Shaquille Culmer v The Director of Public Prosecutions
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett,Sir Brian Moree, CJ,Madam Justice Crane-Scott, JA |
| Judgment Date | 25 June 2020 |
| Neutral Citation | BS 2020 CA 61 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCrApp. No.141 of 2019 |
| Date | 25 June 2020 |
IN THE COURT OF APPEAL
The Honorable Sir Michael Barnett, P
The Honorable Sir Brian Moree, CJ
The Honorable Madam Justice Crane-Scott, JA
SCCrApp. No.141 of 2019
Mr. Geoffrey Farquharson, Counsel for the Intended Appellant
Ms. Stephanie Pintard, Counsel for the Intended Respondent
Criminal appeal — Bail — Appeal against the refusal of bail — Jurisdiction of the Court to hear a bail appeal filed outside of the two-day time period stipulated in the Bail Act — Right to a fair trial within a reasonable time — Jurisdiction — Residual jurisdiction — Whether the Court is bound by its own earlier decisions — Article 20 of the Constitution — Section 8A of the Bail Act
This was an appeal against the refusal of bail. At the hearing the Court, of its own volition, raised the issue as to whether it had the jurisdiction to hear this appeal having regard to section 8A(2) of the Bail Act. That section imposes a two-day time limit within which to appeal the grant/refusal of bail. In this case, the intended appellant's appeal was filed on the third day following the decision of the lower court refusing bail. The Bail Act does not contain any provisions granting the Court power to extend the time within which to appeal. The Court referred counsel to the decision of David Cornish v DPP where it was held that the Court had no statutory power to hear an appeal filed outside of the two-day time limit imposed by the Bail Act. Applications to extend the time within which to appeal were also subsequently considered by this Court in the cases of Deano Nixon v DPP; Antin Seymour v DPP. The court, following Cornish, refused those applications. Nevertheless, counsel for the intended appellant in the present case submitted that there existed a residual jurisdiction in the court to ensure that a person's rights pursuant to Article 20 of the Constitution are not infringed. The Court reserved its decision on that issue.
Held (Moree, CJ and Crane-Scott, JA concurring): There exists a jurisdiction in the Court to preserve a person's Article 20 rights.
per Barnett, P: The Court of Appeal has the power to hear an appeal filed outside of the two-day statutory period. However, the power is restricted to those circumstances where to require strict compliance would operate to deprive an intended appellant of his Article 20 rights. Further, the court is only likely to permit an appeal outside the statutory limits where the intended appellant has done all he can to bring the appeal timeously.
There is no absolute bar to the court allowing an appeal out of time where a statute does not specifically provide for an extension of time. Time limits in any statute as well as any other statutory provision must be construed in a manner which make it consistent with the fundamental right to a fair trial which includes the right to an appeal.
Limitation periods found in statute are not absolute and must be read subject to the constitutional right to a fair trial. In the circumstances the court always has the right and duty to construe statutory provisions subject to the right to a fair trial. Whether the application of the statutory time limits would offend the constitutional right is fact sensitive and courts nor litigants can cavalierly ignore the statutory time limits. The well-established principle that the court does not have the power to extend time unless provided by statute is still the law; it is only where the strict application of the time limit would, effectively, deny a litigant his right to a fair trial would a court be at liberty to depart from the time period imposed by the statute.
Counsel is at liberty to seek an extension of time within which to appeal and must demonstrate why the Court's jurisdiction ought to be exercised in his favour.
David Cornish v DPP SCCrApp. No. 174 of 2018 qualified
Deane v Allamby [2016] CCJ 21 (AJ) applied
Deano Nixon v DPP; Antin Seymour v DPP SCCrApp. No. 139 of 2019 qualified
Lukaszewski v District Court in Tourin, Poland et. al. [2012] UKSC 20 applied
Mucelli v Government of Albania [2009] UKHL 2 mentioned
per Moree, CJ: The general rule is that the Court of Appeal is bound to follow its own decisions, except in certain circumstances: where the court has delivered two conflicting decisions it is entitled and bound to decide which of the two decisions it will follow; where a decision cannot stand with a decision of a higher court; and where the court gave a decision per incuriam.
The issue in this case is whether there is a residual jurisdiction vested in the Court to extend otherwise absolute time limits for appeals when they operate to impair the essence of the right of access to the courts under Article 20 of the Constitution. This is the first time that this specific issue between the interaction of section 8A of the Bail Act and Article 20 is being raised in this Court. As this was not the focus of or considered by the judgments in Cornish or Nixon and Seymour, those cases cannot limit consideration of the jurisdiction point on this appeal.
