Lord Brown of Eaton-under-Heywood
On 1 December 2004, following trial before Isaacs J and a jury in the Supreme Court at Nassau, the appellant was convicted on one count of unlawful sexual intercourse with a person under the age of fourteen, contrary to section 10(1) of the Sexual Offences and Domestic Violence Act 1991 (the 1991 Act). The next day he was sentenced to a term of three years’ imprisonment suspended for three years and to enter into a recognizance of $1,000 to keep the peace and be of good behaviour for those three years.
The Attorney General at once applied for leave to appeal against sentence, essentially on the ground that it was unduly lenient, an application which was listed with the appeal to follow for hearing before the Court of Appeal (Sawyer P, and Churaman and Osadebay JJA) on 14 March 2005. On 14 March the Court of Appeal first gave the Attorney General leave to appeal and then allowed the appeal, substituting for the suspended sentence imposed at trial a term of seven years immediate imprisonment and issuing a warrant for the appellant’s arrest.
The appellant was neither present nor represented before the Court of Appeal and it is that which gives rise to the present appeal before the Board. The appellant contends that he was never informed of the date of the appeal hearing and never consented to its being heard in his absence. The Court of Appeal’s judgment was, therefore, he submits, arrived at in breach of the rules of natural justice and contrary also to article 20 of the Constitution of the Commonwealth of the Bahamas and to section 20 of the Court of Appeal Act (Ch 52). Article 20 of the Constitution provides so far as relevant:
Article 20, contends the appellant, applies no less to the hearing of an Attorney General’s appeal against sentence than to a defendant’s trial and sentencing at first instance. This contention the Board understands the respondent to accept.
Section 20 of the Court of Appeal Act provides:
By virtue of section 12(4) of the Act, section 20 applies mutatis mutandis to an Attorney General’s appeal against sentence and so, submits the appellant, implicitly provides that the respondent to such an appeal “shall be entitled to be present [at the hearing] if he so desires”, a fortiori if, as here, he was not in custody but lawfully at large.
Their Lordships understand the respondent Attorney General for his part to accept that if on an Attorney General’s appeal the defendant so desires, he is entitled to be present at the hearing of the appeal. It is his central contention, however, that the evidence before the Board plainly shows that this appellant had no desire to be present in person or to be represented at this particular appeal hearing on 14 March 2005.
With that brief introduction their Lordships turn in a little more detail to the facts of this appeal.
Sexual intercourse is widely defined by section 4 of the 1991 Act. The appellant’s offence occurred in November 1999 when (then in his late forties) he licked the vagina of the eleven-year old daughter of the woman he was then living with, causing the girl to be “scared and uncomfortable” and threatening that if she reported the incident her family would revert to the poverty in which they had previously lived.
She in fact delayed reporting it until December the following year. The appellant was arrested in January 2001 and committed for trial in April 2001.
Immediately upon the verdict being returned (by a majority of eleven to one on the victim’s uncorroborated evidence) the appellant through his counsel, Mr Hanna, said he intended to appeal against conviction. The following day, however, after the suspended sentence had been passed, Mr Hanna stated that “that intent has been dropped. We do not intend to appeal.” In passing sentence, the judge took into account by way of mitigation, first, that the offence had been committed over five years ago since when the appellant had been subjected to the stress of an impending trial and, secondly, that he was a man of no previous convictions against whom no allegations of a similar nature had been made. The judge’s final observation was that the appellant should consider himself fortunate that the state had taken so long to prosecute his case, an observation doubtless reflecting his earlier ruling, on 20 July 2004, upon the appellant’s originating motion, that his article 20(1) constitutional right to a fair hearing within a reasonable time had been infringed and that unless the trial commenced by 31 December 2004 the prosecution should be stayed.
The same day that sentence was passed the Attorney General filed a notice of application for leave to appeal against the sentence, serving copies personally both on the appellant before his release from custody and on Mr Hanna at his office. (As stated, the respondent’s main ground of appeal was that the sentence was unduly lenient. There is nothing in the argument that this was not a ground open to him. Section 12(1)(g) of the Court of Appeal Act provides for an appeal on the ground that “the sentence passed was unduly severe” and section 12(4) applies that provision mutatis mutandis to an Attorney-General’s appeal against sentence.)
