Brandario Miller v The Commissioner of Police

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMr. Justice Isaacs, JA,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA,The Honourable Mr. Justice Jones, JA
Judgment Date26 March 2018
Neutral CitationBS 2018 CA 43
Docket NumberSCCrimApp No. 235 of 2017
Date26 March 2018

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Ms. Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCrimApp No. 235 of 2017

Between
Brandario Miller
Applicant
and
The Commissioner of Police
Respondent
Appearances:

Mr. Geoffrey Farquharson for the Applicant

Mr. Terry Archer for the Appellants

Director of Public Prosecutions v Gerry Buckley [2007] IEHC 150 distinguished

P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 mentioned

Regina v Boal [1992] Q.B. 591 distinguished

Regina v Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1 mentioned

Revitt, et al v Director of Public prosecutions (2006) 170 JP 729 distinguished

Rex v West Kent Quarter Sessions; Ex parte Files [1951] W.N. 440 mentioned

The King v Ingleson [1915] 1 K.B. 512 considered

Criminal Appeal — Leave to Appeal — Extension of Time — Delay — Length of Delay — Reasons for Delay — Prospect of Success — Prejudice to Intended Respondent — Guilty Plea — Jurisdiction to hear appeal — Dangerous Drugs Act, Ch 228 — Criminal Procedure Code, Ch 91

At the time of arrest the applicant was employed as a Prison Officer with The Bahamas Department of Corrections. While at work he was approached and searched; during the search packets containing Indian Hemp were discovered. On arraignment the applicant plead guilty and was subsequently convicted of two counts of possession of dangerous drugs with intent to supply and consequently sentenced. After some eight weeks the applicant sought leave to appeal out of time

Held:–

application for leave to appeal out of time dismissed, convictions and sentences affirmed

per Isaacs, JA

It is not unknown in the courts of this jurisdiction for defendants to plead, “Guilty, with explanation”. Faced with such a “plea” the tribunal would go on to enquire of the defendant to expound on the plea. If the explanation provided reveals a defence, the court has to enter a not guilty plea for the defendant. Inexorably, where a defendant does not make any comment which may suggest he is not guilty and has a defence, we may be satisfied that the guilty plea is unequivocal; and in those circumstances, has properly pleaded guilty to the charges.

We do not propose to enter into a consideration of the merits or otherwise of the factors in relation to the IA's convictions because we are satisfied that the IA has pleaded guilty and been convicted by the Deputy Chief Magistrate. The jurisdiction of this Court to hear appeals is entirely by statute and section 233 of the Criminal Procedure Code is clear; we do not have the jurisdiction to entertain an appeal against the IA's conviction. Thus, we may only consider the application for an extension of time in relation to the sentences imposed by the Deputy Chief Magistrate.

We did not find anything wrong in the Deputy Chief Magistrate's sentencing approach as he was enjoined to consider both the circumstances of the case and the circumstances of the offender. However, the IA's complaint was that the sentence imposed upon him was “not proportional” although he also used the term that the sentence was harsh. Mr. Farquharson sought to convince us that the DCM treated the IA differently to similarly circumstanced persons because he was a prison officer. However, he was unable to provide a single case to support his contention. Mr. Archer posited the view that the sentences imposed on the IA may be regarded as unduly lenient in view of the sentences others in his position received. That was the view of the Court as well in the circumstances of the case; and in light of the previous decisions of this Court. Thus, we found that the prospect of success in relation to the sentences was nil.

REASONS

Reasons delivered by The Honourable Mr. Justice Isaacs, JA

1

The intended appellant (“the IA”) had applied to this Court for an extension of time within which to apply for leave to appeal his convictions and sentences for two counts of possession of dangerous drugs with intent to supply, contrary to section 22(1) of the Dangerous Drugs Act (“the Act”).

Background
2

The IA was charged in Magistrate's Court No. 8 before Deputy Chief Magistrate Andrew Forbes (“the DCM”). On 5 July 2017, he appeared before the DCM along with his lawyer, Sonia Timothy. The charges were read to him and he pleaded not guilty to them. He was denied bail and remanded into custody.

