The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Director of Public Prosecutions has been successful in appealing a Supreme Court judge’s ruling that stated that a rape accused’s voluntary bill of indictment was invalid as it was signed by a non-Bahamian prosecutor who cannot practice at the Bahamas Bar.

Canes Villus was served a VBI earlier this year after he was charged with four counts of unlawful sexual intercourse with a young girl. When the document was presented to him, it was signed by a lawyer in the Office of the Director of Public Prosecutions who is not a legal practitioner as defined by the Criminal Procedure Code.

Villus’ attorney, David Cash, then made an application in the Supreme Court challenging the validity of the VBI, with reference to section 258 of the CPC. According to court documents, at the time, Mr Cash contended the matter should be reverted to the Magistrate’s Court for a preliminary inquiry to be conducted, or for the provisions of section 258(2) CPC to be “strictly complied” with by the Director of Public Prosecutions.

Justice Deborah Fraser later ruled the VBI was invalid and remitted the matter back to the Magistrate’s Court.

Weeks later, DPP Garvin Gaskin appealed that decision after arguing the judge “erred in law” when she declared David Bakibinga could not sign a VBI “for” the DPP, pursuant to Article 78A (4) of the Constitution.

After reserving their decision, Justices Sir Michael Barnett, Jon Isaacs and Maureen Crane-Scott yesterday granted Mr Gaskins’ appeal. Nonetheless, the panel said the “dispute” should have never happened and was caused by the DPP acting through people who were not legal practitioners, when he had people in his department who matched that description.

In their judgment, delivered by Sir Michael, they noted section 258 had to be considered “against the background of the constitutional authority of the Attorney General and the DPP”, in order to “properly construe” the effect of the section.

“Article 78 specifically provided that the powers of the Attorney General may be exercised by him personally to or through other persons as he has instructed to exercise powers in his name and on his behalf. There is no limitation of the width of this power to delegate,” Sir Michael stated. “The submission that the words ‘or on his behalf by any legal practitioner acting on his instructions’ are restrictive on the wide power and therefore ultra vires.

“Article 78 (does) not find favour with me and such a finding is in my judgment unnecessary.”

Sir Michael insisted if those words were ultra vires, then certain words in section 54 of the CPC would also be considered ultra vires.

“Section 258 as well as section 54 of the CPC should be construed in a manner consistent with this wide power of the Attorney General to delegate the exercise of his power ‘to any person,’ he continued. “Section 258 empowers the Attorney General/DPP to exercise his powers personally by signing the VBI through any person he authorises to sign in his name.

“There is nothing in that section which prevents the Attorney General/DPP from authorising any person from acting as his agent in signing the VBI. It specifically authorises a legal practitioner to do so, but in my judgment it would be impermissible to construe it as restricting the Attorney General/DPP from exercising his constitutional right to act through any other person he chooses.”

In the panel’s ruling, Justice Isaacs also stated a “plain reading” of sections 54 and 141 of the CPC made it very clear the Attorney General could “authorise any person to institute and undertake criminal proceedings and to sign on information”.

He said this fact was “consonant” with the provisions of Article 78(2) of the Constitution prior to the 2017 Act.

“Although there may be occasions when the personal signature of the person is required, I am satisfied that in the construction of this procedural provision, that is section 258(2) of the CPC the maxim - “He who acts through another does the act himself’ is applicable and appropriate so as not to frustrate the breadth of the powers of the DPP pursuant to Article 78A(4) of the Constitution,” he stated.

He said in view of this fact, Mr Bakibinga was competent to sign the VBI “for” the DPP.

Sir Michael went on to say that because the VBI was valid, the Supreme Court could not treat it as a “nullity” and instead was “obliged to act on it”.

“Having said that, I am obliged to note that this dispute ought never to have arisen,” he said. “The DPP has caused it by acting through persons who are not legal practitioners when he has persons in his employ who are in fact legal practitioners.

“Moreover, it is unclear why the DPP has not invited Parliament to amend section 258 by providing that the VBI may be signed by the DPP of any legal officer in his employ.

“This would make it consistent with sections 54 and 141 of the CPC as it relates to proceedings on Information otherwise than through the VBI. I would allow the appeal.”