By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
A MAN is set to appeal a judge’s decision that he should stand trial in the murder of his common-law wife notwithstanding that a 10-year delay in the case breached his constitutional right to a trial within a reasonable time.
Leo Roderick Johnson, 50, appeared before Senior Justice Stephen Isaacs for the start of his trial concerning the August 19, 2006 murder of Ericka Fowler.
When the matter was called, however, Johnson’s lawyer Crystal Rolle informed the judge that senior counsel Murrio Ducille intended to appeal the court’s ruling on the constitutional motion to the Court of Appeal.
She had informed prosecutor Basil Cumberbatch of the move before court began, the judge was also told.
As a result, Senior Justice Isaacs adjourned the matter to January 19, 2017 for a status hearing.
On October 26, Johnson sought a formal declaration from the court that Article 20 (1) of the Constitution had been infringed and asked that the proceedings be stayed permanently.
The grounds for the application were that the present case is an abuse of the process of the court; that the delay was presumptively prejudicial; that no reasonable explanation was given for the delay and that the applicant had been severely prejudiced in his defence because of the delay.
Rolle relied on the Court of Appeal decision of Cancino Lightbourne vs the Attorney General (2010), which outlines a number of factors for consideration of future applications for stay of a trial.
Basil Cumberbatch, in the Crown’s response, relied on the Court of Appeal’s decision of Stephen Ronald Stubbs 2013 where the appellate court ruled that there had been a breach of Stubbs’ rights after a 10-year delay of trial but said the trial should still proceed.
In his written ruling delivered on November 3 where he dismissed the application, Senior Justice Isaacs noted that the authority case of Lightbourne was not helpful to Johnson due to difference in circumstances of the two cases.
“Lightbourne was discharged by a magistrate presumably because there was not sufficient evidence to commit him to stand trial at the Supreme Court,” the judge said.
“He was then re-arrested and charged a second time on the same evidence. Lightbourne’s (armed robbery) case was stayed in all of the circumstances that obtained. In the instance case, there is eye witness evidence of five children born to the applicant and the deceased, and other family members, that saw the applicant drag the deceased from her home, stab her and cut her throat. The deceased died in the street of her injuries.”
The judge then noted the reasons provided by the Crown for the delay, which were “the prevailing conditions of the limited number of trial courts in 2007, the demand for legal services and the supply of legal services in The Bahamas as contributing to the delay.”
“I do not accept that submission given the seven years of inactivity by the Crown. Nevertheless, the burden remains on the defendant to show that a fair trial cannot be had,” the judge said.
“In all of the circumstances and the prevailing law, the delay in this matter has not been shown to have prejudiced the applicant.
“In the result, the applicant is entitled to a declaration that the delay in bringing him to trial within a reasonable time has breached his right guaranteed by Article 20(1) of the Constitution.
“I find, however, that on a balance of probabilities, a fair trial can be had despite the delay and breach of the applicant’s constitutional right to a trial within a reasonable time. The application for a stay is therefore dismissed,” Senior Justice Isaacs ruled.
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