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Privy Council Upholds Court Of Appeal Ruling To Quash Human Trafficking Conviction

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

PARLIAMENT should amend the law if it wants the attorney general to have the power to fast-track human trafficking cases to the Supreme Court for trial, the London-based Privy Council ruled yesterday after it upheld the Court of Appeal’s ruling to quash the conviction in the Bahamas’ first tried human trafficking case.

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, noted that the change would not be difficult to achieve but “is a matter of policy for Parliament.”

The full ruling can be seen online at the JCPC’s website: http://jcpc.uk/index.html.

Hall, a Jamaican, returned to her home country earlier in the year after the appellate court agreed with veteran lawyer Murrio Ducille’s submission that “trafficking in persons” was not an indictable offence under the existing Criminal Procedure Code (CPC).

The appellate court, in its decision, said: “The VBI procedure is reserved for persons before magistrates charged with indictable offences. And as the appellant was not a person charged before a magistrate with an indictable offence, the voluntary bill of indictment (VBI) filed by the attorney general was done without jurisdiction and the trial subsequent thereto was a nullity.”

The Office of the Attorney General subsequently lodged an appeal to the decision and yesterday the Privy Council quashed its hopes for the decision to be reversed.

Yesterday, Lady Hales and Lords Wilson, Carnwath, Hughes and Toulson noted several reasons for affirming the appellate court’s decision.

“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. 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 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.

A week after the January 21 appellate court decision, Hall’s alleged accomplice 56-year-old Ricardo Laing was discharged of the same crimes in Magistrate’s Court.

Since the case of Hall, all other human trafficking cases have been referred to Magistrate’s Court for trial.

Appolonia McLean-Smith, 27, also a Jamaican, was convicted in October 2014.

She received three years and eight months in prison on the charge of trafficking in persons and three years each for unlawful withholding of identification papers and transporting a person for the purpose of exploiting such person for prostitution.

The sentences were to run concurrently and take effect from the date of sentencing. However, McLean-Smith was credited for the 13 months spent on remand, reducing her prison time to two years and seven months.

In May of this year, Terrance Williams, Mariska Williams and Michael Parrila were cleared of nearly a dozen charges in their trial concerning the alleged trafficking and harbouring of five women for sexual exploitation in January 2015.

The five complainants did not appear at trial to give evidence concerning the allegations against the three accused. However, their statements to police were allowed into the record through Section 66 of the Evidence Act, which gives the court the discretion to allow the statements of witnesses who are dead, cannot be found or are too sick to testify into evidence.

The statements revealed that the five women knowingly came to The Bahamas to engage in exotic dancing but were not brought to the capital by the accused.

Though they claimed that they were not allowed to leave the apartment where they stayed unaccompanied, there were no claims of their passports being taken from them or being forced to have sex with anyone against their will.

The presiding trial magistrate had found that the Crown had not made out a sufficient case to warrant a conviction.

Clayton Phillips, 40, and Lekiesha Dean-Foulkes, 38, meanwhile, still await their day in court on trafficking in person charges.

They maintain that they did not conspire and/or engage in trafficking of a 26-year-old woman “for the purpose of exploitation” and will be defended by Krysta Mason-Smith at their trial scheduled to start on October 31.

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