NASSAU, BAHAMAS — The Court of Appeal has upheld a magistrate’s decision to authorize the taking of a DNA sample of a man for a police investigation involving incest with his niece.
The judgment, delivered by Justice Jon Issacs on March 1, was centered around the June 14, 2020 ruling of Magistrate Kara Turnquest-Deveaux.
Turnquest-Deveaux granted a police application authorizing a medical practitioner to take a blood sample from Ezra Russell after being “satisfied that there were reasonable grounds for suspecting Ezra Russell was involved in incest with Tamika Russell Clarke”.
Attorneys for Russell filed an appeal to the ruling on June 19, 2020, on the grounds that the evidence was wrongly considered by the magistrate and that there was not sufficient evidence to sustain the decision.
The appeal argued that the decision was unreasonable or could not be supported, having regard to the evidence, and that it was erroneous in point of law and inconsistent with the appellant’s rights against self-incrimination.
It also contended that the magistrate’s decision was based on a wrong principle.
The Court of Appeal judgement noted the “magistrate’s record of the police application does not condescend into the details of what was said by the detective inspector to the magistrate but the nature of the information provided by the officer may be gleaned by the magistrate’s use of the phrase: ‘Ezra Russell was involved in incest with Tamika Russell Clarke’”.
Damian Gomez, QC, one of Russell’s counsel, alongside Ian Cargill, argued that the record does not record the evidence that Turnquest-Deveaux relied upon to make her decision but only who gave the evidence.
Gomez submitted that she was required to give reasons to explain why she granted the authorization for the drawing of Russell’s blood.
The Court of Appeal, however, rejected the argument, noting: “It is evident from the magistrate’s record that the information provided to her by the police was that the appellant may have committed the offence of incest. The purpose of the test is to confirm or disprove the appellant’s involvement in the offence.”
The judgement stated that there was nothing presented by the appellant to suggest that the “magistrate wrongly considered the evidence placed before her by the police, nor can what is stated by the magistrate, that is, the appellant is suspected of committing the offence of incest with his niece, be insufficient to support the magistrate harboring a reasonable suspicion that the appellant is involved in the offence”.
The judgement furthered that the magistrate’s decision was both “reasonable and supportable”.
“We are satisfied that the magistrate did not fall into error by wrongly considering evidence, and her decision to grant the authorization is sustainable and reasonable,” it concluded.
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