Miller et Al v Commissioner of Police

JurisdictionBahamas
CourtSupreme Court
JudgeIsaacs, Sr. J.
Judgment Date08 Aug 2013
Docket NumberCRI/CON 16 of 2013

Supreme Court

Isaacs, Sr. J.

CRI/CON 16 of 2013

Miller et al
and
Commissioner of Police
Appearances:

Mr. Thomas Evans, Miss Kimberley Evans and Mr. D. White for the applicants

Miss Gillian Williams for the respondent

Constitutional Law - Fundamental rights and freedoms — Whether the right to protection of private property pursuant to Article 27 of the constitution was violated — Detention of sum of money — Effect of money exhibited in trial — Exceptions to compulsory acquisition of property pursuant to Article 27 (2)(j) of the constitution — Adequate alternatives relief — Whether more possession sufficient for court to direct payment of money to first applicant — Powers to the executive to seize and retain goods are to be controlled by the courts — Article 27 and 28 of the constitution — Sections 34 and 37 of the Police Act — Sections 112 and 77 of the Criminal Procedure Code — Sections 46 and 47 of the Proceeds of Crime Act.

Isaacs, Sr. J.
1

Emmeth Colin Miller (hereinafter referred to as “the first applicant”), along with Deloris Debbie Miller, Bruno Evans Miller, Dave Miller and Marva Miller (all hereinafter referred to as “the applicants”) filed a Notice of Originating Motion on 14 May 2013 seeking a Declaration from the Court in the following terms:

“1. A Declaration that the continuing detention of the sum of US$474, 790.00 taken from the applicant by the Police at the time of his arrest on September le, 2000 on a number of charges, including possession of money that was the proceeds of drug trafficking on which charges he was discharged by Order of the Supreme Court, which Order was affirmed by the Court of Appeal, is a violation of the right to protection of private property protected by Article 27 of the Constitution of the Commonwealth of The Bahamas.”

2

Also sought was: an Order that the US$474, 790.00 be returned to the applicant forthwith or alternatively that pursuant to section 112 of the Criminal Procedure Code or under the inherent jurisdiction of the Supreme Court an Order be made for the money to be returned to the applicant.

BACKGROUND
3

I have adopted much of what is said to have transpired at the North Andros airport on 16 September 2000 from the decision of Stipendiary and Circuit Magistrate Carol Misiewicz dated 30 August 2006 when she ruled on the submissions of no case to answer. I do so because no suggestion has been made that the learned magistrate fell into any factual error. I have also had regard to the trial transcripts.

4

On 16 September 2000 Emmeth Miller, Deloris Miller, Alberto Miller, Bruno Miller, Marisma McDonald and a young child arrived at North Andros airport on a Black Hawk International Airways flight from Opa Locka, Florida, United States of America. They were returning home to Conch Sound where they all lived. They entered the customs hall to clear Customs. Marisma McDonald made an oral declaration to trainee Customs officer Renardo Newton, pointed out her bags to him and was cleared by him. Newton's evidence suggests Alberto was treated similarly.

5

Deloris Miller presented a written Customs Declaration form signed by her. It listed four packages and six persons traveling in the party. However, it was Newton's estimation that there were about ten boxes and bags in the Customs hall and on a trolley on the “air side” of the terminal. Nevertheless, Newton cleared Deloris Miller; and by extension those listed on her declaration.

6

While still in the Customs hall, Mr. Newton was approached by police officer Woodside who, in the presence of some of the Miller family told Newton that he wished to see those persons who disembarked off the flight. This seems to have caused some protests from members of the group. Mr. Newton went to secure the money he had been paid as the assessed duty of the declared items. As this was going on Dave Miller grabbed a box with a U-Haul logo on it off the trolley and ran toward an idling truck parked some twenty-five yards away. He was pursued by police officer Bowe who had accompanied Woodside to the airport. Dave tried to throw the box into the truck but without success and before he could make a second attempt, he was tackled by officer Bowe.

