Maycock et Al v Commissioner of Police

Id. vLex Justis VLEX-793184313

Link: https://justis.vlex.com/#vid/maycock-et-v-commissioner-793184313

Text

Supreme Court

Hall, J.

Nos. 63, 67, 68 & 84 of 1993

Maycock et al
and
Commissioner of Police

Mr. J. Henry Bostwick, QC, and Ms. Cheryl Bazard with him, counsel for Nehemiah Maycock
and Melvin Maycock.

Mr. Howard Hamilton, QC, and Mr. Roger Minnis with him, counsel for Tom Rae McPhee.

Mr. Berthan Macaulay, QC, and Mr. Elliott B. Lockhart with him, counsel for Lealand Curling.

Mr. Bernard Turner, for Commissioner of Police.

Practice and procedure - Appeals process in the Bahamas

Criminal law - Appeal against conviction — Conspiracy by police officers to commit drug
offences — Finding by court that magistrate complied with relevant provisions of C.P.C., s. 105
in finding existence of conspiracy — Finding that no prejudice was occasioned to any defendant
by failure to try them separately — Finding also that the anti drug enforcement authorities
employed no coercive or oppressive tactics — Appeal against conviction dismissed.

Hall, J.

1
The appellants all appeared before a Stipendiary and Circuit Magistrate, with two other persons,
charged with offences under the Dangerous Drugs Act, Ch. 213 (“the DDA”). The appellants
were each convicted of conspiracy to possess dangerous drugs and conspiracy to possess
dangerous drugs with intent to supply. The other two persons charged were acquitted of both
counts and the appellant Melvin Maycock was acquitted of the substantive charges of possession
of dangerous drugs and possession with intent to supply.

Before I proceed to consider these particular conjoined appeals, I would make the following
observations concerning the need to have the process of appeals from the magistrate's court
reviewed in the light of circumstances prevailing in The Bahamas at present. I have canvassed
the views of my fellow judges on this question and, save for matters of detail where views might
vary, they support the proposals I now make.

These appeals required four days to be argued - spread between 9 and 30 January; and, while
cynics might suggest that this would have been entirely due to the loquacity of counsel, it
appears to me that the issues canvassed did indeed require that amount of judicial time for those
issues to be explored and ventilated as fully as they have been.

By section 230(a) of the Criminal Procedure Code Act, Chapter 84 (“the CPC”), appeals from
decisions of a Stipendiary and Circuit Magistrate (“S & C Magistrate”) lie to the Supreme Court.
By section 36 of the Supreme Court Act, Chapter 41:

“The court shall sit for the hearing of appeals once at least every three months
throughout the year, and, if no other time be appointed for such sitting, it shall take
place immediately after the closing of the sessions:

Provided that it shall be lawful for the court to sit for such purpose at any other time
or times if the Chief Justice deems it expedient.”

It is notorious in The Bahamas that, before Parliament began the escalation of penalties under the
DDA in 1980, the allocation of time to hear appeals as contemplated by section 36 of the
Supreme Court Act was more than sufficient. Indeed, it was an open secret that, with the
irregularity of appeal fixtures in the Supreme Court, and the automatic release on bail when an
appeal is filed from the magistrate's court (section 234 of the CPC), some persons were able to
“play the system” by filing notices of appeal following their conviction in the magistrate's court,
secure in the knowledge that it might be years, if ever, before the appeal would be heard. Proof
that the number of appeals is inflated by drug related matters is demonstrated by the fact that if
one were to subtract such cases from the current volume of magistrate's appeals, the number of
appeals outstanding would be seen to shrink dramatically.

Although appeals are heard by a judge sitting alone, apart from the mental adjustment of shifting
from a trial mode to an appeal mode, the number of appeals and the complexity of some of them
result in the ordinary work of the Supreme Court, i.e., trials, being subordinated to those matters
during such time as a judge is assigned to hear them.

The nature of the appeal process is that, apart from the disposal of the particular case, the
appellate courts “write the law” for the lower courts under the system of stare decisis. However,
our present appeals system presents certain anomalies. Firstly, although the magistrate's appeals
often present novel legal questions or settled questions in newer contexts, by section 17 (1) of the
Court of Appeal Act, Chapter 40, a further appeal to the Court of Appeal is only available when
the ground of appeal:

“…involves a question of law alone but not upon any questions of fact, nor of mixed
fact and law, nor against severity of sentence…”

When one considers that the Court of Appeal, by its nature and by its position in the hierarchy of
courts, writes most of the law in any legal system, the limited access to that court following trials
in the magistrate's court is seen not to be fair either to the convicted person (who may lack the
funds for a second appeal) or to the prosecution, or conducive to the development of law in the
society.

Secondly, if the appeal is from the decision of a lay magistrate (that is, a Family Island
Commissioner) (vice section 2 of the Magistrate's Act, Chapter 42) or justices of the peace;
sitting in panels of two or singly (vice sections 8 through 10 of the Magistrate's Act), the first
appeal is to the Chief Magistrate or an S & C Magistrate (vice section 230(b) of the CPC) but,
thereafter, the appeal is to the Court of Appeal on the same terms as applies to further appeals
from the Supreme Court (vice section 17(2) of the Court of Appeal Act) but such a person may,
apparently, appeal against severity of sentence.

That appeals against the severity of sentence are excluded by section 17(1) of the Court of
Appeal Act, does not, in my respectful opinion, take account of the fact that, statutorily, the
powers of magistrates (not only S & C Magistrates) to impose lengthy prison sentences has, over
time, progressed beyond the six-month limit on summary offences contemplated by section 115
(5) of the Penal Code and by section 9(2) (b) of the CPC.

10

Having highlighted what is perceived to be the current problems, in this judgment I refrain from
making any specific suggestions for amendment. I would defer to such proposals as should be
initiated by the Chief Justice who, apart from the general consultation with judges to which I
refer in paragraph two, has had the opportunity to see and comment on the draft of paragraphs 2
through 9 of this judgment.

11

The case on which the appellants were convicted arose out of - to employ well-known popular
language - a “sting” operation mounted by agents of the Drug Enforcement Agency of the United
States of America (“the DEA”) acting in conjunction with the Drug Enforcement Unit (“DEU”)
of the Royal Bahamas Police Force. DEA agent Ramsey testified that in the course of this
undercover operation he “used” Allan Watson and Andrew Chambers to whom he gave $30,000
in U.S. currency, the serial numbers of which he had recorded.

12

On 3 August 1991, after he had met with Assistant Superintendent of Police Reginald Ferguson
of the DEU, Ramsey went to a waterfront restaurant from which he observed Watson in the
company of the appellant Munroe and two other men. He took photographs of the four men. Two
days later, following a telephone conversation with Watson, Ramsey flew to Exuma where he
observed the same boat at two different settlements. On 6 August, following a further telephone
conversation with Watson, Ramsey, accompanied by ASP Ferguson, went to Paradise Island
where Watson and Chambers presented a bag containing cocaine to them. Later that day the four
men, who were joined by Assistant Superintendent of Police Kirklyn Hutcheson, met in a room
at a hotel in Cable Beach. ASP Ferguson placed the cocaine above the ceiling in the bathroom in
that room in which a radio transmitter was also concealed - a receiver being installed in the
adjoining room.

13

At about 10:13 that evening, the appellant McPhee met in the first room with Watson and
Chambers and Ramsey recorded 80 minutes of conversation between them.

14

On 7 August, that is, the following day, Ramsey and the DEU officers took up positions around
the room in which the cocaine had been secreted. The appellant McPhee came to the room and
left after a few minutes with a backpack. He was apprehended and a search of the backpack
revealed the cocaine which had been earlier placed in the ceiling. At the time of his
apprehension, McPhee had $1,400 in United States currency in $20 bills, 62 of which had
numbers which corresponded to the notes which Ramsey had given to Watson and Chambers
four days earlier.

15

Watson had testified that, after he and Chambers had been given the $30,000 by Ramsey and
ASP Ferguson, they had met with McPhee at his (Watson's) residence in Sea Breeze Estates.
They were joined by the appellant Curling and together they had gone to a dock at West Bay
Street where they were met by a person whom he did not know. He exchanged $6,000 of the
money from Ramsey for $6,000 in Bahamian currency with McPhee. The appellants Munroe and
Lemuel Maycock joined them, and these two, along with Watson and Curling, left the harbour
(with Munroe piloting the vessel) for Ragged Island - after a brief stop in Exuma to repair an
engine. Watson identified the members of that party on one of the photographs which had been
taken by Ramsey and tendered in evidence.

16

At Ragged Island, Curling conducted them to a house which he identified as belonging to his
brother where Watson counted the money he had received from Ramsey. Curling had been
joined by two other persons, Melvin Maycock and Nehemiah Maycock, whom Watson said “he
had known from Nassau”. After an interval, Nehemiah Maycock, Melvin Maycock and Charles
Curling brought three bags filled with what appeared to be 30 kilograms of cocaine. Watson
handed the money to Curling who passed it to Melvin Maycock after the bags had been placed
aboard the boat. They returned to New Providence after a stop of a few days in Exuma.

17

Upon their arrival at New Providence, Curling, Munroe, Lamuel Maycock and Watson divided
the drugs: Watson got five kilos from Curling for the $30,000 and he also took control of a
further five kilos on behalf of McPhee. Watson contacted Chambers and they proceeded to
Paradise Island where the drugs were handed over to Ramsey and ASP Ferguson. Lamuel
Maycock gave Watson an additional two kilos of drugs which Watson turned over to the DEU
and DEA agents at the hotel at Cable Beach. It was later that night that Watson and Chambers
met with McPhee at which time Ramsey recorded the conversation from the adjoining room.
McPhee was shown the drugs which had been hidden in the ceiling.

18

There were, predictably, a range of objections by defence counsel at the trial to the Watson
testimony purporting to identify the voices on the tape as his own and that of Chambers and
McPhee, which objections were eventually, and correctly in my view, overruled by the learned
magistrate.

19

Sergeant Steven Newbold of the DEU testified that on 7 August he procured a search warrant for
the premises of Melvin Maycock at Ragged Island and, upon executing it, he found a large
quantity of cash - in U.S. and Bahamian dollars - in a safe in a bedroom, the total amount was
$25,480; 14,980 of which Melvin Maycock had attempted to separate out, between the time of
the discovery and the departure for New Providence, by securing it in a clothes hamper in the
bathroom.

20

Sergeant Newbold had handed the cash to ASP Hutcheson who found that 149 of the U.S. $20
bills had serial numbers corresponding to the notes which Ramsey had given to Watson and
Chambers.

21

In their defence:

– Nehemiah Maycock made an unsworn statement denying knowledge of the matter or

any meeting with Watson;

– Melvin Maycock gave evidence on oath and denied meeting with Watson at Ragged
Island and delivering drugs to a boat;

– Lemuel Maycock elected to remain silent;

– Charles Curling testified from 1 through 7 August he was in New Providence and the
first time he had seen Watson was in court; he called witnesses in support of his alibi that,
on 3 August, he had been in attendance at a funeral in New Providence;

– Lealand Curling made an unsworn statement denying any involvement with Watson;

– Clinton Munroe made an unsworn statement of total denial;

– McPhee elected to remain silent.

