Maycock et Al v Commissioner of Police

JudgeHall, J.
Judgment Date28 April 1995
CourtSupreme Court (Bahamas)
Docket NumberNos. 63, 67, 68 & 84 of 1993
Date28 April 1995

Supreme Court

Hall, J.

Nos. 63, 67, 68 & 84 of 1993

Maycock et al
Commissioner of Police

Mr. J. Henry Bostwick, QC, and Ms. Cheryl Bazard with him, counsel for Nehemiah Maycock and Melvin Maycock.

Mr. Howard Hamilton, QC, and Mr. Roger Minnis with him, counsel for Tom Rae McPhee.

Mr. Berthan Macaulay, QC, and Mr. Elliott B. Lockhart with him, counsel for Lealand Curling.

Mr. Bernard Turner, for Commissioner of Police.

Practice and procedure - Appeals process in the Bahamas

Criminal law - Appeal against conviction — Conspiracy by police officers to commit drug offences — Finding by court that magistrate complied with relevant provisions of C.P.C., s. 105 in finding existence of conspiracy — Finding that no prejudice was occasioned to any defendant by failure to try them separately — Finding also that the anti drug enforcement authorities employed no coercive or oppressive tactics — Appeal against conviction dismissed.

Hall, J.

The appellants all appeared before a Stipendiary and Circuit Magistrate, with two other persons, charged with offences under the Dangerous Drugs Act, Ch. 213 (“the DDA”). The appellants were each convicted of conspiracy to possess dangerous drugs and conspiracy to possess dangerous drugs with intent to supply. The other two persons charged were acquitted of both counts and the appellant Melvin Maycock was acquitted of the substantive charges of possession of dangerous drugs and possession with intent to supply.


Before I proceed to consider these particular conjoined appeals, I would make the following observations concerning the need to have the process of appeals from the magistrate's court reviewed in the light of circumstances prevailing in The Bahamas at present. I have canvassed the views of my fellow judges on this question and, save for matters of detail where views might vary, they support the proposals I now make.


These appeals required four days to be argued - spread between 9 and 30 January; and, while cynics might suggest that this would have been entirely due to the loquacity of counsel, it appears to me that the issues canvassed did indeed require that amount of judicial time for those issues to be explored and ventilated as fully as they have been.


By section 230(a) of the Criminal Procedure Code Act, Chapter 84 (“the CPC”), appeals from decisions of a Stipendiary and Circuit Magistrate (“S & C Magistrate”) lie to the Supreme Court. By section 36 of the Supreme Court Act, Chapter 41:

“The court shall sit for the hearing of appeals once at least every three months throughout the year, and, if no other time be appointed for such sitting, it shall take place immediately after the closing of the sessions:

Provided that it shall be lawful for the court to sit for such purpose at any other time or times if the Chief Justice deems it expedient.”


It is notorious in The Bahamas that, before Parliament began the escalation of penalties under the DDA in 1980, the allocation of time to hear appeals as contemplated by section 36 of the Supreme Court Act was more than sufficient. Indeed, it was an open secret that, with the irregularity of appeal fixtures in the Supreme Court, and the automatic release on bail when an appeal is filed from the magistrate's court (section 234 of the CPC), some persons were able to “play the system” by filing notices of appeal following their conviction in the magistrate's court, secure in the knowledge that it might be years, if ever, before the appeal would be heard. Proof that the number of appeals is inflated by drug related matters is demonstrated by the fact that if one were to subtract such cases from the current volume of magistrate's appeals, the number of appeals outstanding would be seen to shrink dramatically.


Although appeals are heard by a judge sitting alone, apart from the mental adjustment of shifting from a trial mode to an appeal mode, the number of appeals and the complexity of some of them result in the ordinary work of the Supreme Court, i.e., trials, being subordinated to those matters during such time as a judge is assigned to hear them.


The nature of the appeal process is that, apart from the disposal of the particular case, the appellate courts “write the law” for the lower courts under the system of stare decisis. However, our present appeals system presents certain anomalies. Firstly, although the magistrate's appeals often present novel legal questions or settled questions in newer contexts, by section 17 (1) of the Court of Appeal Act, Chapter 40, a further appeal to the Court of Appeal is only available when the ground of appeal:

“…involves a question of law alone but not upon any questions of fact, nor of mixed fact and law, nor against severity of sentence…”

When one considers that the Court of Appeal, by its nature and by its position in the hierarchy of courts, writes most of the law in any legal system, the limited access to that court following trials in the magistrate's court is seen not to be fair either to the convicted person (who may lack the funds for a second appeal) or to the prosecution, or conducive to the development of law in the society.


