Adrian Paul Gibson v The Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Grant- Thompson J
• Judgment Date: 06 July 2023
• Docket Number: CRI/con/00007/00008/00009
• Court: Supreme Court (Bahamas)

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

BETWEEN

Adrian Paul Gibson

Joan Veronica Knowles

Jerome Missick

Applicants

and

The Director of Public Prosecutions

Respondent

Before:

The Honourable Madam Justice Mrs. Cheryl Grant-Thompson

CRI/con/00007/00008/00009

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

CRIMINAL/CONSTITUTIONAL DIVISION

CONSTITUTIONAL JUDGMENT — ARTICLES 20(1) OF THE CONSTITUTION; Challenge to Third Schedule Offences — Proper Application For Constitutional Applications — Fair Trial; William Fox, Mark Curtis et al v. Attorney General of the Bahamas Supreme Court of the Bahamas (Unreported) No. 31/02/2005 (Delivered, November 18, 2011); Boolell v. State [2007] 2 LRC 483; Hall v Attorney General BS 2011 SC 176; Attorney General v. Hall (2016) UKPC 23

Headnote: The Applicant and his co-accused having appealed a Constitutional Ruling of this Honourable Court dated the 15 ^th of May, 2023, to The Bahamas Court of Appeal, heard on 22 ^nd of May, 2023. The Appellate Court heard and dismissed the matters. The stay of the trial which was originally imposed by the Appellate Court was removed. The matter was ordered to this Honourable Court for trial. All Defendants have pled not guilty to the pending charges in this matter under the Penal Code, Prevention of Bribery Act, Proceeds of Crime Act, and the Prevention of Bribery Act. The Appeal before the Court of Appeal was from a Constitutional challenge. This ruling concerns the second Constitutional challenge which goes to the root of the Indictment.

The current Constitutional Motion is laid pursuant to Article 20 (1) of the Constitution of the Commonwealth of The Bahamas. On the 23 ^rd of June, 2023 the Applicant filed an Originating Notice of Motion (which was heard on the 27 ^th of June, 2023). The motion stated that the Applicants constitutional right to a fair hearing within a reasonable time by an independent and impartial court had been violated. In addition to this the Applicants also assert that the Supreme Court has no jurisdiction to hear the offences for which they are charged as there was a failure to put the right of election to them in the Magistrates Court or at all.

Held: (i)The Applicants application is overruled. The Application was filed on the wrong side of the Court and in an incorrect manner. The Court will overrule the technical errors in order to consider the substance of the case.

(ii) Relative to the challenge to the unconstitutionality of the nature of the charges, the Court finds that it has the requisite jurisdiction to hear the offences for which the Applicants are charged. These pending offences are rightfully before the Court.

(iii) The issues which arose for consideration in this matter are as follows: (a) Whether the Applicants Constitutional right to a fair hearing within a reasonable time -pursuant to Article 20(1) of the Constitution- has been infringed; and

(b) Whether this Court has the power to hear and try the offences for which the Applicants are charged; Are these charged fatally flawed that is void ab initio

In making this decision the trial judge relied on the following cases: William Fox, Mark Curtis et al v. Attorney General of the Bahamas Supreme Court of the Bahamas (Unreported) No. 31/02/2005 (Delivered, November 18, 2011); Boolell v. State [2007] 2 LRC 483; Hall v Attorney General BS 2011 SC 176; Attorney General v. Hall (2016) UKPC 23;

Appearances:

Mr. Murrio Ducille KC, along with Mr. Bryan Bastian-Counsel for the Applicants, Mr. Adrian Gibson M.P., Ms. Joan Knowles, and Mr. Jerome Missick- Counsel for the Applicants

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

Grant- Thompson J

1 By Originating Notice of Motion filed by the Applicant, Mr. Adrian Gibson Member of Parliament (M.P.), of #25 Saint Street, Adastra Estates, along with Mr. Jerome Missick of #93 Lumumba Lane, Sea Breeze, Eastern District, and Ms. Joan Knowles of #37 Victor Road, Coral Heights West, Coral Harbour, Western District, of New Providence, the Applicants brought their constitutional application herein. These Constitutional Applications were supported by the Affidavits of Messrs. Adrian Gibson M.P., Mr. Jerome Missick, and Ms. Joan Knowles, also filed on the 23 ^rd of June, 2023.

