Major and Major v the Government of the United States of America, the Minister of Foreign Affairs, the Superintendent of Prisons and the Attorney General of the Commonwealth of the Bahamas
| Jurisdiction | Bahamas |
| Judge | Hall, C.J.,Gonsalves-Sabola, J. |
| Judgment Date | 01 July 2008 |
| Court | Supreme Court (Bahamas) |
| Docket Number | PUB/JRV 20 of 2006; PUB/JRV 21 of 2006 |
| Date | 01 July 2008 |
Supreme Court
Hall, C.J.
PUB/JRV 20 of 2006; PUB/JRV 21 of 2006
Mr. Philip Davis, Mr. Jerone Roberts and Mr. Kean Smith with him, for alleged contemnor.
Mrs. Cheryl Grant-Bethel, Acting Director of Public Prosecutions, Ms Sandradee Gardiner and Mrs. Melissa Wright–Knowles, with her, holding a watching brief on behalf of the Attorney General, at the invitation of the Court.
Counsel: Berthan Macaulay, Q.C., with David Bethell and Elliott Lockhart for the contemnors.
Civil practice and procedure - Contempt of court — Publication of false account of proceedings by an attorney of the court — Whether commitment to prison was the appropriate penalty.
On 28 May 2008, I caused the Registrar to issue the following Notice to Mr. Keod Smith, a Counsel and Attorney of the Supreme Court:
TAKE NOTICE THAT YOU ARE ORDERED to appear in open court at the Supreme Court (Marlborough Street) Annex before the Honourable Sir Burton Hall, Chief Justice, on Friday, 2nd May, 2008, at 11:00 in the forenoon, to show cause why you should not be committed to prison for contempt of court committed by you by scandalising the Court in falsely stating, in the course of interviews of you broadcast by radio on “Island FM” and by television on Cable Channel 12 “Newsbreak” on Friday 18th April and by radio on “More FM”, The Last Word, on Sunday 20th April, that during the proceedings in the above intituled matter presided over by the said Chief Justice on Thursday 17th April, he (the said Chief Justice) had stated that he “did not care about the Majors” and had told Mr. Bernard Turner, Director of Public Prosecutions, that they could “do what they wished” and “do as they saw fit” and, by such false and misleading account of the said proceedings, imputed unjudicial conduct by the presiding judge in conspiring and colluding with the Director of Public Prosecutions and others in the removal of the applicants from The Bahamas.
The background to this matter is as follows: On Thursday, 17 April, 2008 I had concluded the hearing of applications, by the above named applicants for judicial review of a warrant of surrender signed by the Minister of Foreign Affairs on 18 July 2006 begun before me on 10 October 2006, pursuant to leave granted on 21 July 2006. On the final day of the hearing, Mr. Smith, counsel for the applicants following upon certain rulings that I had made as to the conduct of the application, sought, and was granted leave to withdraw as counsel after I had heard from the applicants on his application to withdraw and had informed them that, if Mr. Smith withdrew, I would not entertain any application for a further adjournment to enable them to instruct new counsel.
On Friday, 18 April, the several electronic media broadcast news items that the applicants had, in the course of that day, been taken out of The Bahamas and I heard an interview of Mr. Smith carried in the 6:00pm news broadcast by Island FM, in which he attributed to the presiding judge at the judicial review hearing certain statements which I (as the judge in question) knew to be incorrect and misleading. I, therefore, decided to satisfy myself that I had correctly heard Mr. Smith and I listened to the news broadcast by every other station that evening but, wisely, none of them repeated that portion of the interview with Mr. Smith broadcast on Island FM (nor did any of the print media on the following day). It is, however, the practice of to broadcast a televised version of its news, as “Newsbreak”, on cable TV on the Community Channel, and it is usually aired on three occasions that evening. I made a videotape recording of the interview as broadcast at 7:30pm (and later repeated) and, as transcribed, Mr. Smith is shown saying as follows:
( Ms. munnings, News reporter): Friday's extradition was no surprise to the Majors' attorney, Keod Smith. He told us friday that he recused himself from his clients' judicial review of their extradition case clearly because of conspiracy.
Attorney Smith said that he did not approve of the Supreme Court judge's actions during this week's hearing and he felt that it was necessary for him to leave. But once he did that, by law the Majors were required to have another attorney present and that allegedly didn't happen.
