Gibson Jr. and Lightbourne v The Attorney General

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeAllen, P.,Blackman, J.A.,Conteh, J.A.
Docket NumberCRI/CONApp No. 84 of 2014
Date13 June 2014

Court of Appeal

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

CRI/CONApp No. 84 of 2014

Gibson Jr. and Lightbourne
and
The Attorney General
Appearances:

Mr. Murrio Ducille with Mrs. Krysta Mason-Smith, Mr. Carlson Shurland, Mr. Jerone Roberts, counsel for the appellants.

Mr. Garvin Gaskin, Mr. David Higgins and Mr. Gary Francis, counsel for the respondent.

Constitutional Law - Appeal — Possession of Dangerous Drugs — Possession of a Firearm and Ammunition — Trial judge dismissed the appellant's application for constitutional relief — Fair trial — Whether the learned judge erred in law when he misinterpreted S. 102 of the Magistrate Court Act — Whether the learned judge erred in law when he ruled that the removal of the equipment for mechanically recorded evidence did not cause or was not likely to cause prejudice to the Appellant's during their trials — Whether the learned judge erred in law when he failed to declare that the Appellant's rights to fair trials guaranteed by Art 20(1) of the constitution were or were likely to be contravened due to the Respondent's unwarranted removal of the mechanical equipment of the court stenographers — Appeal dismissed.

Held:– appeal dismissed

Under section 102(1) of the Magistrates Courts Act, a magistrate has the sole discretion to record evidence in the manner proscribed by section 105(2) of the Criminal Procedure Code Act even where the adequate equipment for mechanically recording and transcribing the proceedings are provided, subject only to any particular direction by the Chief Justice.

To be entitled to constitutional relief, the appellants must demonstrate that in the specific circumstances the applicants' constitutional right is likely to be breached. In the present case, there was no evidence from which one could reasonably infer that the recordings in long hand by the Magistrate would be inaccurate or compromised.

In the circumstances of this case, the appellants have failed to demonstrate that the absence of mechanical recordings and the services of Court reporters to transcribe the proceedings of the impending trials of the appellant's were such a departure from good practice, or so prejudicial as to make such trials unfair.

Bernard v. The State (TT 2007 PC 3), Privy Council Appeal No. 118 of 2005 considered

Gibson v. The Attorney General of Barbados [2010] CCJ 3 applied

Randall v. The Queen [2002] U.K.P.C. 19 applied

Allen, P.
1

This appeal emanates from the decision of Isaacs, S.J. refusing the appellants' applications for constitutional relief. The facts of this case are simple and agreed.

2

The first appellant (“Gibson”), faces a charge of Possession of Dangerous Drugs before the magistrate sitting in Court 6; and Possession of a Firearm and Ammunition before the magistrate in Court No.10. His trial on each charge is to be recorded long hand by the relevant magistrate.

3

The second appellant (“Lightbourne”), is currently charged with the offences of Possession of Dangerous Drugs with Intent to Supply, and Possession of a Prohibited Weapon, before Stipendiary and Circuit Magistrate, Andrew Forbes.

4

At the proposed commencement of the proceedings against Lightbourne on 27th February, 2014, no stenographer was present to mechanically record and transcribe the proceedings. His trial was delayed to allow him to make an application before the Chief Magistrate for the mechanical recording and transcription of the proceedings.

5

That request was made to the Chief Magistrate, to which there was no response; and when the appellant next appeared before the magistrate on 7th March, 2014, he renewed the request, which was denied by him.

6

Identical Declarations for breach of his article 20 right to a fair trial were sought before the learned judge on behalf of each appellant by Originating Notice of Motion. Each of them entreated the Court to grant:

  • “1. A declaration that Article 20(1) of The Bahamas Constitution which affords the applicant the right to a fair hearing by an independent and impartial tribunal established by law has been infringed; and

  • 2. That the equipment for mechanically recording evidence in the Magistrate's Court be restored.”

7

The grounds of those applications were:

  • “(a) That the respondent has wrongly caused adequate equipment which were provided to mechanically record evidence in the Magistrate's Court to be removed thereby causing unfairness in my Trial;

  • (b) That the removal of the mechanical recorder from the Magistrate's Court has the effect of causing prejudice in my Trial in that the accuracy of recording evidence is compromised;

  • (c) That the removal of the mechanical recorder from the Magistrate's Court is in violation of the provisions of section 102 of the Magistrate's Act; and

  • (d) That the applicant has been and is likely to be severely affected due to the infringements.”

