Ferguson v The Superintendent of Prisons and the Attorney General

JudgeAllen, P.,Conteh, J.A.
Judgment Date18 November 2015
Neutral CitationBS 2015 CA 138
Docket NumberSCCrApp & CAIS No. 255 of 2014
CourtCourt of Appeal (Bahamas)
Date18 November 2015

Court of Appeal

Allen, P.; Conteh, J.A.; Adderley, J.A.

SCCrApp & CAIS No. 255 of 2014

The Superintendent of Prisons and the Attorney General

Mr. Dion Smith for the appellant

Mr. Franklyn Williams, Deputy Director of Public Prosecutions with Mrs. Anishka Hanchell, counsel for the respondent

The appeal should be dismissed and the committal order made by the magistrate affirmed.

Apicella (1985) 82 Cr. App. R. 295 applied

Fox v. Gwent Chief Constable [1985] 1 W.L.R 1126 applied

Kuruma v. R [1955] A.C. 197 applied

Neil v. North Antrim Magistrates' Court and another [1992] 4 All E.R., 846 distinguished

Newbold v. Commissioner of Police and other cases (2014) 84 W.I.R. considered

R v. Bedwelty Justices, Ex parte Williams (1996) AC 225 distinguished

R v. Khan (Sultan) [1996] 3 All E.R. 289 applied

R v. Sang 69 Cr. App. R. 282 applied

Roberts & Others v. The Minister of Foreign Affairs & Others [2007] U.K.P.C. 56 considered

Extradition - Habeas corpus — Committal to prisons — Request to extradite — Preliminary objection to constitution of the panel — Whether the justice could sit and hear the matter when he had reached the constitutionally mandated age of retirement where the substantive arguments of the appeal had not commenced before the justice had attained the age — Consideration of Peter Sokoo and another v. the Attorney General of Trinidad and Tobago [1985] 1 A.C. 63; Sheldon Moore v. The Attorney General et al SCCrApp No. 250 of 2014 and Whitfiled v. The Attorney General BS 1989. SC 20 — Definition of proceedings pursuant to Article 102 of the Constitution — Incorrect name — Whether the trial judge erred in ruling that the appellant should be extradited despite the Authority to proceed and a Warrant of Arrest bearing an incorrect middle name where the appellant had responded to the name on several occasions and neither he nor counsel had indicated that he was not the person referenced in the Authority to proceed or the warrant — Insufficient evidence — Whether the evidence presented was sufficient to support the order of committal — Consideration of Gordon Newbold et al v. The Attorney General of the Commonwealth of the Bahamas et al [2014] U.K.P.C. 12 and Sheldon Moore v. The Attorney General et al SCCrApp No. 250 of 2014 — Remittal to the magistrate — Constitutionality of Listening Devices Act — Whether there was an opportunity to investigate whether the limits of the authorisations were observed — Consideration of Neil v. North Antrim Magistrates' Court and another [1992] 4 All E.R. 846 and R v. Bedwelty Justices ex parte Williams [1996] A.C. 225 — Limits of the authorisations — Whether the non-observance of the limits of the authorisations made the evidence obtained pursuant to such authorisations inadmissible where the object of the committal proceedings was only to determine whether the evidence in support of the request for extradition disclosed a prima facie case against the person whose extradition was requested — Whether the circumstances of obtaining the telephone intercepts were going outside the limits of the authorisations make the evidence in intercepts necessarily inadmissible — Consideration of R v. Khan (Sultan) [1996] 3 All E.R. 289 — Appeal dismissed — Section 178 (1) of the Evidence Act Appeal dismissed — Finding that the magistrate had correctly concluded that there was ample evidence before the magistrate sufficient to warrant the extradition — Finding that the judge correctly found that the magistrate had satisfied itself that section 10(5) of the Listening Device Act was complied with and that none of the prohibitions in section 7 applied.


The appellant's extradition on drug trafficking charges was requested in August 2004 by the Government of the United States pursuant to its Extradition treaty with The Bahamas and the Extradition Act. Committal proceedings for this appellant began before the Deputy Chief Magistrate, as she then was, in 2004.

The appellant was committed on 7 May 2013 and following that committal sought a Writ of Habeas Corpus in the Supreme Court. The judge denied the appellant's request for habeas corpus. The appellant appealed that decision to this Court.


