Commissioner of Police v Davis and Franklyn
| Jurisdiction | UK Non-devolved |
| Judge | Lord Goff of Chieveley |
| Judgment Date | 04 October 1993 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No. 52 of 1992 |
| Date | 04 October 1993 |
Privy Council
Lord Goff of Chieveley; Lord Jauncey of Tullichettle; Lord Lowry; Lord Mustill; Chief Justice Zacca
Privy Council Appeal No. 52 of 1992
Constitutional law - Fundamental rights and freedoms — Right to a trial by jury — Constitution (Bahamas), Art 20 (2) (g) — Whether right infringed by the Dangerous Drugs Act, (Bahamas), s. 22.
Practice and procedure - Magistrate — Dangerous Drugs Act (Bahamas), s. 22(8) empowers magistrate to impose sentence of life imprisonment — Whether this confers jurisdiction appropriate only to the Supreme Court.
Statute - Severance — Whether Dangerous Drug Act (Bahamas), ss. 22(9), (10), (11) inconsistent with Constitution (Bahamas), Art. 20(2)(g) — Test of substantial severability.
Jurisdiction - Magistrate — Whether magistrates' Courts in Bahamas are courts of law.
This appeal is concerned with two questions arising under the Constitution of The Bahamas. The first question is whether certain provisions of the Dangerous Drugs Act Ch. 213 (“the DDA”), viz. sub-sections (8) to (11) of section 22 which were added to the DDA by the Dangerous Drugs (Amendment) Act 1988, are inconsistent with the Constitution and are therefore void. The second question, which was raised for the first time in argument before the Court of Appeal, relates to the legal status of Magistrates' Courts in The Bahamas.
The matter has arisen as follows. On 24th February, 1991 a Cessna aircraft crashed into the sea not far from the airport at West End, Grand Bahama. The crash marked the end of an air chase involving drug enforcement agents of The Bahamas and the United States. The two respondents, Skip Patrick Davis and Barry Franklyn, escaped from the aircraft and boarded a life raft. They were apprehended whilst still on the life raft near the position where the aircraft crashed. When the aircraft crashed, a large number of taped packages spilled into the sea from a bottom compartment of the aircraft. 149 of the packages were recovered. They were found to contain a total of 389lbs of cocaine.
The respondents were charged with three offences contrary to the DDA, viz.:–
-
(1) Possession of dangerous drugs (cocaine) contrary to sections 28(5) and 28(2) (b).
-
(2) Possession of dangerous drugs (cocaine) with intent to supply, contrary to sections 22(1) and 22(2) (b).
-
(3) Importation of dangerous drugs (cocaine) contrary to sections 15(5) and 28(2) (b).
Sections 28(5) and 15(5) provide respectively for the offences of simple possession and importation of dangerous drugs. Section 28(2) provides for the penalty applicable in the case of offences under the Act for which special provision is not otherwise made. Section 22(1) provides for the offence of possession of dangerous drugs with intent to supply. Section 22(2) provides for the penalty applicable in respect of such an offence, section 22(2) (b) so providing in the case of summary conviction. The sentences applicable in respect of possession with intent to supply are heavier than those applicable in the case of simple possession or importation under section 28(2) (b). In the latter case, the maximum penalty applicable on summary conviction is a fine of $5,000 or a sentence of five years' imprisonment or both. Under section 22(2) (b) the penalty applicable in the case of summary conviction is (1) on first conviction, a fine of not more than $100,000 and a term of imprisonment of not less than one year but not more than five years, and (2) on second or subsequent conviction, a fine of not more than $200,000 and a term of imprisonment of not less than three years but not more than seven years.
Furthermore, by virtue of sub-sections (8) to (11) of section 22, added in 1988, special provision was made in the case of amounts of dangerous drugs in excess of certain specified quantities. For cocaine, the amount so specified was 2lbs, which was far exceeded by the amount involved in the present case (3891bs). Since these four sub-sections are at the heart of the present case, their Lordships think it right to set out their terms in full:–
“(8) Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case in which a person is convicted of having committed an offence under subsection (1) and the quantity of dangerous drugs to which the charge relates is –
(a) in the case of Indian hemp, in excess of ten pounds;
(b) in the case of cocaine, in excess of two pounds; or
(c) in the case of opium morphine and its salts including diacetylmorphine (commonly known as heroin), in excess of twenty grams, the provisions of subsections (2) and (4) shall have effect as if for the respective maximum terms of imprisonment liable to be imposed thereunder there were substituted a term of life imprisonment.
(9) In any case in which a Magistrate has convicted a person of having committed an offence under subsection ( 1) or (4) and the person so convicted is liable to imprisonment for life by virtue of subsection (8), the Magistrate shall commit the convicted person in custody for sentence to the Supreme Court either at any sessions then in progress or at the next convenient sessions.
