When the DNA swab was taken Stern was fully down... The Florida Coroner had not come out yet with his report
Seminole LE was still investigating him
The Eviction summons was served
And Bahamian Inquest was coming.
Once Stern won with the Florida issues - it revived his arrogance
Does anyone know when he will be evicted? That should be no big deal unless bribes are involved.
THE CORONER’S COURT
Nowhere was it more clear during the year of the impact of a Court on the lives of individuals in the country and on public policy than in the Coroner’s Court. The Coroner is a statutory creature established in 1910 under the act that can be found in Chapter 43 of the statute laws of the Commonwealth of the Bahamas 1987.
We point out that the Court has been manned by Winston Saunders since 1992, and a credible job has been done with the work of the Coroner. The remit of the Coroner is to investigate deaths for which there is no explanation and if possible to make findings of fact and charge criminal offenses where a finding of homicide is made by the jury.
The juries are made up of 7 persons who can be press-ganged from the streets by the Court. They must be over the age of 21 and they can be men or women. In practice many of the jurors on Coroner’s Court juries appear on several juries during the year, because unlike the Supreme Court there is no list of registered voters from which to draw.
The Court has made some satisfactory decisions, more often than not. It has brought closure to scores of families who had no other recourse. In many cases charges have been brought against persons in cases where the Attorney General or the police refuse or feel unable to prosecute someone for a homicide. It has also been useful where persons have gone missing in circumstances where it is obvious that they are dead, but insurance companies refuse to pay until there is a finding of death by a competent court.
The Coroner’s Court is also responsible for the investigation into the death of any person who dies in custody whether in the custody of the police, in Her Majesty’s Prison, or in the Sandilands Hospital.
The public has accepted the work of the Court. And the Government should take note as Winston Saunders has resigned and demitted office, largely over frustrations with the inability to reform the Court. He has now gone back into private practice. The Court’s usefulness is that the public now knows that there is a place to go to when there is an unexplained death that might bring closure to the death of their loved one.
The Government should move expeditiously therefore to appoint someone else to fill Mr. Saunders’ position so that we do not end up with a situation similar to that prior to 1992 when so many requests for inquests had been made and there was no action whatsoever on those inquests. The Government should also send a formal note of thanks to Mr. Saunders for his efforts in organizing the work of the Court.
WHEN THE CORONER’S COURT FELL INTO ERROR
The Coroner’s Court however, was not perfect, and two cases in particular point to the need for legal reform of the powers of the Court and the clarification of what the public policy ought to be on freedom of information.
The first case is that of the inquest into the death of John Higgs. Mr. Higgs was an inmate at Her Majesty’s Prison who died by his own hand shortly before he was to be executed in February 2000 for murder of his wife. An anonymous note was delivered to Radio Talk show host and legislator Senator Obie Wilchcombe, which note purportedly was written by the hand of Mr. Higgs explaining why he had taken the action that he did to cheat the hangman.
Mr. Wilchcombe, not being properly summoned, to the Court nevertheless agreed to appear and give evidence during the inquest. In the course of his testimony, he refused to reveal the place where the note was given to him on the grounds that as a journalist he could not in all conscience reveal the source of the note. He claimed that to reveal the place where he got the note might also reveal the source.
In the event, the Court exercised a statutory power to commit Senator Wilchcombe to Her Majesty’s prison for four days for refusing to answer the question. The decision was an outrage and flew in the face of the right of a journalist to protect his source. The law of The Bahamas does not confer such a right as such, but it is clear to this author that in the contemporary climate of freedom of speech and the press, the press has impliedly under our constitution a right to refuse to answer on the grounds that the source would be revealed. In the jurisprudence of the European Convention on Human Rights, the freedom of expression provisions similar to our article 23 of the Constitution provide such protection to journalists.
While journalists who are line staff supported their colleague, the management of the press did not. The press seemed to acquiesce in the face of the judicial branch's exercise of authority. The argument of the Judicial branch is that in a case where there are competing public interests, i.e. the right under the freedom of expression provisions to protect a source on the one hand and the right of the Court to know information that might lead to uncover criminal activity or simply to activity that the Court in its discretion needs to know, the Court’s right supersedes that of the journalist.
