The Attorney General v Bowe

• Jurisdiction: Bahamas
• Judge: Sawyer, P.
• Judgment Date: 17 November 2010
• Neutral Citation: BS 2010 CA 253
• Docket Number: CAIS No. 72 of 2010; CAIS No. 78, 79 of 2010 & 78 of 2007
• Court: Court of Appeal (Bahamas)
• Date: 17 November 2010

Court of Appeal

Sawyer, P.; Blackman, J.A.; John, J.A.

CAIS No. 72 of 2010; CAIS No. 78, 79 of 2010 & 78 of 2007

Davis et al

and

The Attorney General

Bowe

and

The Attorney General

Appearances:

Mr. Jerone Roberts for the Appellants Trono Davis and Philip White.

Mr. Keod Smith for the Appellant Forrester Bowe.

Ms. Jillian Williams for the respondent.

Criminal Practice and Procedure - Appeal — Nullity of trial — quashing of information — voluntary bill of indictment — limitations on indictments — validity of sentence of life imprisonment — Stipulation of a fixed period during the currency of a life sentence which must be served before eligibility for parole or release on licence —Sentencing power of the court — Appeal dismissed.

Constitution law - Doctrine of separation of powers — section 22 of the Prisons Act — Rule 253 and 204 of the Prison Rules — Legislation predating the Constitution — Validity of sentences — Sentencing power of the court.

Sawyer, P.

1 We heard these appeals together because they are appeals from the same decision by the learned judge in the Court below and they raise similar questions of law and constitutional interpretation. The appeal of Forrester Bowe raises an additional issue which does not arise in the appeals of the other appellants.

2 The appellants' applications under Article 28 of the Constitution were heard by Isaacs, Snr. J. on 1st, 27th and 30th April, 2010. The learned judge gave his decision admirably promptly on 7th May, 2010 and made an addendum to it in respect of Mr. Roberts' clients on 17th June, 2010.

3 In order to make my decision comprehensible to the appellants and respondents, I set out at this point, the background to these appeals.

BACKGROUND:

4 Philip White (“White”) was convicted of murder on 25th March, 1993 and sentenced to death under what the law regarding sentence of death was understood to be at that time - that is, the death penalty was mandatory. He appealed his conviction to the Court of Appeal which quashed his conviction for murder, set aside the death penalty and substituted a conviction for manslaughter and imposed a sentence of life imprisonment upon him. His sentence therefore did not fall within the principle established in Moses Hinds v. Regina, Director of Public Prosecutions v. Trevor Jackson [1977] A.C. 195 as it was imposed by a Court of competent jurisdiction rather than the Executive Branch of Government.

5 Trono Davis (“Davis”) was convicted of murder on 13th December, 1999 and mandatorily sentenced to death. His appeal to the Court of Appeal against his conviction was dismissed on 24th July, 2000 for reasons given on 31st October, 2000. His application for leave to appeal to the Privy Council against his conviction was refused on 17th July, 2001.

6 Subsequently, Davis, along with Forrester Bowe Jr., (“Bowe”) filed a second petition with the Privy Council against the validity of the mandatory death sentence under the Constitution of The Bahamas notwithstanding the Privy Council's decision in Larry Raymond Jones and Others v. The Attorney General [1995] 1 WLR 891 in which the Privy Council had confirmed the decision of this Court, differently constituted, that on a conviction for murder, the imposition of the death penalty was mandatory in The Bahamas. Davis and Bowe were successful in that second petition. In their judgment in that case, the Privy Council ruled in effect that the death penalty, although preserved by Article 16 of the Constitution must be interpreted as discretionary in light of the provisions of section 4 (1) of the Order in Council to which the 1973 Constitution was annexed, since a mandatory sentence of death was cruel and inhuman in the context of Article 17 (1) of the Constitution. Their Lordships also held that the decision in Larry Raymond Jones' case did not deal with the constitutional validity of the mandatory death penalty.

7 Bowe was convicted of murder on 25th February, 1998, following a third trial. His appeal to the Court of Appeal against conviction was dismissed and his appeal to the Privy Council was dismissed on 10th April, 2001.

8 In this latest foray into the Court system, Davis' Notice of Appeal filed on 10th June, 2010, sets out the forms of constitutional redress which he sought from the Supreme Court, namely:

• “1. A Declaration that s. 22 of The Prison Act, (Ch. 208) is inconsistent with Article I of the Constitution.

• 2. A Declaration that the appellant has been, is being, or is likely to be deprived of his personal Liberty in breach of Article 19 of the Constitution.

• 3. A Declaration that the appellant's case has not been afforded a fear hearing, same being in breach of Article 20 of the Constitution.

• 4. A Declaration that the appellant's case has not been afforded a hearing within a reasonable time, same being in breach of Article 20 of the Constitution.