Keod smith: He was going to vacate the initial order granted for leave to proceed and in so doing would have lifted all that was there, having no regard for all of the other outstanding matters and a regard for all of the other outstanding matters and a number of other things. Then indicated, said openly in the earshot of my clients, that mr. turner and those can do what they wish and that he did not care about dwight and keva major. he said those words form the bench. he didn't care about them and they can – they know what to do, meaning mr. turner and those know what to do and they can do as they see fit. (emphasis added)
The transcript of the proceedings of 17 April confirms my own recollection that I did not make the statements attributed to me by Mr. Smith.
On Sunday, 20 April 2008, Mr. Smith was interviewed on a talk show, “The Last Word” broadcast on a different radio station, More 94 FM and, cognizant of the course that I had determined I was duty bound to take, I made an audiocassette recording of that programme as broadcast and, as transcribed, Mr. Smith said on that occasion:
There is a question even whether that Order – whether the Order granting leave for judicial review could be vacated in the manner in which it was because my understanding – and I stand corrected on this – I stand to be corrected on it – my understanding is once leave is granted by a Supreme Court judge, that Supreme Court judge cannot vacate it. It has to be vacated on appeal.
And so, therefore, I do not understand what took place, You accede to allowing the lawyer to leave; you refuse to allow a new lawyer to be put in place, then you vacated the order and the very next day, interestingly enough, after certain utterances would have been made from the Bench – which is a matter of public record because it was in open court – that the Attorney-General's office could do whatever it is they feel that they need to do – and the very next day two Bahamian citizens who have other constitutional rights here, other outstanding matters, are taken out of the country and find themselves in Florida…
The law, substantive and procedural, on contempt of court, in The Bahamas was carefully and lucidly articulated by Gonsalves-Sabola, J., as he then was, in Caves Company Limited v Kenneth McKinney Higgs et al, and In The Matter of a Contempt of Court committed by Kenneth McKinney Higgs and James M. Thompson, Common Law action No. 866 of1986, and I regard it as such a complete statement of the law that I have taken the liberty of annexing it to this judgment because I consider it otiose to repeat the principles of law here.
Mr. Smith, accompanied by counsel, appeared before me on 2 May, in obedience tc the Notice. I directed that a copy of:
(a) the videotape recording of the “Newsbreak” telecast of 18 April;
(b) the audiocassette recording of “The Last Word” broadcast of 20 April;
(c) transcripts of each of the above items, and
(d) a transcript of the proceedings in court of 17 April.
be, handed to counsel for Mr. Smith and I adjourned the mater for seven days to permit NI, Smith to consider this response.
On the resumed date, Mr. Davis, citing In the Matter of a Reference from the Bahama Islands [1893] A C, tentatively, took the point that the Notice appeared to be flawed as it presumed guilt on the part of the alleged contemnor. He also suggested that the Court should have referred the complaint to the Attorney General.
On these preliminary objections, I was satisfied, adopting in their entirety the reasoning in Higgs that I had both the jurisdiction and the duty to cause this matter to be begun by the court of its own motion and any suggestion that the form of notice presumed guilt in the alleged contemnor was, in my view, cured by reading the notice as a whole which invited the alleged contemnor “show cause” and by the fact that he was offered a period of seven days to do so. As Gonsalves-Sabola, J. concluded in Higgs, at paragraph 8:
Where a court must rise to the protection of its own authority and integrity, it is wholly inappropriate for the judge contemned to abdicate his responsibility by saddling another judge of the court with the duty of dealing with the contempt committed. The historical development of the common law power of a judge to punish for contempt has proceeded independently of any consideration of the nemo judex rule of natural justice. Conceptually, the judge is not a “party” to a cause nor is the contempt he deals with his cause. It is the highest attestation to the character expected in a judge that the law as developed has never encouraged question of his capacity and inclination to balance with objectivity the multiple roles he plays where a contempt is committed within his cognisance. The application on Higgs's behalf that I recuse myself from the hearing would, if granted, have created an undesirable precedent, so it was rejected.
He continued, at paragraph 24
So it was essential that the contempt in question be met with prompt action. It was for that reason that I considered that the path of duty did not permit me simply to shrug off the blatant contempt that was in this case aimed directly at the administration of justice in its very seat. It must be borne in mind that the means used for the expression of the contempt was the originating process filed in the Court's Registry by which the court was being moved. This...
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