Lockhart v the Superintendent of Prisons and the Attorney General

JudgeAllen, P.,Conteh, J.A.
Judgment Date18 November 2015
Neutral CitationBS 2015 CA 139
Docket NumberSCCrApp & CAIS No. 268 of 2014
CourtCourt of Appeal (Bahamas)
Date18 November 2015

Court of Appeal

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

SCCrApp & CAIS No. 268 of 2014

The Superintendent of Prisons and the Attorney General

Mr. Desmond Bannister for the appellant.

Mr. Franklyn Williams with Ms. Anishka Hanchell and Ms. Kristan Stubbs 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] A.C. 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 — Autrefois acquit — Whether the doctrine of autrefois acquit could apply where the appellant had been acquitted previously on conspiracy charges but the extradition request did not relate to the charges on the prior offences committed — Consideration of R v. Beedle [1997] 2 Cr App Rep 167 — Admissibility of evidence — Whether the trial judge erred in misrepresenting the admissible evidence deduced with respect to the appellant where there was evidence that the appellant was present on the boat and intercepts of telephone conversations between the parties — Insufficiency of the evidence — Vocal identification — Whether the subsequent identification of a voice made the evidence inadmissible Whether the trial judge erred in failing to consider errors of law and fact made by the Court of committal — Limits of the authorisations — Whether the circumstances of obtaining the telephone intercepts were going outside the limits of the authorisations make the evidence in intercepts necessarily inadmissible — 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 — Legitimacy and constitutionality of the evidence obtained as a result of wire intercepts purportedly authorised by section 5(2) of the Listening Device Act — Consideration of Gordon Newbold et al v. The Attorney General of the Commonwealth of the Bahamas et al [2014] U.K.P.C. 12 — Prima facie case — Whether the evidence in support of the request for extradition disclosed a prima facie case against the persons whose extradition was requested — Consideration of Re Al — Fawwaz — Wilful or deliberate act done by anyone in authority — Whether there was an order by a superior court to have the extradition proceedings before the magistrate stayed — Consideration of Roberts & Others v. The Minister of Foreign Affairs & Others [2007] U.K.P.C. 56 — Delay in extradition proceedings — Issue of remittal to the magistrate — Appeal dismissed — Finding that there was no error by the trial judge in refusing the grant of habeas corpus — Finding that the committal of the appellant to await extradition on the charges on which he was committed by the magistrate to await extradition affirmed — Sections 11 and 7(2) of the Extradition Act.


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 the appellant began before the Deputy Chief Magistrate, as she then was, when he was apprehended in 2004.

Following disposal of the legal challenges to the Listening Devices Act (LDA), which was appealed to the Court of Appeal and to the Privy Council, the learned magistrate committed the appellant to await extradition.

Consequent to that committal, the appellant sought a Writ of Habeas Corpus in the Supreme Court. After the hearing of the application for the Writ, but before the decision, the Privy Council ruled on 16 April 2014 on the LDA appeal. The Privy Council dismissed the appeal against the constitutionality of Section 5(2)(a) of the LDA, but allowed the appellants to open investigations during the extradition proceedings as to whether the limits of the authorizations were observed if no findings had been made.

The judge denied the appellant's request for habeas corpus. The appellant appealed that decision to this Court.

On appeal, the ability of Justice Conteh to sit and hear the appeal was raised as a preliminary point.


Held: appeal dismissed.

per Allen, P.: The Constitution does not ascribe a meaning to the phrase “proceedings commenced before him” in Article 102(2); but in the 7th edition of Black's 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”.

Consequently, as this appeal was filed 2 October 2014 and came before the panel which included Mr. Justice Conteh originally on 24 April 2015, this appeal was a proceeding which commenced before him before he celebrated his 70th birthday.

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.

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, as the Board observed in paragraph 16 of its judgment.

As to the plea of autrefois acquit, the magistrate before whom the appellant was charged with the offences mentioned in paragraph 32 (above) disposed of the charges pursuant to section 203 of the Criminal Procedure Code Act which provides that where a no case submission is acceded to, the magistrate shall ‘acquit and discharge’ the defendant.

In respect of the first charge, there is no like charge for which the appellant's extradition is requested.

Notwithstanding the acquittal of the defendant on the second charge, it does not follow that without more, the plea of autrefois acquit would be available to prohibit the appellant's extradition on the conspiracy count of importation of cocaine and marijuana into the US during July 1999 and April 2004, simply because the date of the second charge falls within that period.

With respect to the availability of the plea of autrefois convict, exhibits TML 6 and TML 7 to which the appellant refers in his affidavit as evidence of his conviction of an offence of Possession of Dangerous Drugs With intent to Supply allegedly committed on 15 August 2003 at New Providence, and which he asserts is identical to those for which his extradition is requested, do not note a conviction. Moreover, there is no offence of possession charged against the appellant in the US Indictment for which his extradition is requested. For the reasons already stated, the principle of autrefois does not apply.

We find the complaint that the subsequent identification of the voice identified as that of the appellant is inadmissible, totally without merit. The identification of voices in this way is no different from a witness to an incident who after observing a stranger committing a crime, purports to recognize and identify him at a later date either on an identification parade, or at a confrontation, or on the street.

As to the complaint that the learned judge misinterpreted the admissible evidence against the appellant, we are satisfied that he did not so err, and that he correctly found that the evidence contained in the affidavits of Ian Rodgers, William Stevens, Shakiel Mackey, Anthon Humes and Patrick Clarke was ample evidence to raise a prima facie case of the appellant's participation in the offences for which committal to await his extradition was ordered.

As we find no error by the learned judge in refusing the grant of Habeas Corpus, the appeal is dismissed. The committal by the magistrate of the appellant to await extradition is likewise affirmed.

The appellant is therefore ordered to be committed to the custody of the Department of Correctional Services to await his extradition on the charges on which he was committed.

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


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