The Commissioner of Police v Frank Edward Smith

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 28 August 2019
• Neutral Citation: BS 2019 CA 128
• Court: Court of Appeal (Bahamas)
• Docket Number: MCCrApp No. 15 of 2019
• Date: 28 August 2019

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

MCCrApp No. 15 of 2019

Between

The Commissioner of Police

Appellant

and

Frank Edward Smith

Respondent

APPEARANCES:

Mr. Garvin Gaskin, with Ms. Kendra Kelly and Ms. Al-Leecia Delancy, Counsel for the Appellant

Mr. Keith Knight, QC, with Mr. Damian Gomez, QC, and Mr. Philip McKenzie, Counsel for Respondent

Attorney General of Canada v Bedford, et al McLachlin 2013 SCC 72 applied

Bahamasair Holdings Ltd v Messier Dowty [2018] UKPC 25 mentioned

COP v Arsenio Butler MCCrApp No. 21 of 2017 followed

Crosdale v R [1995] 1 W.L.R. 864 considered

Director of Public Prosecutions v Selena Varlack [2008] UKPC 56 applied

Director of Public Prosecutions v SJ, PI, RC [2002] EWHC 291 considered

Henfield v. Commissioner of Police [2008] 5 BHS J No. 74 considered

Jayasena v R [1970] AC 618 applied

Mnyandu v Padayachi [2017] 3 LRC 170 applied

R v Alobaydi [2007] EWCA Crim 1455 considered

R v Cairns [2013] EWCA Crim 467 applied

R v Galbraith [1981] 2 All ER 1060 applied

R v Young [1964] 1 WLR 717 considered

R v Shippey [1988] Crim. LR 767 considered

Raleigh Seymour v Commissioner of Police MCCrApp No. 83 of 2013 followed

Thomas v. Thomas 1947 AC 484 applied

Troyanna Ferguson v COP MCCrApp No. 231 of 2013 mentioned

Woolmington v DPP [1935] AC 462 applied

Criminal Appeal — Extortion — Attempted Extortion — Bribery — No case submission — Criminal Procedure Code section 203 — Unreasonable and Unsupported verdicts — Material Irregularity

The respondent was charged with thirteen counts of extortion, contrary to section 453(1) of the Penal Code and one count of attempted extortion, contrary to sections 83(2) and 453(1) of the Penal Code; and one count of bribery, contrary to sections 4(2)(a) and 10(b) of the Prevention of Bribery Act (“the offences”). He was acquitted after a no case to answer application was made pursuant to section 203 of the Criminal Procedure Code. The appellant now appeals the Magistrate's decision on the ground inter alia that the decision was unreasonable or could not be supported having regard to evidence.

Held: Appeal dismissed.

The onus of adducing sufficient evidence to raise a prima facie case before a tribunal in a criminal case rests on the Prosecution.

There is some merit to the appellant's complaints about procedural missteps the Chief Magistrate may have made but in our view they did not impact the result of the case to any significant degree as there was an abundance of examples of doubtful testimony from Mrs. Hanna which impelled the Chief Magistrate to her eventual conclusion. This ground is dismissed.

What must be borne in mind when considering the jury trial cases is that there is a clear demarcation between the role of the judge and the role of the jury. Magistrates, on the other hand, enjoy a fused jurisdiction so that they are both the judges of the law and the triers of fact. They perform the roles of judge and jury. In that capacity therefore, it could not be argued seriously that a magistrate cannot determine a witness to be untruthful or not credible.

The magistrate has the same right as the jury to acquit the accused at the close of the prosecution's case, if she cannot accept the evidence either because it is conflicting, or “discredited by cross-examination that no reasonable tribunal can safely convict on it”. She is in no less a position than a jury who having listened to the prosecution's case, indicates to the judge at the close of the prosecution's case that they wish to return a verdict of “Not guilty”.

In the premises, we would dismiss this appeal as it has not been shown that the Chief Magistrate has been so clearly wrong that we should interfere with her decision to discharge the respondent.

We are satisfied that the Chief Magistrate did not err when she had regard to Mrs. Hanna's reliability as a witness when determining whether the prosecution's evidence disclosed a prima facie case bearing in mind that the only evidence incriminating the respondent emanated through Mrs. Hanna. In our view therefore, this appeal is unsustainable and accordingly, is dismissed.

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

Introduction

1 On 14 May 2019 having listened to the submissions of Counsel we reserved our decision. We render it now. For the reasons articulated below in this judgment, we dismiss the appeal.

