Adrian Paul Gibson v The Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Grant-Thompson J
• Judgment Date: 22 January 2024
• Docket Number: 2022 V.B.I. No 167/6
• Court: Supreme Court (Bahamas)

BETWEEN

Adrian Paul Gibson

Applicant 1

Rashae Lenora Gibson

Applicant 2

Joan Veronica Knowles

Applicant 3

Jerome Missick

Applicant 4

Peaches Farquharson

Applicant 5

Elwood Donaldson

Applicant 6

and

The Director of Public Prosecutions

Respondent

Before:

The Honourable Madam Senior Justice Mrs. Cheryl Grant-Thompson

2022 V.B.I. No 167/6

IN THE SUPREME COURT

CRIMINAL DIVISION

RULING ON NOTICE OF MOTION; The Queen v David Shane Gibson BS 2019 SC 26; Attorney General v. Sean Cartwright et al No. 8 of 2004; Williams & Pratt et Al BS 2006 SC 78; Mallard v. The Queen [2005] HCA 68; The State v. Paul (Michael) et al (1999) 57 W.I.R. 48; Berkeley Administration Inc. and McClelland 1990; Water and Sewerage Corporation Act Cap. 196

Appearances:

Mr. Damien Gomez KC and Mr. Murrio Ducille KC along with Mr. Bryan Bastian- appearing for Mr. Adrian Gibson M.P., Ms. Joan Knowles, and Mr. Jerome Missick; Counsel Mr. Raphael Moxey- appearing for Ms. Peaches Farquharson; Counsel Mr. Ian Cargill along with Mr. Donald Saunders appearing for the Applicant Mr. Elwood Donaldson; Counsel Ms. Christina Galanos and Ms. Jacklyn Conyers- appearing for the Applicant for Ms. Rashae Gibson

Madam Director of Public Prosecutions, Ms. Cordell Frazier along with Counsel Mrs. Karine MacVean, Mr. Rasheid Edgecombe, and Ms. Cashena Thompson of the Office of the Director of Public Prosecutions appearing for the Respondent

Grant-Thompson J

BACKGROUND

1 On the 4 ^th day of December, 2023, whilst the trial of the Applicants herein was underway, Mr. Damien Gomez, KC, filed a Notice of Motion relative to the evidence of Water and Sewerage engineer, Ms. Diedre Taylor, who was declared by the Court to be an expert. The herein KC challenged the correct interpretation of the obligations of the Chairman and General Manager pursuant to the Water and Sewerage Act, Chapter 196. The Notice read as follows:

“ Take Notice that the continuation of the trial herein, the Accuseds and each of them intend to object to the elicitation of oral evidence of any alleged procedure or process or practice pursued at all material times by staff members or employees of the Water and Sewerage Corporation that are in violation of the Water and Sewerage Corporation Act Cap. 196 sections 4,5,6(1)(g), 19, the First Schedule and Second Schedule sections 1,2,3,9,10, and 11 and are therefore ultra vires the Water and Sewerage Corporation Act Cap. 196 and by reason thereof void and irrelevant to the determination of the trial issues herein; AND FURTHER TAKE NOTICE THAT ALTERNATIVELY the Accuseds and each of them intend to seek an Order granting the stay of proceedings herein until such time as the Office of the Director of Public Prosecution provides to the Accuseds and each of them disclosure of any or all documentation including any emails stored in the electronic database of the Water and Sewerage Corporation affecting its allegations of the existence at all material times of such procedures, processes or practices related to the procurement of services by the Water and Sewerage Corporation and of any alleged limitation to the powers of the Board of the Water and Sewerage Corporation, the Executive Chairman and or the General Manager or such other Order providing directions to prevent the continued abuse of process adversely affecting the defences of the respective Accuseds AND FURTHER TAKE NOTICE THAT the Accuseds intend to rely on the viva voce evidence comprised of the testimony of Deidre Taylor given at the trial herein AND FURTHER TAKE NOTICE THAT the Accuseds rely on their respective rights to a fair trial at Common Law and by virtue of Article 20 of the Constitution of The Bahamas which right has been and continues to be infringed by the non-disclosure hereinbefore referred to.”

Submissions by Applicants

2 By oral arguments, Counsel Mr. Damien Gomez, KC, submitted he received a document entitled “The Bahamas Water and Sewerage Corporation Policies and Procedures Manual” (the Manual herein) from the Office of the Director of Public Prosecutions. Mr. Gomez KC described it as a composite document which comprised fourteen (14) parts: (See December 7 ^th, 2023, transcript

“ this is a composite document comprising of 14 separate parts. There are 14 tabs and our review of the documents overnight indicate that each of the tabs, or subset, which could or might … How the document was compiled, but might have been created at different times”)

3 He walked the Court through each of the fourteen (14) tabs of the manual. Mr. Gomez, KC, pointed out that the tabs nor tabbed documents were signed by the Chairman, nor the Deputy Chairman of Water and Sewerage Corporation as mandated by the Water and Sewerage Act, Chapter 196 (see Section 29 of the Second Schedule, Clause 1).

