Seymour and Johnson v The Attorney General
| Jurisdiction | Bahamas |
| Judge | Allen, P.,Adderley, J.A. |
| Judgment Date | 16 September 2014 |
| Neutral Citation | BS 2014 CA 131 |
| Docket Number | SCCrApp No. 71 of 2012; SCCrApp No. 81 of 2013; SCCrApp No. 82 of 2013 |
| Court | Court of Appeal (Bahamas) |
| Date | 16 September 2014 |
Court of Appeal
Allen, P.; John, J.A.; Adderley, J.A.
SCCrApp No. 71 of 2012; SCCrApp No. 81 of 2013; SCCrApp No. 82 of 2013
Mr. Murrio Ducille, Counsel for the appellant.
Ms. Darnell Dorsette, Counsel for the respondent.
Berthill Fox v. The Queen [2001] U.K.P.C. 41 distinguished
Duport Steels Ltd v. Sirs and Others [1980] 1 W.L.R 142 considered
Grant v. The Queen [2006] U.K.P.C. 2 distinguished
Humphreys v. The Attorney General of Antigua and Barbuda [2008] U.K.P.C. 61 considered
Mills v. Queen [1995] JCJ No. 8 mentioned
Moncur and another v. Woods [1989–90] 1 LRB 292 considered
R v. Makanjoula [1995] 1 W.L.R. 1348 considered
R v. Pinder [2002] U.K.P.C. 46 mentioned
Stone v. R (1980) 35 W.I.R. 268 distinguished
Per Adderley, J.A.
On the true construction of the amendment and the Act, it is clear that the amendment applies to sections 203 and 204 of the Criminal Procedure Code. Having regard to the authorities the abolition of the ability to give an unsworn statement is a procedural one relating to the giving of evidence, and not the subject matter of an accrued, acquired or vested right. The ability to give an unsworn statement was a mere procedural rule of evidence which is now repealed. Furthermore, fairness is the cornerstone upon which the doctrine of retroactivity is premised, and on the facts of this case there is nothing to show that the appellant did not or could not obtain a fair trial because of the abolition of that right. It is for these reasons the appeal should be dismissed.
Director of Public Works v. Ho Po Sang [1961] A.C. 901, PC mentioned
Fox v. R [2001] U.K.P.C. 41 mentioned
Free Lanka Insurance Co Ltd v. Ranasinghe [1964] A.C. 541 , PC mentioned
Haw Tua Tau and Another v. Public Prosecutor [1981] SGPC 1 (unreported) applied
Humphries v. AG [2008] U.K.P.C. 61 applied
Kemp et al v. Mamkalah Ltd (2008) 73 W.I.R. 16 , [2008], 1 BHS J No 16 applied
Minister for Justice Equality and Law Reform v. Bailey [2012] IESC 16 applied
Moncur and another v. Woods [1989–90] 1 L.R.B. 292 mentioned
R v. Makanjuola [1995] 3 All E.R. 730 applied
R v. Pinder [2002] U.K.P.C. 46 mentioned
Stone v. R (1980) 35 W.I.R. 268 mentioned
Wilson & Ors v. Secretary of State for Trade and Industry [2003] U.K.H.L. 40 applied
Criminal Practice and Procedure - Possession of dangerous drugs with intent to supply — Whether the magistrate erred in denying the Appellants the opportunity to give an unsworn statement from the dock where the right was a statutory right prior to the abolishment of the right by the amendment — Consideration of Moncur v. Woods [1989—90] 1 LRB 316 — Appeal allowed
In May 2008 the appellants were charged with Possession of Dangerous Drugs with Intent to Supply. In 2011 at the end of the conclusion of the Prosecution's case the magistrate refused the appellants' request to make an unsworn statement from the dock. The appellants filed an appeal against the magistrate's refusal.
Adderley, J.A. dissenting in part) :– appeal allowed in part Section 6(b)(3) of the 2011 amendment of section 170 of the Criminal Procedure Code is clear; any law that permits a person charged with a criminal offence to make an unsworn statement from the dock is abolished. Section 204 of the Criminal Procedure Code is a provision within a written law that permits a person to make an unsworn statement from the dock, as such, as of November 2011 any part of section 204 which affords the right to make an unsworn statement from the dock is abolished.
The right to give an unsworn statement from the dock was, until the 2011 amendment, a statutory right afforded to accused persons; as such the principles relevant to the retroactive application of procedural amendments do not apply. Section 20 of the Interpretation and General Clauses Act is clear and provides that where a written law repeals in whole or in part any other written law, the repeal shall not affect any right accrued or incurred under any written law so repealed. Moreover, it is a general principle in criminal law that the law in existence at the time of the commission of the offence is the law which applies to the offender. In the present case, the alleged offences, the charges, the arraignment and the beginning of the trial all took place before the 2011 amendment. The appellants, under these circumstances, had a right to make an unsworn statement from the dock that could not be taken away by the amendment.