22

The learned magistrate, in a ruling which addressed the case against each defendant, acquitted
Charles Curling on the basis that the evidence of identification was unsatisfactory and acquitted
Lemuel Maycock on the basis that the evidence did not “show that he agreed or acted together
with the others”; Melvin Maycock was acquitted of the substantive charge of possession of
dangerous drugs. The appellants were each convicted of the offences as indicated in paragraph 1.
Each was sentenced to four years in prison.

23

The grounds of appeal originally filed by Nehemiah Maycock and Melvin Maycock were the pro
forma grounds that the magistrate erred in fact and in law and that the verdict was unreasonable.
The original ground of appeal filed on behalf of Curling and Munroe was similar in nature, but
not as sparsely stated.

24

McPhee appealed on the ground that:

“I. The appellant was wrongfully tried and convicted for the offence of
conspiracy subsequent and in addition to having been tried and convicted of
the substantive offences arising out of the same facts of possession of
dangerous drugs and possession of dangerous drugs with intent to supply on
the 7 th of August, 1991.

II. The evidence of the witness, Allan Watson, a witness with an

acknowledged interest to serve remained uncorrobarated notwithstanding the
‘evidence’ of the alleged tapes for the following reasons:–

(a) the tapes taken at its highest revealed evidence in support of

possession, but not of conspiracy.

(b) there is nothing in the tapes to reveal to which date the recordings
referred.

(c) the learned magistrate has had no opportunity to independently

compare the voice of the appellant with the voices on the tape as the
appellant faked to testify.

IV (sic). The learned magistrate erred in ruling that the passport of the
appellant was inadmissible and thereby deprived the appellant of the
opportunity of advancing an integral aspect of his defence, bearing in mind
the dates alleged in the complaint.”

25

By section 233(1) of the Criminal Procedure Code:

 “When an appeal relates to a case which has been tried by the Chief Magistrate or a
stipendiary and circuit magistrate or a circuit justice on circuit, the magistrate's court
shall without delay transmit to the registrar a copy of the conviction, order or
judgment and all papers relating to the appeal and, if the appellant is represented by
counsel, such counsel should not less than three days prior to the date of hearing of
the appeal serve upon the registrar and the respondent a notice containing particulars
of the matters of law or fact in regard to which the magistrate's court is alleged to
have erred.”

I can only assume that the prolixity of the “Further Amended Notice of Intention to Appeal” filed
on behalf of Curling and Munroe on 6 January, 1995, is explained by the requirement of section
233 to furnish “particulars”. These grounds are:

Ground 1

section 74(1) and rule 3 of the Second Schedule of the Criminal Procedure Code Act, Chapter
84, describes a count, in effect, as being a charge which contained the statement of offence and
the particulars which describe the offence at best in ordinary language. Count 1 and 2 in the
Complaint against the appellants (of which they were convicted) merely repeat, with the addition
of dates, the statement of the offences, that is to say, that the particulars allege that they did
conspire (statement of offence) without stating any of the elements of the offence, that is to say,
whether the appellants agreed or acted together with other persons for the purpose of committing
or abetting any offence in the case of count 1, and in the case of count 2, additionally, whether
the conspiracy was in respect of section 22(1) of the Dangerous Drugs Act, Chapter 213 (the
DDA).

Ground 2

In the light of the foregoing ground 1, the learned magistrate could not in fact and in law have
advised the appellants in accordance with section 201 of the Criminal Procedure Code Act,
Chapter 84 (the CPC) as she recorded at page 47 of the record, because there was no particulars
in law in the counts as stated in the foregoing ground 1 which had to be explained to the
appellants.

Ground 3

Assuming but not conceding that it can be implied from count 2 that it should be read as if
section 22(1) were written therein, the counts are nevertheless bad in that neither the statement of
offence nor the ‘so-called’ particulars state what provision of the DDA was contravened, which
is an essential ingredient of the offence under section 22(1).

Ground 4
section 74 and rule 3(1) of the Second Schedule to the said Criminal Procedure Code Act
requires that no more than one offence should be set out in a count. The counts in the complaint
charge that the conspiracy took place at New Providence and diverse places, but the evidence
disclose that there was a conspiracy in New Providence as impliedly found by the learned
magistrate that there was an agreement to supply dangerous drugs between the appellant Lealand
Curling and Tom McPhee and undercover agents (see page 59 of the record). And also another
conspiracy at Ragged Island which included the appellants for the advancement of the
conspiracy, that is to say, a conspiracy to abet the commission of the offence, which is a different
conspiracy from a conspiracy to commit an offence under the Act (see the word ‘or’ in section
29 of the DDA and the definition of the word ‘or’ in section 3 of the Interpretation and General
Clauses Act, Chapter 2). The counts were therefore bad for duplicity: See R v. Griffiths and
Others [1966] 1 Q.B. 589; [1965] 3 W.L.R. 405; 49 Cr. App. R. 279; [1965] 2 All E.R. 448. This
ground of Appeal is without prejudice to Ground 10.

Ground 5

In the light of the foregoing Ground 3 of this Appeal, the learned magistrate was therefore wrong
in rejecting the submission of No Case of counsel for the appellants (Mr. Lockhart at page 43 of
the Record). What the evidence showed at the close of the Prosecution's case was, to quote the
magistrate, ‘An advancement of the conspiracy already agreed upon,’ that is to say, an abetment
of the conspiracy contrary to section 85 of the Penal Code, Chapter 77 (with which the appellants
were not charged), or at best, a conspiracy to abet Contrary to section 29(1) of the DDA (also
with which the appellants were not charged) to commit an offence against the Act, that is section
22(1) of the DDA.

Ground 6

The learned magistrate found that there was an agreement for the supply of dangerous drugs
between Tom McPhee and undercover agent for the Prosecution, Allan Watson and Derek
Chambers (page 59 of the Record). The said Allan Watson who (admitted when cross-examined,
that he had been convicted of a Criminal Offence of possession of a firearm and ammunition (see
pages 35 and 36 of the Record), was the main prosecution witness and was an accomplice on his
own confession. The learned magistrate in her judgment did not at any time reveal in any way
that she considered the question of corroboration of the evidence of Watson: See Chin Nang
Hong v. Public Prosecutor [1964] 1 W.L.R. 1279; 108 Sol. Jo. 818.

Ground 7

Assuming but not conceding that counts 1 and 2 were good in law, the learned magistrate failed
to take into account that the word ‘supply’ in section 22(1) of the DDA included the additional
concept, that is, whether it was the intention of the appellants to enable the recipient to apply the
two kilos alleged to have been handed over to Watson for purposes for which he described or
had a duty to apply it: See R v. Maginnis [1987] 1 All E.R. P. 909. Letter (g).
Ground 8

The learned magistrate misdirected herself on the evidence when in her judgment (page 59) she
stated that the appellants, Lealand Curling ‘handled the drugs - subject of these charges - and
monies involved in the purchase thereof,’ thereby suggesting that that was an overt act of the
conspiracy alleged, when, in fact, the evidence of Allan Watson, the accomplice, was that this
appellant said at page 26 ‘Let's count your money.’ And that the appellant, Lealand Curling
‘counted the money given to me by DEA/DEU.’ - (see page 26 of the Record). And the evidence
of Reginald Ferguson, ASP DEU, was that ‘The cocaine belong to the DEW.’ It is submitted, in
the circumstances, that the learned magistrate erred in law in treating the counting of the money
as an overt act of the conspiracy alleged.

Ground 9

That the learned magistrate's judgment was void and incurable: See MacFoy v. United Africa Co.
Ltd. [1961] 3 All E.R. 1169. It is submitted that in section 105 of the said Criminal Procedure
Code Act, point or points for determination do not mean the points in the subjective opinion of
the learned magistrate, but the point or points from the objective view of what point or points in
law and in fact arise for determination. The learned magistrate failed to properly analyze the
section. And Analysis, it is submitted, makes clear:

a. that the judgment shall contain not only the points for decision b. but also the reasons
for each such decision of the objective point or points for determination.

c. And that every Judgment must contain three (3) things, (l) point or points for
determination, (ii) the reasons for the determination of the point or points and (iii) the
judgment on the charge or charges before the court. These provisions are for the
protection of the liberty of the subject (an accused person charged with a criminal
offence) who is tried summarily by a judicial officer, is, to have a similar fair trial as a
person tried on information in the Supreme Court, where a judge sums up to the jury the
point or points for their decision. The failure of a trial judge in the Supreme Court so to
do, may lead to a quashing of a conviction on appeal even though this is not required by a
Act of Parliament. The total failure by the learned magistrate in these respects, in the
instant case, is contrary to a statutory mandatory provision enacted by Parliament and
therefore renders the judgment void.

Ground 10

The appellants’ convictions ought to be quashed because, notwithstanding that it is in the public
interest that persons jointly charged should be tried together, the appellants were denied their
constitutional right to a fair trial in that their counsel's application for a separate trial was
wrongly rejected by the learned trial magistrate. This resulted in a miscarriage of justice, in that
the evidence led against the accused Tom McPhee (with many a/k/a's) of a conspiracy found by
the magistrate (page 59 of the Record) and overt acts thereof (none of which, on the
prosecution's evidence, the appellants were party thereto) and of the said McPhee's previous
conviction of similar offences just before the trial (see Certificate of Conviction, and page 37
first ‘cross-examined’ and page 40 - ‘witness sworn: - D/ASP Kirklyn Hutcheson’) rendered
admissible under section 6 of the Evidence Act, Chapter 52, evidence which would have been
inadmissible against the Appellants. This ground is without prejudice to ground 4.

Ground 11

The overt acts led in evidence against the appellant do not, in the absence of expert evidence as
to what in law was handled, was in fact Cocaine as referred to in section 11 of the Dangerous
Drugs Act, or a derivative of coca leaves as defined in section 2 (1) of the said Act. The
magistrate therefore wrongly treated the overt act as evidence against the appellants in the
support of the conspiracies of which they were convicted.

Ground 12

That the concatenation of errors of law and of fact in the foregoing paragraphs resulted in the
deprivation of a fair trial to which the appellants were entitled under Article 20 of the
Constitution.

Ground 13

There being no evidence on the record to show that the Attorney-General signed a certificate
under section 28(7) of the DDA, the court therefore has no jurisdiction to try the appellants.”