The steps thereafter taken to notify the appellant of the hearing date of the appeal have been the subject of extensive affidavit evidence before the Board, much of it adduced only at the eleventh hour and little of it entirely satisfactory. Amongst the facts plainly established, however, are these. On 16 February 2005 the Court of Appeal’s cause list for the March 2005 sittings, listing the Attorney General’s appeal against the appellant for hearing on 14 March 2005, was posted on the Court’s notice board, the relevant entry unaccountably describing the appellant as acting in person. It is common ground that no attempts were made after the initial service of the notice of application on Mr Hanna to notify him of the date of the hearing or, indeed, to invite his assistance in notifying the appellant himself. On 25 February 2005 the Court of Appeal’s bailiff sought to serve the appellant personally at Fox Hill Prison with the notice of hearing and the record of proceedings. Since, however, the appellant was not then in custody this attempt was obviously futile. On 8 March 2005 the Director of Public Prosecutions wrote to the General Manager of the Broadcasting Corporation asking for the following announcement to be made at 8.15 am on each of the 9th, 10th and 11th of March: “Richard Campbell, last known address Faith Avenue off Carmichael Road or next of kin, is asked to contact [the Attorney General’s Office]”.
There is affidavit evidence from two police officers of a failed “effort .... made to locate the petitioner in the Carmichael Road area” and of visits to one of the appellant’s brothers and to his sister, each of whom, it is said, promised that if they saw the appellant they would tell him the date of the Court of Appeal hearing. These affidavits, however, are disturbingly lacking in particularity, not least as to the dates of the visits; affidavits from the appellant’s brother and son (who speaks of what his aunt told him) strongly suggest that the police called on them after rather than before the Court of Appeal hearing and with a view to arresting him under the Court of Appeal order (he was not in fact arrested until 25 April 2006) rather than to alerting him to the date of the Court of Appeal hearing. Both the son and the appellant himself depose to the appellant having lived at his Carmichael Road address from mid 2004 until his eventual arrest, leaving it only for brief trips to Cuba for medical treatment.
The appellant swears that he heard nothing as to the Court of Appeal hearing date and learned of it only subsequently. On 3 October 2005 (over six months before he was finally arrested) he lodged a petition to the Board for special leave to appeal against both conviction and sentence (granted by the Board only as to sentence on 24 May 2006). Mr Hanna too deposes to having known nothing of the appeal hearing until it was over. A weakness in the affidavits of both the appellant and Mr Hanna, however, is that each speaks of a continuing intention to appeal to the Court of Appeal against conviction without any mention whatever of Mr Hanna’s statement in open court after sentence was passed that that was no longer the intention. Nor does Mr Hanna offer any explanation of why the notice of such an appeal was not given within the 21 days specified by section 17(1) of the Court of Appeal Act.
There is in addition some not very satisfactory evidence about the Court of Appeal’s practice regarding the notification of forthcoming criminal appeals. The only relevant provisions in the Court of Appeal rules (1965, as amended) appear to be rule 5(1) which provides that “at least seven days before each sitting of the Court the Registrar shall post on the notice-board of the Court the cause list of the sitting” (although the Court in its discretion can hear appeals even when not so listed), and rule 9(1) which provides for service of all documents requiring to be served to be effected by personal service by the bailiff (although it appears that the only relevant document for present purposes was the notice of application for leave to appeal which had already been personally served on the appellant on 2 December 2004). The relevant authorities may wish to consider whether the rules should not be strengthened with regard to the notification of hearing dates. In explanation of why the Court of Appeal did not at least notify Mr Hanna of the hearing date, the respondent says only that “it is common for defendants to change counsel between trial and appeal” – an explanation disputed by Mr Davis, counsel who acted for the appellant on his petition for special leave to appeal to the Board, who says that since Mr Hanna had been served with the notice of appeal “it would be expected that some effort would have been made to ascertain whether he was still representing Mr Campbell.”
In the event, as already stated, the Court of Appeal heard and allowed the respondent’s application and appeal in the appellant’s absence, increasing his sentence to an immediate term of seven years. The Court said that the appellant was a mature person who had breached his position of trust towards the child and corrupted her, that the only question was not whether he should go to prison but for how long, and that “the minimum sentence that should be imposed in cases of this kind is not less than seven years.” The judgment contains no reference whatever to the appeal being heard in the appellant’s absence. Their Lordships know nothing more than appears from a recent letter from counsel for the Attorney-General saying only that the matter was heard “after an inquiry was made as to Mr Campbell’s whereabouts on the date in question.”
As stated, the respondent’s main argument on this appeal is that the Board can and should conclude that the appellant had no desire to be present or represented at the Court of Appeal hearing. It is submitted that their Lordships should be satisfied of this having regard to all the evidence available. Mr Dingemans QC for the respondent relies cumulatively upon the following matters:
first, despite knowing of the proposed appeal against sentence, neither the appellant himself nor anyone on his behalf made any contact with the Court of Appeal as to when it would be heard;
secondly, it is suggested, one way or another the appellant must have learned something of the approaching appeal date from the various efforts made to contact him both by police visits to family members and by the series of broadcasts;
thirdly, the unconvincing nature of the appellant’s and Mr Hanna’s affidavits denying all knowledge of the matter;
fourthly, the appellant evaded capture for over a year following the Court of Appeal judgment.
The appellant argues to the contrary that it can “not rationally [be] concluded on the evidence that the appellant was deliberately frustrating the appellate process so as to give rise to an implicit waiver of his right to be present.” Amongst the points made by Mr Fitzgerald QC on his behalf are that there was no attempt to notify Mr Hanna of the hearing date and no attempt to serve notice of the hearing date by leaving it at the appellant’s last known address.
As stated, it is common ground before the Board that the respondent to an Attorney General’s appeal, just as a defendant at trial, has the right to be present at the hearing and to be legally represented if he wishes. In certain circumstances, however, there is a discretion to hold the hearing in his absence and without his being represented. R v Jones (Anthony)  1 AC 1 is authority for that: the House of Lords there upheld the Court of Appeal (Criminal Division)’s dismissal of the appellant’s appeal against conviction notwithstanding that his trial had proceeded in his absence and without his being represented. But, as Jones makes clear, “the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution” (Lord Bingham of Cornhill at para 13) and “it is generally desirable that a defendant be represented even if he has voluntarily absconded” (Lord Bingham at para 15). In Jones it was “clear that [the appellant] had .... absconded in order to avoid standing trial” and, as Lord Rodger of Earlsferry observed at para 51, the “facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place.” Together with the majority of the House, however, Lord Rodger was not prepared to conclude that Jones “had waived his right to be present or to be represented at any trial of the charges against him.” It was not to be inferred that he knew that the trial could take place in his absence, still less that he had waived his right to representation at the trial. His appeal was dismissed rather on the basis that there had been a fair trial and thus no breach of article 6 of the European Convention on Human Rights.
The question before the Board, therefore, is not whether the appellant implicitly waived his right to be present at the appeal hearing but rather whether in all the circumstances the appeal is to be regarded as properly and fairly disposed of in his absence. Their Lordships are clearly of the view that the answer to this question is ‘no’. A great deal was at stake for the appellant, the appeal resulting as it did in a vastly more severe sentence. At the very least the Court of Appeal would have needed to satisfy itself either that the appellant must have known of the hearing date and deliberately absented himself or that he had deliberately made it impossible to notify him in advance. Whatever suspicions their Lordships may have about the appellant’s position, they do not think that either conclusion was open to the Court of Appeal on the evidence and certainly there is no indication of any sufficient investigation let alone findings on these critical questions. In any event their Lordships would have expected the Court of Appeal to ensure legal representation for the appellant, most obviously perhaps by inviting Mr Hanna to attend on his behalf.
Their Lordships understand Mr Dingemans to contend that, even supposing the Court of Appeal proceedings to have been in some way unfair or unsatisfactory, any deficiency has now been cured by the present appeal before the Board. First he submits that even if the Court of Appeal carried out no sufficient investigation of the appellant’s absence from the hearing, the Board itself should conclude on all the evidence now available that this was entirely his own fault. For the reasons already given the Board is not satisfied of that. Secondly, Mr Dingemans submits that seven years was an entirely correct sentence for this offence so that nothing would now be gained by setting it aside. This too is an impossible submission. Their Lordships express no view as to the propriety of such a sentence. It is sufficient to point out that there are obvious arguments available to the appellant that such an increase was inappropriate here – based, for example, upon the long delay in bringing him to trial (itself involving a breach of the appellant’s constitutional rights as the trial judge had earlier found), and the so-called “double jeopardy principle” which is generally applied in the respondent’s favour on Attorney General’s references in England and Wales. Here too their Lordships express no view as to the strength of the arguments. They are not strong enough, however, to persuade the Board, as Mr Fitzgerald invites, merely to allow the appeal without remitting the case for reconsideration by the Court of Appeal.
