The Tribune

EDITOR, The Tribune.

A FEW months ago when it seemed like we were having a murder every day, the Bahamian people were apoplectic, perplexed and the government appeared clueless as to how to tackle the problems, there was great anxiety amongst the citizenry which led to the obligatory renewed call for the implementation of the death penalty.

I thought it best at that time to put pen to paper and alert my fellow countrymen of the complexities of so doing.

At the time I too failed to notice a basic fault that’s so commonplace in our jurisdiction that it’s been overlooked by the Judiciary, the Director of Public Prosecutions and Defence Counsel.

Namely that for many years now in our system accused persons have been brought before the Bar with an invalid statement of offence which in my humble opinion, and most would say I’m anything but humble, all those persons charged with murder have been wrongly charged which renders the voluntary bill of indictment (VBI) proffered a nullity.

In other words, there a number of persons who have been convicted and sentenced for murder presently incarcerated that need to have those judgements quashed and those persons properly brought before the Court and retried.

I’m not going to endear myself to many Bahamians in pointing this out but if I sit back and do nothing I won’t have the blood of Sir Milo running through my veins and as an officer of the Court I wouldn’t be upholding my most solemn duty to the rule of law.

It’s a matter of the individuals’ constitutionally guaranteed fundamental rights which always outweigh the rights of the state.

Is this opening up a hornet’s nest, yes it is but the nest was constructed by an arm of the state namely the Director of Public Prosecutions Office and all of the rest of us who are part of the system but were negligent in our duties.

Thus stated another way any Voluntary Bill of Indictment before the Court would be fatally flawed and the resulting trial would have proceeded on a fatally flawed VBI rendering the resulting conviction and sentence void if a person were charged with any other section than S. 290(1) or (2) of The Penal Code.

The section being charged in The Bahamas is a “sentencing section” and gives the various tariffs for persons charged with murder under Section 290(1) & (2) of the Penal Code Chapter 84.

Section 290 states in plain English.

Section 290(1) of the Penal Code provides that: “Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as in this Title hereinafter mentioned”

Section 290(2) lays out the charge for murder under specific circumstances where the death penalty is available.

Section 291 starts of by stating “sentence for murder”.

Section 291 (a) maintains the ability to impose a death sentence for those charged under 290(2).

Section 291(b)(I) imposes a life sentence which is defined by section 291(6) as natural life.

Section 291(b)(ii) imposes a sentence ranging from between 30 to 60 years.

Therefore any person charged under section 291(B) is not being charged with murder unless the Court is allowed to infer from the sentence sought what the crime is that the accused was before the Court.

This can’t be the case.

Even if that were the position which I do not accept, there are still many problems associated with this as section 291(b) has two subsections which carry vastly different tariffs and would in and of itself not sustain a valid charge.

The Privy Council in the Bahamian case of James Miller-v-The King 2022 UKPC 10 Privy Council Appeal No 0115 of 2019 highlighted the definition of murder.

In the judgment delivered on 13 March 2023 Lord Turnbull delivering the judgment noted the following at paragraph 11 (which is instructive): [11] “.......By way of contrast, the crime of murder is the intention to kill. Section 290 of the Penal Code provides that: Who- ever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as in this Title hereinafter mentioned.”

There you have it from the Privy Council as to what the crime of murder is defined as. And it’s not section 291(b).

An accused person is entitled to know what they have been brought before the judicial system for and the particulars thereof.

Section 73 criminal procedure code act chapter 91 Bahamas Statute Law which is Identical to UK 1915 Indictments Act states as follows: Section 3(1) of the Indictments Act 1915 provides that the indictment must contain “a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”.

In The Bahamas, the sentencing section is not a charge in law and can not provide a reason why the individual is before the Bar and irrespective of what the particulars say you can not clean up the fault in the mistake of the charge. This is not a mere technicality it goes to the heart of the matter.

The inherent faults herein with respect to countless Bahamians could have been rectified had it been noticed at the onset of the proceedings but unfortunately this style of charging murder is so pervasive in murder cases in The Bahamas that this style has become the norm.

The House of Lords has ruled with respect to a valid indictment, and stated that being signed by a judicial officer in the UK as prescribed by the relevant legislation is a condition precedent the failure of which makes the indictment invalid.

In R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) R v McDaid (Appellant) session 2007- 08, [2008] UKHL 8 on appeal from: [2006] EWCA Civ 1196, wherein the various judgements of the Lords of Appeal were clear and particularly:

Lord Scott of Foscote stated at paragraph 24: “My Lords, 24. I have had the advantage of reading in advance the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. I regret but agree with his conclusion that the appeals of the two appellants must be allowed and their convictions quashed and agree with the compelling reasoning that has led him to that conclusion. My regret is that their convictions have had to be quashed on account of a defect in the proceedings that most would regard as a technicality.”

In applying the same to all the affected Bahamian nationals as much as the outcome of quashing the conviction and sentence may upset the Court’s and general public’s sensibility it nonetheless is necessary as the failure to lay a proper and valid charge is a breach of the condition precedent.

As their lordships would have stated in various places in the above judgment it cannot be held that it was the legislative intention to proffer an indictment which did not properly and accurately charge an accused.

Does this have far reaching national implications. Absolutely. Is it going to cost a considerable amount of money to retry all of these persons, again absolutely. But the costs and the inconvenience can’t be a consideration.

Getting it right and the upholding of the rule of law must be paramount.

Will the government and the relevant authorities have to move expeditiously to cure this grave defect, yes that is a must.

In this instance the government has very limited options and the introduction and passing of legislation will in my opinion not cure the defect.

I’ll go further and opine it’ll probably take two to three years to retry all the affected persons, and definitely some remedial measures must be taken forthwith as all those persons are technically entitled to bail as their constitutional right to a fair hearing

Archbold, Criminal within a reasonable amount Pleading, Evidence and of time has been infringed.

Practice (40th Edn), page 52 paragraph 53: “In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:

(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,

(ii) when for such reason it does not accord with the evidence given at the trial.”

As noted previously this is unfortunately standard procedure in The Bahamas and has been overlooked for far too long.

It constitutes an infringement of an accused person’s constitutional right to a fair trial and other inalienable rights.

And at the point of conviction the rights have indubitably been infringed and prejudice sustained by the convicted person.

Trust me I’ve not factored in the other collateral questions such as the right to a jury of twelve persons and the requirement of a unanimous verdict. But that’s a valid consideration.

I’m presently going to seek special leave to appeal to the Privy Council on this same ground in respect of a client. I should hope that it’s a question of such national importance requiring the quickest possible determination that the Office of The Attorney General would see the wisdom of joining the appeal so that such a vital question is answered. I am not convinced however it’ll be viewed as such.

My fellow Bahamians this is a situation that cannot persist and one where all of our collective voices and outrage must be brought to bear.

CRAIG F BUTLER ESQ

Counsel and Attorney- At-Law

Nassau June 2 2024