Malik Wright v The Commissioner of Police

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 29 March 2021
• Neutral Citation: BS 2021 CA 45
• Date: 29 March 2021
• Docket Number: MCCrApp. No. 60 of 2020
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA

The Honourable Madam Justice Bethell, JA

MCCrApp. No. 60 of 2020

Between

Malik Wright

Intended Appellant

and

The Commissioner of Police

Intended Respondent

APPEARANCES:

Mr. Rouschard Martin, Counsel for the Intended Appellant

Mrs. Abigail Farrington with Mrs. Olivia Pratt-Nixon, Counsel for the Intended Respondent

Attorney General v. Omar Chisholm MCCrApp. No. 303 of 2014 applied

Commissioner of Police v Linty Stuart MCCr.App. No. 139 of 2016 applied

Karchav v. The Commissioner of Police [2015] 2 BHS J. No. 6 considered

Li and others v Commissioner of Police [2020] 3 LRC 451 considered

Pavlovski and another v Commissioner of Police [2016] 2 BHS J. No. 59 distinguished

R v Forde [1923] 2 KB 400 applied

Twaddle v R Criminal Appeal No. 16 of 1969 applied

Criminal appeal — Application for an extension of time within which to appeal — Fraud by false pretences — Causing damage — Unauthorized access to a computer — Sections 231(1), 233 and 235(2) of the Criminal Procedure Code — Section 3(1) of the Computer Misuse Act — Sections 13(2) and 14(1) of the Court of Appeal Act

During the course of an argument on 9 May 2020 the intended appellant took possession of a cell phone belonging to Devanique Dean. Thereafter, he smashed Dean's cellphone causing total damage. About two days later, Dean was alerted that nude photos of her were circulating on social media. Additionally, Dean had reason to check her Scotiabank account and discovered that the intended appellant had made various unauthorized purchases using funds from her account. Dean made a complaint to the police. Investigations revealed that Dean's data from her cellphone, inclusive of her photos and banking information, had been downloaded to and disseminated from the intended appellant's laptop. As a result, thereof the intended appellant was arrested and charged with the offences of fraud by false pretences, causing damage and unauthorized access to a computer. He pleaded guilty and was convicted. As a result, he was sentenced as follows: fraud by false pretences — nine months' imprisonment and ordered to compensate Dean for the unauthorized charges made to her bank account, in default of which he would serve an additional nine months' imprisonment; causing damage — nine months' imprisonment and ordered to compensate Dean for the cost to replace her cell phone and unauthorized access to a computer – nine months' imprisonment. He now applies for an extension of time within which to appeal his convictions and sentences.

Held: application for an extension of time denied; convictions and sentences affirmed.

The factors to be considered on an application for an extension of time are well-known: the length of the delay, the reasons for the delay, the prospects of success and the prejudice, if any, to the intended respondent. In calculating the period of delay, it must be noted that time continues to run until the application for an extension of time is filed.

In this case the intended appellant was out of time by over three months and there was no explanation given for this period of delay. Regarding his prospects of success, pursuant to section 233 of the Criminal Procedure Code, an intended appellant who pleaded guilty is barred from appealing their conviction, unless it can be demonstrated that their guilty plea was equivocal. As that is not the case in this intended appeal, the intended appellant's prospects of successfully appealing his convictions are nil. Relative to the intended appellant's prospects of success on appealing his sentences, save for the sentence imposed relative to the offence of unauthorized access to a computer, the prospects of success are also nil.

Regarding the intended appellant's sentence of nine months for the offence of unauthorized access to a computer, the intended appellant was charged pursuant to the section 3(1) of the Computer Misuse Act. That section provides for a maximum penalty of imprisonment of six months for a first-time offender. In the circumstances, the intended appellant has good prospects of succeeding on his appeal against that sentence. The Court, however, relies on the proviso to section 13(2) of the Court of Appeal Act and refuses the application for an extension of time.

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1 . On 17 September 2020, we heard the submissions of Counsel and thereafter reserved our decision in this matter. We render it now. However, before entering into the matter further, the Court expresses its regret and apology for the time it has taken to deliver its judgment bearing in mind that the intended appellant had only been sentenced to a cumulative period of nine months' imprisonment. For the reasons that are readily apparent from the judgment below, we decline to exercise our discretion to extend the time within which to appeal. As a consequence, the convictions and sentences imposed by S&C Magistrate Samuel McKinney (“the Magistrate”) are affirmed.

