The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE LONDON-based Privy Council’s ruling in the Bahamas’ first tried human trafficking case may have some bearing on an ongoing matter, a magistrate said yesterday.

Chief Magistrate Andrew Forbes is presiding over the case of Clayton Phillips, 40, and Lekiesha Dean-Foulkes, 38, concerning allegations of trafficking in persons and conspiracy to engage in trafficking in persons.

It is alleged that the pair, being concerned with others between a date unknown and April 27, conspired to engage in trafficking in persons.

It is then alleged that they, while “concerned with others,” engaged in the trafficking of a 26-year-old woman “for the purpose of exploitation.”

Both have denied the charges and are represented by Krysta Mason-Smith.

When the matter was called yesterday, Crown prosecutor Ambrose Armbrister noted that Eucal Bonaby, the prosecutor handling the trial, was in a matter before the Supreme Court.

Chief Magistrate Forbes asked both counsels if preliminary arguments were going to be made concerning the October 17 decision by the Judicial Committee of the Privy Council which saw the highest court affirm the Court of Appeal’s ruling to quash the six convictions of 26-year-old Chevanese Hall.

Ms Mason-Smith said she expected the hearing to concern whether the Crown was in a position to proceed with trial in the absence of the complainant who was not in the jurisdiction when the matter was called in September.

Chief Magistrate Forbes said aspects of the recent ruling led to the issue of whether the case of Phillips and Dean-Foulkes ought to proceed as a summary trial or by preliminary inquiry.

The court said either route would require witnesses to give depositions before a determination is made on a way forward.

“They’ve sort of redirected the way these particular matters proceed,” the judge said.

Ms Mason-Smith said it was in the court’s hands to decide, but she was of the view that the case was properly before the court based on the section of law under which the charges were brought.

Mr Armbrister said the chief magistrate, in making a determination, would have to be satisfied that it has sentencing powers in the matter.

Chief Magistrate Forbes said he would further adjourn the matter to January 12, 2017.

The Judicial Committee of the Privy Council, in a 21-page judgment delivered by Lord Hughes concerning the Crown’s challenge to the Court of Appeal’s January 21 decision to release 26-year-old Chevanese Hall of six trafficking-related offences, addressed the issue raised by Chief Magistrate Forbes.

“The effect of the Criminal Procedure Code is not to limit offences for mode of trial purposes to the three categories postulated by the Court of Appeal,” the Privy Council said. “For the purposes of mode of trial, offences in the Bahamas may be categorised in four groups: (i) offences which are triable only by judge and jury in the Supreme Court, (ii) offences which are triable either way without the accused having any right to elect trial by jury, (iii) offences which are triable either way but in relation to which the accused has a right to elect trial by jury pursuant to Section 214 and Schedule 3 of the Criminal Procedure Code and (iv) offences which are triable only summarily.

“Where an offence falls into category (ii) the prosecution may invite the magistrate to proceed either by way of summary trial or by way of preliminary inquiry with a view to committal to the Supreme Court for trial by judge and jury on information.

“The accused has no right to elect trial by jury. But the prosecution does not have unfettered power to decide the mode of trial. That power belongs to the magistrate, who may determine either that a case which the prosecution would be content to be tried summarily ought to be sent to the Supreme Court, or that an offence which the prosecution would prefer to go to the Supreme Court ought to be tried summarily. The magistrate will no doubt hear both parties before arriving at a decision as to mode of trial.”

“The attorney general’s power to prefer a voluntary bill of indictment is now the subject of statutory definition in Section 258 of the Criminal Procedure Code. That section requires the offence to be ‘an indictable offence’ as defined in Section 2.

“The consequence of the definition in Section 2 is that a voluntary bill can only be preferred in relation to categories (i) and (iii) set out in conclusion (a) above.”

The Privy Council noted that the offences created by sections three and four of the Trafficking In Persons Act “are category (ii) offences.”

“It follows that there was no power to prefer a voluntary bill in relation to them. Whether the attorney general ought to have power to prefer a voluntary bill in the case of category (ii) offences, thus removing the necessity for a preliminary inquiry before the magistrate, is a matter of policy for Parliament; a comparatively simple legislative amendment can achieve that result if Parliament so decides.”

“The board will accordingly humbly advise Her Majesty that the appeal of the attorney general ought to be dismissed,” Lord Hughes concluded.

Hall, a Jamaican, was initially arraigned in Magistrate’s Court in February 2013 on four counts of trafficking of a person and two counts of unlawful withholding of papers, alleged to have been committed between January 10 to 28, 2013.

She was not allowed to enter a plea to the allegations until she was formally arraigned in the Supreme Court. She pleaded not guilty to all of the charges.

She was ultimately convicted of all charges and faced between 15 years to life imprisonment on the first four charges and 10 years imprisonment on the remaining offences.

However, the trial judge did not consider that life imprisonment was a fitting sentence in the 26-year-old’s case and imposed a 15-year sentence instead.