Miller Jr. v Bethel (deputy Chief Magistrate)
| Jurisdiction | Bahamas |
| Judge | Isaacs, S.J.,Isaacs, Sr. J. |
| Judgment Date | 29 November 2010 |
| Court | Supreme Court (Bahamas) |
| Date | 29 November 2010 |
| Docket Number | CRI/CRG No. 19 of 2010 |
Supreme Court
Isaacs, Sr. J.
CRI/CRG No. 19 of 2010
Mr. Murrio Ducille for the applicant.
Mr. Braithwaite for the respondent.
Criminal practice and procedure - Application for a transfer of defendant/applicant's case from defendant magistrate's court — Section 51 Criminal Procedure Code — Whether applicant receiving fair trial — Procedural error or wrong view of the law does not necessarily equate to unfairness — Application dismissed — Court did not find any bias or appearance thereof.
(1) The applicant, Freddie Miller Jr. applied for a transfer of his case from Magistrate's Court number 8 which is presided over by Deputy Chief Magistrate Carolita Bethell (hereinafter referred to as “the respondent”). I heard the submissions of Counsel on 24 November 2010. On completion of the day's hearing I adjourned the matter for decision. I render that decision now.
(2) The applicant, a nineteen year old resident of Joe Farrington Road, was charged with the offences of Possession of a Firearm and Possession of Ammunition. The charges stemmed out of an incident the prosecution alleged occurred on 4 October 2009 when a police officer, Sgt 1666 Dwight Smith, in his private vehicle going east on Bay Street noticed the applicant running west on foot in apparent pursuit of a group of men. The officer stopped his vehicle in the area of Hoffer and Sons and watched as the applicant took a shiny object out of his right waistband and pointed it in the direction of the group of men. The officer heard a loud sound like a gunshot. The officer exited his vehicle and shouted to the applicant, “Police; stop!”
(3) Sgt Smith said the applicant turned with the gun pointed in his direction and then ran in an eastern direction, that is, toward him. The officer took cover behind his vehicle as the applicant ran past and then pursued the applicant in an eastern direction and as he did so he observed when the applicant pointed the handgun at him and “click, click” sounds were heard. At one point in the chase the officer got close enough to the applicant to hold onto him and a struggle ensued. The officer became in fear for his life, pulled his service revolver and fired two shots.
(4) The applicant broke away and continued running east while the officer chased him. The officer was able to again catch the applicant in the area of the Red Hot club near the Police Tourism station. The applicant was tackled to the ground and in the struggle with the officer, threw the handgun away from himself into a gateway. After the applicant was subdued he was found to be suffering from a wound to his side. A handgun was recovered not too far away from him. He was taken to hospital where he was treated for his injury.
(5) He was arraigned before the respondent on 19 October 2009 and the case was adjourned to 31 March 2010. The applicant was released on bail pending his trial. On the adjourned date Miss Crystal Smith appeared for the applicant and advised the court that she was seeking an adjournment of the case because Mr. Ducille was before the Supreme Court in a criminal case. The respondent adjourned the case to 13 October 2010
(6) At the start of the applicant's trial in October Mr. Ducille alerted the respondent to his repeated requests of the prosecution to make the witnesses' statements available to him and the failure of the prosecution to provide him with same. He called on the respondent to assist. Unfortunately the respondent took the position that she could not order the prosecution to provide the defence with the statements. It should be noted that although the respondent asked Mr. Ducille to produce evidence of his requests that was never done; nor was such evidence produced before me. However, for the purpose of this application it is sufficient that an application was made before the magistrate for the statements.
(7) Some discussion on the record ensued during the course of which it emerged that the prosecution may not have served a summary of the case on which it proposed to rely on the applicant. Further, the prosecutor stated she would not provide Mr. Ducille with the statements. No reason for this disinclination to hand over copies of the statements has been given by the prosecution although I presume it stems from decisions given in a number of cases from the Supreme Court and the Court of Appeal that the provision of such statements do not necessarily have to be provided to the defence in summary matters. My deduction comes from Mr. Brathwaite's reliance in this Court on the decisions in Sean Cartwright and Laverlancio Saunders.
