Fred Christopher Paul v The Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jon Isaacs, JA |
| Judgment Date | 07 March 2024 |
| Neutral Citation | BS 2024 CA 32 |
| Docket Number | MCCrApp No. 128 of 2023 |
| Court | Court of Appeal (Bahamas) |
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Charles, JA
MCCrApp No. 128 of 2023
IN THE COURT OF APPEAL
Magistrate's Court Civil Appeal — Application for Extension of Time — Possession of an unlicensed firearm — Possession of dangerous drugs — Prospects of Success
This case concerns a police pursuit that took place on 16 July 2019, in the vicinity of Taylor Street, Nassau Village. The intended appellant, the driver of a blue Honda Accord with heavily tinted windows, accelerated as Officers Miller and Seymour sought to stop it, starting a chase. During the pursuit, the intended appellant threw a bag of marijuana from the vehicle. After briefly losing sight of the car, the officers found the vehicle reversed into an apartment yard. As they approached on foot, the intended appellant fled, and Officer Miller chased him. The intended appellant, armed with a firearm, ignored commands to stop, and Officer Miller discharged his weapon, injuring the appellant. The intended appellant admitted to throwing drugs from his vehicle and attempting to evade the officers but denied ownership of the firearm. He was subsequently charged with possession of an unlicensed firearm and possession of dangerous drugs. The intended appellant was convicted on June 12, 2023 and sentenced to two years' imprisonment for possession of an unlicensed firearm and fined $500 or an additional six months' imprisonment for possession of dangerous drugs. The intended appellant failed to appeal within the required time frame but filed an application for an extension of time to appeal. The intended appellant appeals on the grounds of misdirection, internal contradictions in the prosecution's case, unreliability of witnesses, failure to exercise proper discretion, and insufficient evidence to support conviction.
Held: The application for extension of time is refused. The decision of the Magistrate to convict the intended appellant and the sentences he imposed, are affirmed.
The intended appellant failed to appeal within the required time but applied for an extension of time to appeal. In considering the application for an extension of time (EOT), the Court assessed various factors, including the reason for the delay and the prospects of success of the appeal. Despite the intended appellant's arguments challenging the evidence and handling of the case, the Court found the evidence credible and the chain of custody of the firearm adequately established. As a result, the Court refused the EOT application, affirming the conviction and sentence. The Court determined that there was no merit in any of the proposed grounds and concluded that the intended appellant's case had no prospect of success.
Attorney General v Omar Chisholm MCCrApp No. 303 of 2014
Damian Hodge v R HCRAP 2009/001
Danny Walker v R [2018] JMCA Crim 2
Miller v Commissioner of Police [1992] BHS J No.112
Rodriguez Jean Pierre v The King [2023] UKPC 15
Sean Wright v The Queen MCCrApp No. 194 of 2015
Sherry v The Queen [2013] UKPC 7
Suculoo Miller v The Commissioner of Police MCCrApp. No. 91 of 2020
Watt (or Thomas) v Thomas 1947 SC HL 45
Mr. Geoffrey Farquharson, Counsel for the Applicant/Intended Appellant
Mrs. Jacqueline Forbes-Foster, Counsel for the Respondent
On 12 June 2023, Stipendiary and Circuit Magistrate Samuel McKenzie sentenced the intended appellant to two years' imprisonment for possession of an unlicensed firearm and a fine of five hundred ($500) dollars or an additional six months' imprisonment for possession of dangerous drugs.
The intended appellant did not appeal his conviction and/or sentence within seven days of 12 June 2023 as required by section 235(2) of the Criminal Procedure Code. On 27 June 2023, he filed an application for an extension of time within which to appeal, pursuant to section 9 of the Court of Appeal Rules (“EOT application”).
In determining EOT applications, the Court would normally take into account a number of factors and criteria. For example, in Attorney General v Omar Chisholm MCCrApp No. 303 of 2014, the Court, differently constituted, identified four factors to be considered: a) length of the delay; b) reason(s) for the delay; c) prospects of success; and d) prejudice to the respondent.