Held: appeal dismissed, decision of trial judge affirmed

The Constitution does not ascribe a meaning to the phrase “proceedings commenced before him” in Article 102(2); but in the 7th edition of Blacks' Law Dictionary, the word “proceedings” was interpreted as meaning: “the regular and orderly progression of a law suit including all acts and events between the time of the commencement of the suit and the entry of judgment”. Further, the purpose of Article 102(2) in our view, is to ensure a smooth transition in the disposition of matters pending before the Court on the retirement of justices of appeal; and Mr. Justice Conteh's inclusion on the panel to hear this appeal and the other appeals arising from the extant extradition proceedings was in furtherance of that objective since he was an integral part of the panel having carriage of the appeals prior to his turning 70.

After a considered review of the transcript of the proceedings before the magistrate; we find that the learned judge was indeed correct in his assertion that the appellant repeatedly answered to the name Wilfred Deon Ferguson. The appellant, as demonstrated by the record, never indicated to the magistrate that he was not Wilfred Deon Ferguson; even though he was presented with numerous opportunities to do so. Further, there was ample evidence before the magistrate and the Supreme Court in support of the view that Wilfred Leon Ferguson was indeed the man referred to in the authority to proceed and the warrant of arrest.

On at least two occasions the appellant was observed in The Company of key members of the conspiracy, performing acts which when considered in the round could be deemed by a jury properly instructed, to be acts in furtherance of the alleged conspiracy. It must always be remembered that at this stage of proceedings the Court is only concerned with whether a prima facie case against the accused has been established. We agree with the learned magistrate and the learned judge that in the case of the appellant this threshold has been attained.

It was incumbent on the appellant, if he wished to take advantage of the Privy Council's decision, to seek a further investigation of any allegations he said amounted to a breach of the limits of the authorizations. This was not done. In the absence of his demonstrating that such circumstances exist, there is no utility in remitting this matter as the appellant asks.

In any event, even if there was evidence of the non-observance of the limits of the authorizations, that does not make the evidence obtained pursuant to such authorizations inadmissible. Therefore, the appellant is to be committed to the custody of the Department of Correctional Services to await extradition

Gordon Newbold et. al. v. The Government of the United States et al [2014] U.K.P.C. 12 considered

Peter Sookoo and another v. The Attorney General of Trinidad & Tobago [1985] 1 A.C. 63 applied

Re Osawe [2003] All E.R. (D) 464 distinguished

Whitfield v. The Attorney-General BS 1989 20 followed per Conteh, J.A.: In relation to the remittal by the Privy Council to the magistrate to allow the appellant an opportunity to investigate further whether the limits of the authorization were observed, even if the appellant had that opportunity, it could at best, perhaps, possibly have resulted in findings by the magistrate that the limits were not observed.

If it was determined that the limits had not been observed the salient question should be: would the result of such findings, in and of itself, necessarily have resulted in the exclusion of the evidence contained in the intercepts or wiretaps? Exclusion of the evidence would not have been the only and inevitable result or consequence of such findings. Indeed, if the limits of the authorizations were found to have not been observed the evidence obtained therefrom would fall to be determined under common law and statutory rules relative to illegally obtained evidence.

Neither the statutory nor the common law discretion could have warranted the exclusion of the evidence provided by the intercepts simply on account that the limits, if any, of their authorizations were not observed. The probative value of the evidence outweighed whatever prejudicial effect it might and would not impact on the fairness of the committal proceedings and any subsequent trial of the appellant.

Further, the magistrate would not have properly or judiciously exercised her discretion to exclude the evidence on the finding that it was obtained illegally as the judicial discretion to exclude such evidence is now used only in exceptional cases.

Allen, P.

This is an appeal against the 11 September 2014, decision of Senior Justice Jon Isaacs, as he then was, denying the appellant's application for Habeas Corpus and upholding the decision of the learned magistrate to commit the appellant to Fox Hill prison to await extradition to the United States.


The crux of the case alleged against the appellant is that he was a member of a drug trafficking organization involving other Bahamians, United States citizens, and persons of other nationalities, and conspired to, inter alia, import into the US, and conspired to possess with intent to distribute in the US, cocaine and marijuana via The Bahamas.


Allegedly, all the members of this organization had different talents and played different roles in furtherance of the organization's objective and joined the conspiracy at different times. As noted, the appellant was indicted on three charges; however, count 12 which alleged an attempt by each appellant to import cocaine into the US was attacked on the basis that...

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