Deshawn Brooks v The Director of Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA,Sir Michael Barnett,Mr. Justice Evans, JA
• Judgment Date: 28 October 2020
• Neutral Citation: BS 2021 CA 34
• Date: 28 October 2020
• Docket Number: SCCrApp. No.104 of 2020
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honorable Sir Michael Barnett, P

The Honorable Madam Justice Crane Scott, JA

The Honorable Mr. Justice Evans, JA

SCCrApp. No.104 of 2020

Between

Deshawn Brooks

Appellant

and

The Director of Public Prosecutions

Respondent

APPEARANCES:

Ms. Krysta Mason-Smith, Counsel for the Appellant

Mrs. Abigail Farrington, Counsel for the Respondent

Constitutional motion — Redress clause — Right to the presumption of innocence — Abuse of process — Collateral attack — Jurisdiction of the Court of Appeal to hear and determine constitutional issues which arise for the first time in the Court of Appeal — Jurisdiction conferred by Articles 28 and 104 of the Constitution — Jurisdiction conferred by section 8A of the Bail Act — Referral jurisdiction — Human rights redress referral jurisdiction — Human rights redress clause proviso — Sections 4(6) and 8A of the Bail Act — Articles 20(2)(a), 28(1)(2)(3), 98(1) and 104 of the Constitution

On 14 May 2019 the appellant was charged with the offence of murder and remanded. His bail application of September 2019 was denied by Bethell, J. (as she then was) on 18 December 2019, with reasons to follow. The appellant immediately appealed the denial of bail to this Court. Bethell, J.'s reasons were provided on 2 July 2020. The following day the appellant filed a Constitutional Motion seeking the following: a declaration that his constitutional right to the presumption of innocence pursuant to Article 20(2)(a) had been infringed; a declaration that section 4(6) of the Bail Act is unconstitutional; damages for constitutional redress and costs. At the time the Constitutional Motion was filed the appellant's appeal against the denial of bail had not yet been heard by this Court. The appellant did not amend his Notice of Appeal to include a ground alleging that the judge's reliance on section 4(6) of the Bail Act was in breach of his Article 20(2)(a) rights. The appellant's appeal against the denial of bail was heard by this Court and dismissed. The Court was not made aware of the Constitutional Motion, nor did the appellant argue the alleged breach before this Court. As a result of this Court dismissing the appellant's appeal against the refusal of bail he amended his Constitutional Motion to seek the additional relief of being admitted to bail. Turner, J. applied the proviso to Article 28(2) of the Constitution on the basis that the issues raised by the Motion could have been dealt with by the Court of Appeal. He determined that the Motion was an abuse of process and a collateral attack on this Court's decision to refuse bail to the appellant. The appellant now appeals the decision of Turner, J. to this Court.

Held (Crane-Scott, JA dissenting): appeal dismissed.

per Barnett, P: It is not appropriate to seek relief by Article 28 of the Constitution where the relief sought may be obtained through ordinary litigation. As there was another adequate means of redress available to the appellant his Constitutional Motion amounts to an abuse of process.

A challenge to the consitutionalty of a law may be raised for the first time at the appellate level as a ground of appeal where the challenge is an issue of pure law which requires no evidence and is not dependent on findings of fact.

Chen-Young and others v Eagle Merchant Bank Jamaica Ltd. and others(2018) 92 WIR 521 considered

Donna Vasyli v The Attorney-General SCCrimApp. & CAIS No. 82 of 2015 followed

Hinds v R[1977] AC 195 applied

Jeremiah Andrews v The Director of Public Prosecutions SCCrApp. No. 163 of 2019 followed

The Attorney General v Bradley Ferguson et. al. SCCrApp. Nos. 57, 106, 108 & 116 of 2008 followed

Warren v The State[2018] UKPC 20 applied

per Evans, JA: Article 28 of the Constitution does not provide that the Supreme Court has the sole right to hear and determine constitutional matters. Where a constitutional issue arises during the course of an appeal the Court has the discretion to deal with the issue during the appeal. However, the Court may, depending on the circumstances, refer the matter to the Supreme Court for determination or it may refuse to deal with the issue.

The appellant was not prohibited from raising the constitutional issues during his appeal and he ought to have done so. The Court could have dealt with the matter or referred it back to the Supreme Court; in the latter instance the matter would have properly been before the Supreme Court and any decision made thereon would not have been in conflict with the decision of this Court.

