The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Department of Public Prosecutions intends to appeal a Supreme Court’s judge’s ruling that states that a rape accused’s voluntary bill of indictment was not valid as it was signed by an African prosecutor who was rejected for practice at the Bahamas Bar.

Last week, Justice Deborah Fraser delivered her decision after attorney David Cash challenged the validity of his client’s VBI.

 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.

Mr 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.

 The Criminal Procedure Code stipulates that only the attorney general or a legal practitioner acting on his behalf can sign VBIs. Mr Cash contends that because Mr Bakibinga and another African prosecutor working in the Department of Public Prosecutions have been denied the right to practice by the Bahamas Bar Association, they cannot be considered legal practitioners in the country.

 In her ruling, Justice Fraser said it was “clear from the words of the relevant statutes considered by the court” that Parliament intended to ensure that the “person who exercised functions under section 258 of the CPC were appointed in accordance with the Constitution.”

 She said the court found that section 258 of the CPC is not in contravention of the Constitution, which meant that the person who signed the VBI should have been the director of public prosecutions, or a person acting on their behalf, who was a legal practitioner in accordance with the CPC.

 In a notice of motion formally filed yesterday, the DPP said the office is appealing Justice Fraser’s ruling on the grounds that she “erred in law” when she declared that section 258 (2) of the CPC is not inconsistent with Article 78A(4) of 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.

 The DPP’s motion said the learned judge “erred in law when she declared that Article 117(2) of the Constitution requires ‘such persons’ appointed as legal public officers (that is who are appointed to public offices) to be legal practitioners as opposed to declaring that Article 117 (2) applies to ‘such public offices’ as may be prescribed by Parliament.”

 In grounds three and four, the DPP also argued that the judge made a mistake when she declared that there was “no (and cannot in law be a) distinction between a legal public officer and a legal practitioner” and finally, 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.”

 If the Court of Appeal rules in favour of Justice Fraser’s ruling, it could result in several court cases being sent back to Magistrate’s Court if the VBIs the accused were served were signed by the two African prosecutors employed at the Department of Public Prosecutions.