Ground 1

Ground 2

Ground 3

Ground 4

Ground 5

Ground 6

Ground 7

Ground 8

Ground 9

Ground 10

Ground 11
Ground 12

Ground 13

26

Counsel for Nehemiah Maycock and Melvin Maycock filed an amended notice of appeal,
adopting grounds 1 through 12 of those filed on behalf of Curling with the substitution of ground
8 as follows:

“The evidence of identification of the two-named appellants was of such poor

quality that in accordance with the case of R v. Turnbull [1977] 1 Q.B. 225, the trial
ought to have been stopped and the appellants discharged. Whenever the case
against an accused person depends wholly or substantially on the correctness of one
or more identifications of the accused which the defence alleges to be mistaken and
in the judgment of the trial judge the quality of identifying evidence is poor as, for
example, when it depends solely on a fleeting glance or a longer observation made
in difficult conditions, the judge should then direct an acquittal unless there is other
evidence which goes to support the correctness of the identification ( Turnbull at
page 229). In the case at bar, the evidence suggests that even though the observation
of the identifying witness Watson was over a fairly long period of time in the sense
that it was not a fleeting glance, it was obviously made in bad lighting conditions.
Even though Allan Watson says there was light in the house, he could not say where
the light came from and whether it was from electric light, candles or an oil lamp.
He did not know where the light came from in the room in relation to where the men
were. Apart from that, he was not able to assist with the distance that separated him
from the defendants. He said that at one stage Melvin Maycock came close to him,
but he cannot assist with Nehemiah Maycock in that regard. We do not know
whether he was able to see the face of the man he said was Melvin Maycock when
he came close to him. See: Pages 31 and 33 of the Record.

With respect to the dock, the witness said at first there was a full moon that night
and he saw the men by the light of the moon, but when he was faced with the
suggestion that there could be no full moon or any moonlight that night because that
was the last quarter and the next full moon was on 25 th August, 1991, his answer
was, ‘Well, if there was no full moon, there was no full moon.’ In those
circumstances, his evidence cannot be taken to be unequivocally that he saw the men
from the moonlight. He himself said it was a dark night and there were no artificial
lights on the dockside; hence if there was no moon, there was no light and
consequently he could not observe anyone at that stage. Watson further said that he
had seen both of the named appellants before that night, but his evidence in this
regard is somewhat hazy. He is unable to recall the clothing worn by the appellants
on the night in question. It is our submission that in all the circumstances the
evidence of identification of both appellants is of poor quality and that there is no
other evidence capable of supporting the identification of the appellants, in
particular, Nehemiah Maycock.”
27

By agreement of counsel, the burden of the challenge to these convictions was carried through
the case for the appellant Curling by Mr. MaCaulay, other counsel following to deal with matters
peculiar to their respective case.

28

Mr. MaCaulay began by abandoning his ground 13 (he later abandoned ground 11) and the first
ground of appeal argued was ground nine which is rooted in the provisions of section 105(1) of
the CPC which provides:

“Every judgment in a summary trial, except as otherwise expressly provided by this

Code or any other law, shall be written by the magistrate in English and shall
contain the point or points for determination, the decision thereon and the reasons
for the decision, and shall be dated and signed by such magistrate in open court at
the time of pronouncing it…”

He compared that to a similar provision in the Criminal Procedure Law of Cyprus which
provides at section 113(1)”

“Every such judgment shall be recorded in writing and, in cases where appeal lies,
shall contain the point or points for determination, the decision thereon and the
reasons for the decision and shall be dated and signed by the Judge or, where the
court consists of more than one Judge, by the President thereof or by his direction by
any other member of the court, at the time of pronouncing it.”

By Article 30.2 of the Constitution of Cyprus:

“In the determination of his civil rights and obligations or of any criminal charge
against him, every person is entitled to a fair and public hearing within a reasonable
time by an independent, impartial and competent court established by law. Judgment
shall be reasoned and pronounced in public session…”

In the case of Andreas Socratous Neophytou v. The Police (1981) C.L.R. 195, the Court of
Appeal of Cyprus quashed the conviction of the appellant on a charge of careless driving where
the trial judge had failed to make any finding on the record as to how he had resolved the
conflicting versions of how a motor vehicle accident had occurred, and Pikis, J., observed at
page 198:

“…Given the conflicting allegations made about the circumstances surrounding the
accident, it was of the first importance for the trial court to determine, in the first
place, the facts that attended the collision, especially the circumstances under which
the driver of the motor vehicle emerged on the main road and the distance that
separated the two vehicles at the time he did so. In the absence of such a finding, it
was impossible to determine the liability of the appellant for the accident and,
therefore, decide the issue of his guilt. The failure of the judge to examine the
 evidence before him in its proper perspective is such as to make it difficult, if not
impossible, to discern the reasons for the conviction of the appellant. The supply of
proper reasoning for the deliberations of the court, particularly the reasons for the
conviction of the accused, is mandatorily warranted by the Constitution, notably
Article 30.2, and constitutes at the same time a fundamental attribute of the judicial
process. In the longer run, faith in the judiciary of the State, and its mission,
depends, to a very large extent, on the persuasiveness of the reasons given by the
courts in support of their decisions. Any laxity in this area would inevitably
undermine faith in the premises of justice. The need for proper reasoning is not only
warranted by the interests of the litigants, but also by the interests of the general
public in the proper administration of justice. The impression of arbitrariness is the
one element that must constantly be kept well outside the sphere of judicial
deliberations…”

29

As to the specific requirement of section 105(1) of the CPC, Mr. MaCaulay referred to the line of
Bahamian authorities from King v. COP, Criminal Appeal 62 of 1970, and Cooke v.COP,
Criminal Appeal 30 of 1974, to Taylor v. COP, Criminal Appeal 32 of 1976. In Carroll v. R,
Appeal Number 39 of 1989, a decision of the Court of Appeal of Jamaica on appeal from a
decision of a judge sitting without a jury where a conviction was founded solely on the purported
visual identification of the accused by the virtual complainant, the court held that:

“…findings of fact unaccompanied by a reasoned assessment of all the evidence are

unlikely to be sustained on appeal.”

30

Mr. MaCaulay contrasted the evidence of the witness Watson, dealing with the trip to Ragged
Island and back to New Providence and the distribution of the bags, with the unsworn statement
of the appellant Curling denying any contact or journey with Watson and points to the judgment
of the learned magistrate where she found that Curling:

“…was present and acted together with others at all material times to effect the
common purpose of possession of dangerous drugs and the supply of dangerous
drugs”.

She does not refer to the unsworn statement of Curling nor to the testimony of the appellant
Melvin Maycock who also disputed the evidence of Watson and denies any meeting between
himself, Watson and Curling on 3 August. Charles Curling had testified that he had been in New
Providence between 1 and 7 August and he denied any meeting with Watson on 3 August. The
magistrate had acquitted Charles Curling on the basis of his alibi and that she was not satisfied as
to the identification of him and she had acquitted Melvin Maycock of the substantive count of
possession of dangerous drugs. Mr. MaCaulay submitted when one considers the only evidence
of possession against Maycock is that of Watson, her findings against Maycock and Curling are
inconsistent.
31

Mr. MaCaulay, therefore, submits that the magistrate has failed to reconcile the conflicts and
inconsistencies in a reasoned judgment. By section 105(1) of the CPC, reasons are a part of the
judgment and, adopting observations of Lord Denning, delivering the judgment of the Privy
Council on a question of the application of certain provisions of the Rules of the Supreme Court
of Sierra Leone in MacFoy v. Unite Africa Co. Limited [1961] 3 All E.R., 1169, 1172:

“…If an act is void then it is in law a nullity. It is not only bad, but incurably bad.
There is no need for an order of the court to set it aside. It is automatically null and
void without more ado, though it is sometimes convenient to have the court declare
it to be so. And every proceeding which is founded on it is also bad and incurably
bad. You cannot put something on nothing and expect it to stay there. It will
collapse. So will this judgment collapse if the statement of claim was a nullity…”

submitted that, as the magistrate here failed to comply with section 105 (1) of the CPC her
judgment is “incurably bad”.

32

Mr. MaCaulay continues that the earlier cases in The Bahamas which dealt with section 105 of
the CPC did not address the question of the effect of failure to comply with the provisions. In
King (and in Cooke), the court had exercised its powers under section 244 of the CPC to remit
the case to the magistrate's court and direct the magistrate to:

“…complete the trial and to record and pronounce a written judgment.”

in Moxey v. COP, Criminal Appeal number 4 of 1988, Georges, C.J., had held that:

“Where the provisions of section 105 of the [CPC] are followed an appellate tribunal
can be satisfied that the trial magistrate understood the issues, directed himself
properly on them and gave valid reasons for the decision at which he arrived…”

The Supreme Court has not yet decided the question of whether when statute has prescribed a
duty on a judicial officer in mandatory terms, the failure to comply with the matter makes the
matter void, a nullity or “an abortion”. He invites the court to now find that the magistrate's
failure resulted in a lack of jurisdiction and, consequently, there is nothing for the court to remit.

33

Mr. Turner in answer accepted the mandatory nature of section 105, but submitted that MacFoy
is not relevant. In Castillo, et al v. COP, Criminal Appeal 50 of 1989 the Court of Appeal of The
Bahamas in deciding the certified question:

“Whether under section 105 of the [CPC] a magistrate is required to set out in his
judgment what a defendant indicates is his cardinal line of defence and his reasons
 for rejecting such a defence and whether failure to do so is fatal to a re-trial being
ordered.

…We agree that [section 105] is mandatory as indicated by the use of the word
‘shall’ in relation to the matters which the magistrate is required to do. We agree
also that the section provides for a step in criminal procedure and is in protection of
an accused person charged and being tried in a Magistrate Court. In our view
however what the section requires the magistrate to do is to record what he considers
to be the points for determination and the decision and reasons in relation to these
points. This he has done in this particular case. A magistrate's failure to consider a
point which is a cardinal line of defence may be a ground for appeal and his failure
to mention the point in his written judgment may, in the absence of any contrary
indication in the judgment, be indicative of such a failure. But the mere failure to
mention a particular point in the written judgment - even if it is a point which the
accused person regards as a cardinal line of defence - is not a failure to comply with
section 105 and is not therefore fatal to a conviction. The question of law certified
must therefore be answered in the negative.”

34

In Butler et al v. COP, Criminal Appeal numbers 87, 88, 89 and 91 of 1991, Osadebay, J. stated:

“…I do not hold the view that [section 105] obliges a magistrate to make reference
to and deal with every submission made by counsel in the case even though the
magistrate does not consider that submission important and material to the point or
issue which he or she has to decide… I am of opinion that that phrase ‘point or
points for determination’ refers to the issues in the case which the magistrate holds
material for determination having regard to the charge before him and the offences
for which the defendant stands trial…”

35

In the instant case the point for determination was whether the appellants were guilty of
conspiracy. In respect of each appellant his case at trial was merely a denial and, once the
magistrate had found the conspiracy to exist, the question was the involvement of each of the
defendants. There was no conflict between the testimony of prosecution witnesses as there had
been in the Jamaican case of Carroll. He submits that the acquittal of Lemuel Maycock of the
substantial charges is not inconsistent with the other findings. Moreover, the acquittal of Charles
Curling on the matter of identification - which contrasts with the conviction of Melvin Maycock
and Nehemiah Maycock whom Watson had said that he had known previously from New
Providence - shows the magistrate to have been alive to the principles and to have considered
and distinguished the points of evidence as to the case of each defendant.

36
Mr. MaCaulay in reply had indicated that the decision of the magistrate in Butler on which Mr.
Turner had relied had been appealed to the Court of Appeal on, inter alia, the application of
section 105. The Court of Appeal has, since the close of submissions in the instant appeal,
delivered its decision in Butler (Criminal Appeal number 59 of 1994) and the section 105
question was not, in fact, certified as a point of the appeal.

