The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE attorney of the Cuban woman said to have drowned at sea after the boat she was on capsized yesterday requested an adjournment in her habeas corpus application to invoke an Article 28 jurisdiction to supplement the “lack of discovery” in the government’s returns.

Adriana Maria Caro, 22, was said to have been onboard a Cuban vessel that was intercepted by Cuban, Bahamian, Turks Island and US Coast Guard officials in early March. According to court documents, for some “unknown reason” there was an accident on Cay Sal Bank and the boat exploded and sank.

While Peter Joseph, the officer-in-charge of the Carmichael Road Detention Centre, said he believed Mrs Caro died along with others onboard the ill-fated vessel, relatives and legal counsel of the woman said they believe she is being detained at the CRDC “for reasons known only” to Immigration authorities.

In May, Senior Justice Bernard Turner granted, Fred Smith, QC, leave to issue a writ of habeas corpus against Immigration Minister Elsworth Johnson, Immigration Director Clarence Russell and Mr Joseph, who are the respondents in the matter.

During the proceedings yesterday, Mr Smith said he wished to file an Article 28 motion because he did not believe the return from the respondents was sufficient to proceed with the substantive hearing.

Mr Smith said he was seeking an order for the production of any and all papers and documents that may be in possession of the respondents relating to all of the persons who were taken into their custody from the vessel that Mrs Caro was on when she and others were taken into custody by members of the Royal Bahamas Police Force and the CRDC.

He also said he wished to “invoke the Article 28 jurisdiction” because the habeas corpus jurisdiction was “not adequate” given the circumstances of the case.

“In the UK and other Commonwealth countries the Habeas Corpus Act has been repealed and new ones have been enacted in the 19th century which provide for true sufficiency of return and merit of whether the return is sufficient to be investigated by the court on the hearing of a habeas corpus application,” he explained.

“In view of the fact that the Bahamas has not seen fit to repeal and replace its17th century Habeas Corpus Act, the adequacy of relief can be bolstered by the invocation of Article 28 jurisdiction under the Constitution, so the trial can be conducted exercising both jurisdictions.”

Mr Smith said he has already filed the affidavit of one witness who has knowledge of Mrs Caro being detained at the Detention Centre. He also said his firm is in the process of filing the affidavit of a second witness who has also identified Mrs Caro as being held in “custody of the respondents at material times”.

He added that they planned to make an application for the Royal Bahamas Defence Force to be joined as a party since they were one of the authorities that first took possession and custody of Mrs Caro. He said because of this, he believed their records would be “helpful to the court” in determining where his client was.

“Given that there are witnesses; one who testified to having seen Mrs Caro, the family is very anxious as to the disappearance of her while in the custody of the respondents,” Mr Smith continued.

“This is an unusual case and the first time (I’ve seen) a return to the court saying that the applicant has not been and is not in custody. If the applicant’s family did not have other evidence that would have been an end to the writ. Since the court has not adjudicated on it, given the evidence Mrs Caro’s family has, we ask for an adjournment so we can return and your lordship can deliberate on (our request).

“We are at a disadvantage by the lack of discovery under the current Act so we ask for an adjournment to invoke Article 28.”

Yesterday, Crown attorney Racquel Whyms objected to Mr Smith’s petition, likening the request for additional documents to a “fishing expedition”.

She argued the returns and affidavits that were submitted by the respondents to date were sufficient for the habeas corpus application since “all of the information related to Mrs Caro” was contained in the court documents.

“It appears as if the applicants are making up their case as they go along and that’s not fair to the respondents,” she stated.

“We have submitted all the necessary documents that were required, and the court should not (order the) release of other documents that have nothing to do with the habeas corpus application.”

Mrs Whyms insisted the current application was “very specific” and the documents of who was arrested after the boat accident “had nothing to do with” the case. She also said the respondents were standing on their claims that Mrs Caro was never in their custody.

After listening to arguments from both sides, Justice Turner said he would adjourn the matter to consider his position.