Adrian Paul Gibson v The Director of Public Prosecution

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Mr. Justice Isaacs
• Judgment Date: 29 August 2024
• Neutral Citation: BS 2024 CA 108
• Docket Number: SCCivApp & CAIS No. 126 of 2024

Between

Adrian Paul Gibson

and

Joan Veronica Knowles

and

Jerome Missick

Appellants

and

The Director of Public Prosecution

Respondent

Before:

The Honourable Mr. Justice Isaacs, P

The Honourable Madam Justice Crane-Scott

The Honourable Mr. Justice Evans, JA

SCCivApp & CAIS No. 126 of 2024

IN THE COURT OF APPEAL

Civil Appeal — Constitutional rights — Article 20(1) Constitution — Appearance of Bias — Recusal-Fair trial — Court of Appeal Act — Judicial Independence

On 5 July 2024, Madam Justice Cheryl Grant-Thompson declined the appellants' application to recuse herself from presiding over their criminal trial. The basis of the recusal application was an alleged breach of their constitutional right to a fair trial, following an incident where the judge's aide assisted the prosecution team in a manner that the appellants argued gave the appearance of bias. The appellants had previously made similar constitutional challenges, all of which were dismissed. The appellants then sought to appeal the decision delivered by the learned judge at the Court of Appeal. The appellants argued that, inter alia, their constitutional rights under Articles 20(1) and 28 of the Bahamian Constitution had been violated. On 29 July 2024, the Court, after hearing the parties, dismissed the appellants' appeal with promise to provide the reasons for dismissal at a later date.

Held: The appeal has been dismissed.

The test to be used for bias is “ whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” Porter v Magill [2002] 1 All ER 465. The actions of a judge's aide, without evidence of the judge's knowledge or involvement, do not create an appearance of bias sufficient to warrant recusal. The Court is satisfied that a fair-minded observer, seised of all the facts would not conclude “that there was a real possibility that the tribunal was biased.” Having been so satisfied, the substratum of the appellants' appeal falls away. There has been no constitutional breach disclosed; and despite all of the other complaints about the judgment of the judge, none has any merit.

Furthermore, constitutional challenges should not be the first recourse for litigants, particularly when adequate remedies are available through normal judicial processes. While not seeking to restrict a person's ability to approach the Court for redress of breaches of a fundamental right, the Court must ensure that its processes are not abused, as was done in this case. The Court emphasizes the importance of maintaining the integrity and efficiency of the judicial system by discouraging the misuse of constitutional provisions to delay ongoing trials.

The Government of the United States v Frederick Nigel Bowe [1989] 3 WLR 1256

Jean Rony Jean St. Charles v The Hon. Carl Bethel, et al [2022] UKPC 51

Porter v Magill [2002] 1 All ER 465

Adrian Paul Gibson, et al v The Director of Public Prosecutions SCConCrApp. No. 138 of 2023

Adrian Paul Gibson, et al v The Director of Public Prosecutions SCCrApp No. 46 of 2024

APPEARANCES:

Mr. Murrio Ducille, KC, with Mr. Geoffrey Farquharson, Mr. Bryan Bastian and Mr. Ryan Eve, Counsel for Appellants

Ms. Cordell Frazier, Madam DPP, with Mr. Rashied Edgecombe and Ms. Karine MacVean, Counsel for the Respondents

Reasons for Decision

Reasons for Decision delivered by The Hon . Mr. Justice Isaacs, President

1 . On 29 July 2024, we heard and dismissed the appellants' appeal. We promised then to put our reasons for doing so in writing; and this we now do.

2 . By a Notice of Appeal filed on 25 July 2024, the appellants, Gibson et al, seek to appeal the 5 July 2024 decision of Madam Justice Cheryl Grant-Thompson (“the Judge”), not to recuse herself from hearing the criminal case in which they are involved. The basis of their challenge is, inter alia, a purported breach of their Articles 20(1) and 28 Constitutional rights. Several orders are sought grounded upon several grounds of appeal.

3 . This is the third foray by the appellants to the Court alleging a breach of their constitutional rights. In SCConCrApp. No. 138 of 2023, they had filed a Constitutional Motion in the Supreme Court challenging the Supreme Court's jurisdiction to hear the offences with which they are charged on the ground that the Magistrate failed to give the appellants their right of election and, as a consequence, the charges could not be heard in the Supreme Court. That challenge was found to be baseless.