Secondly, if the appeal is from the decision of a lay magistrate (that is, a Family Island Commissioner) (vice section 2 of the Magistrate's Act, Chapter 42) or justices of the peace; sitting in panels of two or singly (vice sections 8 through 10 of the Magistrate's Act), the first appeal is to the Chief Magistrate or an S & C Magistrate (vice section 230(b) of the CPC) but, thereafter, the appeal is to the Court of Appeal on the same terms as applies to further appeals from the Supreme Court (vice section 17(2) of the Court of Appeal Act) but such a person may, apparently, appeal against severity of sentence.


That appeals against the severity of sentence are excluded by section 17(1) of the Court of Appeal Act, does not, in my respectful opinion, take account of the fact that, statutorily, the powers of magistrates (not only S & C Magistrates) to impose lengthy prison sentences has, over time, progressed beyond the six-month limit on summary offences contemplated by section 115 (5) of the Penal Code and by section 9(2) (b) of the CPC.


Having highlighted what is perceived to be the current problems, in this judgment I refrain from making any specific suggestions for amendment. I would defer to such proposals as should be initiated by the Chief Justice who, apart from the general consultation with judges to which I refer in paragraph two, has had the opportunity to see and comment on the draft of paragraphs 2 through 9 of this judgment.


The case on which the appellants were convicted arose out of - to employ well-known popular language - a “sting” operation mounted by agents of the Drug Enforcement Agency of the United States of America (“the DEA”) acting in conjunction with the Drug Enforcement Unit (“DEU”) of the Royal Bahamas Police Force. DEA agent Ramsey testified that in the course of this undercover operation he “used” Allan Watson and Andrew Chambers to whom he gave $30,000 in U.S. currency, the serial numbers of which he had recorded.


On 3 August 1991, after he had met with Assistant Superintendent of Police Reginald Ferguson of the DEU, Ramsey went to a waterfront restaurant from which he observed Watson in the company of the appellant Munroe and two other men. He took photographs of the four men. Two days later, following a telephone conversation with Watson, Ramsey flew to Exuma where he observed the same boat at two different settlements. On 6 August, following a further telephone conversation with Watson, Ramsey, accompanied by ASP Ferguson, went to Paradise Island where Watson and Chambers presented a bag containing cocaine to them. Later that day the four men, who were joined by Assistant Superintendent of Police Kirklyn Hutcheson, met in a room at a hotel in Cable Beach. ASP Ferguson placed the cocaine above the ceiling in the bathroom in that room in which a radio transmitter was also concealed - a receiver being installed in the adjoining room.


At about 10:13 that evening, the appellant McPhee met in the first room with Watson and Chambers and Ramsey recorded 80 minutes of conversation between them.


On 7 August, that is, the following day, Ramsey and the DEU officers took up positions around the room in which the cocaine had been secreted. The appellant McPhee came to the room and left after a few minutes with a backpack. He was apprehended and a search of the backpack revealed the cocaine which had been earlier placed in the ceiling. At the time of his apprehension, McPhee had $1,400 in United States currency in $20 bills, 62 of which had numbers which corresponded to the notes which Ramsey had given to Watson and Chambers four days earlier.


Watson had testified that, after he and Chambers had been given the $30,000 by Ramsey and ASP Ferguson, they had met with McPhee at his (Watson's) residence in Sea Breeze Estates. They were joined by the appellant Curling and together they had gone to a dock at West Bay Street where they were met by a person whom he did not know. He exchanged $6,000 of the money from Ramsey for $6,000 in Bahamian currency with McPhee. The appellants Munroe and Lemuel Maycock joined them, and these two, along with Watson and Curling, left the harbour (with Munroe piloting the vessel) for Ragged Island - after a brief stop in Exuma to repair an engine. Watson identified the members of that party on one of the photographs which had been taken by Ramsey and tendered in evidence.


At Ragged Island, Curling conducted them to a house which he identified as belonging to his brother where Watson counted the money he had received from Ramsey. Curling had been joined by two other persons, Melvin Maycock and Nehemiah Maycock, whom Watson said “he had known from Nassau”. After an interval, Nehemiah...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT