Miller v The Commissioner of Police

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Sawyer, P.
• Judgment Date: 02 November 2010
• Neutral Citation: BS 2010 CA 232
• Docket Number: MCCrApp & CAIS No. 28 of 2010
• Date: 02 November 2010

Court of Appeal

Sawyer, P.; Blackman, J.A.; John, J.A.

MCCrApp & CAIS No. 28 of 2010

Miller

and

The Commissioner of Police

Appearances:

Mr. Koed Smith, counsel for appellant.

Mr. Vernal Collie, counsel for respondent.

Criminal Practice and Procedure - Appeal — Conviction — magistrate failed to comply with sections 174 and 176 of the Criminal Procedure Code Act — denial of justice — fair hearing — retrial ordered — nearing de novo — Appeal allowed.

Sawyer, P.

1 The Court's position is quite clear: The learned magistrate in this case has not - as we found last week in a different case from a different magistrate - complied with the provisions of sections 174 and 176 of the Criminal Procedure Code Act as applied to magisterial trials under section 206 of the Criminal Procedure Code Act. That, as we indicated last week, is a denial of justice - of hearing the other side - which is fundamental to the concept of a fair trial in this country.

2 In those circumstances, we have no choice but to allow the appeal and set aside the conviction and the sentence.

3 The Court has been invited by Mr. Collie to send the matter back to the magisterial Court for hearing de novo. The evidence seems fairly strong. We do not say that he must be convicted, but it is sufficient, in our judgment, to require him to give an explanation. That is the test that the Privy Council has indicated we should apply. In addition to which, in the interest of justice, the public's interest in justice being done according to law, it is necessary that this matter be properly aired and the rules of evidence and procedure properly followed. We would therefore send the matter back to the magisterial Court for retrial.

4 Mr. Smith saw nothing wrong with that course, so we feel that this would be the appropriate step to take. The appellant's bail will continue until the trial.

Sawyer, P.