Background

2 . The Magistrate has helpfully outlined the Prosecution's case against the intended appellant; and I gratefully adopt and reproduce it here as follows:

“Ms. Devanique Dean, virtual complainant, reported to Officers at the Central Detective Unit that sometime on May 9, 2020, Malik Wright, the defendant with whom she has a child, took possession of her Apple I Phone 7 during an argument. After taking possession of her phone, he smashed it causing total damage. The value of the I Phone is three hundred and ninety nine ($399) dollars.

Sometime on May 11, 2020, Ms. Dean reported that she was contacted by a friend. The caller informed her that sexually explicit nude photographs of her were circulating on social media. Ms. Dean went on social media and saw images of her depicted in photographs in the nude. According to Ms. Dean, she recognized the photographs to be nude images of her, which she had taken of herself and stored in her I Phone as personal property. She had intended for the images to be kept private and did not share them with anyone or authorized anyone to access or publish them.

Ms. Dean further reported that she had reason to check her Scotiabank online bank account. Whilst doing so, she recognized financial transactions which she had neither performed nor authorized anyone to perform on her behalf. In the course of making inquiries into the unauthorized transactions on her online bank account, she discovered that the defendant had made purchases from Amazon online by the unauthorized use of her online bank account.

The defendant made unauthorized online purchases by use of the complainant's online bank account for his personal benefit. The defendant purchased two pairs of Air Jordan tennis shoes, tattoo needles, Logitech Speaker System, mini refrigerator, coffee stand and four sets of piercing needles together valued at one thousand one hundred and sixty ($1,160.00) dollars.

Acting upon the complaint registered by Ms. Dean, Officers cautioned and arrested the defendant as a suspect for committing the offences. In the course of their investigation, the defendant's laptop was confiscated. The investigators from the information technology section in the Central Detective Unit were able (sic) access data stored on the defendant's laptop and view them.

The IT investigators were able to establish that there were communication link between the defendant's laptop and the complainant's I Phone. According to the officers, their investigation revealed that data which was stored on the complainant's Apple I Phone was downloaded to the defendant's laptop. The downloaded data included the complainant's online bank account information that was stored in her I Cloud App and nude photographs of the complainant.

The analyzed data showed that the nude images of the complainant that were downloaded from her I Phone to the defendant's laptop were disseminated from his laptop to social media.”

3 . The intended appellant was charged with a number of offences before the Magistrate namely, Fraud by False Pretences, contrary to section 348 of the Penal Code (“the P.C.”), Causing Damage, contrary to section 328(1) of the P.C. and Unauthorized Access to a Computer, contrary to section 3(1) of the Computer Misuse Act. On 21 May 2020 he pleaded, “Guilty” to all of the charges; and the Magistrate sentenced him as follows:

• “a. Fraud by False Pretences — Nine months imprisonment at the Department of Corrections. The defendant is ordered to compensate the complainant one thousand one hundred and sixty ($1,160) dollars, the amount of the fraudulent transactions on her online bank account. In default of compensation the defendant is to serve an additional nine months imprisonment.

• b. Causing Damage — Nine months imprisonment at the Department of Corrections and compensate the complainant three hundred and ninety nine dollars, the cost to replace her damaged I Phone.

• c. Unauthorized Access to a Computer—Nine months imprisonment.

Sentences are to run concurrently.”

4 . On 29 May 2020, the intended appellant filed a Notice of Appeal. The grounds of appeal are as follows:

• “1. The Learned Magistrate erred in law by allowing the prosecution to proceed with the matter despite its failure to provide a charge sheet, police interview statements and other relevant documents to Counsel for the Appellant, particularly in circumstances whereby a formal request for copies of the same was made;

• 2. The Learned Magistrate erred in law by failing and or refusing to order that all relevant documents be provided to Counsel for the Appellant, thereby ensuring that Counsel was properly aware of all of the charges against the Appellant and in a position to properly advise the Appellant in respect of the same;

• 3. The Learned Magistrate erred in fact and...