Joseph v Commissioner of Police; Knowles v Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Allen, P.,Blackman, J.A.,John, J.A. |
| Judgment Date | 13 December 2012 |
| Neutral Citation | BS 2012 CA 98 |
| Docket Number | Criminal Appeal 142 of 2012; Criminal Appeal 143 of 2012 |
| Court | Court of Appeal (Bahamas) |
| Date | 13 December 2012 |
Court of Appeal
Allen, P.; Blackman, J.A.; John, J.A.
Criminal Appeal 142 of 2012; Criminal Appeal 143 of 2012
Mr. Henry Bostwick Q.C, with Ms. Andre Moultrie for appellant
Ms. Darnelle Dorsett for the respondent
Criminal Law - Conspiracy to possess dangerous drugs with intent to supply — Conspiracy to import dangerous drugs — Appeal against conviction — Whether trial judge erred in determining issues of admissibility if wiretap evidence.
ALLEN. P.: 1. This is a conjoined appeal from the decision of the learned magistrate of 26th June, 2012, convicting each of the appellants of Conspiracy to Possess Dangerous Drugs with Intent to Supply, and Conspiracy to Import Dangerous Drugs contrary to the Dangerous Drugs Act. The appellants were sentenced on 18th July, 2012 to 18 months' imprisonment in respect of each count to run concurrently.
The particulars of the offences were that the appellants being concerned together and with others, did conspire to possess and to import into The Bahamas, a quantity of dangerous drugs, namely, cocaine, between 9th October, 2007 and 2nd November, 2007.
The evidence before the learned magistrate showed that a black bag with no name containing a kilo of cocaine was transported on the scheduled flight number 701 of Sky Bahamas, from Haiti to Nassau, on 2nd November, 2007, on which, the second appellant was a passenger.
The appellants were charged with the offences along with Manusca Dolce, an employee of the airline who pleaded guilty to the charges, and was sentenced to one year's imprisonment and a ten thousand dollar fine.
The evidence before the magistrate connecting the appellants to the offences included a number of police authorized wire taps, identification by Officer Woodside that the recorded voices were those of the appellants, the translation by Constable Rose Josue of the content of the wire taps from Creole to English, evidence from Mr. Richard Simms of Batelco that the first appellant was a subscriber of the phone to and from which calls were made and recorded, evidence from Detective Sgt. Weymond Demeritte that the first appellant was at the Customs Hall at the airport in Nassau awaiting the arrival of the plane on 2nd November, 2007, and, evidence of a conversation between the first appellant and Everette Pennerman in which the first appellant was reported to have made statements inculpating him in the conspiracy.
Indeed, the telephone conversations were intercepted by the police over the period of 17 days, namely from 16th October, 2007 to 2nd November, 2007. These included conversations, between the first appellant and Manusca Dolce; between the first appellant and a man called RoRol; between the first and second appellants; between the first and second appellants and ‘RoRo’; between the first and second appellants and Manusca Dolce; and one between the first appellant and his brother Harry Joseph. All of the intercepts were conversations relating to the second appellant's trip to Haiti and his purpose for being there, namely, to purchase and import drugs into The Bahamas.
The appellants remained silent before the magistrate, and did not call any witnesses in their defence.
The learned judge, after seeing and hearing the witnesses for the prosecution, and in a careful and well-reasoned ruling, which is recorded in the transcript at pages 493 to 506, convicted the appellants. At page 519 of the transcript, she also clearly sets out her reasons for sentencing.
The appellants appeal their convictions, and by Amended Notice of Motion filed herein on 27th July, 2012, each generally complains that: “The findings of the Learned Stipendiary & Circuit magistrate are not supported by the facts and the law”.
In support of this ground, their counsel raised three issues, namely that:
“(i) The learned magistrate erred in law on determining issues of admissibility with regard to the wiretap evidence;
(ii) The learned magistrate erred in fact as her decision is unreasonable and unsupported by the evidence;
(iii) In all the circumstances, the conviction is unsafe and unsatisfactory.”
Specifically, the appellants assert that they were entitled to know at the time of the interview that the officers conducting the interview were also the officers who conducted the wiretaps. They further contend that in addition to this information it was the appellants' right to know that the reason for the officers conducting the interview was to afford the officers an opportunity to make voice identifications. This, the appellants submit, was deceitful, misleading and a breach of their right against self-incrimination.
No authority is provided for the above assertions, but even if one were to take the appellants' arguments at face value and agree that there was deceit in the way in which the voice identification was obtained, it is an established principle that evidence is not prima facie inadmissible by reason of the manner in which it was obtained (see Kuruma v. R. [1955] A.0 197, R. v. Fox AC 281, Public Prosecution Service v. Elliot and McKee [2011] NICA 61 at paragraph 28).
Undoubtedly, it is open to a trial judge to exclude any evidence which appears to the Court that having regard to all the circumstances, including the circumstances in which the evidence was obtained, its admission would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it (see section 178 Evidence Act). Indeed, there was no such objection to the admission of this evidence at the trial, and the magistrate clearly had no misgivings about the evidence. We see nothing improper about the exercise of her discretion in this regard.
In further support of their case, counsel asserts that the learned magistrate made no attempt to match, and or, compare the voice of the accused to...
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