Alcedo Tyson v The Queen
| Jurisdiction | British Virgin Islands |
| Judge | Floyd J |
| Judgment Date | 02 February 2022 |
| Judgment citation (vLex) | [2022] ECSC J0202-3 |
| Docket Number | CLAIM NO. BVIHCV 2021/0266 |
| Court | High Court (British Virgin Islands) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
CLAIM NO. BVIHCV 2021/0266
Mr. Michael Maduro & Ms. Isis Potter, Counsel for the Applicant
Ms. Tiffany R. Scatliffe, LL.M., DPP & Mr. Kael London, Crown Counsel for the Respondent
This is an application for bail. The Applicant, Alcedo Tyson, is charged with murder. He has been in custody on this charge since his arrest on 17 th March, 2012. At one point, he was convicted after trial. However, that conviction was overturned on appeal. Despite the length of time spent in custody, this is his first bail application.
The Applicant is charged with the murder of Kawana Todd-Rymer, which occurred on 16 th March, 2012. Ms. Todd-Rymer was shot and died of her wounds. The Applicant and the deceased had been in a domestic relationship. The charge of murder is of the utmost gravity. The use of a firearm in the commission of the offence increases the very serious nature of the allegations.
The Crown's case appears to centre around three eye witnesses. One is a security guard at the night club where the incident occurred. One is a cousin of the deceased and the third is a friend of the deceased. The latter two witnesses were with the deceased on the night of the incident. All three also knew the Applicant at the time.
On the date in question, an incident apparently occurred between the Applicant and the deceased inside the night club. The Applicant then left but later returned. When the deceased left the club with her companions, she was allegedly confronted by the Applicant in the parking lot and was shot. The shooting was observed in whole or in part by the three witnesses. There was also security camera surveillance (CCTV) which captured some of what took place both inside the club and outside.
Learned Counsel for the Applicant submitted that the Applicant is entitled to bail and it should be granted. The Applicant has been in custody in this case for nearly ten years. This is his first application for bail. He was born on 23 rd July, 1988 in the Territory of the Virgin Islands. An Affidavit from the Applicant's mother, Cynthia Tyson, was filed. It sets out details and background information for the Applicant because, at the time of writing, HM Prison Balsam Ghut, was closed to visitors due to public health restrictions caused by the COVID-19 pandemic. In addition to the age and nationality of the Applicant, it is confirmed that, prior to his arrest, the Applicant resided with his parents in Joe's Hill, Tortola and that he was employed as a heavy equipment operator. The Applicant has a thirteen-year-old daughter who lives with her mother in the United States. If the Applicant is granted bail, he will reside with Cynthia Tyson at her apartment building in Joe's Hill. Additional sureties were noted as being available although no further details were given.
In oral submissions, Counsel for the Applicant advised the Court that the Applicant had a step son, aged 12 years, who resides in this Territory. The Applicant has no prior criminal record and is therefore a person of good character. All of this confirms the ties that the Applicant has to this community and the support that he has from his family. He is therefore not a flight risk.
Counsel for the Applicant referred to the length of time the Applicant has spent in custody and the delay he has experienced in bringing his case to trial. It is submitted that the majority of the delay can be laid at the feet of the prosecution service. This delay breaches the Applicant's Constitutional right to a speedy trial, reasonable bail and the presumption of innocence.
Counsel for the Applicant disagreed with Counsel for the Respondent, submitting that the Applicant was not a risk to abscond and was not a risk to interfere with witnesses nor with the administration of justice generally. There was no evidence of witness intimidation by the Applicant. Witness statements had been collected by the police long ago. In fact, witnesses had already testified once at the first trial in this case. Counsel for the Applicant also disagreed with Counsel for the Respondent, submitting that there was no need for exceptional circumstances to be shown for bail to be granted in cases of murder. The Court should apply the same principles and have the same considerations it does in all bail applications. The seriousness of the offence is but one factor to consider amongst a constellation.
Counsel for the Applicant relied upon a letter from the Superintendent of Prisons which confirmed the progress the Applicant had made while incarcerated. The Applicant had successfully completed a Life Skills Course. He worked on the prison farm (outside of the prison gates) from September 2019 to August 2020. He was later assigned to the prison maintenance team and remains part of that group. In that position, the Applicant has access to and uses tools such as machetes, rakes and “weed whackers.” He was granted that role based upon his attitude and his success in behaviour modification programs. Overall, the Applicant was described as cooperative, hardworking and respectful. He was deemed to be a low-risk and therefore eligible for privileges within the prison facility. Learned Counsel for the Applicant filed a number of authorities in support of his position.
Learned Counsel for the Respondent submitted that the Applicant was a flight risk, likely to interfere with witnesses and commit further offences if granted bail. Although it was not a complex case, the charge of murder, particularly when a firearm is used, was very serious. The Crown's case was a strong one. The Court should therefore exercise great care when considering bail and do so only in exceptional circumstances. Such circumstances do not, it was submitted, exist in this case. Even strict conditions would be insufficient to deal with the Crown's concerns. Counsel for the Respondent relied upon two Affidavits and a number of authorities in support of her position.
The Affidavit of D/S Darrin Malone laid out the general facts of the case, its chronology and the Crown's evidence. That evidence was reviewed earlier in this decision. The affidavit referred to the brother of the Applicant owning a “Go-Fast” boat as being a cause for concern. It also referred to a cell phone being found in the Applicant's prison cell and his involvement in what was described as “party activities” leading to unrest, although no details were given. The Affidavit of D/S Malone indicated that members of the deceased person's family expressed concerns for their safety if the Applicant was granted bail.
The Affidavit of Legal Cadet Cadijah Collins set out a chronology and time line of events in the prosecution of this case. Reference was made to conviction in 2013 after trial and then to a successful appeal in 2017. Hurricane Irma struck the Territory in September 2017 and the destruction it caused led to the closing of the courts and the transfer of prisoners to another facility off-island. The Crown sought leave to appeal to the Privy Council. That was denied sometime in early 2019 (although material filed by Counsel for the Applicant cited that denial as being made in May 2018). A date for re-trial was scheduled in July 2019, however, further delay occurred when replacement disclosure had to be located and provided to Defence Counsel because of previous hurricane damage. In a separate case, a challenge was brought to the jury array in July 2019, leading eventually to the suspension of all jury trials in this Territory. That issue was not resolved until January 2020. Even before that issue was resolved, the COVID-19 pandemic struck, leading to general lockdowns and the further suspension of trials. Jury trial resumption did not occur until September 2020. The pandemic again led to the closure of the court to jury trials in late December 2020. In January 2021, the law firm representing the Applicant asked to be removed from the record when its lead counsel was appointed to the bench. That necessitated an application to the Legal Aid Board and new counsel was not appointed until September 2021.
The entitlement to bail arises from the general right to liberty and the presumption of innocence, which flow from both the common law and the Constitution. It does not emanate from statute, there being no Bail Act in the Territory of the Virgin Islands. Section 15 (2) of the Virgin Islands Constitution indicates that no person shall be deprived of his or her personal liberty, save as may be authorized by law. Section 16 confirms that anyone charged with a criminal offence is to be afforded a fair hearing within a reasonable time and shall be presumed innocent.
In the oft quoted case of Devendranath Hurnam v The State 1, a case that originated in Mauritius, the Privy Council, at para 1, addressed the importance of applications for bail as follows:
Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and his family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further...
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