice.”
The legal process
If and when the person or persons believed to be responsible for the Freedom Park murders are found, they will be arrested, questioned in police custody and charged.
If there is sufficient evidence to warrant it, the charge will be for murder.
The suspect(s) will then be escorted from the Central Detective Unit, if held there, to Nassau and South Streets to be arraigned in the Magistrates Court before the chief or next available magistrate.
The charge and particulars of the offence will be read but there will be no requirement to enter a plea due to the nature of the charge.
The accused will also be informed that the case will be fast-tracked to the Supreme Court for trial, bypassing the previously common preliminary-inquiry which would determine if the case meets the threshold for the matter to move to the higher court.
Thanks to changes to the law passed on November 4, 2011, bail will not be a consideration for the accused while preparing a defence in the interim before trial.
The accused will be remanded to Her Majesty’s Prison, Fox Hill, and may then be served with a Voluntary Bill of Indictment at the next Magistrates Court appearance, anywhere within 4-8 weeks of the arraignment.
The Bill is a bundle of documents containing the Crown’s case against the accused, and its punctual service depends on whether or not all of the relevant witness statements, records, and other evidence related information is available to prosecutors at the Attorney General’s office prior to the deadline to have the file ready for court.
After formally acknowledging receipt of the file, he will be informed of the date and time he will stand before a Supreme Court judge to be formally arraigned and enter a plea, an appointment that may occur more than eight weeks later.
While awaiting service of the VBI and formal arraignment in Supreme Court, the suspect(s) can exercise the legal right to apply for bail to this court.
If the court wishes to consider the application, a date is set to hear arguments from the Crown and defence counsel.
Bail may be approved or rejected depending on, but not limited to, the following considerations: nationality and ties to the country, antecedents or lack thereof, strength of the evidence, chance re-offending if granted bail, witness intimidation/interference; and protection from possible retaliation by incarceration.
Upon entering a plea at the formal arraignment, they will be given a trial date if the plea is “not guilty.”
As it stands now though, the court’s calendars are booked until 2016. However, the court may indulge the Crown with an early back-up trial date.
Before trial, there will be case management to ensure that both prosecution and defence are ready to proceed on the day of trial.
If the case is not discontinued at the request of the Attorney General, and the accused does not plead guilty either at the start of or during trial, one of three things may happen at the conclusion of the case:
• a mistrial for any number of reasons
• the accused is acquitted
• the trial ends with a conviction
If the outcome is a conviction, the Crown will have to inform the court of the choice of punishment it seeks: death penalty, life imprisonment or a fixed term prison sentence.
Two of Four in 2013
Last year, in criminal cases followed by The Tribune, crown prosecutors sought the death penalty for six men in four separate murder cases.
The first was Simeon Bain, a man who was accused of the September 19, 2009, death of 21-year-old Rashad Morri, murdering the fast food restaurant manager after seducing and robbing him.
Morris was kidnapped from the Charlotte Street branch of Burger King and taken to the Tonique Williams-Darling Highway branch, where he had been the manager.
He was ordered to open the safe. After failing to do so, he was stabbed in the restaurant’s parking lot before his throat was slashed.
Bain denied all charges against him: murder, robbery, attempted robbery, housebreaking, and kidnapping.
On May 2, 2013, he was unanimously convicted of all the charges, save attempted robbery.
Immediately after his conviction, the case’s lead prosecutor, Director of Public Prosecutions Vinette Graham-Allen, immediately announced the Crown’s intention to seek the death penalty.
However, on July 30, Justice Indra Charles sentenced Bain to life imprisonment on her assessment that the case did not represent an example of the “worst of the worst” – the threshold for capital punishment set by the London-based Privy Council.
The 40-year-old Bain is now contesting his conviction and sentence before the Court of Appeal in a hearing expected this month.
The second instance in which the prosecution sought the ultimate sentence for was the case of Anthony Clarke Sr for the September 16, 2011, murder of Aleus Tilus.
During Clarke’s trial, the prosecution produced a confession statement in which the Mount Plesant Village resident purportedly owned up to the murder.
He allegedly told police he was paid “a lot of money” by a man, who was not named, to kill Tilus because of an ongoing dispute before the Labour Board, between Tilus and his employer.
The convict’s attorney, Shaka Serville, argued that the statement was obtained through force and brutality against his client.
The jury returned a unanimous guilty verdict and the prosecutor Ambrose Armbrister indicated the Crown’s intention to seek the death penalty.
