The Queen v David Shane Gibson
| Jurisdiction | Bahamas |
| Judge | Charles J |
| Judgment Date | 08 March 2019 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 233/10/2017 |
Supreme Court
Charles, J.
233/10/2017
Mr. Edward Fitzgerald QC with him Mr. Anthony McKinney QC and Mr. Owen Wells for the Applicant
Mr. James Guthrie QC with him Mr. Terry Archer and Ms. Destiny McKinney for the Respondent
Bill of indictment – Stay of criminal proceedings – Application to quash indictment – Abuse of process – Whether complaints ought to be raised before jury – Whether a fair trial was possible.
Fundamental rights and freedoms – Abuse of process – Scope of rights – Whether rights of applicant were threatened – Whether proviso to Article 28 of Constitution was relevant – Whether constitutional motion ought to be struck out as an abuse of process – Whether an alternative means of redress was available.
The Applicant, a former Minister of Government, was charged with 15 counts of bribery and corruption while holding public office. He was to stand trial on 25 February 2019 which date has expired principally because of the present application to permanently stay his criminal proceedings on the ground of gross prosecutorial misconduct. He further alleged that his constitutional rights to a fair trial and to be given adequate time and facilities under Article 20(1) and 20(2) (c) of the Constitution of The Bahamas were being contravened.
HELD: (i) refusing to quash the Voluntary Bill of Indictment and to stay the proceedings and (ii) finding that the Constitutional Motion is an abuse of the process of the Court;
The Applicant had failed to establish that what took place amounts to ‘gross prosecutorial misconduct’. Therefore, the Voluntary Bill of Indictment would not be quashed, nor a stay ordered. The two categories of case in which the court might exercise its jurisdiction to stay proceedings for abuse of process are: (i) where it would be impossible to give the accused a fair trial and (ii) where it was necessary to protect the integrity of the criminal justice system. In determining whether to stay criminal proceedings on the ground of gross prosecutorial misconduct, the court would take into account the particular circumstances of each case and, exercising a broad discretion, would strike a balance between the public interest in ensuring that those accused of serious crime were prosecuted and the competing public interest in ensuring that the misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. See Lord Dyson at para [13] of R. v. Maxwell[2010] U.K.S.C. 48; Warren v. Attorney General for Jersey [2011] U.K.P.C. 10 per Lord Dyson at para [22]; R v. Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 A.C. 42 at p. 74.
As a general rule, any discussions as to what evidence is going to be given by prosecution witnesses should never take place and it was wrong for ASP Thompson to hold the joint witness session on 25 September 2017. See: R v. Momodou and another (2005) E.W.C.A. Crim 177; R v. Skinner(1994) 99 Cr. App. R. 212; R v. Shaw[2002] E.W.C.A. 3004 and R v. Richardson (1971) 55 Cr. App. R, 244 applied.
The prosecution is under a duty to disclose as soon as is reasonably practicable all relevant material: Keane (1994) 99 Cr. App. R. 1. The duty to disclose is a continuing one: Maguire (1992) 94 Cr. App. R. 133 at 146. The obligation on the prosecution to make disclosure does not include details of every twist and turn of the investigation: The Attorney General v. SeanCartwright and others Criminal/Constitutional Appeal No. 8 of 2004; Clarke v. Commissioner of Police[2003] B.H.S. J. No. 43; The State v. Paul (Michael) et al(1999) 57 W.I.R. 48 applied.
The Applicant's constitutional rights were not threatened and his complaints were such as could be properly addressed in the ordinary process of a criminal trial: the proviso to Article 28 of the Constitution therefore applies: Boodram v. A-G of Trinidad & Tobago [1996] A.C. 842 at pp 853 – 855; Independent Publishing Co. v. A-G of Trinidad & Tobago [2005] 1 A.C. 190 at paras [83] to [94]; Thakur Persad Jaroo v. A-G of Trinidad & Tobago [2002] U.K.P.C. 5 considered. Stephen R. Stubbs v. The Attorney General(SCCivApp No. 153 of 2013) distinguished.
It is well established that the right to apply to the Supreme Court pursuant to Article 28 of the Constitution should be exercised only in exceptional cases where there is a parallel remedy. See: Jaroo; Harrikissoon v. Attorney General of Trinidad and Tobago [1980] A.C. 265; Chokolingo v. Attorney General of Trinidad and Tobago [1981] 1 W.L.R. 106 at pp. 111–112 and Hinds v. The Attorney General [2001] U.K.P.C. 56.