Damargio Whyms v The Director of Public Prosecutions SCCrApp. No. 148 of 2019 mentioned

Henderson v Henderson [1843–60] All ER Rep 378 mentioned

Hunter v Chief Constable of the West Midlands Police[1982] AC 529 applied

Johnson v Gore Wood & Co. [2000] UKHL 65 applied

Michael Renaldo Mackey and Edward Anwar Johnson v. Regina SCCrApp. Nos. 288 & 289 of 2015 mentioned

per Crane-Scott, JA: Article 28(3) of the Constitution does not confer jurisdiction on the Court of Appeal to hear and determine constitutional challenges; that Article merely reinforces the Supreme Court's exclusive original jurisdiction as per Article 28(2). The Court's jurisdiction to hear and determine appeals relating to the alleged contravention of fundamental rights is derived from Article 104(1) of the Constitution and concerns appeals from a final decision of the Supreme Court exercising its powers pursuant to Article 28(2) of the Constitution.

The majority infers or deduces jurisdiction to hear and determine constitutional challeneges which arise for the first time in the Court of Appeal from the absence of language in Article 28 prohibiting the Court from so acting. As per Article 98(1) of the Constitution the jurisdiction and powers of the Court of Appeal are conferred by the Constitution or any other law and cannot be inferred or deduced.

Section 8A of the Bail Act provides the Court of Appeal with the requisite jurisdiction to review a judge's decision on the grant / refusal of bail. That section does not confer original jurisdiction on the Court to entertain constitutional complaints which arise for the first time during a bail appeal.

By way of his Constitutional Motion the appellant sought a declaration that his Article 20(2)(a) right to the presumption of innocence had been infringed and a declaration striking down section 4(6) of the Bail Act as being unconstitutional. These forms of relief could not be obtained through ordinary legislation. Indeed, the only adequate means of redress available to the appellant was through the Originating Motion procedure which he properly employed.

Barrington Robinson v. The Attorney-General SCCrApp & CAIS No. 207 of 2013 considered

Chen-Young et al v. Eagle Merchant Bank Jamaica Ltd and others(2018) 92 WIR 521 distinguished

Chokolingo v. Attorney General of Trinidad and Tobago[1981] 1 WLR 106 considered

Deshawn Brooks and anor v. The Director of Public Prosecutions SCCrApp. Nos. 201 and 203 of 2019 mentioned

Donna Vasyli v. The Attorney-General SCCrimApp. & CAIS No. 82 of 2015 mentioned

Durity v. Attorney General of Trinidad and Tobago[2008] UKPC 59 mentioned

Harrikissoon v. Attorney General of Trinidad and Tobago[1980] AC 265 considered

Hinds v. R[1977] AC 195 mentioned

Jaroo Attorney General of Trinidad and Tobago[2002] 1 AC 871 considered

Jeremiah Andrews v. The Director of Public Prosecutions SCCrApp. & CAIS No. 163 of 2019 followed

Jevon Seymour v. The Director of Public Prosecutions SCCrApp. & CAIS No. 115 of 2019 mentioned

Richard Hepburn v. The Attorney-General SCCrApp. & CAIS No. 276 of 2014 mentioned

Richard Hinds v The Attorney General and Anor.[2001] UKPC 56 mentioned

Terry Delancy v. Attorney-General SCCivApp. & CAIS No. 43 of 2006 distinguished

The Attorney-General v. Bradley Ferguson SCCrApp. Nos. 57, 106, 108 and 116 of 2008 considered

Warren v. The State[2018] UKPC 20 distinguished

Judgment delivered by the HonourableSir Michael Barnett, P:

1 . This is an appeal by Deshawn Brooks (“the appellant”) against the decision of Turner, J. dated 24 September 2020. In that decision Turner, J. refused the relief sought in an Amended Originating Notice of Motion filed by the appellant.

2 . By that Motion the appellant sought:

• “1. A declaration that Article 20(2)(a) of The Bahamas Constitution which affords the Applicant the right to be presumed innocent until he is proved or has pleaded guilty has been infringed;

• 2. A declaration that Section 4(6) inserted into the Bail Act by virtue of Section 2 of the Bail (Amendment) Act, is unconstitutional;

• 3. That the Applicant be admitted to bail; and

• 4. That damages be assessed for constitutional redress and costs are to be taxed, if not agreed.”

3 . The material facts are for the most part not in dispute.

4 . The appellant was charged with the offence of murder on 14 May 2019. He was remanded into custody pending his trial.

5 . In September 2019 he applied for bail pending the hearing of his trial. That application was determined by Bethell, J. (as she then was) on the 18 December 2019. She dismissed the application for bail and promised to give her reasons at a later date. The appellant immediately appealed the decision of Bethell, J. to this Court of Appeal in December 2019.

6 . The hearing of that appeal was delayed as Bethell, J. did not provide her written reasons until 2 July 2020. In those reasons the following statement was made:

• “27. I reiterate section4(6) of the Bail Act which states that at the hearing of an application for bail, it shall bethe burden of the applicant to satisfy the court that bail should be granted.”

7 . Immediately upon receiving the written reasons the appellant launched the Constitutional Motion on 3 July 2020. This was so notwithstanding that the appeal against the decision had not yet been heard by the...