Sands et Al v Commissioner of Police

• Jurisdiction: Bahamas
• Judge: Gonsalves-Sabola, C.J.(Atg)
• Judgment Date: 29 August 1990
• Court: Supreme Court (Bahamas)
• Docket Number: No. 55 of 1989
• Date: 29 August 1990

Supreme Court

Gonsalves-Sabola, C.J. (Actg.)

No. 55 of 1989

Sands et al

and

Commissioner of Police

Appearances:

MS. MECHELLE MARTINBOROUGH Attorney at Law; counsel for the Attorney General.

THOMAS A. E. EVANS, ESQ; counsel for Cletis Scavella and holding brief for Carl Bethel for Danny Sands.

Criminal Law - Appeal against conviction — Conspiracy to export and possession of dangerous drugs with intent to supply — No written record made by magistrate to indicate whether Criminal Procedure Code Act, s. 201(1) had been compiled with — This not evidence that the magistrate did not comply with the statutory requirement of the Act — Appeals dismissed.

Gonsalves-Sabola, C.J.(Atg)

1 In the Magistrate's Court the two appellants were convicted on all counts of a joint charge accusing them of conspiracy to export a quantity of dangerous drugs, namely, Indian hemp, possession of dangerous drugs and possession thereof with intent to supply to another. Each appellant was sentenced on each count to a term of three years imprisonment to run concurrently. An appeal against conviction was brought by each of them on a procedural ground that has recently become fashionable.

2 Counsel for Scavella submitted that during the proceedings in the court below there was failure to comply with subsection (1) of section 201 of the Criminal Procedure Code Act which reads as follows:

“At the close of the evidence in support of the charge, if it appears to the court that the case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, in which case he will not be liable to cross-examination; and the court shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and shall then hear the accused and his witnesses, if any.”

3 The basis for the contention that there was non-compliance with the subsection was merely that the record was silent on the question. No note was made by the learned magistrate to indicate whether or not the subsection had been complied with. Counsel was emboldened by the judgment of the Court of Appeal in the case of Juan Velez and Others v The Commissioner of Police, (Cr. Appeals nos. 4, 5, 7 and 8 of 1989) to submit that the trial before the Magistrate was a nullity and therefore the appeal should be allowed and the conviction and sentence set aside. However, in the appeal of Stanford Outten v. Anthony Ferguson (no. 14 of 1990 Criminal Side) the Court of Appeal had occasion to revisit the Juan Velez case and reconsider the passage in that judgment on which reliance was placed by counsel for the appellant in support of his submission.

4 In the judgment in Stanford Outten delivered on the 22nd June, 1990, this is what the Court of Appeal had to say: “In the Juan Velez case (supra), the judgment contains the following passage at page 14: ‘There is nothing in the record of the proceedings before the magistrate to indicate compliance with the provisions of s. 201 (1). It was submitted for the respondent that the fact that the appellant Bastian gave evidence is an indication that he knew why he was before the court and he must, therefore, have been made aware of his rights by the magistrate. It was said that the doctrine omnia praesumuntur rite esse acta applies. We do not agree. The statutory requirements contained in the section should have been noted, if there was compliance with it. The absence of a note and the allegation of non-compliance raised in the grounds of appeal placed a burden on the respondent to prove that...