Davis and Franklyn v Commissioner of Police

JurisdictionBahamas
CourtSupreme Court
JudgeHall, J.
Judgment Date22 May 1992
Docket NumberAppeal Side No.102 of 1991

Supreme Court

Hall, J.

Appeal Side No.102 of 1991

Davis and Franklyn
and
Commissioner of Police
APPEARANCES:

Mr. Langton Hilton, Mr. Maurice Glinton and Mr. Frederick Smith with him for appellants

Mr. Bernard Turner for respondents

Constitutional law - Constitution of Bahamas, articles 20(2)(9), 93(1) — Fair hearing — appellants convicted under Dangerous Drugs Act, Ch. 213 — Grounds of appeal (i) Appellants deprived of fair hearing by magistrate's refusal to issue summons for appellants' witness (ii) provisions remanding appellant in custody for sentencing by supreme court inconsistent with constitution and void — Magistrate clearly wrong in circumstances — Section 22(9)(10)(11) of Dangerous Drugs Act in conflict with Constitution — Sections 242 and 244 of Criminal Procedure Code — Retrial ordered.

JUDGEMENT
Hall, J.
1

By a notice of hearing set for 20 March 1992, the appellants’ notice of appeal of their conviction of certain offences under the Dangerous Drugs Act, Ch 213 (“the DDA”) on the ground that the: “decision to convict is unreasonable and cannot be supported having regard to the evidence” came on for hearing. On the appointed day i.e. 20 March, counsel for the appellants applied for adjournment which was granted to 24 April. On that date, the defence applied to amend the original ground appeal by substitution of twelve new grounds which had only been filed the previous day, 23 April. These grounds are:

  • “1. The learned magistrate erred in law when she failed to subpoena a witness as requested on behalf of the appellants on four (4) separate occasions, thereby depriving the appellants of his constitutional rights under Article 20 (2) (e) of the Constitution.

  • 2. The learned magistrate erred in law when in non-compliance with s. 105 (1) of The Criminal Procedure Code Act (Ch. 84) she failed, in her judgment to deal with the submission of the appellants that as the drugs were in a concealed compartment and as it was not determined who was the pilot of the aircraft it could not be shown that either of the appellants was in possession of the drugs.

  • 3. The learned trial judge erred in law when she refused to allow the Defence Witness Leo Moxey to answer questions directed to contradict evidence given under Gros-examination by Prosecution Witness John Reddin.

  • 4. As the learned magistrate found as a fact that the co-ordinates produced by the Defence were unquestionably those that had been obtained by the prosecution witnesses, and as the only evidence produced to question the efficacy of the co-ordinates is the evidence of Prosecution Witness Ralph Gibson in Re-examination that ‘(The tricor) is not a precise piece of navigational equipment in that it is not certified for instruments flight rules’, the said learned magistrate misdirected herself as to the facts when, in her judgment, she held that –

    • (a) ‘(the prosecution eye-witness) made it abundantly clear to the Court why those coordinates cannot be relied upon as evidence of the exact point of the crash’, especially in view of the fact that the evidence show that other co-ordinates had been recorded of this point and of another point in the course of the pursuit of the suspect aircraft; and

    • (b) ‘the defence efforts in producing the particular co-ordinates to support their version of the facts on the question of jurisdiction are seriously flawed’

  • 5. The learned magistrate misdirected her-self as to the effect of the evidence when in her judgment she held that ‘the Court accepts that the eye-witnesses are competent observers and that their recollection on the point (of the crash) in issue is reliable’ for the following reasons:–

    • (a) As regards John Reddin, he states that he did not make an estimate of the distance at the time, he made his estimate later.

    • (b) As regards Ralph Gibson:–

      • (i) Before an adjournment, he says, ‘I did make a note of the co-ordinates of the impact at the time’, and after that adjournment, he says ‘I did not make a recording of the crash site at the time of impact”,

      • (ii) Although he had recorded an estimate of the distance and also the co-ordinates he chose not to mention the distance shown by the co-ordinates which, he can be presumed to have known, was favourable to the Accused.

    • (c) As regards D/C # 534 Barry Bannister, he estimates the distance of crash point to shore as being one (1) mile but –

      • (i) he cannot estimate a much shorter distance, and

      • (ii) he admits he has no great knowledge of distance pertaining to the sea.

    • (d) As regards Bruce Shinkle his evidence clearly shows that the prosecution witnesses were collaborating as to what evidence they would give as to the point of impact.

