By LAMECH JOHNSON
Tribune Staff Reporter
A JUDGE has reserved his decision on whether the indictment against a man accused of setting fire to a dormitory at the Bahamas Agriculture and Marine Sciences Institute should be squashed.
Dave Dion Moxey, of Fresh Creek, Andros, appeared before Justice Bernard Turner yesterday where his lawyer, Calvin Seymour, maintained that his client’s Voluntary Bill of Indictment (VBI) contained nothing that connected his client to the January 15 blaze which ravaged the dormitory.
Mr Seymour said it is inappropriate to produce the statements at this stage to attach to the original VBI for which he is facing trial in the Supreme Court.
“There is nothing in the file,” Mr Seymour said yesterday, “that this court has for it to move to section 90 of the Evidence Act to address your mind to the presumption of regularity.”
“The Crown seeks to want to gloss over the real issue. For you to do this, there must be some evidence before you. There is evidence before you, in your file, that the statements were missing.”
“The affidavit of the defendant is that he never saw these statements,” he added.
Mr Seymour added that even if the court accepted the statements on the point of presumption of regularity, “you must consider the injustice of what could be considered to be done to the defendant because any person in this country could be sitting in his position based on what is in that VBI”.
Justice Turner asked the prosecutor: “What is the regularity you’re asking the court to presume? That the magistrate acted in his/her judicial capacity?”
“Yes,” Ms Evans replied.
“As I understand Mr Seymour’s submissions, the papers that were filed did not disclose a true case and that when the law officer of the Crown signed that in accordance with section 256 of the Criminal Procedure Code, that could not have been a true statement that she signed,” the judge said.
In noting that she was not the law officer that presented the VBI to Moxey, Ms Evans raised the point that in the VBIs she’s seen presented “magistrates usually go through the papers and check to see if things are in order.”
The judge said that even if this were the case, the matter of the missing statements was unresolved.
“What you’re asking of the court is to determine that what is absent is actually present? The court had indicated not seeing anything on its file and it was in the context of a bail application. So how do I apply the presumption of regularity?” the judge asked of the prosecutor.
When the prosecutor did not immediately respond, the judge further questioned if the situation could be remedied without squashing the bill.
Ms Evans submitted that this was possible through section 166 of the CPC where there is a legal provision for the Crown to apply for leave to produce an additional witness. The other remedy, she submitted, was that the court could squash the VBI and return the matter back to the magistrate’s court.
Justice Turner said he would give his decision on a date when his ruling is ready.