(8) In the face of the prosecutor's intransigence the respondent indicated to Mr. Ducille her intention to proceed with the case. Mr. Ducille objected to the case proceeding in the circumstances. It is clear that the respondent's declared intent was due to her concern about the lapse of time between the last adjourned date and the trial date; a period of some seven months. By the tenor of his submissions, it seems to me that Mr. Ducille thinks failure of the prosecution to provide the defence with the statements or perhaps even a summary of the case ought to have been of greater concern to the respondent than the mere passage of time between adjournments.
(9) Nevertheless, this application is being made for a transfer because “a fair and impartial trial might not appear to be had”; and so the Court must concern itself with that issue. Section 51 of the Criminal Procedure Code (hereinafter referred to as “the CPC”) speaks to the transfer of cases in the Magistrates' Courts. It says:
“51.(1) Whenever it is made to appear to a judge of the Supreme Court that
(a) a fair and impartial inquiry or trial cannot be had, or might not appear to be had, in any particular Magistrate's Court or before some particular magistrate; or
(b) some question of law of unusual difficulty is likely to rise; or
(c) a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or
(d) an order under this section will tend to the general convenience of the parties or witnesses; or
(e) such an order is expedient for the ends of justice or is required by any provisions of this Code, he may order that any particular case or class of case be transferred from a Magistrate's Court to any other Magistrate's Court.
(2) A judge may act under the provisions of this section on the report of the lower court made to the Chief Justice under section 49 of this Code or on the application of any party interested or on his own initiative.
(3) Any application by an interested party for the exercise of the power conferred by this section shall be made by motion, which shall be supported by affidavit.
(4) Any accused person making any such application shall give to the Attorney-General notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of such application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application unless the Attorney-General has informed the Supreme Court in writing either that he supports the application or that he does not desire to oppose it.”
(10) Section 51 starts out with the general statement that if it appears to a judge “a fair and impartial inquiry or trial cannot be had, or might not appear to be had, in any particular Magistrate's Court or before some particular magistrate” the case should be transferred. I would accept that this statement would encompass not just the magistrate's but prosecution's actions or inactions. But what have the respondent and prosecution done to warrant the allegation levelled against them by the applicant?
(11) I accept what must be applied as the starting point in this application was expressed by the Court of Appeal in Stubbs v. The Attorney-General SCCrm. App. No. 95 of 2009. The Court stated at paragraph 5:
“That the Court must first ascertain all of the circumstances which have a bearing on the suggestion that it was biased and then ask whether those circumstances would lead a fair minded observer to conclude there was a real possibility, or a real danger that the Court was biased”
(12) I refer to the decision of Allen, Sr. J. (as she then was) in Forrester Bowe, Jr. and Corey Hepburn v. The Attorney-General, Info. No. 56/ 5/2008 and my decision in Stephen Stubbs v. Deputy Chief Magistrate Carolita Bethell CRI/CRG/00017/2010.
(13) Mr. Ducille suggests on behalf of the applicant that by failing to require the prosecutor to provide the requested material or to adjourn the case until she did the respondent has demonstrated a lack of fairness toward him. In regard to the prosecutor he has pointed to his refusal to give him the witnesses' statements as an indicator that he is not receiving a fair trial in the respondent's court and the case should be transferred in the hope that the applicant meets a more generous prosecutor in another court.
(14) I fail to see how either the respondent or the prosecutor's actions can give rise to unfairness as contemplated by Article 20 of the Constitution or at all when one considers that the issue of the provision of statements to accused persons charged with summary offences has been raised and addressed over the years in our courts and elsewhere. The authorities are divided on the subject. So if a magistrate or prosecutor takes one view of such authorities and come down on that side of the controversy can they realistically and reasonably be branded unfair? I think not, If that were so, every case in which a court gave decision adverse to a party would be open to an Article 20 challenge. Such an absurd result is not warranted not is...
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