The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A MAN who was charged as a 15-year-old has lost his bid to appeal a judge's decision not to permanently stay the criminal proceedings against him because he had already become a legal adult before the trial could get off the ground, thus losing the benefit his youth could have granted him.

The appellate court dismissed Raymond Bain's appeal of Justice Bernard Turner's decision that he could still receive a fair trial despite his claims that a trial by jury, which would have happened after his 18th birthday, would be prejudicial to him because of his "now adult-like appearance".

Bain and his co-accused, an adult, were charged with being involved in an armed robbery and leading police on a high-speed chase while engaging in a shootout with them. Bain and his co-accused ended up being shot, with Bain receiving three gunshot injuries. He was 15 at the time.

On November 25, 2014, Bain and his co-accused were arraigned before Chief Magistrate Joyann Ferguson-Pratt for multiple offences. In March 2015, a voluntary bill of indictment was presented containing one count of armed robbery, one count of receiving and two counts of possession of a firearm with intent to endanger life.

On April 10, 2015, Bain and his co-accused were formally arraigned before Justice Bernard Turner, and the matter was subsequently sent to Senior Justice Vera Watkins for trial. They appeared before Senior Justice Watkins and preparations were set in train for the trial. At some point, the matter was sent back to Justice Turner for trial.

During a case management hearing on June 30, 2015, Bain's lawyers requested the Crown provide them with certain items. Various case management hearings were subsequently held between June 30, 2015 and December 5, 2016, during which time some of the items requested were provided.

On June 15, 2018, during a case management hearing, the Crown informed the court it would effectively withdraw the charge of receiving against Bain, and that the two firearm charges be quashed and remitted to the Juvenile Tribunal in Magistrate's Court for their disposal.

At that time, Bain was still awaiting trial on the armed robbery charge.

Bain, in an affidavit filed on June 18, 2018, thus asserted the court should permanently stay the firearm charges since he had already lost the benefit of being treated as a juvenile if convicted before the Juvenile Panel. He further charged that even if he was convicted of those two offences before the Juvenile Tribunal, the two years and five months he spent in custody exceeds any sentence the Juvenile Tribunal could pass.

Also on that same date, Bain filed a notice of motion seeking a declaration that his constitutional rights had been infringed and further sought constitutional relief. Bain also sought to have the proceedings permanently stayed or, in the alternative, the Crown not be permitted to lead any evidence not disclosed.

Bain blamed the delay in his trial on the prosecutor who failed to disclose "critical and vital" evidence that would prove his innocence. He further noted that since he was a juvenile at the time of his arrest and arraignment, he was entitled to a quick and speedy trial pursuant to Article 40 of the United Nations Conventions on the Rights of the Child (UNCRC) and Sections 3 and 4 of the Child Protection Act.

However, in a ruling on December 3, 2018, the trial judge refused to grant the stay because he formed the view that both Bain and the Crown were blameworthy in creating the delay. The trial judge further found Bain could still receive a fair trial and the trial itself would have been sufficient to deal with all of the issues pertaining to the delay, including him coming of age.

Bain appealed that decision, asserting that a fair minded and informed observer, having considered the facts, would conclude there was a real possibility Bain had suffered "extreme" delay and/or would not receive a fair trial for numerous reasons. One of those reasons was the trial judge appeared to have misunderstood his case, which was that due to the passage of time, he no longer had the appearance of a juvenile and as such, his "now adult-like appearance" before a jury would be prejudicial to his case.

Bain's lawyers further asserted there was an "apparent breach" of their client's "fundamental right to a fair hearing by an independent and impartial judge, within a reasonable time".

However, the appellate judges said despite the multiple grounds of appeal, the appeal revolved around one simple question: was the judge correct to find Bain could still receive a fair trial despite the passage of time, and then process it into two sub-questions: what effect did Bain being a juvenile have on the trial process and was the constitution properly engaged in the circumstances.

The appellate judges said it is "regrettable" that Bain's case was not afforded a speedier trial because he was only 15 when he was charged, and further noted the fact he was charged with an adult "did not absolve the state from abiding by its obligations so readily entered into at the United Nations".

However, the appellate court said it saw "no reason" to differ from the trial judge's view that he could still have a fair trial in the Supreme Court and the juvenile court, thus negating the need for a stay of prosecution.