Try as we might counsel for Senator Wilchcombe, this Senator and Mrs. Glenys Hanna Martin could not persuade either the Coroner, the Supreme Court or the Court of Appeal that in Senator Wilchcombe’s case, the Court ought to defer to the protections in a democratic society for the press. And so Senator Wilchcombe was made to suffer the indignity of four days in jail.
The case is instructive for a number of reasons. First it points out the need for reform of the Coroners’ Act. For the moment I will limit that call for reform to the need to provide for an appeal of any decision of the Coroner. As Counsel for Senator Wilchcombe we were stuck in the unhappy position of having to proceed by way of judicial review of the decision of the Coroner. This means that one can only succeed if the Coroner made a procedural error or the decision was manifestly unreasonable. Superior Courts are otherwise reluctant and unable to interfere.
It is time therefore for the legislature to intervene and to ensure that the press is able to protect its sources in these cases.
It is an interesting irony that during the judicial review of Senator Wilchcombe’s case, the Court could not be persuaded that the demand of the Coroner for information did not even meet the present test that the information was relevant and necessary for the inquiry. As it turns out, the assertion by Senator Wilchcombe’s attorneys was correct. The fact is there was a razor blade found in the cell and the jury concluded that Mr. Higgs got assistance from inside the prison to kill himself. Senator Wilchcombe was in no way implicated in that. So the basis upon which the Coroner sought the information did not in fact exist at the beginning, yet the man had to spend four days in prison. And there does not appear to be any redress available to Senator Wilchcombe.
THE ROSLYN ASTWOOD CASE
The second case that demonstrated the need for reform of the Coroner’s Court was that of the teacher at S.C McPherson who was charged with manslaughter as a result of the verdict of a Coroner’s Jury’s decision on 29 November in the case of the death of Shawn Evans a student at the S.C. McPherson school who was punished by six strokes of a jumbey switch on his hand. The child later died because of an undisclosed heart disease. The charges against Mrs. Astwood were subsequently discontinued on 29 December by the order of the Attorney General.
It should be said that it may still be necessary despite the writ of nolle prosequi by the Attorney General to have to go to court to quash the finding of the Coroner’s Court. However, what the verdict showed is that there need immediately to reform the Coroner’s enabling statute to limit the kinds of verdicts that can be brought by the Coroner’s Court.
We are aware that there has been a substantial review of the existing legislation, having full regard for the reforms that have been brought in the United Kingdom. Those reform proposals are before the Attorney General and she has not moved on them. It is time for us to move toward the position where those reforms are put in place.
The Court should be fully established and constituted, with a proper office, staff and budget that is separate and apart from that of the general Judicial branch, so that the Coroner may move about the country as it is necessary.
The reforms would enable the establishment of such a Court. It would also see the appointment of Deputy Coroners. It would limit the kinds of verdicts that juries can bring. It would make it clear that juries in the Coroner's Courts should not venture into civil findings of fact, as they have no relevance in their inquiries. It would give the Coroner the power to make certain recommendations to the Attorney General upon recommendations of the Coroner or the juries. It should move the power to charge a person but only give the power to make a recommendation to the Attorney General. Parliament should move expeditiously to consider these reforms. And I repeat the need to provide for an appeal of the findings of a Coroner.
THE PRIVY COUNCIL
The Privy Council continued to be an effective highest court of the land for The Bahamas and the other nations of the Caribbean. Despite the nationalist talk about abolishing the Court, largely because of the unhappiness with the strictures put on the application of the death penalty, the court continues to be the Court of final appeal. The Caribbean Court of Appeal is an idea whose time has not come for The Bahamas. We share the sentiments of Opposition Leader in Jamaica Edward Seaga that the creation of such a Court cannot be a kangaroo court that is simply established so that the death penalty can be carried out quickly. A court must exist for more than that.
There is at present no official sentiment on either political side to support a Caribbean Court of Appeal. There is, however, continued official unhappiness with the finding of the Privy Council this year that the Inter-American Court of Human Rights, one of the structures of the Organization of American States has jurisdiction to hear complaints from citizens of the Caribbean in death penalty matters, and that executions cannot be carried out so long as the petitions to those structures are extant.
