Re Vella

• Jurisdiction: Bahamas
• Judge: Georges, C.J.
• Judgment Date: 03 April 1986
• Court: Supreme Court (Bahamas)
• Docket Number: Common Law Side No. 364 of 1986
• Date: 03 April 1986

Supreme Court

Georges, C.J.

Common Law Side No. 364 of 1986

Re: Vella

Appearances:

Mr. Joseph Hollingsworth for the applicant

The Solicitor-General for Alfred and the Commissioner of Police

Mr. J. H. Bostwick for an interested party, Mr. Lawrence Rolle

Certiorari - Application for leave to apply for orders of certiorari and mandamus in relation to a decision made by a magistrate — Application refused — Court could not conclude that the magistrate acted for some reason not relevant to the matter being considered.

Georges, C.J.

1 This is an application by Mrs. Lilly Galliana Vella for leave to apply for Orders of certiorari and mandamus in relation to a decision made by His Worship Mr. Joseph Alfred on 20th February, 1986.

2 The affidavit of Mr. Joseph Hollingsworth, her attorney, states that on the 20th February, 1986, Mr. Alfred presided over a case in which one Lawrence Rolle was charged with stealing from a dwelling-house contrary to section 384(5) of the Penal Code. The subject matter of the theft was alleged to be two rings which had reportedly been stolen from the bedroom of Mrs. Vella.

3 The Minutes of the Magistrate's record, which have been annexed to the affidavit, show that the accused Rolle first appeared before Mr. Alfred on the 17th February, 1986 when he elected summary trial and pleaded not guilty to two charges of stealing from a dwelling-house and receiving property knowing it to have been stolen. The subject matter of the charges were two gold rings together valued at $ 15.000.

4 The case was adjourned to the 20th February. On that date the accused appeared. He was represented by Mr. Bostwick and there was an interpreter to translate from Italian into English and vice versa. The complainant, Mrs. Vella, is noted as having gone into the witness box and having stated as follows:–

“I am the complainant in this matter. My main interest is to gain possession of my two rings -- one from my grandmother and the other from my mother. If I can get back my property I'm not interested in prosecuting. I wish to withdraw the complaint if I can get my property. I would like to have my property returned. I withdraw my complaint.”

5 The Minutes go on to state “No further evidence”, and from an affidavit filed by William Moss, a sergeant of police prosecuting in that Court, it would appear that on Mrs. Vella expressing her desire to have her complaint withdrawn, he offered no evidence against Mr. Rolle. Thereupon the accused was discharged and the note appears --

“No order as to return or restitution of property concerned -- the two rings.”

6 From Mr. Hollingsworth's affidavit it appears that counsel for Lawrence Rolle objected to the rings being returned to Mrs. Vella on the ground that the accused had brought a civil action against the applicant in the Supreme Court of the said Commonwealth of The Bahamas. It does not appear from the affidavit whether or not a copy of the writ was then shown to the magistrate, but a copy has been annexed to Mr. Hollingsworth's affidavit, and it shows that the claim is for $7,825 being a debt incurred by the defendant in the name of the plaintiff at the defendant's request.

7 An affidavit has been filed by Mr. Rolle which amplifies to some extent this claim. It states that Mrs. Vella contracted that debt while they cohabited together and that his counsel had submitted that as such he was exercising a claim of right to possess the said rings. Accordingly, the only reasonable inference from his counsel's submission was that the learned Magistrate recognized that there was a bona fide dispute as to the title of the said rings which he felt ought to be settled before the Supreme Court where that action was pending.

8 On these facts Mr. Hollingsworth submits that the magistrate erred in refusing, in effect, to exercise the powers vested in him either under section 109 of the Criminal Procedure Code, or under section 204 of the Magistrate's Act, Chapter 36.

9 I shall deal first with section 204 of the Magistrate's Act. This reads:–

“Where any property has been taken from a person charged before a magistrate with any offence punishable either on information at the sessions or on summary conviction, a report shall be made by the police to such magistrate of the fact of such property having been taken from the person charged and of the particulars of such property and the magistrate shall if of opinion that the property or any portion thereof can be returned consistently with the interest of justice and with the safe custody of the person charged direct such property or any portion thereof to be returned to the person charged or to such other person as he may direct.”

10 The Solicitor-General in the course of his address pointed out that section...