• 5. A Declaration that the appellant's case has not been heard by an independent and impartial Court established by law, same being in breach of Article 20 of the Constitution.

• 6. A Declaration that ss. 22 and 24 of The Prison Act, (Ch. 208) are to be construed with the words ‘Governor-General’ being replaced by the word ‘Court’ wherever the words ‘Governor-General’ appear in the said ss. 22 and 24.

9 Davis seeks from this Court, the following reliefs and/or redress:

• “1. That in the circumstances of the appellant's case, the proviso to Article 28 of the Constitution of the Commonwealth of The Bahamas does not prevent the grant of relief and/or redress to the appellant.

• 2. A Declaration that s. 22 of The Prison Act (Ch. 208) is inconsistent with Article 1 of the Constitution.

• 3. A Declaration that the appellant has been, is being, or is likely to be deprived of his personal liberty in breach of Article 19 of the Constitution.

• 4. A Declaration that the appellant's case has not been afforded a fair hearing, same being in breach of Article 10 of the Constitution.

• 5. A Declaration that the appellant's case has not been afforded a hearing within a reasonable time, same being in breach of Article 20 of the Constitution.

• 6. A Declaration that the appellant's case has not been heard by an independent and impartial Court established by law, same being in breach of Article 20 of the Constitution.

• 7. A Declaration that ss. 22 and 24 of The Prison Act, (Ch. 208) are to be construed with the words ‘Governor-General’ being replaced by the word ‘Court’ wherever the words ‘Governor-General’ appear in the said ss. 22 and 24.

• 8. Such Orders, Writs and/or Directions, pursuant to Article 2, and/or Article 28 of the Constitution as the Court may consider appropriate for the purpose of enforcing or securing the enforcement of the provisions of the said Articles 1, 19, and 20 to the protection of which the appellant is entitled.”

10 The grounds of appeal and the remedies/redress sought in White's appeal are identical to those set out above for Davis; I therefore consider it unnecessary to reiterate them.

11 The grounds of appeal in the case of Bowe are different from those in the appeals of Davis and White so I set them out here:

• “1. The learned senior justice erred in determining that the Order of His Lordship the Honourable Mr. Justice Cyril S. S. Fountain dated 22nd July, 1994 quashing Information No. 241/7193 (styled as R. v. Forrester Bowe Jr.) by using the words:

  ‘Having heard Mr. Bernard Turner, of counsel for the crown, and having considered the case of Regina v. Allendo Dames,

  IT IS HEREBY ORDERED THAT THE INFORMATION FILED IN RESPECT OF THIS MATTER BE QUASHED AND THE DEPOSITIONS RETURNED TO THE MAGISTRATES COURT FOR COMPLETION OF THE PRELIMINARY INQUIRY BY COMPLIANCE WITH THE PROVISIONS OF SECTION 120(3) OF THE CRIMINAL PROCEDURE CODE ACT.

  DATED THIS 22ND DAY OF JULY, A.D. 1994'

  “…meant that Bowe remained charged in the Magistrate's Court so that when the VBI was preferred against him that particular condition was extant at the time” (See paragraph 61 - The Ruling) and not simple parlance that a new preliminary inquiry had to be commenced and completed.

• 2. In the alternative, the learned senior justice erred in law and for fact in determining that the said Order was actually complied with. In fact, without acceding that it is possible in law that the said preliminary inquiry referred to in the Order could be recommenced after the Information filed in respect therefor had been quashed, the appellant shall rely on the fact that contrary to what the learned senior justice suggests was the import of the Order, the said preliminary inquiry was never actually recommenced by the third respondent as ordered by His Lordship The Honourable Justice Cyril S. S. Fountain.

• 3. The learned senior justice erred in law in determining that the said Order did not operate such that it caused the previous committal proceedings upon which Information No. 241/7/93 was based to be spent ( R. v. Thompson and Clien (1975) 61 Cr. App. R. 108; R. v. Follett (1989) 88 Cr. App. R. 310; R. v. Desmond Rolle (Bahamas Supreme Court) Information No. 9314194; R. v. Carlton Ferguson (Bahamas Supreme Court) No. 33/4/94).

• 4. The learned senior justice erred in law and in fact in determining that a charge of murder could be tried by Voluntary Bill of Indictment, thereby not averting his mind to provisions of Sections 114 - Criminal procedure Code Act, 1968, Chapter 84 - Statute Law of the Bahamas, 1987 (1987 Edition), Section 3 (2) (a) - Preliminary Inquiries (Special Procedures) Act, 1983 (1987 Edition) and Hansard of the Bahamas Parliament of the Intention behind the promulgation of the Criminal Procedure Code (Amendment) Act, Gazetted as No. 33 of 1996 upon which the appellant had been tried and convicted.

  • (a) Section 114 - CPC provides as follows:

    ‘Whenever any charge has been brought against any person in respect of an offence not triable summarily, or which may...