Supreme Court
Action No. 411 of 2000
6th November, 2000
MEERABUX, J.

Mr. K. Anderson for the Petitioner
Ms. Velda Flowers for the D.P.P.

Criminal Law - Murder - Petition for bail pursuant to section 68 of the Indictable Procedure Act - Section 5(5) of the Constitution - Accused person to be tried within reasonable time - Delay of trial caused by Petitioner's Attorney - Bail refused.

J U D G M E N T

This is a petition for bail made pursuant to Section 68 of the Indictable Procedure Act, Chapter 93 of the Revised Laws of Belize.

In his affidavit in support of this petition, the applicant depose inter alia that: -

(1)	that he is a Belizean and a Police Officer presently charged with the murder of Daniel Tillett;
(2)	that the Preliminary Inquiry was recently concluded in the Belmopan Magistrate's Court with respect to the said charge of murder;
(3)	that he has been in custody for over one year; only person whom he knew that caused injuries to Daniel Tillett which may have resulted in his death at the Belmopan Police Station was Police Constable No. 244 Marlin Casey.

Counsel for the petitioner submitted as follows: -

(1)	that the petitioner has been in custody since the 27th of September, 1999, charged with murder;
(2)	that there is a possibility that trial will take place in January 2001;
(3)	section 5 (5) of the Constitution of Belize mandates that an accused person should be tried within a reasonable time and if not bail must be granted.

Refers to Vasquez and Vasquez and O'Neil, 1994 3 All. ER.

Refers to Action 229 of 1992 in the Supreme Court of Belize, In re: Carlos Caveza, et al., prisoners awaiting trial.

Also refers to Action 425 of 1999 in the Supreme Court of Belize, In re: Rhett Fuller, application for bail in an extradition matter.

Submits no affidavit filed by the D.P.P. opposing application and no grounds for so opposing the application. Further submits that what the magistrate did was irregular and wrong.

He refers to an affidavit sworn by himself in which he states that the D.P.P. has intimated to him that the petitioner will not be tried during the present on-going session of the Supreme Court and that the D.P.P. has agreed to postpone the trial so as to allow the petitioner's application for Judicial Review to be dealt with by the Supreme Court.

Ms. Flowers opposed the application and submitted that: -

(1)	as a general rule, no bail is granted in cases of murder. It is only in exceptional cases, for example, the age of the petitioner, justifiable homicide, that bail may be granted;
(2)	the case against the accused was set down for trial in the current criminal session before the Supreme Court as per the judicial notice gazetted on the 2nd October, 2000 listing the cases for trial;
(3)	the case will not be heard in this session because the petitioner made a request to the D.P.P. by letter seeking a postponement in light of the application for leave for Judicial Review;
(4)	the delay in hearing this matter is cause by the petitioner himself;
(5)	it is difficult to reconcile the application for the Judicial Review with a commencement of the trial; The petitioner was committed on trial on the 1st of July, 2000, and the application for Judicial Review was filed on the 19th of September, 2000. The petitioner had an opportunity to be on trial in this current session and to make the same submissions made to the magistrate on the 14th of July, 2000. This would have been the prudent approach in the interest of the petitioner himself especially considering that the D.P.P. has the power to prefer a charge of murder which he would have exercise anyway.
(6)	in these circumstances, there was no need for application for Judicial Review as the matter could have been dealt with expeditiously in the current session;
(7)	what is clear is that the petitioner clearly wants out but what appears to be unclear is out of what.

Mr. Anderson replies that the applicant has a right to apply for Judicial Review because of an error made by the magistrate when adjudicated at the Preliminary Inquiry. It is not in the mouth of the D.P.P. to say he should not pursue what is his right to pursue.

The applicant is presently at prison and the delay is caused to some extent because of his right to pursue this right which was the fault of the magistrate who adjudicated in the Preliminary Inquiry.

Submits that it is for the Court to decide whether or not there has been a fair hearing within a reasonable time in accordance with the Constitution of Belize in as much as 13 months have passed.

Section 5 (5) of the Belize Constitution provides as follows: -

"If any person arrested or detained as mentioned in subsection (3)(b) of this section and is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall, unless he is released, be entitled to bail on reasonable conditions."

I find that the petitioner was committed for trial to the Supreme Court on a charge of murder on the 14th of July, 2000.

I also find that the Belize Gazette dated the 14th of October, 2000, listed cases for trial at the sitting of the Supreme Court in its criminal jurisdiction commencing Tuesday, 10th of October, 2000, and the petitioner Jesus Cantun was listed as No. 10 charged with murder.

I find that the application for Judicial Review was filed on the 19th of September.

Since the petitioner's case was listed for hearing in the current session of the Supreme Court, the petitioner cannot complain about any delay in the hearing of his case when it was his attorney who sent a letter to the D.P.P. requesting a postponement of the trial in light of the application for leave for Judicial Review.

I find that the delay is caused by the petitioner's attorney himself.

I further find that at his trial the petitioner would have had the opportunity to make a similar no-case submission before the trial Judge as was made before the magistrate at the committal hearing.

The fact that an application for Judicial Review was filed on the 19th of September, 2000, does not guarantee an early hearing since there are many other applications and matters filed before the particular application that are awaiting a trial date and which must be dealt with in accordance with the maxim - "first in time, first in right."

In addition, the fact remains that the understaffed bench is finding it difficult to cope with the present workload.

I find that there is no guarantee when the application for Judicial Review will be heard.

I must repeat again that the delay in proceeding with the trial of the petitioner is attributed solely to his attorney-at-law and not by the D.P.P. How can a complaint of delay be justified when it is the petitioner's attorney who has contributed to the delay?

For these reasons, the application for bail is refused.

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