The absolute time limits in section 8A of the Bail Act may, in some circumstances, have to yield to the requirements of Article 20 of the Constitution in providing access to the appeal process under the Bail Act. Should the extension of time application be filed by counsel he will have to demonstrate that there are exceptional circumstances which he says impairs “the very essence of the right” of appeal.
Black Swan Investment I.S.A v Harvest Limited et al BVIHCV2009/0399 (delivered 23 March 2010, unreported) considered
Broad Idea International Limited v Convoy Collateral Limited BVIHCMAP2019/0026 (delivered 29 May 2020, unreported) considered
David Cornish v DPP SCCrApp No. 174 of 2018 distinguished
Davis v Johnson [1979] AC 264 mentioned
Deane v Allamby [2016] CCJ 21 applied
Desnousse v Newham London Borough of Council and others [2006] QB 831 considered
Lukaszewski v The District Court in Torun, Poland, Pomiechowski v District Court of Legunica59–220 Poland, Rozanski v Regional Court 3 Penal Department Poland and R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 applied
Mucelli v Government of Albania [2009] UKHL 2 mentioned
Nixon v DPP; Seymour v DPP SCCrApp. No. 139 of 2019 distinguished
Perez de Rada Cavanilles v Spain (2000) 29 EHRR 109 considered
R v Yasain [2016] 2 All ER 686 considered
Taylor and another v Lawrence and another [2002] 2 All ER 353 considered
The Queen (on the application of) Adesina & Ors v The Nursing and Midwifery Council [2013] EWCA Civ 818 applied
Young v Bristol Aeroplane Co. Ltd. [1944] KB 718 applied
Yukos Cis Investments Limited et al v Yukos Hydrocarbons Investments Ltd et al HCVAP2010/028 (delivered 26 September 2011, unreported) considered
per Crane-Scott, JA: Notwithstanding the lack of a provision in the Bail Act granting the Court power to extend the time within which to appeal, the Court has jurisdiction in exceptional circumstances to extend the time limit where not to do so would impair an intended appellant's constitutional rights.
Deane v. Allamby [2016] CCJ 21 (AJ) applied
Judgment delivered by the Honourable Sir Michael Barnett, P:
. This was an appeal from the refusal by a judge of the Supreme Court to grant bail to the intended appellant who has been charged with murder. The judge refused bail on 13 August 2019. The Notice of Appeal was filed on 16 August 2019 some three days after the decision refusing bail.
. When this matter first came for hearing the Court, of its own volition, raised the issue as to whether it had jurisdiction to hear the appeal given the two-day time limit contained in section 8A (2) of the Bail Act.
. Section 8A of the Bail Act provides:
“8A. (1) Where the Supreme Court grants or refuses a person bail, or refuses to revoke bail, the prosecution or the person, as the case may be, shall have a right of appeal to the Court of Appeal.
(2) An appeal shall be filed within two days of the making of the decision, the subject matter of the appeal, and pending the hearing of an appeal against an order admitting an accused person to bail that order shall be suspended.”
. We referred counsel to the decision of this Court in David Cornish v DPP SCCrApp. No. 174 of 2018 where it was held that there was no power given by statute to enable this Court to extend the time fixed by statute for the lodging of the appeal. In that case, the appeal was filed more than three weeks after the decision refusing bail. It was argued that section 17(2) of the Court of Appeal Act and section 9 of that Act incorporated section 18 of the English Criminal Appeal Act and gave the court the power to extend the time for appealing against a refusal of bail.
. In the present case we advised that even though the appeal was only one day out of time, it did not appear to us that we had the jurisdiction to entertain the appeal and even though the intended respondent did not itself take the point, the parties cannot by consent confer upon the Court jurisdiction that it did not have.
. Mr. Farquharson, counsel for the intended appellant, invited us not to dismiss his appeal and to adjourn the matter as he intended to invite us to reconsider the decision in Cornish as the Court did not have the benefit of decisions of other courts that held that there existed a residual jurisdiction in the court to extend the time where not to do so would prejudice a person's right under Article 20 of the Constitution to a fair trial within a reasonable time. We agreed to hear him on that issue.
. Counsel for the intended appellant relied on two decisions to support his argument that (a) the court has the jurisdiction to hear this appeal...
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