Mr. David Shane Gibson (“the Applicant”) a former Minister of Government, was arrested on 2 August 2017. On 3 August 2017, he was charged with a number of bribery and corruption offences. Since then, a number of charges have been withdrawn and he is now facing 15 counts of bribery. The 15 counts of bribery are particularized in a Voluntary Bill of Indictment (“VBI”) which was amended at a directions hearing on 11 May 2018 before the late Chief Justice (Ag) (as he then was), Mr. Stephen Isaacs. Upon his untimely demise, the matter was assigned to me. I have since fixed two trial dates: one to commence on Monday 25 February 2019 which has now expired and a new trial date of Monday 23 September 2019. This trial has not taken place principally because of this extant Originating Notice of Motion (“Notice of Motion”) filed by the Applicant on 24 July 2018 seeking, in the main, a quashing of the VBI and a stay of the criminal proceedings on the grounds of abuse in that there has been gross prosecutorial misconduct which undermines public confidence in the criminal justice system and conduct which renders a fair trial impossible. The Applicant also seeks redress under Articles 20(1), 20(2)(c) and 28 of the Constitution of The Bahamas (“the Constitution”). The Applicant's Notice of Motion was supported by the affidavits of Ryszard Humes sworn to on 16 August 2017 (“Humes 1”) and 17 August 2018 (“Humes 2”) respectively.
On 10 September 2018, the Director of Public Prosecutions (“the Respondent in these proceedings”) filed a Summons supported by an affidavit of Mrs. Cephia Pinder-Moss filed on the same day to strike out the Notice of Motion pursuant to RSC Order 18 rule 19 (a), (b) and (c) and under the inherent jurisdiction of the Court on the grounds that: (a) it discloses no reasonable cause of action; (b) it is scandalous, frivolous or vexatious; and (c) it may prejudice, embarrass or delay the fair trial of the Applicant.
In order to have a better understanding of this matter, it is helpful to set out some undisputed background facts in a chronological fashion. To the extent that these facts are not agreed, then what is stated must be taken as positive findings of facts made by me.
The Applicant was a Cabinet Minister and a Member of Parliament in the former Progressive Liberal Party (“PLP”) Government. Besides his ministerial responsibilities for Labour and National Insurance, he spearheaded the Government's nationwide relief and cleanup efforts following the ravages of Hurricane Matthew in early October 2016.
On 10 May 2017, general elections were held. The Free National Movement (“FNM”) was victorious and they now are the government in power. It appears that their mandate is to stamp out corruption, particularly among public officials. This is manifest from speeches made by the Honourable Prime Minister during the budget debate in June 2017, the Honourable Attorney General in an article appearing in the Tribune Newspaper on 23 June 2017 and the then Commissioner of Police, Ellison Greenslade on 27 June 2017. In a press conference on 27 June 2017, Commissioner Greenslade confirmed that a corruption unit within the Royal Bahamas Police Force (“RBPF”) termed the “anti-corruption branch” was fully operational.
About the same time, Jonathan Ash (“Mr. Ash”), a businessman and President of Ash Enterprise Ltd and Deborah Bastian (“Ms. Bastian) then Consultant, National Health Insurance Secretariat were interrogated by the police.
On 27 June 2017, ASP Thompson met with Mr. Ash and his attorney, Alicia Bowe: paragraph 5 of ASP Thompson's affidavit and diary entries 6, 7 and 8. After that meeting, ASP Thompson made preparatory notes with a view to writing up a statement in due course. It is true that these preparatory notes would not normally have been disclosed in a criminal trial but have been disclosed to the Applicant. On this day, Mr. Ash was also granted immunity by the Attorney General.
On 29 June 2017, Mr. Ash gave a detailed statement which was recorded and transcribed. Mr. Ash signed the typed statement on 30 June 2018.
On 1 July 2017, Ms. Bastian was seen at her home by the police. She agreed to attend the Criminal Detective Unit (“CDU”). While at the CDU, she was taken into police custody. A discussion took place followed by an interview under caution. She was subsequently released from police custody. The Record of Interview has been disclosed to the Applicant on 18 July 2018.
On 4 July 2017, as a result of further information, ASP Thompson along with Detective Sergeant Rolle (“Sgt. Rolle”) recorded a caution statement from Ms. Bastian. This statement has also been disclosed to the Applicant on 18 July 2018.
On that same day, Ms. Bastian signed an Immunity Agreement. To date, it has not been signed by the Attorney General.
On 6 July 2017, Sgt. Rolle attempted to contact Ms. Bastian in order ‘to clear up ambiguity’ in her caution statement. He was unsuccessful as she was away.
From 11 to 23 July 2017, ASP Thompson proceeded on vacation leave. During that time Inspector McCartney (“Insp. McCartney”) continued investigations in this matter.
On 18 and 19 July 2017, further interviews took place...
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