2 The Applicants were arrested and questioned by the Criminal Investigation Department, in which they were 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. The counts relative to Mr. Jerome Missick and Ms. Joan Knowles were comprised of Conspiracy to Commit Bribery, Bribery, Conspiracy to Commit Fraud by False Pretences, Fraud by False Pretence, Money Laundering (Acquisition), and Money Laundering. Ms. Joan Knowles was also charged with the offence of Receiving.

3 In order to provide a holistic view of the matter at hand (that being the second Constitutional Motion), the Court must first provide a brief synopsis of some of the events that brought us to this point.

Proper Filing Procedures

4 Before this Honourable Court can make a decision on the second Constitutional Motion before it, this Court must first address Counsel for the Applicants, Mr. Murrio Ducille KC, relative to the preparation these documents on the Criminal Constitutional side, which is the incorrect procedure.

5 Section 7(2) of the Supreme Court Act 2008, Chapter 53 provides that:

“ For the proper exercise of the Court's jurisdiction, the Chief Justice may, by order, establish divisions of the Court for the hearing of specific matters.” (Commencement date- 1st January, 2003- it has not been repealed or replaced)

6 Pursuant to the Supreme Court (Divisions of Court) Order Chapter 53, any matters which is Constitutional should be under the Public Law Divisions of the Courts laid and entitled in the Public Law Division (PUB) of the Supreme Court of The Bahamas, under the direction of the Honourable Chief Justice. It should not have been laid in the Criminal Division notwithstanding that having regard to the nature of the matter the Registrar would more than likely assign it to the Criminal Division Judge to be heard. Taking this into consideration, even though Counsel for the Applicants, Mr. Murrio Ducille KC, has a professional obligation to ensure that his clients Constitutional right to a fair and timely trial were not being infringed, this Court is of the view that the right procedure should have been followed. Particularly as Mr. Ducille KC, takes the technical point relative to the correct filing of the charges. This is a common mistake and one which should henceforth be corrected.

7 The Court notes that both their first and second Constitutional Motion were incorrectly filed under an existing criminal matter. Mr. Murrio Ducille, KC should have brought this application on behalf of Mr. Adrian Gibson MP and others, under the Public Law Division pursuant to the Supreme Court (Divisions of Court) Order Chapter 53, which Order has never been abolished.

8 In addition to this it is understood and agreed within the legal arena of The Bahamas that due to the revocation of the Rules of the Supreme Court all matters which were commenced/ brought after the 1 ^st day of March 2023, must be brought under the new Civil Procedure Rules of The Bahamas.

9 The Supreme Court (Divisions of Court) Order, Chapter 53 provides as follows:

“ 1. This Order may be cited as the Supreme Court (Divisions of Court) Order.

2. The Divisions of Court specified in the Schedule are hereby established for the hearing of such matters as are mentioned in the Schedule.

3. The Registrar after consultation with the Chief Justice shall designate file numbers and colours for file folders and jackets for each Division of Court.

SCHEDULE

DIVISIONS OF THE SUPREME COURT

COMMERCIAL DIVISION (COM)

• • Admiralty (adm)

• • Bankruptcy and Insolvency (bnk)

• • Applications under the Companies Act, 1992 (com)

• • Labour (lab)

COMMON LAW and EQUITY DIVISION (CLE)

• • Applications under the Legal Profession Act, 1992 ( lpa)

• • Quieting of Title (qui)

• • Civil matters not allocated to any other Division (gen)

FAMILY DIVISION (FAM)

• • Adoption (adn)

• • Divorce (div)

• • Guardianship and custody (gua)

• • Applications under the Mental Health Act (men)

PROBATE DIVISION (PRO)

• • Non-contentious probate matters (npr)

• • Contentious probate matters (cpr)

PUBLIC LAW DIVISION (PUB)

• • Administrative (adm)

• • Constitutional (con)

• • Judicial review (jrv)

CRIMINAL DIVISION (CRI)

• • Coroner (cor)

• • Financial crimes (fin)

• • Bail applications (bal)

• • Habeas Corpus (hcs)

• • Information and Voluntary Bill of Indictment (vbi)

• • Restraint and forfeiture applications (rfa)

• • Criminal matters not allocated to any other Division (crg)

APPEALS DIVISION (APP)

• • Magistrates...