The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A SUPREME Court judge yesterday quashed a Voluntary Bill of Indictment against the man allegedly behind the fire at the Bahamas Agriculture and Marine Science Institute (BAMSI) citing inconsistencies contained in the Bill, and remitted the matter to the Magistrates Court to have the errors corrected. 

Justice Bernard Turner exercised his "inherent jurisdiction" and quashed the Bill, ruling that the current VBI "did not conform" to the provisions of section 258 of the Criminal Procedure Code (CPC), as it "did not constitute a true case" against Dave Dion Moxey.

The judge added that the VBI filed by crown prosecutors "did not disclose any evidence against the applicant".

Justice Turner's ruling confirmed that the VBI, which (in this instance) is a bundle of documents containing the Crown's case against Moxey, contained nothing that connected Moxey to the January 15 blaze, an argument that was previously raised in court by Moxey's attorney, Calvin Seymour.

As a result, Justice Turner remitted the case to the Magistrates Court, where Moxey is scheduled to return on July 9. On that date, the respective magistrate will set a deadline for Crown prosecutors to file a new VBI. 

"I hereby exercise my inherent jurisdiction and quash Voluntary Bill of Indictment no. 86/4/2015 on the basis that the Bill as filed contained no statement making out a case against the applicant and that therefore it did not conform to the provisions of section 258 of the CPC, as it did not constitute a true case," Justice Turner said in his written ruling. "I hereby remit the matter to the Magistrates Court. If the prosecutorial authorities intend to proceed further against the applicant, they should do so without delay.

He added: "I would observe in conclusion that it is a matter of some concern that the maker of an anonymous witness statement should be so transparently easily identifiable; as it has the potential for undermining the ostensible intent of the legislation."

The Tribune understands that Moxey would have been released from police custody yesterday, depending on how quickly law enforcement officials could fit him with an ankle monitoring device. 

However, Mr Seymour told The Tribune shortly after yesterday's proceedings that it would be unlikely. He said law enforcement officials informed him that the ankle bracelet would be ready shortly after noon on Monday. 

The ankle monitoring device was one of several conditions placed on Moxey until his return to the Magistrates Court on July 9. 

Justice Turner also said that Moxey, of Fresh Creek, Andros, must also report to the Fresh Creek Police Station each Monday, Wednesday and Friday before 6pm. 

He was also given a curfew, which dictates that he must be within 500 feet of his home between 9pm and 5am. Additionally, he must not be caught within five miles of BAMSI. Neither is he allowed to have any "deliberate contact" with witnesses.

Preliminary reports from police said the blaze on January 15 was the result of arson and that the fire began in the roof around 7pm. Officials battled the blaze and managed to extinguish it after four hours; however, it left one of the male dormitories at the institute severely damaged. 

Moxey was arraigned a month later in Magistrates Court. At a hearing two weeks ago, Mr Seymour asked the judge to quash the indictment on the basis that it was not appropriate to produce the statements at this stage to attach to the original VBI, for which Moxey is facing trial in the Supreme Court. 

In May, Mr Seymour informed the judge that his client's VBI contained nothing that connected his client to the blaze. 

At the time, Crown respondent Linda Evans said that there were two statements that were part of the original indictment. However, neither Mr Seymour nor the court were aware of them. 

At a hearing two weeks ago, Mr Seymour asked the judge to squash the indictment on the basis that it was not appropriate to produce the statements at this stage to attach to the original VBI for which he is facing trial in Supreme Court. 

The judge asked Ms Evans if the situation could be remedied without quashing the VBI if he did not agree with her submission that this was an instance where presumption of regularity could be applied. 

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 said, was that the court could quash the VBI and return the matter to the Magistrates Court.