By FARRAH JOHNSON
Journalist of the Tribune
The lawyer for the Cuban woman who drowned at sea after the capsizing of the boat she was on yesterday has requested an adjournment of her habeas corpus application to invoke Article 28 jurisdiction to complete the “lack of discovery “in government statements.
Adriana Maria Caro, 22, was reportedly aboard a Cuban ship that was intercepted by Cuban, Bahamian, Turks and U.S. Coast Guard officials in early March. According to court documents, for an “unknown reason” there was an accident on the Cay Sal Bank and the boat exploded and sank.
While Peter Joseph, the officer in charge of the Carmichael Road Detention Center, said he believed Ms Caro had died along with others aboard the ill-fated ship, the woman’s relatives and legal adviser said that ‘they thought she was being held at the CRDC. “For reasons known only” to immigration authorities.
In May, Senior Judge 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 yesterday’s proceedings, Mr. Smith said he wished to file a section 28 motion because he did not believe that the respondents’ return was sufficient to proceed with the hearing on the merits.
Mr Smith said he was seeking an order for the production of all papers and documents that may be in the possession of the respondents relating to all of the persons who were placed in their care from the vessel Ms Caro was on when she was and others were arrested by members of the Royal Bahamas Police Force and the CRDC.
He also indicated that he wished to “invoke the jurisdiction of article 28” because the jurisdiction of habeas corpus was “not adequate” given the circumstances of the case.
“In the UK and other Commonwealth countries, the Habeas Corpus Act was repealed and new ones were enacted in the 19th century which provided for true sufficiency of return and the merit of whether the return was sufficient to make the subject of an investigation by the court during the hearing of an application for habeas corpus, ”he explained.
“In view of the fact that the Bahamas did not see fit to repeal and replace its 17th century habeas corpus law, the adequacy of the remedy can be enhanced by invoking the jurisdiction of the Article 28 of the Constitution, so that the trial can be conducted by exercising both powers. “
Mr Smith said he had previously filed the affidavit of a witness who knew Ms Caro was being held at the detention center. He also testified that his office was filing the affidavit of a second witness who also identified Ms. Caro as being held “in the custody of the respondents at the relevant times”.
He added that they were planning to apply for membership in the Royal Bahamas Defense Force, as they were one of the authorities who first took possession and custody of Ms Caro. He said that because of this, he believed their records would be “useful to the court” in determining the whereabouts of his client.
“Since there are witnesses; whoever testified that they saw Ms. Caro, the family are very concerned about her disappearance while in the custody of the respondents, ”continued Mr. Smith.
“This is an unusual case and the first time (I have seen) a return to court saying that the applicant has not been and is not in detention. If the applicant’s family had not had further evidence, this would have ended the writ. As the court has not ruled, given the evidence available to Ms. Caro’s family, we request an adjournment so that we can return and Your Lordship can deliberate on (our request).
“We are at a disadvantage by the lack of discovery under current law, so we are asking for an adjournment to invoke section 28.”
Yesterday, Crown Attorney Racquel Whyms opposed Mr. Smith’s petition, likening the request for additional documents to a “fishing expedition”.
She argued that the statements and affidavits submitted by the respondents to date were sufficient for the habeas corpus application since “all information relating to Ms. Caro” was contained in the court documents.
“It appears that the plaintiffs develop their arguments as they go and that is not fair to the respondents,” she said.
“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.”
Ms Whyms insisted that the current request was “very specific” and that the documents indicating who had been arrested after the boat accident “had nothing to do with” the case. She also testified that the respondents supported their claims that Ms. Caro had never been in their custody.
After listening to arguments from both sides, Judge Turner said he would adjourn the case to consider his position.