37

The Court of Appeal must, therefore, be taken to have inferentially approved the decision of the
Supreme Court in that case which, with the Court of Appeal's earlier decision in Castillo, must
be considered to have sifted the question as finely as is necessary to do so without descending to
the absurdity of requiring magistrates in their rulings to regurgitate every detail of the evidence
and submission made before him/her. I adopt the opinion of Smith, J., in Breffe, et al v. COP,
Criminal Appeal number 6 of 1988:

“…a full trial before a magistrate is a summary trial and there is a great deal meant
by ‘a summary trial.’ It means that the case is to be dealt with in a concise and
prompt manner. There is not to be more formalities than the Code requires. Time
should not be wasted by magistrates writing out long and detailed rulings on
submissions made by counsel that the accused person has no case to answer. A
Magistrate's Court is not a court of record and its decisions do not set out the law as
judicial precedents. There is nothing to be achieved by penning dissertations.

When it is time for the judgment, however, the provisions of section 105 must be
followed and something must be written. What is to be written should not be a long
and minutely detailed essay. All that is necessary is a sentence or two setting out the
point or points for determination. Next should be written the decision. This would
hardly be more than such as could be set out in one sentence. Then must come the
reasons for the decision. It is obviously a matter for the individual magistrate to
decide the style to be used for setting out the reasons, but the summariness of the
trial should be considered.

With the reasons completed, the judgment must then be dated and signed in open
court at the time the magistrate pronounces it. The language of section 105 as it
relates to the time of dating and signing is not the happiest, but one can readily see
what is meant…”.

38

In this case the learned magistrate made a “find[ing]” as to the existence of a conspiracy and was
“satisfied” that the appellant was a part of that conspiracy. She then proceeds to set out how in
her mind the evidence linked each of the defendants whom she convicted to the conspiracy and
why two other defendants were acquitted and one of the appellants acquitted of other charges.

39
In my judgment there was sufficient compliance with the provisions of section 105 of the CPC.
However, had I not considered there to be such compliance, I would not have been persuaded to
the view of Mr. MaCaulay, relying on MacFoy, that the consequence would be a nullity. Had
there been any failure of the magistrate because of non-compliance with section 105, I would
have adopted the course which this Court has invariably followed, and, pursuant to section 244
of the CPC, remitted the matter to the magistrate to “complete” the trial or to have ordered a
retrial before another magistrate, according to what the extent of the failure so to comply would
have properly indicated.

40

Mr. MaCaulay argued his grounds 4 and 6 together. On the question of whether the magistrate
should have informed herself of the need for corroboration of the evidence of Watson before she
acted upon it, Mr. MaCaulay notes that the word “corroboration” appears nowhere in the
judgment. Mr. Turner, who had appeared at the trial to prosecute, in his submissions to the
magistrate at the close of the evidence, had submitted that Watson was an agent provocateur and
“while not a conspirator - is a person with whom conspirators may conspire.”

41

At the trial, in cross-examination, Watson had said of himself:

“…I have lived in the U.S., I do so now, I have lived there for over a year. I chose of
my own accord to be a confidential informant for the DEA. I am not otherwise
employed, I am paid a salary… My involvement with the DEA is to prosecute
persons for drug involvement. I am compensated. My compensation involves my
being kept by the U.S. government, I am protected and given necessary supplies…”

42

The anchor of the case for the appellants on this ground is the decision of the Privy Council on
an appeal of the Court of Appeal of Hong Kong in Yip Chiu-Cheung v. R [1994] 2 All E.R., 924.
The headnote of which reads:

“The appellant met one N in Thailand and arranged that he would act as a courier to
carry five kilos of heroin from Hong Kong to Australia. N was to fly to Hong Kong
under an assumed name, where he would be met by the appellant and he was then to
fly on to Australia with five kilos of heroin supplied by the appellant, for which he
was to be paid $US 16,000. In fact, unknown to the appellant, N was an undercover
drug enforcement officer of the United States and the Hong Kong and Australian
authorities were prepared to permit him to carry the drugs from Hong Kong to
Australia in the hope of breaking the drug ring of which the appellant was a
member. However, on the subsequent advice of the Hong Kong authorities the plan
was not carried through and N did not fly to Hong Kong. The appellant was
nevertheless arrested in Hong Kong and charged with conspiring with N to traffic
 heroin. At his trial the judge directed the jury that if they found that N intended to
export the heroin out of Hong Kong he was in law a co-conspirator and they could
convict the appellant of a conspiracy with him. The appellant was convicted and
sentenced to 15 years imprisonment. He appealed to the Court of Appeal of Hong
Kong which dismissed his appeal. He appealed to the Privy Council, contending that
N could not in law be a co-conspirator because he lacked the necessary mens rea for
the offence and therefore there could be no conspiracy.”

Held: “There was no general defence of superior orders or of Crown or Executive

fiat in English or Hong Kong criminal law and the Executive had no power to
authorize a breach of the law. Accordingly, the fact that N would not have been
prosecuted if he carried out the plan to carry the drugs from Hong Kong to Australia
as intended did not mean that he did not intend to commit the criminal offence of
trafficking in drugs by exporting heroin from Hong Kong, albeit as part of a wider
scheme to combat drug dealing, N intended to commit that offence by carrying the
heroin through the customs and on to the airplane bound for Australia. It followed
that there had been a conspiracy and that the appellant had been properly convicted.
The appeal would therefore be dismissed.”

Lord Griffiths, who delivered the judgment of the Board, said at pp 927 to 928:

“…On the principal ground of appeal it was submitted that the trial judge and the
Court of Appeal were wrong to hold that Needham, the undercover agent, could be a
conspirator because he lacked the necessary mens rea or guilty mind required for the
offence of conspiracy. It was urged upon their Lordships that no moral guilt attached
to the undercover agent who was at all times acting courageously and with the best
of motives in attempting to infiltrate and bring to justice a gang of criminal drug
dealers. In these circumstances it was argued that it would be wrong to treat the
agent as having any criminal intent, and reliance was placed upon a passage in the
speech of Lord Bridge of Harwich in R v. Anderson [1985] 2 All E.R. 961 at 965,
[1986] A.C. 27 at 38-39; but in that case Lord Bridge was dealing with a different
situation from that which exists in the present case. There may be many cases in
which undercover police officers or other law enforcement agents pretend to join a
conspiracy in order to gain information about the plans of the criminals, with no
intention of taking any part in the planned crime, but rather with the intention of
providing information that will frustrate it. It was to this situation that Lord Bridge
was referring in Anderson. The crime of conspiracy requires an agreement between
two or more persons to commit an unlawful act with the intention of carrying it out.
It is the intention to carry out the crime that constitutes the necessary mens rea for
the offence. As Lord Bridge pointed out, an undercover agent who has no intention
of committing the crime lacks the necessary mens rea to be a conspirator.

The facts of the present case are quite different. Nobody can doubt that Needham
was acting courageously and with the best of motives; he was trying to break a drug
ring. But equally there can be no doubt that the method he chose and in which the
police in Hong Kong acquiesced involved the commission of the criminal offence of
trafficking in drugs by exporting heroin from Hong Kong without a licence.
 Needham intended to commit that offence by carrying the heroin through the
customs and on to the airplane bound for Australia.

Neither the police, nor customs, nor any other member of the Executive have any
power to alter the terms of the Ordinance forbidding the export of heroin and the
fact that they may turn a blind eye when the heroin is exported does not prevent it
from being a criminal offence.

The High Court of Australia in A v. Hayden (No. 2) (1984) 156 C.L.R. 532 declared
emphatically that there was no place for a general defence of superior orders or of
Crown or Executive fiat in Australian criminal law. Gibbs, C.J., said (at 540):

‘It is fundamental to our legal system that the Executive has no power to authorize a
breach of the law and that it is no excuse for an offender to say that he acted under
the orders of a superior officer.’

This statement of the law applies with the same force in England and Hong Kong as
it does in Australia.

Naturally, Needham never expected to be prosecuted as he carried out the plan as

intended. But the fact that in such circumstances the authorities would not prosecute
the undercover agent does not mean that he did not commit the crime albiet as part
of a wider scheme to combat drug dealing. The judge correctly directed the jury that
they should regard Needham as a conspirator if they found that he intended to export
the heroin.

Their Lordships will humbly advise Her Majesty that the appeal should be
dismissed.”

43

According to Mr. MaCaulay, notwithstanding Mr. Turner's submission at the trial, in the light of
Yip, Watson must clearly be regarded as a co-conspirator and the magistrate should, therefore,
have warned herself of the danger of convicting on the uncorroborated evidence of Watson. For,
as the Privy Council had held in Chiu Nang Hong v. Public Prosecutor, 1964 1 WLR 1279,
1285:

“…Their Lordships would add that even had this been a case where the judge had in
mind the risk of convicting without corroboration, but nevertheless decided to do so
because he was convinced of the truth of the complainant's evidence, nevertheless
they do not think that the conviction could have been left to stand. For in such a case
a judge, sitting alone, should, in their Lordships' view make it clear that he has the
risk in question in his mind, but nevertheless is convinced by the evidence, even
though uncorroborated, that the case against the accused is established beyond any
reasonable doubt. No particular form of words is necessary for this purpose: what is
necessary is that the judge's mind upon the matter should be clearly revealed…”
44

Mr. MaCaulay considered this ground of appeal to be so unassailable that he invited Mr. Turner
to concede the point, thereby rendering the reliance on the other grounds of appeal unnecessary.
Mr. Turner responded that he would invite the court to distinguish Yip. He referred to an earlier
decision of this Court where Henry, J., (as he then was) sitting on an appeal from a magistrate in
Thompson v. Attorney-General [1985] LRC (Crim) 416 had held that an agent provocateur was
not an accomplice and, therefore, no rule required corroboration of the evidence of such agents.
The learned judge had said at 441 to 422:

“…What is of importance is whether [the witnesses Perry and Brown] were acting
with the approval of and on behalf of the Bahamian Police. In this regard the witness
Perry in cross-examination said, ‘I came to The Bahamas to meet Roy and to assist
CID in the seizure of cocaine… CID did not send for me. We asked them if we
could come… I was told by telephone call from Nassau that I would be permitted to
come here. I was not sworn in as a constable in The Bahamas.’ The witness Brown
said, ‘I am not a law enforcement agent in The Bahamas. I did not come as a
tourist… I am an undercover agent.’ There is no evidence from the members of The
Bahamas police who gave evidence as regards any prior arrangement between the
police and the witnesses Perry and Brown, but Sergeant Rolle did say that on 26 th
July ‘agents Lou Perry and Charles Brown came to CID,’ and as a result of what
they said he and other police officers went on inquiries to the Ambassador Beach
Hotel. The clear inference from the subsequent actions of the police is that the
witnesses Brown and Perry were acting throughout with the knowledge and
approval and as agents of The Bahamas police. As such they were agents
provocateur. The rule as to corroboration of accomplices does not apply to agents
provocateur (vide R v. Bickley (1902) 2 Cr App Rep 53 and Sneddon v. Stevenson
[1967] Crim LR 476). The fact that Brown and Perry as agents provocateurs may
have been authorised to possess cocaine does not however affect the issue as far as
the appellants are concerned. They were not charged with, nor did the prosecution
have to prove a conspiracy with Brown and Perry for Brown and/or Perry to possess
cocaine in contravention of the Dangerous Drugs Act. The possession which is said
to be the object of the alleged conspiracy is possession by the appellants themselves.
Furthermore, the prosecution must prove a conspiracy, not that the object of the
conspiracy has been achieved…” and, later, at 423:

“…On behalf of the appellant Thompson it was also submitted that the verdict was
unsafe and unsatisfactory. As I understand it, this submission was largely based on
the argument that the principal prosecution witnesses were non-Bahamians whose
activities were uninvited and reliance was also placed on the observation of Lord
Goddard in Brannan v. Peek [1948] 1 KB 68 that ‘It is wholly wrong for… any
person to be sent to commit an offence in order that an offence by another person
may be detected.’ Judges have from time to time expressed their distate for the
operations of the agent provocateur. It seems clear on the authorities vide R v. Sang
however that the mere fact that the evidence against an accused person has been
obtained by virtue of the activities of an agent provocateur is no justification either
for the rejection of that evidence or for the acquittal of the accused. The fact that the
 agents provocateurs were non-Bahamian is immaterial if, as I have previously
indicated the evidence shows, they were acting on behalf of the Bahamian police…”

45

Mr. Turner submitted that it is in respect of accomplices that the warning is necessary, not co-
conspirators, because the former would at all times wish to deflect attention from themselves -
not so in the case of agent provocateurs. He relies: the following statement of the law at
paragraph 1425 of Acrchbold's Criminal Pleading and Practice edition:

“…The rule [does not] apply to persons who have joined in or even provoked
crimes, as police spies or the police who have assented thereto: R v. Brickley (1909)
2 Cr App R 53, and R v. Stevenson (1911) 6 Cr App R 56, and Sneddon v. Stevenson
[1967] Criminal Law Review 476.”

46

There is what would appear to laymen to be a peculiarity of practice and procedure which needs
to be stated here. The grounds of appeal are framed, as they could only be, as areas in which the
trial magistrate erred in law. On the doctrine of stare decisis, in the hierarchy of courts, any lower
court is unconditionally bound to follow the decisions of a court above it on a particular question
of law on which that court has definitively spoken. Magistrate's court are at the bottom of the
hierarchy and are not themselves courts of record. Their obligation to follow the law as decided
by courts above them is absolute. Mr. MaCaulay, therefore, correctly concedes that the
magistrate here was bound to follow Thompson, a decision of the Supreme Court, on the
question of whether an accomplice warning was necessary in the case of agents provocateur. In
other words, the magistrate's decision on the point cannot be faulted in law. It is at the appeal
level that this Court is being invited to reconsider the law which would direct magistrates in the
future. It would operate to affect this case because, by what to non-lawyers would seem to be
another peculiarity of the principle of stare decisis, appellate courts speak prospectively and
retrospectively and the court is being invited to apply Yip which had not been decided by the
Privy Council at the time the issue would have been live before the magistrate.

47

Nevertheless, the issue in Yip is not new to this jurisdiction. Mr. MaCaulay had referred to Mr.
Turner's submission in another magistrate's appeal Nixon v. COP Criminal Appeal 118 of 1991
where this Court (in the person of the present judge), had ruled that such agents were co-
conspirators:

“… Mr. Mackay submitted that as the DEA agents were agents provocateurs (as the
magistrate found that they were) they could not be co-conspirators of the appellant
and, as the co-accused were all acquitted, there were no ‘others’ with whom the
appellant could have conspired. The DEA agents could not be co-conspirators as,
acting with the permission and cooperation of the authorities, they lacked the mens
rea necessary to commit the crime of conspiracy.

At one point in her judgment, the magistrate had identified ‘the critical issue’
whether the appellant had acted together with his co-defendants ‘as part of the same
conspiracy.’ Mr. Mackay submits that the magistrate nevertheless proceeded
wrongly to hold that the ‘others’ were the said agent provocateurs.

Mr. Mackay refers to the observations the course of arguments in case of Thompson
v. AG, a case similar to this one but one where the foreign agents had not been
nearly as aggressive in their instigation as they had been here, to the effect that
agents provocateurs were not accomplices and their testimony did not require
corroboration… Mr. Mackay relies on the decision of the court of Appeal in
Ferguson v. Regina number 61 of 1989 where their Lordships ruled that the law as
to conspiracy in The Bahamas was as stated by the Privy Council in Dharmasena v.
The King [1951] A.C. 6 to the effect that if two persons are accused of conspiracy
and one is acquitted the other must also be acquitted.

Mr. Turner in answer submits that Thompson is not authority for the proposition that
agents provocateurs cannot be co-conspirators. He submits that these agents would
have met all the requirements by which they would be guilty of the same offence as
the appellant: it is only the forbearance of the authorities to prosecute which
separates their situation from that of the persons charged. Notwithstanding the
authority under which the agents acted, the agreement with the appellant would not
have been to ‘lawfully’ possess, import, etc. the drugs in question; the agreement
was to act outside of the law.

The issue on this appeal is, therefore, a very narrow one and was correctly
summarized by Mr. Mackay as being whether, upon the magistrate's findings of fact
and application of law she correctly considered the agents to be co-conspirators. It is
common to both sides that, the co-accused having been acquitted, if the agents were
not co-conspirators the conviction cannot stand.

At first blush, this appears to be a wholly new area, raising novel questions of law -
which explains the paucity of authorities on which counsel could rely and the
separate research of the court has been no more fruitful. On close inspection,
however, the problem is not as it first appears. I consider, with respect, Mr. Mackay
to have become diverted from the true issue when he raised the question of the lack
of mens rea in the agents since they were acting under the authorization of the
relevant persons in The Bahamas. As I understand the concept of mens rea,
however, it is not the interior disposition to do an illegal act; rather it is the intention
to perform those actions which actions are themselves proscribed as being crimes.

Further, even where a conspiracy or joint enterprise is alleged, each individual

charged must be proved to have agreed to perform the proscribed actions and
intended to perform those actions - independently of the companion proof relating to
any other person; what each individual must be shown to have done was conspire
 (defined in section 29 of the Act as ‘agree or act together with a common purpose’)
and, as Henry, J, states in the passage from Thompson quoted above, it is not
necessary to prove that the object of the conspiracy was achieved.

In the present case, the magistrate having found that the co-accused of the appellant
were not conspirators, having been alerted by the particulars of the several counts to
the notion that the ring of conspirators extended to ‘others’ beyond the three accused
persons, was entitled to consider the evidence as to whether the appellant had
agree[d] or act[ed] together with a common purpose’ with anyone else to import,
export, or possess cocaine. The learned magistrate found those ‘others’ to be the
DEA agents. Unbeknown to the appellant, these agents would not have been
prosecuted for what they were doing. Did that make them any less part of the
conspiracy? I think not.

In the course of her judgment, the learned magistrate expressed her abhorence of the
tactics employed by the DEA agents to entice the appellant into the criminal activity
of which he stands convicted. I echo those statements. There is nothing in the record
here to suggest that this was a case where the authorities used deception only for the
purpose of capturing a suspect who was already engaged in criminal activities;
deception of that nature is, to paraphrase some of the observations made in Sang v.
R [1980] A.C. 402 - which was referred to in Thompson - is accepted and is as old as
a police officer wearing plain clothes. However, it is disturbing that the greed,
gullibility and weakness of a person such as the appellant could be exploited in order
to create a criminal offence in which he became involved. Nevertheless, whatever
philosophical dissent or moral reservations the courts (or particular judges and
magistrates) might have, as a matter of law, the actions of the appellant did
constitute the element of the offences of which he was convicted by the magistrate.”

48

One of the cases relied on by the learned judge in Thompson was the decision of the English
Divisional Court in Sneddon v. Stevenson [1967] 2 All E.R. 1277, a case in which a police
officer had stopped his car near “a known prostitute” who had approached him and inquired if he
wanted “business”. She had gotten into his car whereupon she was arrested. Lord Parker, C.J.,
had observed at pp 1279ff:

“…In my opinion, this never got near a case of aiding and abetting, inciting or
encouraging or anything of the sort. All the respondent did was to place himself and
the car in such a position that, if the appellant desired to solicit, there was full
opportunity to do so. In my judgment, that does not mean that the respondent
commits any offence at all. I would go further myself and hold that, even if it could
be said that the respondent was, as it were, a party to the offence, partook in the
offence, he was certainly not an accomplice for the purpose of the doctrine of
corroboration. We have been referred to R v. Mullins (1848), 3 Cox C.C. 526, R v.
Bickley (1909) 2 Cr App R 53 and R v. Heuser (1910) Cr App R 76. It seems to me
that, on a true reading of those cases, it can be stated that, though a police officer
 acting as a spy may be said in a general sense to be an accomplice in the offence, yet
if he is merely partaking in the offence for the purpose of getting evidence, he is not
an accomplice who requires to be corroborated.

The second point taken by counsel for the appellants is that the court has from time
to time frowned on police acting as agents provocateurs, and that this Court should
emphasize that disapproval by quashing the conviction. It is quite true that the court
has from time to time frowned on the police getting evidence of an offence by
pretending to take part in it. The case always referred to on this is Brannan v. Peek
[1948] 1 K.B. 68, where Lord Goddard, C.J., used strong words in which
Humphreys, J, concurred. Lord Goddard said there at page 72:

‘The court observes with concern and disapproval the fact that the police authority at
Derby thought it right to send a police officer into a public house to commit an
offence. It cannot be too strongly emphasized that, unless an act of Parliament
provides for such a course of conduct - and I do in the think any Act of Parliament
does so provide - it is wholly wrong for a police officer or any other person to be
sent to commit an offence in order that an offence by another person may be
detected.’

Humphreys, J. said at page 73:

‘I think the most serious aspect of this case is that not only did the police constable
commit an offence, but, as is made clear in the case, he encouraged and persuaded
another person to commit an offence.’

Notwithstanding those strong remarks, the methods used by the police in that case
were not a ground for quashing the conviction… no doubt this Court does frown on
the practice of police officers being employed to commit offences themselves, or
indeed to encourage others to commit offences. Here, of course, it cannot be said, as
I have already indicated, that the police officers were employed themselves to
commit offences. In my judgment, the respondent did not commit an offence:
insofar as it can be said that he did act so as to enable others to commit offences by
making himself available if an offence was to be committed, it does seem to me that,
provided a police officer is acting under the orders of his superior and the superior
officer genuinely thinks that the circumstances in the locality necessitates action of
this sort, then, in my judgment, there is nothing wrong in that practice being
employed…”

Mr. MaCaulay submits that in the light of Yip, the last observation of Lord Parker can no longer
be regarded as good law. He notes that the earlier decision of the House of Lords in Davies v.
D.P.P. [1954] 1 All E.R. 507 had not been referred to by the court in Sneddon. In Davies Lord
Simons, LC, delivering the judgment of the House had said at page 513:

“…The true rule has been, in my view, accurately formulated by the appellant's
counsel in his first three propositions, more particularly in the third. These
propositions as amended read as follows:
 ‘First proposition: In a criminal trial where a person who is an accomplice gives
evidence on behalf of the prosecution, it is the duty of the judge to warn the jury
that, although they may convict upon his evidence, it is dangerous to do so unless it
is corroborated.