In order for an appellant to be entitled to constitutional relief the appellant must demonstrate that in the specific circumstances of his case his constitutional rights have been breached are being breached or are likely to be breached. No evidence was provided by the appellants to support their contention that the 2011 amendment violated their constitutional rights or is likely to violate their constitutional rights.
This is an appeal against the decision of the learned Deputy Chief Magistrate (“magistrate”) denying the appellants the opportunity to give an unsworn statement from the dock. The learned magistrate was of the view that the November 2011 amendment to the Criminal Procedure Code applied to the appellants.
The appellants subsequently filed the present appeal and, on the advice of counsel, refused to participate any further in the trial. The appellants argued, before the magistrate, that as a result of their appeal against her decision the matter before her was stayed. The learned magistrate did not share the appellants' view and continued with the trial. Contrary to the position stated by counsel for the appellants, the facts upon which the current appeal is based occurred in 2008 not in 2010.
On May 25th 2008 Raleigh Seymour and Edmar Johnson were observed, by a police officer conducting surveillance, off loading a number of crocus sacks from a van into a residence located at Winders Terrace, East Street South. officers were called to the Winders Terrace property where, upon conducting a search of the residence, they discovered, distributed throughout the home, what amounted to 576 pounds of marijuana. On May 26th 2008 the appellants were charged with Possession of Dangerous Drugs with Intent to Supply. These facts form the basis of docket number 353 of 2008 in the magistrate's court and appeal numbers 71 of 2012 and 81 and 82 of 2013.
In late 2010 the appellants were again arrested and charged with Possession of Dangerous Drugs with Intent to Supply. These charges were in relation to the discovery of 576 pounds of Indian Hemp found in a stone house located off of Cow Pen road. These facts form the basis of docket number 728 of 2010 in the magistrate's court and appeal numbers 83 and 85 of 2012, which have previously been disposed of by this Court.
According to the transcripts of the above proceedings, the appellants fully participated in and elected to give sworn testimony in 728 of 2010; it is in docket 353 of 2008 that the circumstances detailed in paragraph one above occurred.
With that said, the appellant filed before this court one ground of appeal namely that:
“The learned magistrate erred in law when she ruled that the Appellants could not give unsworn statements when leading their defenses as the recent amendment to Section 170 of the Criminal Procedure Code Act had affected the entitlement.”
At the hearing of the appeal, counsel for the appellant argued 1. that the 2011 amendment did not apply to the magistrate's court, only to the Supreme Court 2. that in any event, no amendment occurring after the date of the alleged incident would be applicable to the appellant's matter and 3. that the amendment was unconstitutional. Counsel provided no authorities to support his arguments.
The respondent contends that the 2011 amendment applied to the magistrate's court and that it was well within Parliament's constitutional powers to so amend. The brunt of the respondent's arguments was focused on whether the 2011 amendment could indeed be applied retroactively. Numerous cases were provided by the respondent in support of its submissions namely Berthill Fox v. The Queen [2001] U.K.P.C. 41, Grant v. The Queen [2006] U.K.P.C. 2, Stone v. R (1980) 35 W.I.R. 268, R v. Makanjoula [1995] 1 W.L.R. 1348, R v. Pinder [2002] U.K.P.C. 46, Moncur and another v. Woods [1989–90] 1 L.R.B. 292, Mills v. Queen [1995] JCJ No. 8, Duport Steels Ltd v. Sirs and Others 11980] 1 W.L.R 142 and Humphreys v. The Attorney General of Antigua and Barbuda [2008] U.K.P.C. 61.
In Fox v. The Queen, a Privy Council case from St. Kitts and Nevis, the question before the Board was whether the judge had misdirected the jury about the value of the unsworn statement from the dock. None of the discussion within the case revolved around the validity of a statutory amendment abolishing the right to give an unsworn statement from the dock. As a matter of fact as stated by the Board at paragraph 11 of the judgment, “in St. Christopher and Nevis the right to make an unsworn statement was abolished AFTER the trial in this case by The Law Reform (Miscellaneous Provisions) Act, 1998.” [Emphasis mine]
In Grant v. The Queen , a Privy Council decision from Jamaica, the Board considered the constitutionality of section 31D of the Jamaican Evidence Act. This section permitted into evidence, where the statutory conditions were met, an unsworn statement made out of court. The appellant in that case alleged that section 31D amended section 20(6)(d) of the Jamaican Constitution in a manner not provided for by the Constitution. None of the discussion within Grant is applicable to the present case before us. In Stone v. R, the question before the Privy Council was whether provisions of the Gun Court (Amendment) Act, 1976 which allowed...
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