Failure of the State to do so, ruled Justice Brian Weekes, could result in breaches of an accused’s rights under the Constitution.
He was speaking as he delivered judgment in the civil suit brought by two accused, who had asked a High Court to order a magistrate to recuse herself because of alleged bias and who filed a constitutional motion, saying that in the more than two years they had been before the court, there had been no disclosure in their matter.
Kemar Mario DaCosta Greene, of Applewhaites, St George, and Romono Anthony Drayton, of School Lane, Halls Road, St Michael, are accused of murdering Simeon Legall, 72, formerly of Spring Hall Farm, St Thomas, between November 8 and 10, 2022.
They are on remand at Dodds Prison and have been appearing at the District “D” Magistrates’ Court.
“The court finds that the constitutional safeguards guaranteed by Sections 11 and 13 were not afforded to [Greene and Drayton] in substance,” Justice Weekes said.
“They were charged with murder and have remained on remand for over two years. Disclosure had still not been served at the time this matter was filed.
“They were repeatedly brought before a court that could not consider bail, and were never brought by the State before the High Court for judicial review of the lawfulness of their detention and for consideration of release pursuant to the Bail Act,” he said.
“In these circumstances, their detention lacked the timely and effective judicial supervision required by the Constitution.
“The court, therefore, holds that, where a person is charged with murder and is not released, Sections 11 and 13 of the Constitution require that the State brings that person, within a reasonable time after charge, before the High Court to consider release on bail and to review the legal basis for continued detention,” the judge said.
“The failure of the State to do so in the present case resulted in an infringement of the [two accused men’s] rights to the protection of the law and to personal liberty.”
Greene and Drayton, through their attorney Lalu Hanuman, had filed a constitutional motion, saying that in the more than two years since they have been placed before the court, there had been no disclosure in the matter.
In the civil suit against the Attorney General, Hanuman argued that “despite repeated requests by counsel for the matter to be dismissed for want of prosecution, or at least for an Unless Order to be made, neither has been granted”.
Greene also claimed that presiding Magistrate Deborah Beckles was biased against him.
He alleged he was a former neighbour of the magistrate, and the two families “have had several altercations”.
“However, many requests by counsel to the magistrate to recuse herself have been refused,” the constitutional motion stated.
‘Fair hearing’
Drayton had also claimed that the magistrate’s failure to recuse herself was “adversely affecting his ability to have a fair hearing”.
Principal State Counsel Jared Richards appeared for the State.
Justice Weekes, who presided in the No. 7 Supreme Court, ruled that the two accused’s claim for relief, under Section 18 of the Constitution, had failed because they had not exhausted the redress available to them in the provisions of the Magistrates’ Courts Act.
The judge said the accused had not appealed the magistrate’s decision not to order disclosure from the Commissioner of Police and to not dismiss the matters for want of prosecution. As a result, Justice Weekes said the court had “no jurisdiction” to make any orders pursuant to Section 18 of the Constitution.
However, the declared the matter did not end there.
He said the judicial control required by the Constitution “must occur promptly so as to minimise any unjustified interference with liberty and to preserve the substance of the safeguard against arbitrary detention”.
The judge declared that “mere repeated production before the Magistrates’ Court did not constitute the prompt and effective judicial control contemplated by the constitutional protection of liberty”.
He further ruled the review must be automatic and should not be as a result of an application brought by the accused.
As a result, Justice Weekes said the two accused’s rights to the protection of the law and to their personal liberty, pursuant to Sections 11 and 13 of the Constitution, had been infringed “due to the State’s failure, having charged them with the offence of murder, to bring them before the High Court for judicial review of their arrest and detention by the State and for consideration for bail pursuant to the provisions of the Bail Act”.
He ordered that the two should be taken before a High Court judge “so that their detention in custody may be reviewed by a competent court”. (HLE)