3

On 12 September 2017, he returned before the DCM along with his new lawyer, Jomo Campbell. The charges were read over to the IA and he pleaded guilty to both. Thereafter, the facts were read in the court; and they revealed, inter alia, that the IA, a then serving Prison Officer employed with The Bahamas Department of Corrections (“the BDC”) was approached and searched at his place of work. During the search two packets of drugs fell out of the IA's pocket. The IA's home was searched and more drugs were found. He was arrested and cautioned for those drugs also.

4

The intended appellant agreed the facts as read. The DCM then heard a plea in mitigation and convicted the IA. He sentenced the IA to six months' imprisonment on each count and fined him one thousand dollars on each, with the condition that he was to serve a further three months if the sums were not paid. The IA did not appeal within the seven days mandated by statute for doing so.

The Law
5

Section 235 of the Criminal Procedure Code (“the CPC”) requires an appellant to appeal within seven days of the pronouncement of the court's decision. The section reads:

“An appellant, within seven days after the day upon which the decision was given from which the appeal is made, shall serve a notice in writing, signed by the appellant or his counsel, on the other party and on the magistrate's court of his intention to appeal and of the general grounds of his appeal: Provided that any person aggrieved by the decision of a magistrate's court may upon notice to the other party apply to the court to which an appeal from such decision lies, for leave to extend the time within which such notice of appeal prescribed by this subsection may be served, and the court upon the hearing of such application may extend such time as it deems fit.”

6

The Court does have the discretion to extend the time within which to appeal in appropriate cases. The factors the Court must consider in that exercise was set out in Omar Chisholm v R MCCrApp No. 303 of 2014, at paragraph 12. They are: 1) length of the delay; 2) reason for the delay; 3) prospect of success; and 4) prejudice to the intended respondent (“the IR”).

Length of Delay
7

The IA was convicted on 12 September 2017. He ought to have appealed by 20 September 2017 at the latest. He launched his application for leave to appeal out of time on 20 November 2017. He should have appealed within seven days of the pronouncement of his sentence pursuant to section 235 of the CPC. Thus, there had been a delay of approximately eight weeks and four days.

Reason for Delay
8

In his affidavit filed on 22 November, 2017 in support of his application, the IA explains the reason for his delay in appealing. At paragraphs 5, 6 and 7 the following appears:

  • “5. Upon my conviction and sentence, I immediately sought the assistance of the Prison authorities in order to receive the papers to file an appeal.

  • 6. I was told by the authorities that because I had pleaded guilty it was pointless to appeal and the documents were denied to me.

  • 7. It was only on or about the 16th of November, 2017 that I discovered from my present attorney that, albeit limited, there in fact were circumstances in which conviction and sentence after a guilty plea could be successfully appealed.”

9

No evidence was adduced by the IR to controvert this averment hence we accepted it; and found that this was a reasonable explanation for the delay in filing his appeal.

Prospect of Success
10

The first hurdle the IA had to surmount was on the question of jurisdiction of the Court to even entertain an appeal against conviction where the person pleaded guilty to the charge because of section 233 of the CPC. That section states:

“233. No appeal shall be allowed in a case in which the accused person has pleaded guilty and has been convicted by a magistrate's court on such plea, except as to the extent or legality of the sentence.”

11

Thus, it can be seen that Mr. Farquharson was presented with the herculean task of convincing us that in the face of the very clear words of section 233 of the CPC we had the jurisdiction nonetheless to hear the appeal. He strove valiantly to do so. He submitted that the Court should interpret the phrase “has pleaded guilty” to mean that there has been a proper finding of guilt by the magistrate. He argued that it was not competent for the DCM to convict the IA in the absence of evidence as to the quality of the substance, the basis of the charge; and this Court could look behind the plea to determine whether it was properly accepted.

12

Mr. Farquharson referred us to the legislation in England to illustrate the approach taken by the appellate courts there in relation to guilty pleas where their legislation was similar to our own. He referred to section 36(1) of the Criminal Justice Act 1948 which provided as follows:

“36.–(1) A person convicted by a court of summary jurisdiction shall have a right of appeal–

  • (a) if he pleaded guilty or admitted the truth of the information, against his sentence;

  • (b) in any other case, against the conviction or sentence, to a court of quarter sessions in manner provided by the Summary Jurisdiction Acts; and a person sentenced by a court of summary jurisdiction in respect of an offence of which he was convicted by another court of summary jurisdiction shall have a like right of appeal against his sentence.”

...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT