Donna Dorsett-Major v The Director of Public Prosecutions
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 20 October 2022 |
| Neutral Citation | BS 2022 CA 139 |
| Docket Number | SCCivApp No. 156 of 2021 |
| Court | Court of Appeal (Bahamas) |
| Year | 2022 |
and
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Evans, JA
The Honourable Madam Justice Bethel, JA
SCCivApp No. 156 of 2021
IN THE COURT OF APPEAL
Civil Appeal — Procedural Law — Contempt of Court — Actus Reus of Contempt — Mens Rea of Contempt — Rules of the Supreme Court — Order 59, rule 2.(2) — Order 52 — Exercise of Supreme Court's Power to Punish for Contempt of Court — Article 20 of The Constitution — Fair Trial During Sentencing for Contempt — Fine for Contempt of Court — Role of the Amicus Curiae — Costs Order to Amicus Curiae — Exceptional Circumstances for Awarding Costs to Amicus Curiae — Supreme Court Act s. 30 — Bahamas Bar (Code of Professional Conduct) Regulations — Regulation 3, Rule XII & Rule XVII — Irregular Summons
The Appellant is a counsel and attorney of the Supreme Court. She was a defendant in an action brought by Allan and Sharon Crawford (“the Crawfords”) arising out of the purchase of property by the Crawfords from Shanna's Cove Estate Company Limited. Shanna's Cove was a co-defendant in the same action. The final defendant is Christopher Stubbs, who was effectively the owner of Shanna's Cove. The trial of the action was heard by the judge who found the Appellant to be liable in negligence to the Crawfords. She then adjourned the issue of assessment of damages. Prior to the hearing of the assessment of damages, Christopher Stubbs and Shanna's Cove made an application to the judge to recuse herself from hearing the matter. The grounds of the recusal application included the allegation that the judge appeared to be biased against the Appellant and her co-defendants. Christopher Stubbs and the Appellant swore Affidavits in the recusal application.
The judge found that the Appellant's Affidavit contained scandalous accusations against the judge. Thus, the judge found the Appellant to be in contempt of court and ordered the Appellant to pay a fine of $35,000. The Appellant was also ordered to pay costs of $20,000 to the Attorney General, who was invited by the judge to act as an amicus curiae. The judge also ordered that the total sum of $55000 be paid by 31 January 2022 or the Appellant would be imprisoned for 3 months.
The Appellant now appeals the judge's decision.
Held: A judge who has been the subject of contempt presiding over the contempt hearing does not breach the right to a fair hearing provided for in Article 20(1) of The Constitution. A judge is imbued with a high sense of objectivity allowing him to be an unbiased arbiter when presiding over proceedings involving a contempt committed against himself.
Additionally, contempt is not confined to statements made during an ongoing trial. Contemptuous remarks can be made anywhere, at any time, and in any number of media. Notwithstanding the timing or the forum, the relevant consideration is that the remarks are objectively scandalous and are calculated to lower the level of respect accorded by the public to the Judiciary.
Further, attorneys are held to a higher standard than the general populace when making contemptuous remarks against the Judiciary. The Bahamas Bar (Code of Professional Conduct) Regulations stipulates that attorneys are under a duty to refrain from making statements which castigate the Judiciary.
On the facts, the statements contained in the Appellant's Affidavit created a real risk of undermining public confidence in the Judiciary. The statements suggested that the judge was in a conspiracy with the Crawfords against the Appellant and Christopher Stubbs. Thus, the judge was justified in holding the Appellant in contempt of court.
Furthermore, awarding costs to a non-party such as an amicus curiae can only occur in the most exceptional circumstances. In her judgment, the judge provided no exceptional circumstances to justify awarding costs to the Attorney General, acting as amicus curiae. Therefore, the award of costs is set aside.
Finally, the $35,000 fine, when compared to similar cases, is unduly severe. Therefore, the fine of $35,000 is vacated and a fine of $20,000 substituted in its place. The Appellant must pay the fine within 30 days of the date of this Judgment or serve 21 days at the Bahamas Department of Correctional Services.
Allen v Sir Alfred McAlpine & Sons Ltd [1968] EWCA Civ J0111-1; considered
Bank of America NT & SA (Re) [1993] BHS J. No. 135; applied
Bowleg v Callender [1996] BHS J. No. 119; applied
Canadian Union of Postal Workers v. Her Majesty in Right of Canada 2017 ONSC 6503; considered
Daisymae Johnson and Regina SCCrApp. No. 44 of 2017; applied
Dhooharika v The Director of Public Prosecutions [2014] UKPC 11; applied
Dymocks Franchise Systems v Todd [2004] UKPC 39; applied
In the Matter of Caves Company Limited and in the Matter of a Contempt of Court committed by Kenneth McKinney Higgs and James M. Thompson [1988] BHS J. No. 122; applied
In the Matter of Contempt Committed by Ortland Bodie, Regina v Ortland H. Bodie Jr. 2012/PUB/CON/00021; considered
In The Matter of the Contempt of Maurice Glinton, Q. C. In The Face of the Court on 28th September, 2015 And In The Matter of the Contempt of Court of Maurice Clinton Q.C. On 9th October, 2015 No. 1 and 2 of 2015; applied
James Fleck and Pittstown Point Landings Limited SCCivApp. No. 131 of 2019; applied
Major and Major v the Government of the United States of America, the Minister of Foreign Affairs, the Superintendent of Prisons and the Attorney General of the Commonwealth of the Bahamas PUB/JRV 20 of 2006; PUB/JRV 21 of 2006; considered
The Queen v. The Rt. Hon. Perry G. Christie, Prime Minister of The Commonwealth of The Bahamas (in his capacity as the Minister responsible for Crown Lands) and others; Ex Parte Coalition to Protect Clifton Bay [2017] 1 BHS J. No. 127; considered
The Queen v. The Rt. Hon. Perry G. Christie, Prime Minister of The Commonwealth of The Bahamas (in his capacity as the Minister responsible for Crown Lands) and others; Ex Parte Coalition to Protect Clifton Bay [2017] 1 BHS J. No. 134; considered
Ms. Krysta Mason-Smith, Counsel for the Appellant
Ms. Kayla Green-Smith, with Ms. Monique Miller, Counsel for the Respondent
This is an appeal by the Appellant, Donna Dorsett-Major, against a decision of Charles J, whereby the judge found the Appellant to be in contempt of court and ordered the Appellant to pay a fine of $35,000 for contempt of court. The Appellant was also ordered to pay costs of $20,000 to the Attorney General, who was invited by the judge to act as an amicus curiae. The judge also ordered that the total sum of $55000 be paid by 31 January 2022 or the Appellant would be imprisoned for three months at the Bahamas Department of Correctional Services (“BDOCS”). The Appellant sought other reliefs from this Court including a declaration that the contempt proceedings amounted to a malicious prosecution and were unconstitutional, the fine or sentence was excessive, and paying costs to the amicus curiae was unlawful/excessive.
The Appellant is a counsel and attorney of the Supreme Court. She was a defendant in an action (CLE 2015/CLE/gen/00765) brought by Allan and Sharon Crawford (“the Crawfords”) arising out of the purchase of property in Cat Island from Shanna's Cove Estate Company Limited (“Shanna's Cove”). Shanna's Cove was a co-defendant in the same action. The final defendant is Christopher Stubbs, who was effectively the owner of Shanna's Cove. The Crawfords claimed that the Appellant acted for both them and the Vendor Shanna's Cove and was liable for professional negligence in breach of her duty of care to them.
The trial of the action was heard by Justice Indra Charles (“the judge”) who, on 1 May 2020, found the Appellant to be liable to the Crawfords in negligence. She then adjourned the issue of assessment of damages to another date.
Prior to the hearing of the assessment of damages, Christopher Stubbs and Shanna's Cove made an application to the judge to recuse herself from hearing the matter. The grounds of the recusal application were (a) the Appellant's right to a fair hearing as guaranteed by Article 20 of the Constitution has been or is being infringed upon or violated, or threatened to be infringed or violated; and (b) there is or has been the presence of bias or the appearance of bias on the part of the judge against the Appellant and her co-defendants.
In that application, the Appellant swore an Affidavit in support of her application for recusal. The contents of that Affidavit are as follows:
1. That I make this Affidavit from information within my knowledge and in support of my application for recusal of the Learned Judge's action (inter alia)
2. That on the 22 nd day of February, 2019, the Learned Justice along with her Court Clerk, Mr. Gardiner, Attorney, Roy Sweeting, (deceased), Mr. Anthony Newbold, Attorney on behalf of the First, Second and Third Defendants and myself, all took a flight from Sir Lynden Pindling International Airport, New Providence to New Bight Airport, situated on Cat Island.
3. Upon our arrival at the Airport, the First Plaintiff, Allan Crawford was at the Airport, it was apparent to me that he was awaiting the arrival of the Honourable Justice, Indra Charles, as well as his Attorney, Mr. Roy Sweeting, deceased. There were NO police officers at the Airport for the arrival of the learned Justice, neither did she travel with her driver and/or Police escort.
4. That shortly after arrival in Cat Island, the learned Justice, Indra Charles, along with her Clerk, then got into a vehicle being driven at that time by the First Plaintiff, Mr. Allan Crawford. That the Attorney for the Plaintiff Mr. Roy Sweeting, (deceased), also...
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