Second proposition: This rule, although a rule of practice, now has the force of a
rule of law.

Third proposition: Where the judge fails to warn the jury in accordance with this
rule, the conviction will be quashed, even if in fact there be ample corroboration of
the evidence of the accomplice, unless the appellate court can apply the proviso to s
4 of the Criminal Appeal Act, 1907.'

The rule, it will be observed, applies only to witnesses for the prosecution.

The remaining questions, therefore, on the main issue are - (B) and (C): What is an
“accomplice” within the rule? And has the rule, on the proper construction of the
word “accomplice” contained in it, any application to Lawson in the present case?
There is in the authorities no formal definition of the term “accomplice”: and your
Lordships are forced to deduce a meaning for the word for the cases in which X, Y
and Z have been held to be, or held liable to be treated as, accomplices. On the cases
it would appear that the following persons, if called as witnesses for the prosecution,
have been treated as falling within the category:–

(i) On any view, persons who are participes criminis in respect of the actual
crime charged, whether as principals or accessories before or after the fact
(in felonies) or persons committing, procuring or aiding and abetting (in the
case of misdemeanours). This is surely the natural and primary meaning of
the term “accomplice”. But in two cases, persons falling strictly outside the
ambit of this category have, in particular decisions, been held to be
accomplices for the purpose of the rule: viz.,

(ii) receivers have been held to be accomplices of the thieves from whom
they received goods on a trial of the latter for larceny, and

(iii) when X has been charged with a specific offence on a particular

occasion, and evidence is admissible, and has been admitted of his having
committed crimes of this identical type on other occasions, as proving
system and intent and negativing accident: in such cases the court has held
that, in relation to such other similar offences, if evidence of them were
given by parties to them, the evidence of such other parties should not be left
to the jury without a warning that it is dangerous to accept it without
corroboration…”.

49
Mr. MaCaulay submits that when Davies and Yip are considered together, the distinction
between accomplices and agents provocateurs disappears and that with the lack of corroboration
being patent on the record the verdict is a partial or total failure, therefore, no re-trial can be
ordered, as a venire de novo can only be ordered where there is a mistrial: R v. Neal [1949] 2 KB
590. I state here that I do not further consider the question of the power of the Supreme Court to
order re-trials on magistrate's appeals as I regard this matter to have been settled by the Court of
Appeal in Outten v. Ferguson, Criminal Appeal number 14 of 1990.

50

Continuing, Mr. MaCaulay submits that the evidence here discloses separate conspiracies
charged as a single count; therefore, it is inherently bad for duplicity and must be quashed. He
refers to the decision of the English Court of Appeal in R v. Griffiths [1965] 2 All E.R. 448, the
headnote of which reads:

“An indictment containing 25 counts was directed to alleged frauds by G., a supplier
of lime, and B., his bookeeper, and various individual farmers in obtaining, or
attempting to obtain, by false pretences, money from the Ministry of Agriculture,
and Fisheries and Food on account of lime subsidy. Count one charged conspiracy
against G., B., and the farmers, alleging a conspiracy between all of them. The
remaining 24 counts were substantive counts of false pretences, of which count five
to 25 alleged false pretences by G. and B. with, in turn, one or other of the farmers.
There was no link as between any farmer and any other farmer, none of whom was
in contact with another; nor did any of them know of B's existence, nor was any
farmer shown to have known that any other of the farmers was contracting for the
supply of lime by G. At the trial no point was taken for the defence that there was no
common conspiracy between all the farmers and G. and B., as alleged in count one,
and there was no direction to the jury whether or not each farmer merely conspired
with G. On appeal by all accused against conviction, a preliminary point was
allowed to be taken whether on the evidence there could have been one conspiracy
between all appellants as alleged in count one.

Held: In order to constitute one conspiracy between all the farmers and G. there had
to be evidence from which it could be inferred that each farmer knew that there was,
or was coming into existence, a scheme to which he attached himself to which there
were other parties and which went beyond the act that he agreed to do, so that all
would be shown to have been acting in pursuance of a common criminal purpose;
but in the present case there was no evidence of a conspiracy between all farmers, as
distinct from evidence of a number of separate conspiracies between G., B. and one
or other of the farmers, and in the circumstances none of the convictions should
stand…”

He submits that the evidence here discloses that Watson met with certain persons in New
Providence; that the journey to Ragged Island involved persons who would not have been privy
to the earlier arrangement; that the return to New Providence severed any connection with the
persons in Ragged Island.
51

Mr. Turner submitted that the magistrate found, on the evidence, a single conspiracy. Even if
there were separate conspiracies, the count would not be bad for duplicity because duplicity is a
matter of form not a matter relating to evidence called in support of the count: Greenfield v. R
(1973) 57 Cr App R 859. Moreover, the prosecution does not have to prove that each conspirator
acted with every other conspirator.

52

Mr. Turner relies on the exhaustive examination on the elements of conspiracy conducted by
Osadebay, J, in Butler, which, again, has been inferentially confirmed by the Court of Appeal.
Beginning at page 16, the learned judge opines:

“…Since the appellants are charged with the offence of a statutory conspiracy, it
follows that the elements of that statutory conspiracy must be ascertained purely by
interpretation of the language of section 29(1) of the Dangerous Drugs Act, chapter
213. That section provides as follows:

‘29. (1) If two or more persons agree or act together with a common purpose in
committing or abetting an offence against this Act whether with or without any
previous concert or deliberation each of them is guilty of conspiracy to commit or
abet that offence as the case may be, and shall be liable on conviction to the same
punishment and forfeiture as if he had committed an offence as the case may be and
shall be liable on conviction to the same punishment and forfeiture as if he had
committed an offence under this Act.’

Each of the defendants/appellants is charged with conspiracy to commit a

substantive offence against the Dangerous Drugs Act namely (a) Conspiracy to
import dangerous drugs, (b) Conspiracy to export dangerous drugs, (c) Conspiracy
to possess dangerous drugs, (d) Conspiracy to possess dangerous drugs with intent
to supply. I shall analyze and isolate the three clauses which in my opinion indicate
the essential ingredients of those offences. The reasons for my analysis being to
ascertain whether there exists any basis for the learned magistrate reaching the
conclusion and finding which she did. In my opinion, the three clauses are as
follows:

(1) if two or more persons agree or act together with a common purpose.

(2) In committing an offence against this Act.

(3) With or without any previous concert or deliberation.

Clause (1) presents little or no difficulty. To be convicted of any of the

conspiracies each defendant must have agreed with one or more persons or
he must have acted together with one or more persons “with a common
purpose.” In case of an agreement, there need not be a contractual liability
 undertaken by the defendant. In the agreement or in acting together with a
common purpose, the defendant may have agreed to play or may have played
a role towards the common purpose. That role may be a simple role. He may
have performed an act.

Clause (2) - the defendant must have known that the agreement which he has
entered into or the act which he has performed with a common purpose will
involve the commission of an offence against the Act or will amount to an
offence against the Act.

Clause (3) - the defendant need not have met the other persons also involved
in the conspiracy.

It is a matter of common experience in the criminal courts that the “terms” of a

criminal conspiracy are hardly ever susceptible of proof. The evidence from which a
jury may infer a criminal conspiracy is almost invariably to be found in the conduct
of the parties. This was so at common law and remains so under the statute. (per
Lord Bridge in R v. Anderson [1985] 2 All E.R. 961 at 964). In criminal
conspiracies, there is diversity of roles. That is common knowledge. A very good
example is provided by Lord Bridge of Harwich in R v. Anderson (1985) 2 All E.R.
961:

‘Whether that is an accurate analysis or not, I am clearly driven by consideration of

the diversity of roles which parties may agree to play in criminal conspiracies to
reject any construction of the statutory language which would require the
prosecution to prove an intention on the part of each conspirator that the criminal
offence or offences which will necessarily be committed by one or more of the
conspirators, if the agreed course of conduct is fully carried out, should in fact be
committed. A simple example will illustrate the absurdity to which the construction
would lead. The proprietor of a car hire firm agrees for a substantial payment to
make available a hire car to a gang for use in a robbery and to make false entries in
his books relating to the hiring for which he can point if the number of the car is
traced back to him in connection with the robbery. Being fully aware of the
circumstances of the robbery in which the car is proposed to be used he is plainly a
party to the conspiracy to rob. Making his car available for use in the robbery is as
much a part of the relevant agreed course of conduct as the robbery itself. Yet, once
he has been paid, it will be a matter of complete indifference to him whether the
robbery is in fact committed or not. In these days of highly organized crime the
most serious statutory conspiracies will frequently involve an elaborate and
complex agreed course of conduct in which many will agree to play necessary
but subordinate roles, not involving them in any direct participation in the
commission if the offence or offences at the centre of the conspiracy. Parliament
cannot have intended that such parties should escape conviction of conspiracy on the
basis that it cannot be proved against them that they intended that the relevant
offence or offences should be committed.’

(At pages 964 to 965) (Emphasis - mine)…

Having dismissed his appeal, the Court of Appeal certified a point of law of general
public importance for the opinion of the House of Lords as follows: –

‘Is a person who agrees with two or more others who themselves intend to
pursue a course of conduct which will necessarily involve the commission of an
offence, and who has a secret intention himself to participate in part only of
that course of conduct, guilty himself of conspiracy to commit that offence
under section 1(1) of the Criminal Law Act 1977 [2] if not is he liable to be in
indicted as a principal offender under section 8 of the Accessories and Abettors
Act, 1861?’ (Emphasis - mine) (at page 963)

Section 1(1) of the Criminal Law Act, 1977 at the time of the offence provided as
follows:–

‘Subject to the following provisions of this part of this Act, if a person agrees with
any other person or persons that a course of conduct shall be pursued which will
necessarily amount to or involve the commission of any offence or offences by one
or more of the parties to the agreement if the agreement is carried out in accordance
with their intentions, he is guilty of conspiracy to commit the offence or offences in
question.’

As the offence of conspiracy at common law was abolished by the Criminal Law
Act, 1977, it follows that the court must look to the words and language of the
statute for the element of that offence.

After considering all of the submissions of counsel on the matter, Lord Bridge (with
whose judgment the rest of their Lordships agreed) concluded:

‘I have said already, but I repeat to emphasize its importance, that an essential
agreement in the crime to conspire to commit a specific offence or offences
under section 1(1) of the 1977 Act is that the accused should agree that a course
of conduct be pursued which he knows must involve the commission by one or
more of the parties to the agreement of that offence or those offences. But,
beyond the mere fact of agreement, the says mens rea of the crime is, in my opinion,
established if, and only if, it is shown that the accused, when he entered into the
agreement, intended to play some part in the agreed course of conduct in furtherance
of the criminal purpose which the agreed course of conduct was intended to achieve.
Nothing less will suffice, nothing more is require.

