Adrian Paul Gibson v Director of Public Prosecutions (“D.P.P.”)

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Grant-Thompson, J
• Judgment Date: 15 May 2023
• Docket Number: VBI No. 167/6/2022

BETWEEN

Adrian Paul Gibson

Rashae Lenora Gibson

Joan Veronica Knowles

Jerome Missick

Peaches Farquharson

Elwood Donaldson

Applicants

and

Director of Public Prosecutions (“D.P.P.”)

Respondents

Before:

The Honourable Madam Justice Mrs. Cheryl Grant-Thompson

VBI No. 167/6/2022

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

CRIMINAL DIVISION

Headnote #1 Re: EVIDENCE BY WAY OF VIDEO LINK. CRIMINAL LAW. This case concerns a Crown application which was initially pursuant to section 78B(1)(b) and (c) of the Evidence (Amendment) Act, 2011, but made later amended to Section 78B (1) (a) and (b) of the Evidence (Amendment) (No. 2) Act, 2014 seeking to adduce evidence in the criminal trial by way of live video television link of one named witness who was apprehensive of giving evidence in person due to fear of her life and severe personal prejudice thereby causing her distress. The Defence argued that the application would among other functions be a breach of the Constitutional rights of the accused persons. The Court had to consider whether the application should be granted. Any potential violation of the Constitutional rights of the accused persons was adjourned to a separate hearing and heard under an Original Notice of Motion alleging specific Constitutional breaches. This judgment is concerned solely with whether the evidence would be allowed by live video link. Ultimately, the Court ruled that the Crown's application should be granted.

(1) The witness can be seen and heard which obliterates the possibility of prejudice to the accused; and

(2) the witness has satisfied the statutory criterion for the grant of such an application; and

(3) the realistic practicable concerns of considerable documentary exhibits to be shown to the witness should be technically provided for.

The Court considered Kiarie v Secretary of State for the Home Department [2017] UKSC 42, The Director of Public Prosecutions v Stephano Curry VBI No. 97/5/2018 and A.G. v. Leroy Smith a.k.a. “Shaddy” and Tony Smith a.k.a. “Jamal” SCCrApp No. 95 of 2014; Director of Public Prosecution v Kelly 2006 3 Irish Reports 115; O'Callaghan v Judge Alan Mahon et al [2006] IR 32; Grant v The Queen 2007 I Appeal case at I. The Constitution of the Commonwealth of The Bahamas.

Headnote #2 Re: DISCOVERY IN A CRIMINAL TRIAL. CRIMINAL LAW. The Applicants seeks an order that the Respondent (i) give particular discovery of all documents that are, or have been, in their possession, custody or power and which fall within the categories set out in the Defence Case Management Questionnaire for Disclosure. The Respondents object to such discovery and submit that the alleged documents which the Applicants seek have already been disclosed to them within a timely manner having regard to when same was requested. The Respondents submit that the current application should not be used as a “fishing expedition” to obtain evidentiary material for other extant proceedings. The Court considered The State v. Paul (Michael) et al (1999) 57 W.I.R. 48; Williams & Pratt et Al BS 2006 SC 78; Mallard v. The Queen [2005] HCA 68; The Queen v David Shane Gibson BS 2019 SC 26; Berkeley Administration Inc. and McClelland 1990 FSR 381 at 382; Attorney General v. Sean Cartwright et al No. 8 of 2004; and ruled thee discovery was adequate and proper as all of the twists and turns of a criminal investigation would not be expected to be disclosed. There was no reason established for the material requested.

Appearances:

Mr. Murrio Ducille KC along with Mr. Bryan Bastian- appearing for Mr. Adrian Gibson M.P., Ms. Joan Knowles, and Mr. Jerome Missick; Mr. Brian Dorsette previously appearing for Ms. Rashae Gibson; Ms. Christina Galanosappearing for Ms. Rashae Gibson; Mr. Raphel Moxey- appearing for Ms. Peaches Farquharson; Mr. Ian Cargill along with Mr. Donald Saunders appearing for Mr. Elwood Donaldson- Counsel for the Applicants

Madam Director Ms. Cordell Frazier and Mrs. Karine MacVean of the Office of the Director of Public Prosecutions for the Respondents

DISCLOSURE OF EVIDENCE & HEARING OF VIRTUAL EVIDENCE JUDGMENT, Pursuant to s. 78B (1) (a) and (b) of the Evidence (Amendment) Act, 2014

