The Tribune

By LYNAIRE MUNNINGS

Tribune Staff Reporter

lmunnings@tribunemedia.net

A MAN who spent 682 days in maximum security on a murder charge remained under prosecution for more than six years after an autopsy found the alleged victim died from sudden cardiac death, with a Supreme Court judge now ruling that the case was pursued with malice and without reasonable and probable cause.

Justice Cheryl Bazard, KC, found that police had lawful grounds to arrest Hosnell Samuel and may initially have had reasonable and probable cause to charge him over the January 2017 death of Leonardo Joseph.

But she ruled that the basis for maintaining the prosecution disappeared once a post-mortem exam found that Joseph’s facial injuries were not sufficient to cause his death and identified sudden cardiac death associated with an enlarged heart and left ventricular hypertrophy as the cause.

Samuel was nevertheless kept on remand until December 2018 and remained under the murder prosecution until the Director of Public Prosecutions entered a nolle prosequi on March 15, 2023.

Justice Bazard found that once the medical evidence became available, there was no longer an adequate foundation to sustain an honest belief in Samuel’s probable guilt.

“There was no basis upon which the prosecutor could reasonably believe the claimant could be convicted,” she wrote.

The judge said that, after the post-mortem findings emerged and with no meaningful evidential development thereafter, careful consideration should have been given to whether the murder charge should be maintained, amended or discontinued.

Instead, the prosecution remained alive for years.

Justice Bazard concluded that continuing the case after reasonable and probable cause had fallen away supported a finding of malice.

She found that Samuel was falsely imprisoned, maliciously prosecuted and had his constitutional right to protection from arbitrary detention breached. The Registrar will assess damages if the parties cannot agree on an amount. Costs were also awarded to Samuel.

The case arose from an altercation between Samuel and Joseph on January 6, 2017.

Samuel testified that Joseph entered his residence uninvited and that the men became involved in a verbal confrontation. He maintained that Joseph was the aggressor and denied striking him in the head with a hammer.

Samuel was arrested the following day and charged with murder on January 11, before the post-mortem examination had been conducted.

Police relied on witness accounts surrounding the altercation.

One witness said he saw Samuel take a hammer from the back of a truck and later heard Joseph say, “Bey, he hit me with the hammer.”

Another said he saw the two men arguing while Samuel was holding a hammer and heard Joseph say, “he hit me”.

But none of the witnesses whose accounts were before the court actually saw Samuel strike Joseph.

One witness only saw the men arguing, while another arrived after the confrontation had ended.

The post-mortem was conducted on January 12, 2017, one day after Samuel was charged.

It recorded Joseph’s death as sudden cardiac death associated with cardiomegaly and left ventricular hypertrophy.

The examination found blunt-force injuries to his face, including lacerations to his cheek and lip.

But the pathologist concluded that those injuries were not sufficient to have directly caused his death.

The report said the internal examination revealed an enlarged heart with an unevenly thickened left ventricular wall that would have predisposed Joseph to sudden cardiac death through a fatal irregular heart rhythm.

ASP Lincoln McKenzie, the investigating officer and first defendant in Samuel’s civil action, told the court that the decision to charge Samuel was based on his alleged confession, statements from civilian and police witnesses and the recovery of the hammer.

He said prosecutors were consulted before the charge and again after the post-mortem examination was completed.

Mr McKenzie maintained that he genuinely believed Samuel committed the offence.

Justice Bazard accepted that police had sufficient information at the outset to suspect Samuel of murder reasonably.

She therefore rejected his contention that his initial arrest was unlawful.

The judge drew a sharp distinction, however, between the justification for arresting and initially charging Samuel and the justification for allowing the prosecution to continue after the medical evidence became available.

She found that the case initially rested principally on witness accounts surrounding the altercation and an alleged admission.

But the witnesses relied upon had not observed the alleged assault, leaving their evidence, in the judge’s assessment, at best hearsay on the critical question of whether Samuel struck Joseph.

Justice Bazard also emphasised that Samuel had been charged before the autopsy was carried out.

Once the post-mortem results were available, she found, the prosecution had medical evidence inconsistent with a murder theory based on the facial injuries causing Joseph’s death.

No subsequent evidential development could repair that deficiency.

The judge said the Director of Public Prosecutions was in a position to review the evidence and determine Samuel’s fate well before the nolle prosequi was eventually entered.

She found that the combination of the hearsay nature of the witness evidence, the absence of direct eyewitness testimony, the post-mortem findings and the absence of further investigative steps could not reasonably sustain an honest belief in Samuel’s probable guilt.

Justice Bazard said the continuation of the prosecution in those circumstances gave rise to an inference that it was not being maintained for the proper purpose of bringing an offender to justice.

She concluded that although reasonable and probable cause may have existed when Samuel was first charged, it did not exist for the continued prosecution and that the defendants acted with malice.

Samuel had meanwhile remained behind bars.

He was remanded to the Bahamas Department of Correctional Services and spent 682 days in maximum security before being released on bail in December 2018.

His evidence was that, after his release, he remained subject to bail conditions that included a nightly curfew and regular reporting requirements while the murder case continued.

He also said he eventually left New Providence because he feared repercussions arising from the charge.

Justice Bazard found that Samuel’s arraignment and remand had initially been imposed under lawful authority and therefore did not, by themselves, establish false imprisonment.

But she ruled that, once reasonable and probable cause for the continued prosecution ceased to exist, Samuel’s continued detention and restrictions formed part of the loss of liberty recoverable through his successful malicious prosecution claim.

She also found that his constitutional protection against arbitrary detention had been breached.

Samuel did not succeed on every allegation.

He claimed police officers beat and threatened him in custody, put a plastic bag over his head and suffocated him before he participated in a recorded interview out of fear.

Justice Bazard rejected the assault and battery claim.

Although there was an approximately 12-hour gap in the detention record, she found that the gap alone could not establish that an assault took place.

The original detention record was not produced to the court, and there was no independent or contemporaneous evidence supporting Samuel’s allegation. The judge also found there was no medical evidence documenting injuries consistent with the beating he described.

Samuel, represented by Candace McPhee, brought the civil action against Mr McKenzie, the Commissioner of Police, the Director of Public Prosecutions and the Attorney General.