Adrian Paul Gibson v The Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Grant-Thompson J
• Judgment Date: 15 May 2023
• Docket Number: 2023
• Court: Supreme Court (Bahamas)

IN THE MATTER of Articles 20(1) of the Constitution of The Commonwealth of The Bahamas

BETWEEN

Adrian Paul Gibson

Applicant

and

The Director of Public Prosecutions

Respondent

Before:

The Honourable Madam Justice Mrs. Cheryl Grant-Thompson

2023

CRI/con/00004

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

CRIMINAL/CONSTITUTIONAL DIVISION

Headnote: On the 13 ^th day of June 2022 the Applicant and his co-accused were arraigned before the Learned Stipendiary and Circuit Senior Magistrate Mrs. Carolyn Vogt-Evans, where he pled not guilty. The matter was subsequently transferred to this Honourable Court. Counsel for the Applicant made an application to have the Learned Justice recuse herself. That application was dismissed.

On the 4 ^th day of May, 2023 the Applicant by a Notice of Motion seeks Declarations that his Constitutional rights had been infringed. He applies for Constitutional relief pursuant to Articles 20 (1), 20 (2)(c) and 20 (2)(e) of the Constitution of the Commonwealth of The Bahamas. The Applicant sought to have the proceedings permanently stayed.

Held: The Learned Trial Judge refused to grant the stay of proceedings. The Learned Trial Judge found that the Applicant could receive a fair trial within a reasonable time. The relief sought pursuant to the Constitution was denied. The Application was determined to be misconceived and premature.

In making this decision the trial judge relied on the cases of: Garet O Finlayson and Caterplillar Financial Services Corporation SCCivApp. No. 97 of 2020; A.G. v Leroy Smith a.k.a “Shaddy” Et Al op. cit, Kiarie v Secretary of State for the Home Department [2017] UKSC 42; The State v. Paul (Michael) et al (1999) 57 W.I.R. 48; The Queen v David Shane Gibson BS 2019 SC 26; Warren v Attorney General for Jersey [2011] UKPC

A.G. v Leroy Smith a.k.a “Shaddy” Et Al op. cit, Kiarie v Secretary of State for the Home Department [2017] UKSC 42; The State v. Paul (Michael) et al (1999) 57 W.I.R. 48; The Queen v David Shane Gibson BS 2019 SC 26; Warren v Attorney General for Jersey [2011] UKPC

Appearances:

Mr. Murrio Ducille KC, along with Mr. Bryan Bastian- Counsel for the Applicant, Mr. Adrian Gibson M.P., Ms. Joan Knowles, and Mr. Jerome Missick; Mr. Brian Dorsette previously appearing for Ms. Rashae Gibson; Ms. Christina Galanos- now appearing 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 Respondents

Acting Director of Public Prosecutions Ms. Cordell Frazier along with Mrs. Karine MacVean -Counsel for the Respondent DPP

CONSTITUTIONAL JUDGMENT - ARTICLES 20(1), 20(2)(c) & 20(2)(e) OF THE CONSTITUTION

Grant-Thompson J

BACKGROUND

1 On the 4 ^th May, 2023 an Originating Notice of Motion was filed, but not served on either the Court nor Crown Counsel for the Respondent until the commencement of the hearing on Monday 8 ^th May, 2023, which was procedurally irregular. The Constitutional application was brought before the Honourable Court by way of Notice of Originating Motion, along with the supporting Affidavit of Mr. Adrian Paul Gibson M.P., Member of Parliament, of #25 Saint Street, Adastra Estates, all filed on the 4 ^th day of May, 2023. The matter was adjourned to the 10 ^th of May, 2023 for hearing. The Applicants Counsel was ordered to provide the Crown with a copy of the aforesaid documents. Mr. Adrian Paul Gibson M.P., is a sitting member of Parliament currently serving in the opposition party and a former Chairman of the Water and Sewerage Corporation of The Bahamas.

2 The Constitutional Application sought the following:

• i. A Declaration pursuant to Article 20(1) of the Constitution of the Commonwealth of The Bahamas which guarantees the Applicant a fair hearing within a reasonable time, by an independent and impartial court established by law, has been violated;

• ii. A Declaration pursuant to Article 20(2)(c) of the Constitution of the Commonwealth of The Bahamas which affords the Applicant adequate time and facilities for the preparation of his defence, has been breached;

• iii. A Declaration pursuant to Article 20(2)(e) of the Constitution of the Commonwealth of The Bahamas which affords the Applicant facilities to examine in person or by his legal representative the witnesses called by the prosecution before the Court to obtain the attendance and carry out examination of witnesses to testify on his behalf before the Court in the same manner as those applying to witnesses called by the prosecution; and

• iv. That there be a Declaration staying the proceedings herein.