However, in Rodriguez Jean Pierre v The King [2023] UKPC 15, the Privy Council found that there were other matters for the Court to consider than those mentioned in Chisholm, when they said at paragraph 27:
“ 27. Furthermore, it should not be thought that the four criteria identified in Williams are the only relevant criteria when considering an extension of time. It will be necessary to consider the overall justice of the case. In the Board's view, further relevant considerations will normally include the gravity of the offence and the severity of the sentence imposed. Considerations of legal certainty will also be highly relevant. There is an important public interest in the finality of legal proceedings, the efficient use of judicial resources, good administration and the interests of other litigants ( Liburd v The Queen (Court of Appeal of the Eastern Caribbean) per Barrow JA at para 4; R v Thorsby [2015] 1 WLR 2901 per Pitchford LJ at para 13). It will also be necessary to take account of the interests of victims of crime and their families, and of witnesses.”
The takeaway from Chisholm and Rodriguez Jean Pierre is that the Court should consider the factors and criteria to arrive at a decision which reflects the “ overall justice of the case”.
The length of delay is not unduly long. I estimate it to be seven days. In his affidavit filed on 15 November 2023, the intended appellant endeavoured to explain the reason for the delay when he averred at paragraphs 4 and 5:
“ 4. Upon my conviction and sentence, I immediately sought the assistance of the Prison authorities to receive the papers to file an appeal.
5. But due to the fact that the administrative arrangements at the prison are not designed to respond to such requests within the 7-day period set by law, I never received the relevant documents until well after the time limited for appeal had passed.”
Although the intended appellant has not provided a specific date when he received the relevant documents, he has informed the Court that their receipt was “after the time limited for appeal had passed”. I am satisfied, therefore, that as the length of the delay was short, that his explanation for the delay is acceptable.
There is nothing to suggest that the intended respondent would suffer any prejudice if the intended appellant was given leave to appeal out of time. So, the main issue with which the Court must wrestle is the probable success of the proposed grounds of appeal. Indeed, this was confirmed by Mrs. Forbes-Foster, Counsel for the respondent.
In delivering the judgment of the Privy Council in an appeal from the Court of Appeal of Guernsey, that is, Sherry v The Queen [2013] UKPC 7, Lady Hale held, inter alia, at paragraph 14 that:
“ 14. The Board accepts that the merits of any proposed appeal are relevant to an application to extend time. At the very least, it must be shown that there is some merit in the proposed appeal before a court will consider whether the delay can be excused. If the appeal has no prospect of success, then it is in no-one's interest to allow it to proceed, however short or understandable the delay. Conversely, if the appeal is bound to succeed, the court may look more kindly upon the reasons for the delay. But even in such a case it is by no means inevitable that permission will be granted….”
Thus, I turn to address each ground's prospects of success.
The intended appellant's proposed grounds of appeal are as follows:
“ 1. The learned Magistrate misdirected himself when he found that the evidence presented against the Appellant was sufficient, on its own. To justify the conviction of the Appellant.
2. The learned Magistrate erred by failing to consider the weakness and tenuousness of the evidence supporting the allegations against the Appellant.
3. In particular, the Learned Magistrate gave no consideration or no proper consideration whatsoever to the fact that the Appellant could not possibly be convicted for the offence as charged given the internal contradictions contained in the prosecution's case and the unreliability of its witnesses which this revealed.
4. The learned Judge failed to exercise his discretion judicially by failing or refusing to consider the issues required to be considered and by considering matters which were not relevant to the issues being tried.
5. The learned Judge erred in failing to acquit the Appellant when there was in fact produced no sufficient evidence to support his conviction.
6. And such other grounds as may appear appropriate once the learned Magistrate condescends to provide a written ruling setting out his reasons for the conviction.”
Grounds 1, 2, 3 and 5 appear to raise the identical issue, to wit, the Magistrate was wrong to convict the intended appellant based on the paucity of and conflicts in the Prosecution's evidence.
There were essentially three pillars supporting the intended appellant's complaint. They were: 1) contradictions in the Prosecution's witnesses' evidence; 2) failure to show the chain of custody of the firearm; and 3) failure to produce any fingerprint evidence.
There were two main inconsistencies pointed out by Mr. Farquharson. The first was the evidence as recorded by the Magistrate that, “My passenger screwed down the passenger's window and threw a package out the...
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