THE COURT OF APPEAL
The Court of Appeal appears to have been dealing expeditiously with most applications to it. The behaviour of judges toward Counsel has improved slightly with the passing of the troika of Gonsalves-Sabola, Carey and George as Presidents of the Court of Appeal. There continues to be a concern voiced by attorneys that the Court cannot find Bahamians to sit on the Bench. The only Bahamian on the Court, of the five justices of appeal continues to be Burton Hall. This is a situation that cannot continue and must be addressed by those responsible for the nomination of judges of appeal.
THE SUPREME COURT
The Supreme Court bench is also more than ever increasingly relying on foreign jurists to man the benches. One must confess also that despite years of campaigning on this issue and the fact that there is public support for the total Bahamianization of the bench, a majority of practitioners are opposed to it. Their opposition increasingly comes as a result of what many practitioners feel is a lack of intellectual acuity in jurisprudence in the decisions of many Bahamian judges or too often the acquiescence in their decisions to the Executive. This reputation is probably undeserved but there is great currency to that thinking at the Bar today. There is a feeling that Bahamian judges do not stand up for themselves, the Bar and the Judiciary in the face of the executive.
Nevertheless, this Bahaman remains fully committed to the complete Bahamianization of the Judiciary.
In Freeport, there was limping justice because for most of the year there was only one Supreme Court justice in that city. Jeffery Lyons, an Australian, set the cat amongst the pigeons during the year when he decided that he would not hear any cases involving the Grand Bahama Port Authority on the grounds of the likelihood of the appearance of bias on his part.
The Grand Bahama Port Authority assists in the housing arrangements for Supreme Court Justices in Freeport. Lyons J, we have been informed has since altered his position and now takes the view that he will disclose to the parties the interest of the Port Authority in the case, and if the parties object he will decline to hear the case, but if not he will hear the matters.
One supposes that this is an enormous relief to the authorities who were privately furious at the decision and were threatening behind closed doors mayhem and removal because of the decision. Carrying such a decision to its logical conclusion would have meant that many cases could not have been heard in Freeport but would have had to have been transferred from Freeport in order to be heard if they involved the Grand Bahama Port Authority.
Mr. Justice Moore is moving from Nassau to Freeport to become the second judge in Grand Bahama. Moore J will join Lyons J on 15 January.
There is also some back channel talk about the creation of a Supreme Court in Marsh Harbour, Abaco.
The Supreme Court did not get its own separate budget in the annual allocations by Parliament, and the Chief Justice still has to go to the public treasury for the use of funds. This should be changed so that the Supreme Court becomes independent of the treasury allocation system that often leads to great delays in the work of Supreme Court being done.
During the year, there were several acting appointments to the bench. There was an English trust judge brought in for a short time. There were also three Bahamian judges who acted, two of whom continue to act. Jon Isaacs, formerly Chief Magistrate is now acting and so is Vera Watkins, formerly of Magistrate’s Court Number 3 in Nassau Street. Their appointments are for a year.
My colleague Jeannie Thompson at the private bar also acted for three months beginning in September 2000 and ending November. All of us should be grateful for the assistance that she lent the Court during those three months.
We again speak to the issue of the physical state of the courts. During the year, there was substantial painting done to the main Supreme Court Building and a new carpets were installed throughout, but for a substantial part of the year, the air conditioning was not working in the Supreme Court, making it difficult for the Courts to function.
NEW SUPREME COURT PRACTICE DIRECTIONS
The practitioners on the civil and criminal side continued to be concerned about the question of delay. A number of measures were taken to increase the flow of cases on the civil side and to lessen the delay between the time a case is charged in the criminal courts and the time of trail.
Unfortunately, persons are still waiting up to four years for criminal trials to take place in the Supreme Court.
Further, the measures put in place by the Chief Justice to improve the case flow were uneven in their application and in their effects. They often were so bureaucratic that they became a more tangled weave than the one it was meant to unravel. The more sensible practice direction was the one that created a Judge to hear quick chamber applications at short notice. The other practice direction about the setting down of cases needs to be revisited because it has created more problems that it has solved.
Further, it seemed most unusual for a practice direction to be issued that reminded Magistrates of what the law is. Since it would seem to logical reasoning, that if a magistrate is a magistrate then that magistrate ought to know the law. Clearly, this was a matter that should have been dealt with in a series of in-house meetings with Magistrates.