Applying this test to the facts which, for the purpose of the appeal, we must assume,
the appellant, in agreeing that a course of conduct be pursued that would, if
successful necessarily involve the offence of effecting Andaloussi's escape from
lawful custody, clearly intended, by providing diamond wire to be smuggled into the
prison, to play a part in the agreed course of conduct in furtherance of that criminal
objective. Neither the fact that he intended to play no further part in attempting
to effect the escape, nor that he believed the escape to be impossible would, if
the jury had supposed they might be true have afforded him any defence.
 In the result, I would answer the first part of the certified question in the affirmative
and dismiss the appeal. Your Lordships did not find it necessary to hear argument
directed to the second part of the certified question and it must, therefore, be left
unanswered.'

(At pages 965 to 966) (Emphasis - mine)

Going through the Anderson case I note that the point of law of general public
importance which the Court of Appeal certified for the opinion of the House of Lord
raised an issue similar to the submission which Mr. Hilton and Mr. McKinney now
raise with regard to the appellant being prosecuted as a principal in the conspiracy
and not as abettors. At the end, their Lordship took the view that once the defendant
agreed that a course of conduct be pursued which, if successful, necessarily involved
an offence of the prisoner's escape from lawful custody, even though the part played
by the defendant was the provision to the prisoner of a diamond wire cutter, the
defendant having played a part in furtherance of that criminal objective, the
defendant was guilty of conspiracy to effect the prisoner's escape - which was the
substantive offence…”

53

In the instant case, the evidence of Watson was that he was in the employ of the DEA and the
DEU, that he had first met with the appellant McPhee, and after he and Chambers had been
given the $30,000 by the DEA and DEU agents they had met with Curling and then proceeded to
Ragged Island. This case is clearly distinguishable on the facts from Griffiths. Mr. Turner
summarizes the position was follows: Section 29 of the DDA does not require the prosecution to
establish “an agreement conspiracy” or “an acting conspiracy only,” evidence of agreement and
action are all admissible in proof of the one conspiracy.

54

In reply, Mr. MaCaulay cited a decision of the Supreme Court of the United States of America
Sherman v. U.S.A., 1957 (356 369 2 L ed, 848) the headnote of which reads:

“In a prosecution in the United States District Court for the Southern District of New
York for the unlawful sales of narcotics it was established by the undisputed
testimony of the prosecution's witnesses that the sales, made to a government
informer, were brought about by the informers persistent solicitation in the face of
obvious reluctance on the part of the defendant, whom the informer believed to be
undergoing a cure for narcotics addicts, and by the informers appeals to sympathy
based on mutual experiences with narcotics addiction and the informers tale of his
suffering. It was likewise established that the informer not only procured a source of
narcotics, but also induced defendant to return to the habit. The issue of entrapment
went to the jury, and a conviction resulted. The Court of Appeals for the Second
Circuit affirmed ( 240 F2d 949).
 On certiorari, the United States Supreme Court reversed the judgment below and
remanded the case to the district court with instructions to dismiss the indictment. In
an opinion by Warren, Ch. J., the decision was rested on the ground that the defence
of entrapment was established was as a matter of law, the criminal conduct charged
against the defendant being the product of the creativity of law enforcement
officials. The court declined to consider the question, not raised by the parties,
whether factual issues of entrapment are determinable by the judge or by the jury.

Frankfurter, J, with the concurrence of Douglas, Harlan and Brennan, JJ., concurred
in the result. These justices expressed the view that, as regards entrapment, the
crucial question is whether the police conduct revealed in a particular case falls
below standard, to which common feelings respond. For the proper use of
government power, and that this is a question appropriate for the court and not the
jury.”

Warren, C.J., observes at page 851:

“The function of law enforcement is the prevention of crime and the apprehension of
criminals. Manifestly, that function does not include the manufacturing of crime.
Criminal activity is such that stealth and strategy are necessary weapons in the
arsenal of the police officer. However, ‘a different question is presented when the
criminal design originates with the officials of the government, and they implant in
the mind of an innocent person the disposition to commit the alleged offence and
induce its commission in order that they may prosecute.’ 287 U.S. at 442. Then
stealth and strategy becomes objectionable police methods as the coerced confession
and the unlawful search. Congress could not have intended that its statutes were to
be enforced by tempting innocent persons into violations.

However, the fact that government agents ‘merely afford opportunities or facilities
for the commission of the offence does not’ constitute entrapment. Entrapment
occurs only when the criminal conduct was “the product of the creativity” of law
enforcement officials. (Emphasis supplied). See 287 U. S., at 441, 451. To
determine whether entrapment has been established, a line must be drawn between
the trap for the unwary innocent and the trap for the unwary criminal. The principles
by which the courts are to make this determination were outlined in Sorells. On the
one hand, at trial the accused may examine the conduct of the government agent;
and on the other hand, the accused will be subjected to an ‘appropriate and searching
inquiry into his own conduct and predisposition’ as bearing on his claim of
innocence. See 2867 U. S., at 451.”

and, again, at 853:

“… The case at bar illustrates an evil which the defence of entrapment is designed to
overcome. The government informer entices someone attempting to avoid narcotics
not only into carrying out an illegal sale, but also into returning to the habit of use.
Selecting the proper time, the informer then tells the government agent. The setup is
accepted by the agent without even a question as to the manner in which the
 informer encountered the seller. Thus the Government plays on the weaknesses of
an innocent party and beguiles him into committing crimes which he otherwise
would not have attempted. Law enforcement does not require methods such as
this…”

In his concurring judgment, Frankfurter, J., opines at page 857:

“…[A] test that looks to the character and predisposition of the defendant rather than
the conduct of the police loses sight of the underlying reason for the defence of
entrapment.

No matter what the defendant's past record and present incriminations to criminality
are the depth to which he has sunk in the estimation of society, certain police
conduct to ensnare him into further crime is not to be tolerated by an advanced
society. And in the present case it is clear that the court in fact reverses the
conviction because of the conduct of the informer Kalchinian, and not because the
government has failed to draw a convincing picture of petitioner's past criminal
conduct. Permissible Police Act activity does not vary according to the particular
defendant concerned; surely if two suspects have been solicited at the same time in
the same manner, one should not go to jail simply because he has been convicted
before and is said to have a criminal disposition. No more does it vary according to
the suspicions, reasonable or unreasonable, of the police concerning the defendant's
activities. Appeals to sympathy, friendship, the possibility of exorbitant gain, and so
forth, can no more be tolerated when directed against a past offender than against an
ordinary law abiding citizen. A contrary view runs afoul of fundamental principles
of equality under law, and would espouse the notion that when dealing with the
criminal classes anything goes.”

55

In Triana v. COP [1990] LRC (Const) 431, Georges, C.J., applying the principles enunciated in
R v. Charlesworth (1861) 1 B. & S, 460, and Connelly v. D.P.P. [1964] A.C., 1254, declared that
although the right of the Attorney-General under the Constitution and the CPC to stay
proceedings or to file fresh proceedings is undisputed:

“… proceedings when filed must, however, be submitted to the processes of [the

Supreme Court of The Bahamas] and where the court is satisfied that such
proceedings may be oppressive of a defendant and there is an abuse of its process,
there is a duty to interfere to stay them.”

Citing R v. Brentford Justices ex parse Wong [1980] Q.B. 445. Mr. MaCaulay submitted that the
magistrate court would have had a similar power and, therefore, a duty to stay the present
proceedings as an abuse of its process. And he and Mr. Bostwick submit that any fear of abuse
by the magistrates of this authority is relieved by the administrative provisions under the CPC
whereby all magistrates must make monthly returns to the Supreme Court, which may then
invoke its power of review over the decisions of magistrates.
56

In approaching the issues combined in grounds 4 and 6, I deal firstly with the matter of
conspiracy. I respectfully adopt the analysis of section 29(1) performed by Osadebay, J. in
Butler. I think that the key to understanding conspiracy under the act is found in what that
learned judge identified as clauses one and three of the section. The order “or” in his clause one
does not - to adopt the submissions of Mr. Turner - require the prosecution to prove either an
“acting” or “agreement” conspiracy; when one considers what Osadebay, J. describes as clause
three - “with or without any previous concert or deliberation” - it is clear that the offence created
by section 29 is not intended to create rigid classifications and that a combination of or a
changing fluidity of deeds (whether action or agreement) and/or individuals would establish guilt
in each participant so long as the common purpose is to commit an offence under the Act. Here
the magistrate found - and the evidence supports the finding - that the exercise originating in
New Providence was for certain of the participants to proceed to Ragged Island, purchase drugs
from other participants, and deliver them to others in New Providence. Clearly this is not the
type of scenario as obtained in Griffiths. That not all of the conspirators were in contact with
each other, does not mean that there were separate conspiracies.

57

The next question is that which provided the bulk of the arguments on this appeal: Namely
whether the magistrate had to warn herself of the danger of convicting on the uncorroborated
evidence of Watson. Subsidiary to this is the matter of whether the method used by the DEA and
DEU agents were such that the magistrate would have had a duty to stop the prosecution as
abusive of the process of the courts.

58

Mr. MaCaulay's proposition simply put is that since, in the light of Yip, Watson would have been
a co-conspirator with the appellants, he had an interest to serve and that, as per Davies, the
magistrate should have warned herself of convicting on his uncorroborated testimony.

59

When the Privy Council in Yip decided that agents, whether police or otherwise, who actually
engaged in criminal activities as part of what is commonly referred to as “undercover” operations
are co-conspirators, this was not so startling or radical a development of the law as counsel for
the appellants argue. The sheer logic of that conclusion was, if I may say so with respect,
irresistible and inevitable. Indeed, although it may appear immodest to say so, it was the same
conclusion that I had earlier reached in Nixon. Counsel for the appellants actually go farther than
Yip; they invite a finding that, because the agents are co-conspirators they become accomplices
and thus have attracted to them all the rules requiring corroboration or, at least, they are
assimilated to the position of accomplices as persons having an interest to serve.
60

The arguments of the appellant would seem to find support in the decision in the House of Lords
in R v. Spencer [1986] 2 All E.R., the headnote, insofar as is relevant, reads:

“The appellants, who were nursing staff at a special hospital, were charged with ill-
treating patients, contrary to section 126 of the Mental Health Act 1959. In two
separate trials before the same judge, the prosecution relied wholly on the
uncorroborated evidence of patients who had criminal convictions or were suffering
from mental disorders… At both trials the judge directed the jury to approach the
evidence of the patients with great caution but did not warn them that it would be
dangerous to convict on the patients' uncorroborated evidence. The appellants were
all convicted. They appealed to the Court of Appeal which dismissed the appeals,
holding that the evidence of patients at a secure hospital did not fall into the
category of evidence of witnesses where a full warning of danger of conviction on
their uncorroborated evidence was necessary…

Held - Where the evidence for the Crown consisted solely on the evidence of a
witness who was not within one of the accepted classes of suspect witnesses but
who, by reason of his particular mental condition and criminal conclusion, fulfilled
an analogous criteria, the trial judge was required to warn the jury that it would be
dangerous to convict on that witness's uncorroborated evidence. In giving the
appropriate warning, although it could often be convenient to use the words ‘danger’
or ‘dangerous’, the use of such words was not essential to an adequate warning,
provided the jury were made fully aware of the dangers of convicting on such
evidence. Where a witness did not fall into one of the established categories of
suspect witnesses and there existed potential corroborative material, the extent to
which the trial judge made reference to that material depended on the facts of the
case, subject to the overriding rule that the judge had to put the defence fairly and
adequately. Since the judge had told the jury in the clearest possible terms that they
must approach the evidence of the patients with great caution and since, having
given that warning, he identified the very dangers which justified the exercise of
great caution, it followed that the judge's direction had been adequate and fair. The
appeals relating to the judge's direction would therefore be dismissed R v. Beck
[1982] 1 All E.R. 807 approved; DPP v. Kilbourne [1973] 1 All E.R. 440
considered; R v. Bagshaw [1978] 1 All E.R. 971 overruled.”

