Shavon Bethel v R
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA,The Honourable Mr. Justice Jones, JA |
| Judgment Date | 24 April 2018 |
| Neutral Citation | BS 2018 CA 62 |
| Docket Number | SCCrApp. No. 301 of 2015 |
| Court | Court of Appeal (Bahamas) |
| Date | 24 April 2018 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
SCCrApp. No. 301 of 2015
Mr. Norwood Rolle, Counsel for the Appellant
Ms. Darnell Dorsette with Mr. Patrick Sweeting, Counsel for the Respondent
Bhola Nandal v The State (1995) 49 WIR 412 considered
Crux v Government of Canada [1965–70] 1 LRB 348 mentioned
Government of the United States of America v Frederick Nigel Bowe (1989) 3 WLR 1256
Government of the United States and Others v Kozeny [2010] 2 LRC 880 considered
Henderson v Crown Prosecution Service [2016] EWHC 434 considered
Rey v Government of Switzerland [1999] BHS J. No. 4 mentioned
Criminal appeal - Res judicata — Abuse of process of the court — Certificate of Good Standing — Bar Identification Card — Costs in criminal proceedings
The appellant was called to the Bar of the Commonwealth of The Bahamas on the 14 th August, 2013. Thereafter, he applied to the Bar Association for a Certificate of Good Standing (the certificate) and a Bar Identification Card (the ID card). Having received no reply from the Bar Association he filed an application for judicial review asking that the Court grant him a Declaration that he was entitled to receive the certificate and the ID card. When the matter came on for hearing in November 2013 there was no appearance by the respondents (the then President of the Bar Council and others) and the matter was heard in their absence. The appellant was granted the relief he sought. However, the respondents did not issue the documents to the appellant and in December 2013 he, again, approached the court to have the respondents committed for contempt. The respondents appeared and resisted the application to have them held in contempt; they also filed a summons seeking to have the order set aside on the basis that the appellant had secured admission to The Bahamas Bar using fraudulent documents. The judge did not make a finding of contempt but instead ordered that the appellant be provided with the certificate and the ID card and he also dismissed the respondents' summons. The respondents appealed and that appeal remains outstanding.
In the meantime the appellant was charged before the Magistrate's Court with possession of a false document (4 counts), uttering a false document (4 counts), deceit of a public officer and perjury. When the matter commenced before the magistrate, the appellant took issue with the proceedings on the ground, inter alia, that they were an abuse of the court's process inasmuch as the bases for the charges had already been raised or could have been raised in the December hearing. The Magistrate stayed the proceedings to allow the appellant to contest the charges.
Consequently, the appellant applied to the Supreme Court seeking a permanent stay of the criminal proceedings, however, the application was dismissed by the learned judge and the appellant now appeals that decision.
Held: appeal dismissed in part; decision of the judge affirmed. Appeal allowed on the issue of costs; each party to bear its own costs.
In the present case the only issue before the learned judge in November 2013 was whether the appellant, having been called to The Bahamas Bar, should have been issued with the certificate and the ID card. Had the appellant faced criminal charges in his previous foray in the courts and had either been convicted or acquitted, and the authorities sought to try him on those selfsame charges or for offences he could have been charged with at the time, he would have had a more solid ground for complaint. However, the proceedings in November 2013 were not criminal in nature, nor was the issue to be decided in any way similar to the criminal charges the appellant faces in the magistrate's court. In the circumstances, the learned judge in the court below was right to reject the appellant's application as not disclosing an abuse of the process of the court. Moreover, the criminal proceedings presently underway in the Magistrate's Court are not oppressive; nor are the issues involved, res judicata.
The present appeal arises out of criminal proceedings. As such, the action in the court below and in this Court are to be regarded as criminal proceedings and the appellant ought not to be required to bear the burden of costs.
Judgment delivered by the Honourable
. The appellant appealed by Notice of Appeal Motion filed on the 20 th July, 2017 against a decision of Mr. Justice Ian Winder (the Judge) given at the completion of the action before the Judge on the 10 th August, 2015, whereby he dismissed the appellant's application for judicial review; and for a stay of the said decision. Initially, the appellant had applied for the leave of the Court to appeal, in the belief such leave was necessary.
