The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

A Supreme Court’s judge’s ruling that states that a rape accused’s voluntary bill of indictment was invalid as it was signed by a non-Bahamian prosecutor who was rejected for practice at the Bahamas Bar, could potentially impact “160 odd cases”.

This is according to Director of Public Prosecutions Garvin Gaskin.

  Mr Gaskin made the statement during an appeal hearing of Justice Deborah Fraser’s decision before Justices Sir Michael Barnett, Jon Isaacs and Maureen Crane-Scott in the Court of Appeal yesterday.

 Earlier this year, Canes Villus, who is charged with four counts of unlawful sexual intercourse, was presented a VBI bearing the signature of Ugandan native David Bakininga, a lawyer who currently serves as the assistant director of public prosecutions, but has not been called to the Bahamas Bar.

 His attorney, David Cash argued that Mr Bakininga erred in law when he signed the VBI of his client, as he has not been approved by the Bahamas Bar Association for practice.

 Justice Fraser agreed with him when she ruled that section 258 of the Criminal Procedure Code is not in contravention of the Constitution. She said this meant that in order for the VBI to have been signed in accordance with the laws of this jurisdiction, the person who signed it should have been the DPP or a person acting on his behalf, who was a legal public officer or legal practitioner in accordance with the CPC.

 During the virtual hearing yesterday, Mr Gaskin said his department filed “several grounds” to overturn this decision.

 When asked how many cases would be impacted if his appeal was unsuccessful, he stated: “We are at 160 odd cases. And why I say that is we know that there are also acquittals, court convictions (and) appeals and so it certainly has an impact.”

 Mr Gaskin argued that Justice Fraser “erred in law” when she declared that section 258 (2) of the CPC is not inconsistent with the Constitution, to the extent that section 258(2) of the CPC mandates that only the DPP or a legal practitioner, as defined by the CPC, can sign a VBI.

 He noted the “foundational starting point” to address the issue could be found in Article 2 of the Constitution. He also said the powers of the director of public prosecutions under paragraph three of that article, could be exercised by the DPP or “through any other person acting under and in accordance with his general or specific instructions.”

“We submit that there is no constitutional requirement for any person through whom the DPP exercises his powers under article 78A paragraph four, that that person must only be a legal practitioner,” he said. “And so we ultimately submit where section 258(2) of the CPC constrains in effect Article 78A (4), it is inconsistent with the Constitution and it is as required by Article 2, void to the extent of the said inconsistency.”

 In response, Justice Isaacs told Mr Gaskin based on his reasoning, he could get a janitor to sign a VBI.

 Mr Gaskin argued that if the Constitution says the delegation can be given to any other person and a janitor happened to be delegated the power to sign a VBI, it could be argued that that action would be an “unreasonable delegation.” Still, he said it did not mean that because of an “irrational delegation” like that, the “plain words of the Article would fall away.”

 Mr Gaskin also noted that this was the first occasion where this particular area was being “judicially tested.” He said this could suggest that any restriction of the attorney general’s power that was not constitutionally permissible could in fact be “ultra vires.”

“It is noteworthy that in 78(2) the powers of the attorney general...may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions,” he said. “We endeavour to emphasise the words ‘through other persons’ and we submit that those words appear to be at minimum permissive.”

 After he stated this, Justice Crane-Scott noted that the word “may” made the issue permissive because it indicated how the AG’s power is to be exercised.

 “So 258 does not apply to a DPP. He can do what he likes, he can decide to institute a prosecution against someone and file for example a petition, sign it and that’s good enough?” she asked Mr Gaskin. “Because essentially that’s what you are arguing...There is a difference it seems to me between the decision to institute a prosecution and how that is to be done.”

 Justice Crane-Scott said based on Mr Gaskin’s arguments, it appeared that he was seeking to justify his ability to issue a VBI signed by another person that he has authorised. She noted that the power of the DPP to issue VBIs is “still worded as the AG’s power” and not the DPP’s.

 “The constitution exists,” she said. “It’s in supreme law, but there are other companion acts that Parliament has supplemented the prosecuting authority’s powers with and so it must mesh. If not, your power in Article 78A is at large and you can do what you like.”

 Mr Gaskin’s second ground of appeal contends that Justice Fraser erred in law when she declared that Article 117(2) of the Constitution requires “such persons” appointed as legal public officers to be legal practitioners as defined by the CPC as opposed to declaring that Article 117 (2) applies to “such public offices” as may be prescribed by Parliament.

 “The learned judge declared that a legal public officer must be a legal practitioner,” Mr Gaskin said. “We submit that that conclusion is in error. We (also) submit that a legal public officer may be a legal practitioner, but does not have to be.”

 He added: “There is no qualification for instance of a chief counsel prescribed in a particular law. You won’t find a parliamentary statute that says these are the qualifications that a chief counsel ought to have. So what is being prescribed by Parliament is the public office, not the legal qualifications. This aspect is important because there was no contest before the learned judge as to whether Mr Bakininga was a legal public officer. (As a) matter of fact, it was accepted.”

 Yesterday, the DPP also argued that the judge made a mistake when she declared that there was no distinction between a legal public officer and a legal practitioner.

 However, Justice Isaacs noted that for a person to prosecute, they have to be a legal practitioner.

 In his final ground, Mr Gaskin asserted that Justice Fraser erred in law when she asserted that Mr Bakibinga “could not sign a VBI ‘for’ the DPP, pursuant to Article 78A(4) of the Constitution.”

 “With reliance on the express words of article 78A (4), we submit in that in this circumstance the issue of a legal practitioner that flooded the application of downstairs in the Supreme Court technically does not duly arise if the VBI was signed for the DPP,” he said.

 “We submit in those circumstances the DPP has constructively signed the VBI and we submit that the circumstances attract the law in relation to procuration and there’s also a relevant Latin maxim...which translates as: ‘He who does a thing through another does it himself.’”

 After he made this point, Sir Michael told him if the thrust of his argument suggested that it did not matter if an agent signing on behalf of the AG or DPP was a legal officer or practitioner, the provisions restricting that from happening were “otiose”, or meant nothing.

 Justice Crane-Scott also said she had problems with the theory Mr Gaskin was seeking to rely on “conceptually” as the statute did not refer to the DPP.

 For his part, Mr Cash maintained his initial position and said he believed the “issue to be determined was a very narrow one.”

 After listening to submissions from both sides, Sir Michael said the panel would give the arguments and submissions of both parties their “full consideration” and deliver their decision at a later date.