4 . In SCCrApp No. 46 of 2024, the appellants and their co-accused's claimed their right to a fair trial was being infringed by the late service of notice that a witness, Rashae Gibson. Among their complaints were complaints the timing of the notice, infringement on their right to be informed about evidence before trial, infringement on trial preparation facilities, and a threat to their right to a fair trial under Article 20 of the Bahamian Constitution. That appeal was dismissed.

5 . I do not propose to rehearse the full background of the matter beyond reciting the events precipitating the application for recusal. Those events are contained in a letter of complaint dated addressed to the Chief Justice and a letter received in open court on 3 June 2024, the latter of which read:

“I am instructed by Adrian Gibson to formally complain, as I hereby formally complain, about an incident which occurred on the afiernoon of the 30th May, 2024 shortly after the adjournmen t of the trial in the above captioned matter presided over by the Honourable Madam Senior Justice Cheryl Grant Thompson. My client and I saw the attorneys who had appeared during the said trial as assistant Counsel to the Director of Public Prosecutions carrying their papers in a large trunk which was placed in the back trunk of the official vehicle of the Honourable Madam Senior Justice Cheryl Grant Thompson. Three of the said attorneys entered the said official vehicle as passengers. A short time after they entered the official vehicle, they were driven by the aide de camp to the Honourable Madam Senior Justice Cheryl Grant Thompson from the precincts of the Supreme Court.

The Director of Public Prosecutions has confirmed to Mr. Geoffrey Farquarhson that several of her legal staff had been driven by Her Ladyship's aide de camp to the offices of the Director of Public Prosecutions on the 30th May, 2024.

My client's right to a fair trial has been breached by what he and I witnessed on Thursday, 30th May, 2024. At the very least, there is an appearance of bias created by the matters hereinbefore referred to. Clearly, the appearance or the absence of the separation of powers tenets was manifested in public view. The incident ought to have been recorded by the security cameras in the vicinity of the entrance to the Supreme Court, and the recordings ought to be preserved. I have written Her Ladyship's clerk as a precursor to a formal application for Her Ladyship's recusal and an order declaring a mistrial.”

6 Mr. Damian Gomez, KC swore to an affidavit in support of the recusal application recounting the events recorded in the letter. In his affidavit, Mr. Gomez, KC avers, inter alia that:

“iv. Mr. Gomez, KC, became concerned that the Defendants' right to a fair trial had been breached as the impression was created that the Office of the Honourable Senior Justice, whether with or without her participation or consent, had become a part of the prosecutorial team which is conducting the prosecution of the Defendants by providing resources thereto. As a consequence of the above there is an appearance of bias afffecting adversely a fair trial of the Defendants and each of them.”

7 Significantly, none of the defendants provided any evidence or allegation that their right to a fair trial had somehow been breached or was in peril of being breached.

8 Sergeant Christio Edgecombe, Aide to the Judge and the person at the center of the recusal controversy, swore to an affidavit that contained, inter alia, paragraph 13 that included the following:

• “a. When we were at the Chief Justice's courtroom and Damian Gomez, KC, was running late, I assisted him in locating parking at Parliament Square where parking was restricted, and myself and Attorney Eve took all of the luggage out and transported them into the courtroom.

• b. When Adrian Gibson, the herein named 1st Applicant was coming into court, he was in Bank Lane, and I assisted him by taking a large luggage out of his hand and taking it into the courtroom.

• c. When Attorney Ryan Eve was leaving one evening after proceedings in the Chief Justice courtroom, he pulled his truck in the middle of Bank Lane because there was no parking, and the police vehicle was behind him beckoning him to move, and I informed the police that he would only be there momentarily as I assisted him in securing his suitcases on the back of his truck.”

9 What emerges from the averments of Sergeant Edgecombe is that he has provided assistance to at least one defendant and two Defence Counsel on different occasions during the currency of the trial.

10 Thus, the state of affairs as viewed by the Judge led her to conclude at paragraphs 14 and 15 under the rubric “Constitutional Analysis” that:

• 14. Having reviewed the Constitutional Notice of Motion, the viva voce testimony and Affidavit evidence provided, including the surveillance footage, this Court finds that:

  • i. Despite the unauthorized actions of Sergeant Edgecombe and the junior prosecutors, the Applicants shall be afforded a fair hearing within a reasonable time by an independent and impartial Court;

  • ii. Further, the aggrieved party presumably Mr. Adrian Gibson, M.P., should be the Affiant in support of the Constitutional Motion filed herein. None of the Applicants (“the Defendants herein”) swore an Affidavit, claiming to be adversely affected, by the...