3 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). The counts relative to the Applicant, Mr. Adrian Gibson M.P., were comprised of (1) Count of Making False Declaration contrary to Section 452 of the Penal Code, Chapter 84; (31) Counts of Conspiracy to Commit Bribery, contrary to Section 89(1) of the Penal Code, Chapter 84 and 4 (2)(A) of the Prevention of Bribery Act; (12) Counts of Bribery contrary to Section 4 (2)(A) of the Prevention of Bribery Act, Chapter 84; (18) Counts of Receiving. Contrary to Section 358 of the Penal Code, Chapter 84; (25) Counts of Money Laundering contrary to Section 9(1)(A) and 9(1)(c) of the Proceeds of Crime Act, 2018.

4 It is the Applicants case that his Constitutional rights-pursuant to Article 20(1) of the Constitution of The Bahamas - to have a fair hearing within a reasonable time before an independent and impartial Court has been violated. In addition to this the Applicant asserted that his Constitutional right-pursuant to Article 20(2)(c) of the Constitution- to be able to prepare his defence with adequate time and facilities has also been infringed. Lastly, the Applicant also asserted his Constitutional right under Article 20(2)(e) of the Constitution of The Bahamas- which affords him the right to facilities to examine in person or by his legal representative, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses of the prosecution, has been further infringed.

ISSUES

5 The issues which arose for consideration in this matter are as follows:-

• a. Whether the Applicants Constitutional application is misconceived and premature;

• b. That in the result is the application an abuse of the process, when other relief is available to the Applicant; and

• c. Should the relief and Declaration sought by the Applicant be granted.

The Affidavit of the Applicant

6 Counsel for the Applicant, Mr. Murrio Ducille KC, submitted that;

• i. On the 13 ^th day of June 2022, the Applicant appeared before Senior Learned Stipendiary and Circuit Magistrate Carolyn Vogt-Evans and pled not guilty to the aforementioned offenses;

• ii. The Applicant is being tried along with five (5) others who are separately represented by Counsel;

• iii. On the 14 ^th day of September 2022, the Applicant appeared before Senior Learned Stipendiary and Circuit Magistrate Carolyn Vogt-Evans for the service of a Voluntary Bill of Indictment (“VBI”);

• iv. On the 28 ^th of September 2022, the Applicant was arraigned before the Learned Acting Chief Justice Mr. Bernard Turner on the aforementioned offences and pled not guilty. The matter was then transferred to this Honourable Court;

• v. On the 29 ^th of September 2022, the Applicant appeared before this Court to set a trial date and for case management. During this hearing Counsel for the Applicant, Mr. Murrio Ducille KC, made an application to have the Learned Justice recuse herself from the matter. The Learned Justice dismissed the recusal application and set the matter down for case management on the 30 ^th of November 2022, and the trial date was set for the 1 ^st day of May 2023;

• vi. On the 28 ^th day of February 2023, the Applicant appeared before this Honourable Court for case management. During this time the Applicant asserted that the Crown had only disclosed one (1) item from the Applicant's defence questionnaire. The matter was adjourned to the 28 ^th day of March 2023 for further case management;

• vii. On the 28 ^th day of March 2023 whilst appearing for case management, the Applicant submitted that the Crown had only disclosed two (2) items pursuant to his defence questionnaire. This allegedly led to the Court ordering the Crown to serve all video and audio recordings on the defence by the 3 ^rd day of April 2023. All remaining outstanding items on the Applicant's defence questionnaire were to be served on the 7 ^th day of April 2023. The matter was then adjourned to the 27 ^th of April 2023 for Pre-trial Review;

• viii. On the 27 ^th of April, 2023 Counsel for the Applicant appeared before this Honourable Court for Pre-Trial Review. He submitted that the Crown did not disclose all of the remaining items relative to the Court's order dated the 28 ^th day of March, 2023;

• ix. Although trial was set to begin the 1 ^st day of May, 2023, Counsel for the Applicant was still being served with items from the Applicant's defence questionnaire up until the 2 ^nd day of May, 2023;

• x. On both the 12 ^th day of April, 2023 and the 1 ^st day of May, 2023, Counsel for the Crown filed and served a Notice of Application to Adduce Evidence by Live...