On October 10, Senior Justice Jon Isaacs, taking into account the submissions from the prosecution and defence attorneys and the probation and psychiatric reports, agreed to the Crown’s request to sentence Clarke to death for Tilus’s murder.
• • •
Kofhe Goodman, whose sentencing was delayed on a number of occasions until October 29, was the third and perhaps the most high-profile death penalty case.
Between September 23 and September 28, 2011, Goodman killed 11-year-old Marco Archer, of Brougham Street. This case inspired Marco’s Alert for missing children and the creation of a sex-offender’s registry.
Goodman, 39, stood trial between April 17 and August 2, 2013, in connection with the murder of Marco Archer. He was found guilty of the charge despite his not guilty plea.
A death sentence, life imprisonment, and a 15-year prison term were the punishments Justice Bernard Turner was asked by counsel to consider in the sentencing.
Justice Turner said he believed the case for death was a compelling one, having taken into account the circumstances of the case and Goodman’s criminal history – his former buggery and attempted murder victims were around the same age as Marco Archer.
“This case is a clear and compelling case for the ultimate sentence of death, to satisfy the requirements of due punishment for the murder of this child and to protect this society from any further predatory conduct by this convict at any time in the future,” the judge said.
“Kofhe Edwardo Ferguson Goodman, I hereby sentence you to suffer death in the manner authorised by law.”
• • •
Crown prosecutors were anticipating a similar ruling in the sentencing of Stephen ‘Die’ Stubbs, Andrew ‘Yogi’ Davis, and Clinton ‘Russ’ Evans for the 1999 murder of Constable Jimmy Ambrose.
A day after the Goodman sentencing, a Supreme Court Justice Roy Jones rejected the Crown’s request for the death penalty, ruling that, based on the circumstances, the murder of the policeman could not be categorised as an example of an extreme and exceptional case, or the “worst of the worst”.
Justice Jones also rejected the argument of the Crown that it was an extreme and exceptional murder.
The Crown maintained that it had been given a particular category in Bahamian statute law – the death of a police officer in execution of his duties. “…although the deceased was on duty, there is no suggestion in the evidence that he was targeted because he was a policeman in the execution of his duties,” the judge said.
Justice Jones also pointed out that the prosecution’s failure to serve the necessary notice of their intent to seek the death penalty was “is sufficient to withhold the application of the death penalty to these convicts in this case.”
The three men, who had appealed their initial 2002 conviction and death sentence before the Court of Appeal, were sentenced to life imprisonment.
Two of the four cases before the Supreme Court, have concluded with the imposition of the death penalty. However, the question that remains unanswered is, what is the likelihood that these sentences will be carried out?
Hours after Goodman was sentenced to die in a manner authorised by law, Attorney General Allyson Maynard-Gibson held a press conference at the AG’s office where The Tribune put that question to her.
Her answer was, “I don’t want to presuppose the decision of the Court of Appeal if the matter will be appealed and we anticipate that it will be, or the Privy Council.
“What we simply want to do is remind the public that in this country we do have a separation of powers and it is entirely up to the judiciary, which, of course, includes the Court of Appeal and Privy Council, to determine whether or not the judgment of the Supreme Court will be upheld.
“I can assure the public that we, as I said, will fight abuse of process. We will expedite the execution of those appeals. We will strongly fight to support the decision of the Supreme Court every step of the way.”
The London-based Privy Council has been portrayed as an obstacle to the Bahamas carrying out the death penalty after declaring in 2006 that the country’s mandatory death penalty upon a murder conviction was unconstitutional.
Five years later, the Privy Council would rule in the case of Maxo Tido in which the body of 16-year-old Donnell Connover was found off Cowpen Road, battered and bruised, her skull crushed and additional evidence that parts of her body were burned after her death.
The highest court overturned Tido’s death sentence, concluding that the murder was not the “worst of the worst”.
In June 2011, former National Security Minister Tommy Turnquest defended the role of the Privy Council to this newspaper, stating that the council’s past rulings on the issue of capital punishment were more about process than policy.
He said: “While members on the judicial committee of the Privy Council may have their views against the death penalty, their judgements have essentially been more about process than about the penalty itself. And that process itself has had a number of landmark rulings.”
Mr Turnquest said these included the stipulation that cases be tried within a reasonable time, defined as five years, and the stipulation that the conviction and sentencing of a person can not be carried out at the same time.