8

In support of their applications before the learned judge, Lightbourne and Gibson swore in separate affidavits that before the day their trials were to commence, there were always stenographers present, as a matter of course, in the Magistrates' Courts; and indeed that was confirmed by the affidavit of Ludell Theophilus.

9

Each appellant further swore:

“That the absence of a stenographer during my Trial or any Trial is a violation of the rights afforded to me pursuant to Article 20(1) of the Constitution and I am very uncomfortable with any matter concerning me being tried in the absence of a stenographer who provides an accurate, independent and impartial record. That the removal of the mechanical recorder from the Magistrate's Court is unlawful and violates section 102 of the Magistrate's Act, Chapter 54;”

10

The further evidence included the affidavit of Andrew Forbes, the magistrate assigned to preside over Lightbourne's case, who said he determined to take notes long hand in that particular case as he did not consider the mechanical recording and transcription of the proceedings necessary.

11

After hearing the Originating Notices of Motion, the learned judge accepted the respondent's objection in limine and applied the proviso to article 28 of the Constitution. He determined that the appellants had the alternative remedy of judicial review, which was appropriate to challenge the decision to remove Court reporters from the Magistrates' Courts, and dismissed the applications.

12

Notwithstanding his decision to dismiss the applications on the aforementioned basis, however, the learned judge went on to consider the applications on their merits, subsequently dismissing the constitutional claims as unmeritorious .

13

In Amended Grounds of Appeal filed herein on 7th May, 2014, the appellants complain that:

  • “1. The learned trial judge erred in law when he ruled that the appellant's (sic) were caught by the proviso to Article 28(2) of the Constitution and they ought to have brought judicial review applications;

  • 2. The learned judge erred in law when he misinterpreted Section 102 of the Magistrate's Court Act and ruled that the presence of tape and digital recordings and the mechanical equipment of the Court stenographers in Court was at the discretion of the judge or magistrate;

  • 3. The learned judge erred in law when he ruled that the removal of the equipment for mechanically recording evidence did not cause or was not likely to cause prejudice to the appellant's during their trials;

  • 4. The Learned judge erred in law when he failed to declare that the appellant's rights to fair trials guaranteed by Article 20(1) of the Constitution were or were likely to be contravened due to the respondent's unwarranted removal of the mechanical equipment of the Court stenographers; and

  • 5. The learned judge erred in law when he did not order the stenographers to be returned to the Magistrate's Courts.”

The appellants also ask for the same relief as prayed for in their Originating Notices of Motion in the Supreme Court.

14

In as much as the learned judge went on to consider the applications on the merits, I consider that the ground of appeal which challenges his decision on the preliminary point, even if accepted as correct, would not dispose of the true issue in this appeal. Moreover, there are numerous authorities on the issue of abuse of process, and another authority is not necessary. I do not intend therefore to consider ground (1), but to focus on grounds 2, 3 and 4 which directly challenge the learned judge's decision on the constitutional issue. Ground 5 would not be relief which would be appropriate for the infringement of a fundamental right, and I would similarly not consider it.

15

As posited by counsel for the appellants before us, the basis of the challenge also includes the right to a fair trial on appeal, which they say is also likely to be infringed if there is no Court reporter to record and transcribe the proceedings in the Magistrates' Courts for use on appeal.

16

The learned judge painstakingly and correctly set out the law which governs the recording of proceedings in criminal trials. The relevant provisions, as noted by him, are found in sections 105 of the Criminal Procedure Code Act, 77 of the Supreme Court Act, and 102 of the Magistrates Act. In as much as counsel has also raised the question of a fair hearing on appeal without transcripts from the Magistrates' Courts, I will further refer to the statutory provisions relating to records of criminal appeals.

17

The overarching provision appears to be that set forth in section 105 (1) of the Criminal Procedure Code Act, which empowers the Chief Justice to give directions from time to time, as to the manner in which evidence or the substance thereof shall be taken down in all criminal proceedings. The exercise of that discretion, however, is stated to be subject to the provisions of section 77 which primarily govern the recording of proceedings in the Supreme Court,...

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