Villacba v A.G.
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 04 August 1994 |
| Court | Supreme Court (Bahamas) |
| Date | 04 August 1994 |
| Docket Number | No. 863 of 1990 |
Supreme Court
Sawyer, J.
No. 863 of 1990
Messrs. Wayne Munroe and Damien Gomez for the applicant.
Mr. Wellington Olander for the respondent.
Criminal Practice and Procedure - Possession of property derived from participation in trafficking contrary to s.20(2)(a) of the Tracing and Forfeiture of Proceeds of Drug Trafficking Act — Prohibition of erection of unlicensed instruments and apparatus contrary to s.42 of Ch.277 of the Bahamas Telecommunications Corporation Act — Bribery contrary to s.3(1)(a) and 10(b) of the Prevention of the Bribery Act Ch.18 — Applicant sought an order that an ex parte restraint order which was granted be set aside — Sum of $219,206.00 be returned — Order or relief which may appear just — Declaration that the applicant's right to a fair trial within a reasonable time guaranteed by Art. 20 of the Constitution was infringed — Judgment was in favour of the applicant.
On 25th July, 1994, at the close of arguments in this case, I gave judgment in favour of the applicant. The terms of that judgment are reflected in the order laid over and initialled that same day. The Order reads:–
“(1) That the Restraint Order granted herein ex parte on the 2nd day of July, A.D., 1990 be set aside in accordance with section 9(4) and 10(5) of the Tracing and Forfeiture of the Proceeds Drug Trafficking Act, Chapter 86;
(2) That any further prosecution of the applicant for the offences referred to in the affidavit of Cecil T. Hilton, Esq. filed on the 20th day of February, A.D., 1992 at paragraph 1 be stayed:
(3) That the sum of $219,206.00 and the equipment seized by the Royal Bahamas Police Force on the 17th day of June A.D., 1990 on the premises occupied by the applicant at No. 22 Villas in Paradise, Paradise Island be returned to the applicant or his Order.
(4) That the applicant's right to a fair trial within a reasonable time guaranteed by Article 20 of the Constitution of the Commonwealth of The Bahamas has been infringed.”
As promised at that time, I now give detailed reasons for my decision.
On 17th June, 1990, the applicant was arrested and charged with the following offences-.–
“Possession of Property Derived from Participation in Trafficking: Contrary To Section 20(2)(a) of the tracing and forfeiture of Proceeds of Drug Trafficking Act,
Particulars are:–
That you on 17th June, 1990, were in possession of the following property derived from your participation in trafficking, to wit:–
1. the sum of $219,206.00 being $182,030.00 in States currency and $37,176.00 in Bahamian currency
2. one Icom Transceiver, serial number 05849;
3. one Astron Power Supply, serial number 9002910;
4. one Icom Tuner, serial number 03083;
5. one Nissei 305 fax machine.
Prohibition of Erection of Unlicensed Instruments and Apparatus: Contrary to Section 42 of Chapter 277 of the Bahamas Telecommunications Corporation Act.
Particulars are:–
That you on Sunday, 17th June, 1990 at Paradise Island being concerned together and not being authorised by the Bahamas Telecommunications Corporation Act, 1966, or by the terms of arty licence Issued there: under, and maintained apparatus namely: One Icom transceiver serial number 05819; one Astron Power Supply serial number 9002910 and one Icom Tuner serial number 03083 for the purpose of transmitting messages within the Commonwealth across the seas, by means of telecommunication.
Bribery: Contrary to Section 3(1)(a) and 10(b) of the Prevention of Bribery Act, Chapter 81.
Particulars are:–
That you on Sunday, 17th June, 1990, at Paradise Island, without lawful authority or reasonable excuse, did offer advantage of $50,000.00 to Sergeant 479 Miller as an inducement to abstain from performing an act in his capacity as a public servant.”
He was arraigned before the learned Stipendiary and Circuit Magistrate sitting at Magistrate's Court No. 1 on 20th June, 1990 where he pleaded not guilty. The trial was adjourned to a latter date and he was granted bail pending the trial. There was no evidence before me as to the terms or conditions of the bail. There were further adjournments of the trial but the reasons therefore do not appear on the charge sheets produced before me.
On 2nd July, 1990, Thorne J., on an ex parte application, made a restraining order under section 10 of the Tracing and Forfeiture of Proceeds of Drug Trafficking Act (Ch.86), (“Ch.86”).