4 Mr. Gomez, KC, submissions are as follows: (See transcript dated December 7 ^th, 2023)

“ if these are the policies and procedures that are being alleged as having been in existence and relating to the functioning of the Board of Directors of the Water & Sewerage Corporation, that's a non-starter because it is flatly inconsistent with the expressed provisions of the statute; and as such, this would be a complete irrelevance to the charges laid at the feet of the First and the Sixth Accused…

The other persons would not have had any administration of the management of the Water & Sewerage Corporation. They were merely vendors. That's the case what I understand from the disclosure and from the opening that was made by my learned friend. These documents, but for the charter, are ultra vires to the Act”.

5 Mr. Gomez, KC, clarified the role of the Chairman, who is not functioning as a solo maverick, he is answerable at all times to the Board, ultimately to the Minister of Public Works. He submitted that:

“ If it is intended to rely on these documents to establish that these were policies that affected the Board, that cannot be so because to the extent that the General Manager may have signed it, he is answerable to the Board, responsible to the Board. He can't be telling the Board what to do”.

6 In summary Mr. Gomez KC, submissions were that:

• i. The amount of funds the Board can contract is not provided for in the Act or Schedule attached hereto;

• ii. The mandatory signatures requested by the Schedules are not provided for in the documents relied upon;

• iii. This illustrates the position that The Bahamas Water and Sewerage Corporation Policy and Procedures Manual does not and can not bind successive Board members;

Submissions By The Respondent

7 In response, Madam Director of Public Prosecutions submitted that:

“ I will start with putting this document in proper context. This was a manual that was compiled by the Defendant, Elwood Donaldson.”

8 Following this, the Respondent submitted that: (See Transcript, dated December 7, 2024)

“… in respect of the Water & Sewerage Corporation Corporate Governance Guidelines, my learned friend would have stated that the only document that bears the signature of the Chairman and the Audit Committee Chairman would have been that of a single document headed, “Audit Committee Charter”. I would start by saying that that is a misconception, and I will show the Court that that document is a part of the Corporate governance. So my learned friend is misguided to identify that document as a single document”

9 In the Respondent's written response to the Applicants “Notice of Motion” (herein the Notice) the Respondent addressed the submissions of the Applicants under four (4) main headings. The first being that of a Preliminary objection. Under this heading the Respondents submitted that:

“ The Notice of Motion filed by the Applicants is void of Affidavit in Support of the same; therefore, there is no evidence placed before this Honourable Court to support the bare allegation contained in the Notice of Motion. The result is that the application is improperly brought.

Further, as this present application is not an Appeal by the Director of Public Prosecutions the said party is not an Appellant for the purposes of these proceedings”

Abuse of Process

10 Under the “Abuse of Process of Court”, the Respondent submitted this:

“ The basis of the objection is grounded in the fact that the complaints outlined in the Notice of Motion can be dealt with in the normal trial process and the Applicants need not raise a Constitutional breach. The Supreme Court case of The Queen v David Shane Gibson BS 2019 SC 26 at paragraph 122, is instructive in this regard where the Honourable Madam Justice Indra H. Charles (as she then was) opined:

[122] “ In my opinion, every complaint the Defence makes can be dealt with in the ordinary course of his trial. In fact, the matters in dispute are all about the trial process. They have nothing to do with the fundamental right to a fair trial guaranteed by the Constitution which I shall consider momentarily. There is therefore no real basis for suggesting that the Applicant will not have a fair trial.” [Emphasis Mine]”

11 Further, the Respondent also submitted that in regard to the Applicants reliance on Article 20 of the Constitution of The Bahamas, the proviso to Article 28(2) of the Constitution of The Bahamas prohibits the Applicants from resorting to the Constitution where there are adequate remedies available under the Common law. In support of their submissions the Respondent relied on the case of Attorney General v. Sean Cartwright et al No. 8 of 2004 where the Court found inter alia that:

“ it was not reasonably necessary therefore, for copies of the audio tapes to be made in order to prepare a defence. As to the videotapes, it is usual that photographs are given to defendants after they are exhibited in Court-either at the preliminary inquiry or trial and as Tolson's case indicates, they are prima facie admissible. We do not think, therefore, that insisting on copies of the...