“That process is there for a reason and today it might be someone else, but tomorrow it might be your family member. So we just want to ensure that the process is followed.”
Months after these comments, in November 2011, the previous administration passed legislation to “clarify” the types of murder constituting the “worst of the worst” guidelines set out by the highest court.
Despite the legislative changes, Sean McWeeny, QC, Constitutional Reform Commission chairman, begged to differ on whether said changes will matter to the Privy Council.
The fact that, according to Mr McWeeny, the British Law Lords have a “deeply rooted philosophical objection” to capital punishment means, in his estimation, it is unlikely there will be another hanging in the Bahamas.
McWeeny’s statement was made in April 2013 in response to a question raised at the commission’s first town hall meeting.
“There is absolutely no question if you examine the judgements of the Privy Council over the last 10 years or so there is a deeply rooted philosophical objection that they have to capital punishment.
“Frankly, the Privy Council has gone out of its way sometimes, even to the point of appearing to be ridiculous, to find ways and means of moving the goal post on this. They would establish certain minimal requirements before the death penalty can be opposed. Then you meet those changes that they’ve asked for and as soon as you do they say “by the way here is a list of new things you have to meet,” he said.
“The point is that it is perhaps not going too far to say that they are manipulating the system to achieve a philosophical objection which is the abolition of capital punishment because they just don’t believe in it.”
Highest court alternative?
“I regret to say that as long as the Privy Council remains your final court of appeal, it is extremely doubtful that you will ever be able to hang anyone,” Mr McWeeny added.
It was suggested at the commission meeting that the Bahamian government move to sever ties with the Privy Council.
The Government of Dominica, late last year, informed the council of it’s intention join the Caribbean Court of Justice.
A November 27, 2013, article on Caribbean360.com quotes Dominican Prime Minister Roosevelt Skeritt as saying: “We have in fact written to the Foreign Secretary of the British government indicating the Dominica government’s decision to end our relationship with the Privy Council and to establish our relationship with the Caribbean Court of Justice in the appellate jurisdiction.”
Skerrit said that the island’s High Commissioner in London had already held talks with the Privy Council “seeking to work out the administrative matters with respect to their final decision on their part.
“Upon receiving a communication from the council, the parliament of Dominica will move to finalise the recognition of the CCJ in it’s appellate jurisdiction,” he said.
The CCJ was established in 2001 as the highest court alternative to the Privy Council for the CARICOM sub-region.
The CCJ serves as an international tribunal interpreting the Revised Treaty of Chaguaramas which governs the 15-member Caribbean Community (CARICOM) grouping.
Many Caribbean countries are signatories to the original jurisdiction but only Barbados, Guyana and Belize have signed on to the appellate jurisdiction.
While the Bahamas is not affiliated with the CJJ, to remove the Privy Council would most likely see the Caribbean Court become the final court of appeal.
However, when it was suggested that the Bahamian government take up the CCJ in place of the PC, former Attorney General and Constitutional Reform Commission member Carl Bethel said Bahamians would still not see the results they are looking for.
“The Caribbean Court of Justice has so far not found any ground to disagree with the Privy Council’s views on hanging. So it may well be a false hope for the masses to believe that if we just change the court we’ll change the result,” Mr Bethel said.
The question for 2014
While Mr Bethel’s comment may hold merit, the Bahamian public wants to have it’s faith in the justice system either inspired or restored.
Currently, people do not hold the Privy Council in high regard, notwithstanding it’s benefits to the country’s banking and finance industries and in terms of commercial law.
Bahamians want all possible avenues explored and exhausted in an effort to parry the sharp edge of escalating crime, even it requires joining Barbados, Guyana and Belize in recognising the CCJ.
And, as the Constitutional Reform Commission noted, “to replace the Privy Council with the Caribbean Court of Justice is a decision that ultimately lies in the hands of the Bahamian people, as this would require a referendum to take effect.”
Whether the government decides to include this issue in next year’s constitutional referendum or address it at some point in the future, it must also first ask the people if in fact the death penalty is a viable option as the ultimate punishment for the offence of murder in the Bahamas.
It has been stated that the majority of the populace supports the imposition of the death penalty.
The same was said about web-shop gaming and the establishment of a national lottery before the outcome of the January 2013 referendum which saw only 78,000 of 170,000 eligible voters support legalised gambling.
By LAMECH JOHNSON
Tribune Staff Reporter