. On the 8 th June, 2017, the Crown conceded that the Supreme Court Order of the Judge dismissing the appellant's Motion to dismiss the criminal prosecution in the magistrate's court and refusing a permanent stay, was a final order and that accordingly, the appellant's Motion for Leave to Appeal filed on the 26 th November, 2015 was unnecessary. [See pp 23–24 Transcript of 8/6/2017] and the matter was adjourned for the appeal to proceed.
. On the 30 th October, 2017, at the conclusion of Counsel's addresses we reserved our decision. We render it now. We are satisfied that this appeal is without merit and must be dismissed for the reasons set out below.
. The appellant was called to the Bahamian Bar on the 14 th August, 2013. On the 9 th December, 2015, he swore to an affidavit in which he set out the factual matrix of the matter. I reproduce paragraphs 4 through 11, insofar as they are relevant to the issue presently before us:
“4. That by letters dated the 23 rd September, 2013 and the 26 th September, 2013 my then employer, Terrel A. Butler having paid my bar dues wrote to the Bar Association for a Certificate of Good Standing and a Bar Identification Card on my behalf, however, she did not receive an acknowledgement or reply to any of the said letters.
5. That on the 1 st October, 2013 Terrel A. Butler sent another letter to the Bar Association referring to her earlier letters advising that she did not received (sic) an acknowledgment or reply. There was yet again no acknowledgment or reply to this letter.
6. An application by Notice of Motion was made to the Supreme Court for Judicial Review wherein I sought an Order and Declaration that I was entitled to a Certificate of Good Standing and Identification Card. The Notice of Motion for Judicial Review was scheduled for hearing on the 8 th October, 2013 before Senior Justice Jon Isaacs (as he then was) (Isaacs Sr. J) and the same was served on the Bar Association at it (sic) office located Mackey Street and Claire Road. There was no appearance by or on behalf of the Bar Council, therefore, the Court heard the Motion and arguments and made an Order on the 4 th November, 2013 and granted the Declarations sought.
7. Having perfected that Order referred to at paragraph 5 (sic) above, it brought the Judicial Review proceedings to an end. Mr. Elsworth Johnson (Mr. Johnson) in his capacity as President of the Bar Association and Chairman of the Bar Council was served personally with a copy of the 4 th November, 2013 Order which was endorsed with a Penal Notice and there was a refusal to comply. An Amended Order was granted by the Court on the 14 th November 2013 fixing a time of (3) days ordering Mr. Johnson to comply. Mr. Johnson was served with a copy of the said Amended Order and yet again, he refused to comply with the same.
8. I then moved the Court on 21 st December 2013 by Ex parte Summons for leave to commence committal proceedings of the 14 th November, 2013 Order against Mr. Johnson in his capacity as President of the Bar Association. The Court having granted leave to commence committal proceedings, the Notice of Motion was filed on the 22 nd November, 2014. The hearing of that said Motion was scheduled for hearing on the 5 th December, 2013. Mr. Johnson, acting on behalf of the Bar Council filed a Summons on the 3 rd December, 2013 with a supporting Affidavit on the 4 th December, 2013 seeking to set aside the Order made by Isaacs Sr. J on the 4 th November, 2013 as amended on 14 th November, 2013 on the basis, inter alia, that I had allegedly committed fraud, fraudulent misrepresentation and deceit by procuring my admission to practice at the Bahamas Bar. Now produced and shown to me is a copy of the Summons and the Affidavit in support of the Mr. Johnson's application to set aside the Order collectively marked Exhibit “SB1”.
9. During the hearing of the Motion filed on the 22 nd November, 2013, and the Summons of Respondent (the Bar Council) filed on the 3 rd December 2013, Mr. Johnson filed on the 16 th December, 2013 a Notice of Appeal at the Court of Appeal from the Order of the 14 th November, 2013.
10. On the 6th and 12th December 2013 Mr. Johnson filed further Affidavits. In the Affidavit of the 12th December, 2013 he levied further allegations of fraudulent misrepresentations and deceit against me. I then filed on the 10 th and 17 th December, 2013, respectively, Affidavits in Reply wherein I exhibited a number of documents in support controverting the allegations made. Now produced and shown to me collectively marked “SB2” are copies of the Mr. Johnson's Affidavit of 12th December, 2013 and my response thereto.
11. The Court heard my application for committal and the Bar Council's application simultaneously. There were several hearings between the parties, respectively on the 5 th, 12 th, 17 th and 20 th December, 2013 wherein the allegations of fraud and fraudulent...
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