The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

DONNA Vasyli, who is scheduled to be retried in January 2018 concerning the fatal stabbing of her millionaire podiatrist husband, was granted $250,000 bail by a Supreme Court judge on Thursday.

The 57-year-old Australian widow and her lawyers Murrio Ducille and Elliot Lockhart, QC, appeared before Justice Bernard Turner on Wednesday afternoon seeking a bond for the Australian a week after the Court of Appeal overturned a Supreme Court jury’s verdict concerning the March 24, 2015 murder of Phillip Vasyli, who is also Australian.

In the hearing that was held in chambers, Crown prosecutors Algernon Allen II and Destiny McKinney opposed the application on the basis that the resident of Old Fort Bay was a flight risk.

However, her lawyers contended this was not the case given her substantial connection to the community, her being on bail prior to her initial conviction which has seen been quashed, and her adherence to the conditions of her previous bail bond.

In handing down his ruling on the application yesterday morning, Justice Turner noted “counsel for the applicants (also) reminded the court that there is precedent for a non-national of the Bahamas being granted bail for the offence of murder.

“In response, the Crown which had also filed an affidavit in opposition to bail submitted that there has been a material change in circumstances since the applicant has since had last been placed on bail. In that the applicant has had a trial,” the judge continued.

“They contended that now that the applicant had been convicted and spent one year and nine months at the Bahamas Department of Correctional Services as a convicted prisoner, although that conviction has been set aside and a retrial ordered, it demonstrated the cogency of the evidence arrayed against her and is a powerful incentive for her not to appear for her trial. That retrial date, fixed by this court at the conclusion of the bail application, it is the 29th of January, 2018.”

He continued: “The affidavit in opposition and the submissions also referred to the nationality and resources of the applicant as making it easier for her to flee the jurisdiction, specific reference being made to the gated community in which the applicant lived and the presence of water-ways with direct access to the sea.

“Counsel for the crown also submitted that the decision of the Attorney General v Mendez and Ayo is distinguishable as a critical feature in that decision was the apparent lack of cogency in the evidence. I am constrained to concur with that submission. Indeed, the Court of Appeal in the first Vasyli appeal had indicated as much when the learned president stated at the end of paragraph 16 and I quote ‘The case of AG v Mendez & Ayo were the appellants who were visitors to the Bahamas who were granted bail on the charge of murdering a man who had robbed them as he was fleeing and two, on the face of the evidence, appeared to have some justification for killing the deceased, a case clearly distinguishable from this one.’

“Indeed I note that the criminal charges against the defendants in that matter never came to trial and were brought to an end by the entry of a nolle prosequi by the attorney general. That case therefore stands very much on its own facts and provides very little precedence to apply to other factors or scenarios.”

The judge continued: “I have considered this application and all of the submissions therein (and) I find that there is some force to the submissions of the Crown in respect of the cogency of the evidence, as evidenced by the majority decision of the Court of Appeal in ordering a retrial, and the concerns expressed to the heightened incentive to flee.

“However, the general issue as to the incentive of the applicant to flee would have been previously considered by a judge of the Supreme Court, and the decision was made to grant the applicant bail. The issue of the applicant’s resources and the access to the sea of the community in which her residence is located were all considered and it was determined that the applicant should have been released on bail. This is a separate and pre-standing bail application and the potential for the applicant’s flight from her trial has not significantly changed even with the conviction and the order of a retrial.

“I accept that the order of a new trial does mean that the court had judicially considered there was a case to answer, though the Court of Appeal ordered that the conviction be quashed, considered that there was sufficient evidence on which a retrial, in the circumstances, be ordered.

“However, with the quashing of the conviction, the applicant returns to the status of a person on remand for an allegation of murder. As a matter, the presumption of innocence again attaches to such a person. The most that can be said about the evidence, without making any actual determination about it at all, since this is merely a bail application, is that, as already stated, the court of appeal has ordered a retrial on the same,” Justice Turner noted.

“The applicant has now, in effect, spent several years in custody in respect of this charge of murder. In these circumstances, that is to say: (1) the applicant is a 57-year-old non-Bahamian, from a Commonwealth country, ie an Australian citizen who is a permanent resident of the Bahamas; (2) (She is) a mother of two grown children who also reside in the Bahamas; (3) a person who appears to have substantial ties to the Bahamas inclusive of real property; (4) a person who has already spent several years in custody in respect of this allegation in respect of the murder of her husband and (5) a person who was previously on bail for this offence having abided by all of the terms of that bail inclusive of appearing for her trial.

“The applicant has demonstrated that this is indeed the proper case of the exercise of my discretion to grant her bail,” Justice Turner said, prompting Vasyli to utter “Oh my God” from the prisoner’s dock.

“I am satisfied that notwithstanding the previous conviction and order for a retrial, which may come toward an increased risk for the applicant not appearing for her trial, that conditions can be imposed to ensure that the applicant will remain and appear for her trial in a little less than six months’ time. In these particular circumstances and notwithstanding the serious allegations against the applicant, I have determined that she should be granted bail with stringent conditions,” the judge continued.

“Bail is therefore granted upon the following conditions: (1) bail in the sum of $250,000 with two sureties; (2) the applicant has to be electronically monitored and is required to comply with the regulations for the use of such device; (3) the applicant is required to sign-in at the Lyford Cay Police Station on Mondays, Wednesdays and Fridays before 6pm; (4) the applicant is required to reside at an identified residence Lily Pond Drive and is required to remain within 100 ft of that residence between the hours of 10pm and 6am daily; (5) the applicant is required to surrender all travel documents in the event they are no longer in the possession of the court until completion of the retrial; (6) the applicant is not to seek to divest herself of any real or substantial personal property of her or her late husband’s estate without bringing the same to the attention of the court and (7) in breach of any of these conditions renders the applicant liable to further remand.”

Vasyli was initially convicted in October 2015 of the stabbing death of her husband at their home in the exclusive gated community of Old Fort Bay.

She was subsequently sentenced to 20 years in prison.

Last Tuesday, the appellate court handed down a 71-page judgment in which they quashed the conviction and remitted the case back to Supreme Court for retrial.

Court of Appeal President Justice Dame Anita Allen was of the view that the jury was possibly left with the impression, as suggested by counsel for the prosecution in its closing address, that the appellant lied about her clothing and the functionality of the cameras to conceal the murder of her husband.

This, she said, resulted in a clear danger that the jury might regard the lies of the appellant as probative of her guilt and warranted the judge to give a Lucas direction on the significance of lies.

Justice Jon Isaacs expressed concern that manslaughter by provocation was not left to the jury as an option while Justice Stella Crane-Scott dissented on the necessity of a retrial entirely given the inconclusive state of the circumstantial evidence.

However, her colleagues believed a retrial was in the interest of justice.