The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A CONVICT’S decision not to pursue his denial of the opportunity to be heard on an appropriate sentence for manslaughter before the London-based Privy Council proved “fatal” to his recent bid to challenge it on the grounds that it was unconstitutional, the Court of Appeal has ruled.

Former Appellate President Dame Anita Allen, along with fellow Justices Jon Isaacs and Roy Jones, said Phillip White’s decision not to pursue the “alternative remedy of a further appeal” to the country’s highest court proved detrimental to his recent submissions that he should have been allowed to seek a constitutional remedy for the appellate court’s previous failure to allow him to make submissions on sentencing for the 1989 death of Leroy Wayne Wilson.

White had previously attempted to appeal his being denied the opportunity to make submissions before the appellate court on an appropriate sentence for Wilson’s death, and had sought to do so via a Constitutional motion before Justice Jon Isaacs, then a senior Supreme Court judge, and then Acting Chief Justice (ACJ) Stephen Isaacs just months later.

Both attempts were unsuccessful, and for the same reasons: that those judges did not have the power to interfere with a sentence imposed by the higher appellate court. That resulted in White appealing the latter judge’s decision on the matter before the very court that imposed the life sentence, the Court of Appeal.

However, the appellate judges, in a written ruling, dismissed White’s appeal of ACJ Isaacs’ decision not to interfere with his life sentence for the reasons given, and suggested that he should have instead taken the constitutional issue up before the Privy Council subsequent to being sentenced in 1993.

Thus, they dismissed White’s appeal against his life sentence and re-affirmed ACJ Stephen Isaacs’ decision not to interfere with same.

On March 25, 1993, White was convicted for the murder and attempted armed robbery of Leroy Wayne Wilson, who was shot twice as White attempted to rob him and his wife on March 21, 1989.

White was consequently sentenced to death for the murder conviction and 20 years imprisonment for the attempted armed robbery.

White appealed his conviction and sentence on June 27, 1994. The Court of Appeal, differently constituted, allowed the appeal, quashed the murder conviction, and set aside the death sentence.

The appellate court thus changed the sentence to manslaughter and commuted his punishment to life imprisonment. However, White did not have the benefit of making submissions about an appropriate sentence in the circumstances of his case.

At a re-sentencing hearing in May 2014 before then-Senior Justice Jon Isaacs, the court maintained that as White had already been sentenced by the appellate court, he had no jurisdiction to interfere with the sentence that was passed.

On November 2014, White filed an originating Notice of Motion under Articles 28, 17, 19 and 20 of the Bahamas Constitution. That Notice of Motion was heard before then-Senior Justice Stephen Isaacs, and again White’s application was dismissed on the grounds that he had no jurisdiction to overturn a sentence passed by the higher appellate court.

On January 18, 2017, White filed an amended application appealing the dismissal of his constitutional application before Justice Stephen Isaacs, claiming that he was denied the opportunity to make submissions regarding his sentence for manslaughter in accordance with the Privy Council’s decision in the case of Dominique Moss.

White originally filed two grounds of appeal, but at the hearing on March 20, 2017, he withdrew the second ground. However, he invited the appellate court to re-sentence him or remit the matter to the Supreme Court for sentencing if it found favour with his submissions.

White complained that the learned judge failed to consider whether his constitutional right to be heard had been breached by the failure of the Court of Appeal to give him an opportunity to make submissions on his sentence.

His attorney, Christina Galanos, submitted that Justice Stephen Isaacs failed to properly consider White’s constitutional application on whether his right to be heard before sentencing had been breached by the Court of Appeal’s decision. She further submitted that the judge had made no ruling on the constitutionality issue raised by her client.

To support her submissions, Ms Galanos relied on two cases: Lockhart v The Attorney General, where Justice Stephen Isaacs overturned a Court of Appeal sentence in a constitutional application on the grounds that there was a breach of procedural fairness; and Cordell Farrington v The Queen, where former appellate Justice Abdulah Conteh set aside a sentence passed by the appellate court and referred the case to the Supreme Court for sentencing in accordance with the case of Dominique Moss.

Meanwhile, Crown prosecutors Jacqueline Forbes-Foster and Akeyra Saunders submitted that White’s application should be dismisses as ACJ Stephen Isaacs did not have the power to set aside a lawful sentence passed by the appellate court.

However, the appellate judges maintained in their written ruling that the appellate court has no jurisdiction to “re-hear an appeal from its own decision”.

Additionally, the ruling said the proviso to Article 28(2) of the Bahamas Constitution “restricts the use by any court of the constitutional remedy where there remains alternate means of redress”.

“In any event, this court has no jurisdiction to re-hear an appeal from its own decision,” the ruling said. “The right of this appellant to appeal against a decision of this court lies with the Privy Council. Where a court has convicted and sentenced a defendant, it has no further jurisdiction to deal with the matter”.

“In my view, the fact that the appellant had an alternative remedy of a further appeal to the Privy Council and chose not to pursue that remedy is fatal to his argument that he ought to have been allowed to seek a constitutional remedy,” Justice Jones wrote. “This court has no jurisdiction to re-open a matter once it has recorded a conviction and sentenced an appellant.

“It is for these reasons that I dismiss the appellant’s appeal against sentence and affirm the decision of Stephen Isaacs, Senior Justice in the court below.”