There is one other matter to which the Board must make reference and that is the terms of section 10 of the 1991 Act, both as originally enacted (as it stood at the date of the appellant’s offence) and as subsequently amended with effect from 15 March 2002 by the Abolition of Mandatory Minimum Sentences Act 2000.
Unamended, section 10(1) read:
Any person who has unlawful sexual intercourse with any person under fourteen years of age .... is guilty of an offence and liable to imprisonment for life subject to, on a first conviction for the offence, a minimum term of imprisonment of seven years and, in the case of a second or subsequent conviction for the offence, a minimum term of imprisonment of fourteen years unless the Court having regard to the exceptional mitigating circumstances of the case sees fit to impose a lesser term of imprisonment than the minimum term.
As amended, section 10(1) reads:
Any person who has unlawful sexual intercourse with any person under fourteen years of age .... is guilty of an offence and liable to imprisonment for life subject to, on a first conviction for the offence, a term of imprisonment of seven years and in the case of a second or subsequent conviction for the offence, a term of imprisonment of fourteen years.
It will readily be seen that, unamended, section 10(1) provided for minimum terms of imprisonment (depending on whether for a first or subsequent offence) unless the Court found “exceptional mitigating circumstances.” Astonishingly, however, as amended, the section appears to provide for the same minimum terms as before but now without the possibility of a lesser sentence because of “exceptional mitigating circumstances.” Surely this cannot have been intended: the amendment was, after all, achieved by the Abolition of Mandatory Minimum Sentences Act, 2000, whose short title is “an Act to amend certain Acts to provide for the abolition of mandatory minimum custodial sentences”, and the word “minimum” was removed from section 10(1) in the three places it had previously appeared (as too was the possibility of a lesser sentence for exceptional mitigating circumstances, presumably because the draftsman supposed there would no longer be any need for that once the minimum sentence provisions had themselves gone). That said, however, it is difficult to find any coherent construction of the amended section which both makes sense of the references to seven and fourteen year terms and at the same time leaves open, as plainly was intended, the possibility of a life sentence.
The Board has no information as to how the section is applied in practice in the Bahamian courts. No mention of it whatever is to be found in the judgment of the Court of Appeal. Nor did Isaacs J refer to it although Mr Hanna in mitigation had said to him that “In 2002 the minimum or the statutory minimum were removed and I know now that my Lord has discretion to determine or in sentencing to be merciful.”
Mr Fitzgerald invites the Board to construe the amended section as if the seven and fourteen year terms were each merely “a presumptive starting point” respectively for first and subsequent offences. (Construed otherwise, he submits, the provision would be arbitrary and unconstitutional – see, for example, the Board’s decision in Reyes v The Queen  2 AC 235.) Their Lordships however decline the invitation. The Board would be loath ever to construe such a provision without the benefit of the views of the Courts most directly concerned with its application. It is in any event sufficient for present purposes to record both parties’ agreement that, however the amended legislation is to be construed, the principle against retrospectivity precludes its application to the disadvantage of the appellant. He therefore remains entitled to contend for such exceptional mitigating circumstances as would justify a lesser sentence than seven years. The problems created by the amended section 10(1) must be left for another day.
For the reasons already given the Board will humbly advise Her Majesty that this appeal be allowed with costs. As stated, the appellant was arrested on 25 April 2006 and has been in custody since. In these circumstances the Board would remit the matter to the Court of Appeal and invite that Court to set aside the sentence of seven years’ imprisonment which it imposed on 14 March 2005 and directed to run from 25 April 2006, and to re-hear the respondent’s appeal against the sentence passed by Isaacs J (leave to appeal which has already been granted to the respondent), all such matters to be dealt with by the Court of Appeal at a single hearing to be convened as speedily as possible.
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