(10) In any such case as is referred to in subsection (9), the Supreme Court may proceed to sentence the convicted person as if the person so committed had pleaded guilty before the Supreme Court to that offence or had been found guilty by verdict of a jury:
Provided that the Supreme Court shall not sentence any person in any case until the time limited by section 230 of the Criminal Procedure Code Act, 1968 for an appeal against conviction has expired or, in the event of a Notice of Appeal being served within that time, until that appeal has been finally determined.
(11) In a case referred to in subsection ( 9) or (10), it shall not be necessary for any information to be filed against the person so committed for sentence and the convicted person shall be sentenced for the offence in respect of which he has been convicted as aforesaid.”
It follows therefore that, under sub-section (8), the maximum term for which the respondents were liable to be sentenced for the offence of possession with intent to supply on summary conviction was life imprisonment instead of five years on first conviction or seven years on second or subsequent conviction; though in such event the magistrate had to commit the convicted person to the Supreme Court for sentence under sub-section (9), and the Supreme Court would then proceed to sentence him under sub-section (10).
The respondents were tried before a magistrate, Ms. G. Manuel. Before the magistrate, the principal question was whether the aircraft crashed, and the respondents were apprehended, within the Bahamian jurisdiction. The magistrate had little difficulty in concluding on the evidence before her that they were. On 4th September, 1991 she found all three charges proved against both respondents, and so committed the respondents to the Supreme Court for sentence pursuant to sub-sections (8) and (9) of section 22.
The respondents then appealed to the Supreme Court on a number of grounds, which included (1) that the magistrate had wrongly failed to subpoena a witness whose presence had been requested by them, and (2) that the respondents had been deprived of their constitutional right to trial by jury in respect of the three offences with which they had been charged, and that the provisions of section 22 of the DDA under which they had been convicted and remanded in custody for sentence were unconstitutional and void. — In support of the second of these grounds, the respondents relied in particular on Article 20(2) (g) of the Constitution, which provides that every person who is charged with a criminal offence “shall, when charged on information in the Supreme Court, have the right to trial by jury”; and they contended that the increase in the sentence applicable in the case of summary conviction of the offence of possession of dangerous drugs with intent to supply had resulted in an indirect denial of their right to trial by jury.
The respondents' appeal was heard by Hall J. In a judgment delivered on 22nd May, 1992, he first concluded that the magistrate had erred in failing to subpoena the witness whose presence had been requested by the respondents. In ordinary circumstances he would, for this reason, have simply ordered a retrial. However before making any such order, he considered next the constitutional question raised by the respondents, since that question went to the jurisdiction of the magistrate. He concluded that sub-sections (9), (10) and (11) of section 22 must be rejected as conflicting with the Constitution; but that these provisions could be severed from the remainder of the section, as could sub-section (8) in so far as it applied to summary convictions. The effect, in his judgment, was that the magistrate's jurisdiction to impose a sentence of five years' imprisonment under section 22(2) (b), in respect of possession with intent to supply, applied in respect of that offence unaffected by the impugned provisions, as did the general provision to impose the same sentence under section 28(2) (b). He also concluded that a provision for sentence on summary conviction up to five years' imprisonment was not unconstitutional. On this basis, he remitted the case for retrial by a different magistrate, and directed that, should the respondents be again convicted, the magistrate should proceed to pass sentence under section 22 (2) (b) and section 28(2) (b).
The appellant and the respondents both appealed against the decision of Hall J., the appellant appealing against his decision that sub-section (8) in part and sub-sections (9) to (11) of section 22 were in conflict with the Constitution, and the respondents against his decision to...
To continue reading
Request your trial
- Bahamas Entertainment Ltd v Koll and Others
-
Sst Consulting Services Pty Ltd v Rieson
...Lowe (1996) 190 CLR 311 at 326–328; Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 at 811; Commissioner of Police v Davis [1994] 1 AC 283 at 40 Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 72; Fitzgerald v Masters (1956) 95 CLR 420 at 427 per Dixon CJ and ......
-
Ruhani v Director of Police (No 2)
...Harrington v Lowe (1996) 190 CLR 311 at 326-328; Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 at 804, 808; Commissioner of Police v Davis [1994] 1 AC 283 at 298–299. 6 See the references to the writings of Vattel in Robtelmes v Brenan (1906) 4 CLR (Pt 1) 395 at 400, 409. 7 S......
-
CIS 14141 1996
...(Director of Public Prosecutions v Hutchinson [1990] 2 AC 783, applied by the Privy Council in Commissioner of Police v Davis [1993] 4 All ER 476). 24. The result in the claimant's case is that there was no error in the legal basis adopted by the appeal tribunal for not allowing her the app......