C. B. v R

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMr. Justice Jones, JA
Judgment Date10 March 2021
Neutral CitationBS 2021 CA 41
Docket NumberSCCrApp. No. 132 of 2019
Date10 March 2021

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice Evans, JA

The Honourable Madam Justice Bethell, JA

SCCrApp. No. 132 of 2019

Between
C. B.

(a juvenile)

Appellant
and
Regina
Respondent
APPEARANCES:

Ms. Crystal Rolle, Counsel for the Appellant

Ms. Cordell Frazier with Ms. Janessa Murray, Counsel for the Respondent

R.B (a juvenile) and the Attorney General SCCrimApp. No. 205 of 2015 considered

Criminal appeal — Armed robbery — Burglary — Causing harm — Receiving — Possession of an unlicensed firearm — Juvenile — Voluntary bill of indictment — Balance between the interests of the child and the interests of the administration of justice — Section 3 of the Child Protection Act — Sections 150, 258 and 263 of the Criminal Procedure Code

The appellant was charged with the indictable offences of armed robbery and burglary and the summary offences of causing harm, receiving and possession of an unlicensed firearm. At the time of his arraignment he was a 17 year old juvenile. The respondent proceeded by Voluntary Bill of Indictment (“VBI”) with respect to all of the matters. As a result, the appellant applied to the Supreme Court to have the VBI dismissed and to have his matters dealt with summarily. He relied on the Child Protection Act and section 263 of the Criminal Procedure Code. The application for dismissal was denied and the appellant now appeals that decision to this Court.

Held: appeal dismissed; matter remitted to the Supreme Court for trial.

In exercising her discretion the trial judge was required to consider the interests of the appellant as a child, together with the interests in the administration of justice in having the offences tried together. As the offences with which the appellant were charged were all part of a single event, it was in the interests of justice that they be tried together.

While this case involved a juvenile it did not involve the upbringing of a child or administration of a child's property. As such, there was no duty of the Court to ascertain the feelings of the appellant. In the circumstances, the trial judge did not infringe upon the rights of the appellant under the Child Protection Act.

Mr. Justice Jones, JA

Judgment delivered by the Honourable

Introduction
1

. The appellant at the time a child, aged 17 years old, was an 11th grade student. He was arraigned along with another juvenile in Magistrate's Court No. 2 on 21 October 2016 on the charges of armed robbery, burglary (indictable offences) and causing harm, receiving and possession of an unlicensed firearm (summary offences). The respondent proceeded by Voluntary Bill of Indictment (“VBI”) on all the matters.

2

. He subsequently appeared in the Supreme Court before Archer-Minns, J. (“the trial judge”) on an application to dismiss the VBI served on him by the respondent and have his matter dealt with summarily in the Juvenile Court. Counsel for the appellant submitted that the matter was not in the correct forum as under the Child Protection Act and Section 263 of the Criminal Procedure Code (“CPC”), Chapter 91 the appellant was a child. The application was denied and the appellant now appeals the ruling of the trial judge.

3

. The grounds of appeal are:

  • “1. The Learned Trial Judge erred in law when she ruled that the Respondent had power to file a Voluntary Bill of Indictment in the Supreme Court against the Appellant pursuant to Section 258 of the Criminal Procedure Code, Chapter 91, notwithstanding the provisions of Sections 120 and 121 of the Child Protection Act, Chapter 132.

  • 2. The decision was unreasonable and cannot be supported having regard to all the circumstances of the Appellant and his case.

  • 3. The Learned trial judge erred in law when she failed to give any or sufficient weight to what was in the best interest of the child/Appellant and the welfare of the child/Appellant in accordance with Sections 3 and 4 of the Child Protection Act, Chapter 132 prior to making a determination in this matter.”

Ground One: (1) Was the respondent entitled to proceed against the appellant by VBI under s.258 of the CPC despite the provisions of the CPA?
4

. At a case management hearing before the trial judge in the Supreme Court, counsel for the appellant argued that the matter was not in the correct court as provided for under the CPA and s.263 of the CPC. She asked that the matter be remitted for hearing in the Juvenile Court. In her ruling on the application by counsel for the appellant at trial the trial judge said:

  • “12. Having considered the submissions of counsel for the defendants as well as the Crown, the relevant provisions of The Child Protection Act, The Penal Code and The Criminal Procedure Code Act, I am satisfied that in accordance with section 258 of The Criminal Procedure Code, the defendants having been charged with an indictable offence not specified in the Fifth Schedule of The Child Protection Act, (the Director of Public Prosecution) the Attorney General with whom the power was then vested was able to prefer the Voluntary Bill of Indictment against the defendants. Whilst, the court fully appreciates that other offences contained within the Indictment preferred could have been dealt with summarily, I can see no injustice per se for these offences which by their very nature are indictable/either way offences to be tried along with the indictable offence which is specified within the Fifth Schedule and does not fall within the provisions of section 120(4) of The Criminal Procedure Code Act. To do so, obviated the need for two separate trials to be conducted with respect to offences which were all part and parcel of the single event and which could all be properly heard before a jury.

  • 13. I am therefore of the view that the charges are properly before the court and so order that the trial of this matter continue in its usual manner.”

5

. Counsel for the appellant contends that s.3 of the CPA is decisive on this issue. First, the requirement in s.3 of the CPA providing that the welfare of the child is paramount is entrenched in Art. 40 of the United Nations Charter for Human Rights. It is important that this provision be applied whenever matters relating to children are considered. Consequently, the appellant now argues before us that the decision of the trial judge to order that the appellant's case proceed by way of VBI in the Supreme Court with a jury was not in the best interest of the appellant who was a child under the CPA.

6

. Section 3 of the CPA provides that:

  • “3. (1) Whenever a determination has to be made with respect to

    • (a) the upbringing of a child; or

    • (b) the administration of a child's property or the application of any income arising from it,

    the child's welfare shall be the paramount consideration.

  • (2) In all matters relating to a child, whether before a court of law...

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