The Prosecution's Case

2 It was the appellant's case that in 2016 Barbara Hanna (“Mrs. Hanna”), (after being advised by the then Minister responsible for Public Works, Philip “Brave” Davis to do so) went to Mr. Frank Edward Smith (“the respondent”) for assistance in relation to a tender she had submitted in 2015 in the name of her company, Magic Touch Cleaning Company (“Magic Touch”), regarding the cleaning contract for the Critical Care Block (“the CCB contract”) at the Princess Margaret Hospital (“PMH”) for the period 2016–2017. After meeting with and speaking to the respondent a few times, he advised her that she had to wait as the Board of the Public Hospital Authority (“the Board”) had to meet and then the Public Hospital Authority (the “PHA”) had to do their job.

3 Weeks later Mrs. Hanna received a call from the PHA informing her that Magic Touch had been awarded the CCB contract. The contract called for monthly payments of $43,350.89. After Mrs. Hanna received her first payment under the CCB contract, the respondent contacted her and told her that she had to pay him $5,000.00. When Mrs. Hanna went to pay him the $5,000.00, the respondent then demanded that $5,000.00 had to be given to him monthly. The respondent received payment from Mrs. Hanna monthly for a period of one year, with the exception of the month of August, 2016.

4 It was also the appellant's case, that after the general election on 10 May 2017, the respondent attempted to obtain a further payment of $5,000.00 from Mrs. Hanna, but the payment was not made because the respondent was no longer a part of the governing party.

5 The respondent was charged in the magistrate's court in respect of thirteen counts of extortion, contrary to section 453(1) of the Penal Code and one count of attempted extortion, contrary to sections 83(2) and 453(1) of the Penal Code; and one count of bribery, contrary to sections 4(2)(a) and 10(b) of the Prevention of Bribery Act (“the offences”).

6 The trial was heard before Chief Magistrate Joyanne Ferguson- Pratt (“the Chief Magistrate) and concluded on 1 February 2019, after which the Chief Magistrate acquitted the respondent in respect of the offences after hearing submissions on a no case to answer application pursuant to section 203 of the Criminal Procedure Code (“the CPC”).

The Appeal

7 The appellant wishes us to set aside the judgment of acquittal on the no case to answer submission by relying on the following grounds of appeal contained in their amended notice of appeal:

• “1. The Learned Magistrate took extraneous matters into consideration;

• 2. Evidence was wrongly rejected or inadmissible evidence was wrongly admitted by the magistrate, and that in the latter case there was not sufficient evidence to sustain the decision;

• 3. The decision was unreasonable or could not be supported having regard to evidence;

• 4. The decision was erroneous in point of law, the particular point of law being section 203 of the Criminal Procedure Code, Chapter 91;

• 5. The decision of the Learned Magistrate was based on a wrong principle or was such that a magistrate viewing the circumstances reasonably could not properly have so decided; and

• 6. Some material illegality or irregularity, other than hereinbefore mentioned, substantially affecting the merits of the case was committed in the course of the proceedings therein or in the decision.”

Observations

8 The first observation we make is that the onus of adducing sufficient evidence to raise a prima facie case before a tribunal in a criminal case rests on the prosecution. Lord Devlin put it succinctly in Jayasena v R [1970] AC 618 when speaking about trials involving jurors:

“The Crown is required to discharge the burden by adducing such evidence as if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof”

9 In Woolmington v DPP [1935] AC 462 at page 481, Viscount Sankey LC said, inter alia:

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt… No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be”

10 The second observation we wish to make is that although the basis of the appeal is that the decision of the magistrate is erroneous in point of law, it is principally against a finding of fact, to wit, the prosecution's prime witness, Mrs. Hanna, was so unreliable that her evidence is incapable of belief altogether. There are two parts to this challenge: 1) was the Chief Magistrate wrong to enter upon a consideration of the credibility of Mrs. Hanna on the no case to answer submission? And if no, 2) was she correct to find Mrs. Hanna unbelievable?

11 The third observation we make is in relation to the second question posed above if we were to conclude the Chief Magistrate did not err when she considered the credibility of the witness, we would be slow to interfere with a finding by a tribunal pertaining to the credibility of a witness. Ultimately, the party challenging such a finding would have to show that an error of reasoning on the part of the tribunal has occurred in the evaluation process that is sufficiently serious and fundamental to undermine the conclusion for such a...