7

The box was searched and inside was a sum of money which had not been declared to Customs officer Newton. The police counted the money and it amounted to US$479, 690.00. When questioned by the police, the First applicant stated that he had been asked by one Herculean Thompson to collect some money for him while he was in the United States. The first applicant said he was given the money by a white woman who he did not know. The money was intended for Mr. Thompson. Herculean Thompson gave evidence at the trial and denied asking the First applicant to collect and bring any money to The Bahamas from the United States for him.

8

The applicants were charged with multiple offences including the offence of Possession of Property Derived From Participation in Drug Trafficking, contrary to section 20(2)(a) of the Tracing and Forfeiture of Proceeds of Drug Trafficking Act. The money had been seized by the police as evidence in the case against the then defendants; and the money was exhibited in the trial.

9

The first applicant was interviewed by the police and responded to a question relating to his possession of the money by explaining it was not his but he was delivering it to Herculean Thompson. Curiously, it is this admission which grounds the applicants claim to the money and the Rospondent's opposition to his claim.

10

There were a number of challenges raised by the defendants before the magistrate and the Supreme Court which ultimately resulted in a stay of the proceedings against them being granted by Hall, C.J. in 2009; but not before Magistrate Misiewicz had rendered a ruling on a no case to answer submission in 2006. Her decision on the facts may be of some moment to my decision as she did find that a prima facie case had been made out against the First applicant on counts one and two, to wit, Possession of Property derived from Participation in Drug Trafficking and Laundering Proceeds of Crime.

11

In 2012 the first applicant applied to Stipendiary and Circuit Magistrate Archer for the return of the money pursuant to section 112 of the CPC but the learned Magistrate ruled that the magistrate's Court was not the proper forum for the application. Notwithstanding her disinclination to make the order sought she seems to have concluded that the First applicant was entitled to have the money returned to him. Dissatisfied with that result, the First applicant applied to the Supreme Court under Articles 27 and 28 of the Constitution and also under section 112 of the CPC or the inherent jurisdiction of the Supreme Court for the return of the money.

12

When the matter came on for hearing before me, counsel for the respondent indicated they were not ready to proceed; and requested an adjournment. However, rather than adjourn the case immediately I decided to hear from Mr. Evans since I did not wish to lose any of the time allotted for the hearing. Mr. Evans submitted that the First applicant was entitled to the return of the money because the police had seized it from him, it had been the Prosecution's case he was in possession of it and all proceedings against him had come to an end hence there was no authority in the police to retain the money. Those in a nutshell were the submissions of the First applicant. I then adjourned the case to await the respondent's submissions.

13

On the adjourned date Miss Williams raised a number of preliminary objections to this application. The first she argued was that no order could be made by the Court under section 112 of the CPC. Second, under the Constitution the property taken must belong to the person from whom it is taken. Third, the money was exhibited during the trial hence it does not lie within the power of the respondent to return the money. And fourth, the first applicant had disavowed ownership of the money when he was interviewed by the police so he could make no claim to the money. I agree entirely with the third of Miss Williams' submissions but I must confess some hesitancy in accepting the second and fourth. For reasons that appear later in this judgment I do not offer any concluded view on her second objection. I propose to deal with the four issues in no particular order.

14

When one has regard to section 112 of the CPC it is clear that the “court” referred to in that section is for the purposes of this application a magistrate's court. The section reads:

“112. Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order

(a) that the property or any part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he direct; or

(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged”.

15

As the first applicant had been charged in a magistrate's court, under section 112 it was for the magistrate to restore the property taken by the police. The proceedings having been stayed by Hall, C.J. the magistrate could no longer exercise the jurisdiction conferred by section 112. On the view I hold, no relief can be afforded to the first applicant by me under this section. My conclusion as to the unavailability of section 112 as a source of redress means I need not enter into consideration on whether it matters to the exercise of the Court's discretion that the money was not found on the First applicant's person.

16

The fact that the money was exhibited in the trial is a powerful argument against this Court making the Declaration sought against the respondent. When an...

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