Grant-Thompson, J

1 The Applicant was arrested on the 26 ^th day of May, 2022, questioned by the Criminal Investigation Department, later charged with the various offences under the Penal Code of The Bahamas, Chapter 84 and under the Prevention of Bribery Act, Chapter 88. The offences against all of the Defendants ranged from Making a False Declaration (1 Count), Conspiracy to Commit Bribery (10 Counts), Bribery (18 Counts), Conspiracy to Commit Fraud by False Pretences (8 Counts), Fraud by False Pretence (5 Counts), Receiving (21 Counts), Money Laundering (Acquisition) (5 Counts) and Money Laundering (30 Counts). Mr. Adrian Paul Gibson, an attorney and a sitting Member of Parliament for the constituency of Long Island, The Bahamas and the other Applicants who include Ms. Joan Veronica Knowles, and Mr. Jerome Missick were all respectively charged with various offences under the Penal Code Ch. 84 and the Prevention of Bribery Act, Ch. 88 ranging from Making a False Declaration (1 Count), Conspiracy to Commit Bribery (10 Counts), Bribery (18 Counts), Conspiracy to Commit Fraud by False Pretences (8 Counts), Fraud by False Pretence (5 Counts), Receiving (21 Counts), Money Laundering (Acquisition) (5 Counts) and Money Laundering (30 Counts).

ISSUES

2 Counsel for the Applicants made an application to this Court regarding three issues-;

• i. Whether there was adequate and proper Disclosure by the Prosecution to the Applicants;

• ii. Whether there was proper and adequate Disclosure provided by the Prosecution within a reasonable time; and

• iii. Whether the Applicants would be disadvantaged if a crucial prosecution witness, Ms. Alexandria Mackey, were allowed to appear and testify by live video feed.

DISCLOSURE

3 The issue of disclosure was raised by Mr. Murrio Ducille, KC (Counsel for the Applicants, namely Mr. Adrian Paul Gibson M.P., Ms. Joan Knowles and Mr. Jerome Missick). He asserted that the Prosecution has failed to provide full and frank disclosure in this matter.

4 Additionally, for the record it must be noted that Mr. Donald Saunders who was led by Mr. Ian Cargill (Counsel representing Mr. Elwood Donaldson) submitted during a pre-trial hearing ( page 3 at lines 8–9 of the transcript dated the 27 ^th of April, 2023) (“the transcript”), that additional documents were required.

5 Crown Counsel refuted these submissions. The Director submitted that the audio and video recordings were disclosed. At page 1 lines 20–23 of the transcript which provided that:-

“ My Lady, the Crown would have provided the parties with audio and video cd's that the Crown had in its possession. Anything that was not served is not in the Crown's possession”

In addition to this, Ms. Frazier assured the Court and asserted at page 1 lines 26–30 of the transcript that:-

“ Everything requested by

Mr. Ducille KC was given to all the parties irrespective of the fact that they had not requested it, my Lady.

So, the Crown would have provided all parties with the documents requested by Mr. Ducille KC”

6 Notwithstanding the DPP's assertions, Counsel for the Applicants contend that they are dissatisfied with the extent of the documents supplied. They have thus applied for an Order for full and frank disclosure. In the transcript Mr. Murrio Ducille KC, provided oral submissions to the Court which asserted that the Applicants were not in receipt of key documents necessary for this matter. Counsel for the Applicants maintain that (in his oral submissions), there are a significant number of documents which are still outstanding and required in order to adequately prepare his defence.

7 In my years of experience involved in the conduct of criminal trials before the Court these issues are not novel. The Crown has a duty to disclose all of the ordinary material in their possession required for the trial. Some of the items requested were deemed extraordinary by the Crown. In the Courts view the Crown could not have foreseen that these items would be required until they were requested in the ordinary fashion during the Case Management hearings. In the view of the Court the Case Management Orders of the Court were not properly followed except by Mr. Raphael Moxey on behalf of his client, Ms. Peaches Farquharson. Mr. Saunders did not file in his Case Management Questionnaire until the Pre-Trial Review Hearing which was two working days before the trial was set to begin. This is unacceptable. He who comes to the Court seeking redress must come with clean hands. Case Management Orders of the Court within the Criminal Division should be strictly observed to precure fairness in the proceedings.

SCOPE OF DISCLOSURE

8 The Applicants sought the following:

i. Immunity/Plea/Deals/ Related Information

• i. Copy of the Court reporter's transcript and/or notes of Magistrate Vogt- Evans from Magistrate Court hearing reference to Tanya Demeritte plea deal.

• ii. Signed copy of Tanya Demeritte's plea deal with DPP.

• iii. Signed copy of Alexandria Claudia Mackey (ACM) immunity agreement with DPP dated around or on 28 ^th July, 2022.

• iv. Copy of Alexandria Mackey's initial immunity agreement or deal with the Police/ then ACP Leamond Deleveaux, which prevented her from being charged.

• v. Copy of DPP Franklyn Williams plane ticket to Miami + hotel accommodations + rental car + itinerary + food to meet with Alexandria Mackey and sign immunity deal.

• vi. Copy of plane ticket of attorney David Cash to Miami + hotel accommodations and rental car for the same meeting with Alexandria Mackey and Franklyn Williams to meet and sign immunity plea deal.

ii. ALL Video and Audio Recordings:

• i. Video & Audio of all police interviews of Rexville Pratt, particularly;

  • 1. 21 ^st April, 2022 and 29 ...