  • 6. The learned magistrate failed to give due consideration to the evidence for the Defence, i.e. that the following day after the crash Leo Moxey took Chief Inspector Major, who was in communication with someone by radio, vetored him Leo Moxey to that spot there being a reasonable inference from this that anyone so vetoring Chief Inspector Major had to do so by use of navigational co-ordinates. This inference would have been converted to fact if Chief Inspector major had been summoned to give evidence and he would have further stated as indicated in the Affidavit filed in this matter that his estimate of the distance of the spot to which he was vetored from land exceed 3 miles — thereby supporting the evidence of Captain Bill Williams.

  • 7. The learned magistrate erred in law when in paragraph 3 on page 6 of her judgment she inferred that the defence had a duty to contradict prosecution evidence and also erred in the same paragraph when she failed to have regard to the submission of appellant's counsel regarding joint possession as enunciated in the Jessie James Missick case.

  • 8. The learned magistrate misdirected herself on the issues for determination and failed to appreciate the submissions of the defence.

  • 9. The convictions are perverse, unsustainable in fact and in law, unreasonable and cannot be supported having regard to the evidence:–

    • (1) They are unsupported by any qualified expert evidence as to the nature of the alleged dangerous drugs, namely ‘Cocaine’.

    • (2) There is no evidence that either of the appellants had possession, knowledge, custody or control of the alleged dangerous drugs.

    • (3) The prosecution improperly with-held from the Court and the Defence crucial evidence as to whether or not the alleged offences occurred within the territorial jurisdiction of the Court.

    • (4) The appellants, when apprehended, were not within the territorial jurisdiction of The Bahamas.

    • (5) The magistrate made findings of fact unsupported by the evidence.

  • 10. The appellants were deprived of a fair trial within the meaning of the Constitution in that the appellants were:–

    • (1) denied their right to a trial by a jury upon the alleged offences.

    • (2) denied their right under Article 20 (1) and (2) (e) Section 80, 86 and 201 (‘_) to obtain the attendance of Chief Inspector Major as a witness on behalf of the appellants before the Court.

    • (3) denied the opportunity of putting or causing to be put before the Court material evidence which the prosecution knew or with reasonable diligence ought to have known and which could have been produced to the Court which would have benefited the appellant's defence.

    • (4) denied their right to have a hearing of the entirety of their trial in public.

  • 11. The magistrate failed to comply with Section 105 (2), Section 200, and Section 201 (1) and of the Criminal Procedure Code.

  • 12. The provisions under which the appellants were convicted and remanded in custody for sentencing by the Supreme Court are inconsistent with the Constitution and void.”

2

Counsel for the appellants separated grounds 10 (1) and 12 and. Smith argued them in advance of the other grounds listed. In support ground 1, Mr. Hilton filed an affidavit sworn by himself which sets out in detail the steps he took to secure the attendance of a witness whom he wished to call and, despite the assistance which was afforded by Crown counsel who prosecuted that trial in the magistrate's Court, the magistrate refused to issue a summons for the witness, a police Chief Inspector, on the ground that counsel for the appellants had earlier informed the Court that the witness was prepared to give evidence without being summoned to do so.

3

Counsel for the respondent did not seek to challenge Mr. Hilton's account nor does he seek to support the magistrate's decision which was, in my view, clearly wrong. While the right of an accused person to have the assistance of the Court to secure the attendance of witnesses for his defence is not absolute insofar as the Court does have a discretion to refuse to issue a summons or subpoena where it can be fairly said that the application is unreasonable, an attempt to delay or hinder the trial or otherwise an abuse of the Court's procedure, n the instant case it is apparent that Mr. Hilton, as defence counsel, considered the appearance of the witness important to the presentation f his case as his instructions led him to appreciate it. There is a sense of responsibility which, in the absence of a contrary indication, the Court ought to presume tc exist in the conduct of counsel and attorneys especially those who have been in practice in the Courts for a number of years).

4

Mr. Turner had submitted that this Court should, in exercise f its authority under section 242 of the Criminal Procedure Code, Ch 84 (“the CPC”) to hear the appeal, call the witness at this stage and consider whether such evidence as he could have given would have made a difference in the magistrate's final decision.

5

In my judgment, however, whatever the breadth of the Court's discretion to call witnesses under section 242 of the CPC is, that section cannot be applied in a way that a Court hearing an appeal could superimpose its finding on...

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