Surety must pay $1,000

After a Honduran national did not answer her bail, a relative in Cayman had $1,000 forfeited of the $10,000 bail bond he had signed.

Magistrate Grace Donalds ordered the forfeiture last week after hearing facts and arguments.

The defendant, Clarissa De Acosta, had been bailed to return to Summary Court on 2 May after the Court of Appeal ordered that she should have a retrial.

She had been found guilty in December 2002 of importing 5,329 grams (5.3 kilos) of cocaine inside fish in a cooler. In custody since her arrest, she was sentenced to 14 years (Caymanian Compass, 7 January 2003).

After an appeal to Grand Court late last year, she was given bail until the Court of Appeal heard the matter this April.

Crown Counsel Kirsty-Ann Gunn noted that the magistrate now had to consider whether the surety was sufficiently carrying out his duties.

She and Defence Attorney Nicholas Dixey agreed on the basic facts and the surety was present to add details.

He said he had seen De Acosta on the Friday morning before she was due to go to court. He then left the house to go to town. When he returned around 3pm she was not home.

She had an 8pm curfew and when she did not come home by 9.45, he phoned police.

Mr. Dixey noted that the surety had grown up with De Acosta in Honduras and he felt he could trust now. Now felt betrayed by her conduct.

Recently the surety had been contacted by someone purporting to be De Acosta’s boyfriend. That person had asked for her personal effects, to be taken to her overseas. The surety refused on the basis that she was a fugitive; he was willing to assist police in this matter.

If forfeiture had to be made, the attorney asked that it be a fair and reasonable amount, given the surety’s actions.

The magistrate said that in the circumstances the court was not minded to make any order, since it appeared the surety had done all he could once he became aware of the fact that the defendant had absconded. She suggested that any information he had could be supplied to authorities in terms of her extradition.

Ms Gunn asked that the magistrate’s record of decision address the point that the surety’s job is to ensure a defendant’s attendance at court, by supervision or otherwise, as opposed to merely reporting her absence.

The magistrate asked if De Acosta had been working. The surety indicated not. He added that when he phoned police he was told they could not do anything until 24 hours had passed.

Mr. Dixey agreed that the duty is to ensure attendance, but De Acosta was not due in court that day. Her absence was well in advance of her court date – it seemed she had taken off by that date.

The magistrate agreed it certainly was a case that De Acosta had failed to appear and as such the surety had failed in his duty.

Mr. Dixey said the court had to consider that the surety had done all he could. ‘Should he have literally held her hand everywhere he went?’ he asked.

Ms Gunn said she was not asking the surety to be a 24-hour guardian, but what steps were taken before then to ensure De Acosta’s whereabouts were known, she wondered.

The surety then said he had phoned De Acosta when he returned home at 3pm, but her cell phone was off. That was why he got concerned when she did not show up at 8pm.

The magistrate said it was clear De Acosta did not come to court as she should have. As such, there was a strict breach in terms of the surety’s duty. On the other hand, it seemed he had gone a long way to satisfy the duties he had.

Mr. Dixey rose to say it seemed improper for the court to make a ruling and then change it after hearing the Crown Counsel’s concern. After the earlier ruling, the surety had a legitimate expectation, he asserted.

The magistrate said in light of concerns she should have had, there ought to be some order for forfeiture. She thought the earlier ruling was not correct and Mr. Dixey was certainly free to appeal.

She then ordered the forfeiture of $1,000.

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