It is clear that at some unknown point in time, the applicant left The Bahamas. The reason for his departure is not stated in the evidence nor is it clear whether he left of his own volition or was compelled to leave because the time permitted to him by the Bahamian immigration authorities had expired.
He was in the Turks and Cairns Islands by the 3rdl June, 1991 where he swore an affidavit before a “justice of the peace on that date.
On 30th September, 1992, counsel for the applicant wrote to the Ministry of Justice in the following terms:
“The Ministry of Justice
Post Office Building
East Hill Street
Nassau, Bahamas
Dear Sir/Madam,
Re: Hugo Abreo Villacba
Please be advised that we are instructed to represent the above captioned defendant relative to moneys and telecommunication equipment seized by the police. As you may be aware the money and property were the subject of a restraining order in Action Number 863 of 1990 on the Criminal side of the Supreme Court. Subsequent to the order a prosecution was launched before Magistrate Joseph Alfred. This hearing could not be completed due to our client be held. in the Turks and Caicos Islands pending extradition to the United States of America. Magistrate Alfred has since-left the bench and the matter has never been transferred before another magistrate.
We would advise that our client's position is that he wishes to be tried. We put you formally on notice as to our position so that your office may do what is necessary to facilitate the recommencement of the trial of our client.
Should it be your intention not to recommence the trial against our client we would request that you advise us accordingly. We would then request that you return to us the money and equipment taken from our client. We remind you that the authorities are bailees at will of the money and equipment and therefore liable for any deterioration of the same. Should our request not be honoured by the 30th October we shall move the Court to receive redress.
Our client is entitled to justice. We await your advices.
Yours truly,
Elliott B. Lockhart & Co.
Wayne R. Munroe”
By that time, it had been more than two years since the applicant had been arrested and charged with the stated offences. A reminder was sent to that Ministry by the applicant's counsel on 1stl December, 1992.
On 19th May, 1993, counsel for the respondent wrote to the applicant's counsel as follows:–
“Elliot B. Lockhart & Co.
Shirley Street & Elizabeth Avenue
Nassau, Bahamas
Attn: Mr. Wayne H. Munroe
Dear Sir,
Re: Hugo Abreo Villacba
Reference is made to your letter dated 30th September, 1992 and subsequent conversations relative to the above-captioned individual.
As you are probably aware Mr. Villacba is presently serving a term of imprisonment in the United States of America. Therefore we are unable to proceed with the prosecution of Mr. Villacba at this time.
Yours truly,
Wellington E. Olander
Counsel (Acting)”
It will be noted that the explanation, if it could be called that, for the delay in prosecuting the case against the appellant was that he was serving a sentence in the United States of America. When that alleged sentence was imposed or even when the applicant was taken into custody by the American authorities is not mentioned. The statement that the applicant is serving a sentence in the United States is denied in the affidavit of Cecil Hilton sworn on 23rd June, 1993 and filed July 2, 1993. In paragraph 3 of that affidavit it is stated that the applicant is remanded in custody while awaiting trial in the United States of America. There is no evidence on the part of the respondent which takes issue with that statement, it was therefore accepted as being accurate.
No evidence was put before me to show what steps, if any, the prosecution had taken to have the applicant returned to the jurisdiction or even If such steps were riot legally possible under the Fugitive Offenders Act, 1881 (while he was in the Turks and Caicos Islands) or under the Extradition Act after he was taken to the United States.
Before the case was completed the magistrate before whom it was started, resigned his office. There was no evidence before me that any steps were taken to transfer the matter at that time from that magistrate to another magistrate as could have been done under either section 46 or 47 of the Criminal Procedure Code Act (Ch. 84) (“the CPC).
Subsequently, the same person has been re-appointed as a Stipendiary and Circuit Magistrate and counsel for the in the course of his submissions, indicated that it was the prosecution's intention to have the hearing of the applicant's case either resumed or re-commenced before that if and when the applicant returns to The Bahamas from the United States.
By his amended notice of originating motion, the applicant sought the following reliefs:–
“(1) An Order that the Restraint Order granted herein ex parte on the 2nd day of July, A.D., 1990 be set aside in accordance with sections 9(11) and 10(5) of the Tracing and Forfeiture of the Proceeds of Drug Trafficking Act Chapter 86; and
(2) An Order that the sum of $219,206.00 seized by the Police on the 17th June, A.D., 1990 on the premises occupied by the defendant at No. 22 Villas in Paradise Island be returned to the applicant; and
(3) Such other Order or relief as to this Honourable Court may appear just.
(4) A Declaration that the applicant's, right to a fair...
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