In The Bahamas the Court of Appeal in Williams and Poitier v. R, criminal appeal numbers 34
and 35 of 1993 said at p 4:

“Counsel for the appellant Williams also complains that the learned trial judge failed
to adequately warn the jury of the danger of convicting on the evidence of a co-
accused without corroboration in a material particular implicating the appellant. The
short answer to counsel's complaint is that there is no rule requiring a full
corroboration direction in respect of a co-defendant's evidence. Although a warning
in suitable terms as to the danger of a co-accused having an axe to grind is desirable,
there is no rule of law or practice requiring a full corroboration direction. What is
 required when one defendant gives evidence implicating another is simply a warning
of what might very often be obvious, namely, that the defendant witness might have
a purpose of his own to serve. See R v. Cheema, The Times October 6, 1993. In her
summation the learned trial judge did give such a warning to the jury. This
complaint is also without a foundation.”

61

Mr. Turner's analysis that the rule which separates accomplices from agents was founded on the
real likelihood that the former would have been interested in detracting attention from
themselves, appears to be reasonable.

62

When the court in Thompson applied the rule that agents provocateurs did not require to have
their evidence corroborated, following Sneddon, it appears that at all times the court was
considering the conduct of police officers or other state officials whose duty it was to conduct
investigations. The novel question here appears to be whether a person such as Watson who is
ordinarily outside of the discipline of the police force comes under the umbrella offered to state
officers when, as Mr. Hamilton for McPhee argues, the cases show that such protection had only
reluctantly been applied to police officers themselves.

63

It seems to me that where a line is drawn between state officers and other participants in an
operation such as occurred here, Watson has to be placed on the same side as is the local DEU
and foreign DEA agents, because at no time was his involvement other than as part of the work
of the police officers. That he would have been a conspirator is incidental and irrelevant. Indeed,
in the light of Yip, the DEU and DEA officers were themselves conspirators. If Watson had been
a DEU or DEA agent would his evidence had to have been corroborated? I feel compelled to say
no. The line of authorities that police officers as agents provocateur do not require corroboration
is too well establish to be dismissed or disregarded by a court at this level. I am not unmindful of
the opinion of the divisional court in R v. Governor of Pentonville Prison, ex p Osman [1990] 1
W.L.R. 277, 316:

“…that there must always be some evidence other than the hearsay evidence of a
fellow conspirator to prove that a particular defendant is party to a conspiracy.
Provided there is some other evidence, it does not matter in what order it is
adduced…”

64

However, the question remains as to whether corroboration is required in the case of non-police
officers or non-official agents such as Watson who has admitted that he is “kept” and “protected”
by the U.S. Government. This type of person appears to be a new phenomenon employed by
police agencies in their quest to infiltrate groups of persons whom they suspect of committing
criminal offences and a new category for consideration by the courts as to how their evidence
should be approached.

65

In my judgment, while there is no rule of law - and it is not for me to create one - requiring that
the evidence of such persons as Watson be corroborated, it is logical, reasonable and fair that
courts - including magistrates sitting alone - consider carefully the evidence of such persons
before they convict upon it in the absence of corroboration.

66

As stated earlier, and as accepted by Mr. MaCaulay, the magistrate in this case was bound by
Thompson and need not, therefore, have burdened her mind with the question. Her finding
obviously means that she accepted Watson as a witness of truth. The question for this Court is
whether had she been required to caution herself in the manner above, she would have found
corroborative evidence in any event. The answer appears to me to be in the affirmative: firstly,
there is the conversation recorded on the audio tapes which were put into evidence. While
counsel for the appellants argued that the tapes could not have corroborated Watson, as the
prosecution had relied on Watson to prove the identity of the voices in the tape, such objections
ignore the history of the tape recordings which were produced - which were procured by the
presence of a transmitter concealed and operated by the DEA agent Ramsey and, apart from
Chambers and Watson, it was only the appellant McPhee who had been present in the room.

67

I have heard the tape recordings and seen the transcript and the evidence which that conversation
produces in support of the charge of conspiracy is clear and compelling.

68

The second bit of corroborative evidence is that of Ramsey who had testified to having seen the
boat in Nassau harbour and with Watson and Munroe on board and two other persons whom
Watson identified from a photograph taken by Ramsey as being Maycock and Lealand Curling.
Ramsey later saw the same boat at Exuma two days later.

69

In the result, even if the magistrate had been required to caution herself to look for corroborative
evidence (or to consider carefully the testimony of Watson) there did exist such evidence as
would have corroborated the testimony of Watson in material particulars.
70

Finally, under these heads, was the prosecution evidence here of such a nature as that the court
should have exercised its discretion to stay the proceedings? It should be remembered that unlike
the position in the United States (see Sherman), in English law “entrapment” was never
recognized as a defence. The House of Lords in R v. Sang [1980] A.C. 402 declared that:

“Save with regard to admissions and confessions and generally with regard to
evidence obtained from the accused after commission of the offence, the judge had
no discretion to refuse to admit relevant admissible evidence on the ground that it
was obtained by improper or unfair means, the court not being concerned with how
it was obtained, and it was no ground for the exercise of the discretion to exclude
evidence that it was obtained as a result of the activities of an agent provocateur.”

Lord Diplock at pp 432 to 433 states:

“…Before turning to that wider question however, I will deal with the narrower
point of view upon which this appeal actually turns. I can do so briefly. The
decisions in Reg v. McEvilly, 60 Cr App R 150 and Reg v. Mealey, 60 Cr App R 59
that there is no defence of ‘entrapment’ known to English law are clearly right.
Many crimes are committed by one person at the instigation of others. From earliest
times at common law those who counsel and procure the commissions of the offence
by the person by whom the actus reus itself is done have been guilty themselves of
an offence, and since the abolition of the Criminal Law Act 1967 of the distinction
between felonies and misdemeanor, can be tried, indicted and punished as principal
offenders. The fact that the counsellor and procurer is a policeman or a police
informer, although it may in mitigation of penalty for the affect the guilt of the
principal the physical element ( actus reus) element ( mens rea) of the offence is
charged are present in his case be of relevance offence, cannot offender; both and
the mental with which he is charged are present in his case.

My Lords, this being the substantive law upon the matter, the suggestion that it can
be evaded by the procedural advice of preventing the prosecution from adducing
evidence of the commission of the offence does not bear examination. Let me take
first the summary offence prosecuted before the magistrates where there is no
practical distinction between a trial and a ‘trial within a trial.’ There are three
examples of these in the books, Brannan v. Peek [1948] 1 KB 682; Browning v.
Watson (Rochester Ltd) [1953] 1 WLR 1272; Sneddon v. Stevenson [1967] 1 WLR
1051. Here the magistrates in order to decide whether the crime had in fact been
instigated by an agent provocateur acting upon police instructions would first have
to hear evidence which ex hypothesi would involve proving that the crime had been
committed by the accused. If they decided that it had been so instigated, then despite
the fact that they had already heard evidence which satisfied them that it had been
committed, they would have a discretion to prevent the prosecution from relying on
that evidence as proof of its commission. How does this differ from recognising
entrapment as a defence - but a defence available only at the discretion of the
magistrate?
 Where the accused is charged upon indictment and there is a practical distinction
between the trial and a ‘trial within a trial,’ the position, as it seems to me, would be
even more anomalous if the judge were to have a discretion to prevent the
prosecution from adducing evidence before the jury to prove the commission of the
offence by the accused. If he exercised the discretion in favour of the accused he
would then have to direct the jury to acquit. How does this differ from recognizing
entrapment as a defence - but a defence for which the necessary factual foundation is
to be found not by the jury but by the judge and even where the factual foundation is
so found, the defence is available only at the judge's discretion.

My Lords, this submission goes far beyond a claim to a judicial discretion to

exclude evidence that has been obtained unfair or by trickery; nor in any of the
English cases on agents provocateurs that have come before the appellate courts has
it been suggested that it exists. What it really involves is a claim to a judicial
discretion to acquit an accused of any offences in connection with which the conduct
of the police incurs the disapproval of the judge. The conduct of the police where it
has involved the use of an agent provocateur may well be a matter to be taken into
consideration in mitigation of sentence; but under the English system of criminal
justice, it does not give rise to any discretion on the part of the judge himself to
acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of
the offence. Nevertheless, the existence of such a discretion to exclude the evidence
of an agent provocateur does appear to have been acknowledged by the courts -
Marshall Appeal Court of Northern Ireland in Reg v. Murphy [1965] NI 138. That
was before the rejection of ‘entrapment’ as a defence by the Court of Appeal in
England; and Lord MacDermott, C.J. in delivering the judgment of the court relied
upon the dicta as to the existence of a wide discretion which appeared in cases that
did not involve an agent provocateur. In the result he had held that the court
marshal! had been right in exercising its discretion in such a way as to admit the
evidence. I understand your Lordships to be agreed that whatever be the ambit of the
judicial discretion to exclude admissible evidence it does not extend to excluding
evidence of a crime because the crime was instigated by an agent provocateur.
Insofar as Reg v. Murphy suggests the contrary it should no longer be regarded as
good law.”

and, again, at 437:

“I would accordingly answer the question certified in terms which have been
suggested by my noble and learned friend, Viscount Dilhorne, in the course of our
deliberations on this case. (1) a trial judge in a criminal trial has always a discretion
to refuse to admit evidence if in his opinion its prejudicial effect outweighs its
probative value. (2) save with regard to admissions and confessions and generally
with regard to evidence obtained from the accused after commission of the offence,
he has no discretion to refuse to admit relevant admissible evidence on the ground
that it was obtained by improper or unfair means. The court is not concerned with
how it was obtained. It is no ground for the exercise of discretion to exclude that the
evidence was obtained as a result of the activities of an agent provocateur.”
Lord Salmon's views at pp 443 was that:

“…My Lords, it is now well settled that the defence called entrapment does not exist
in English law: Reg v. McEvilly, 60 Cr App R 150; Reg v. Meally, 60 Cr App R 59.
A man who intends to commit a crime and actually commits it is guilty of the
offence whether or not he has been persuaded or induced to commit it, no matter by
whom. This being the law, it is inconceivable that, in such circumstances, the judge
could have a discretion to prevent the crown from adducing evidence of the
accused's guilt -- for this would amount to giving the judge the power of changing or
disregarding the law. It would moreover be seriously detrimental to public safety
and to law and order, if in such circumstances, the law immunised an accused from
conviction. There are, however, circumstances in which an accused's punishment in
such a case might be mitigated, and sometimes greatly mitigated…

I would now refer to what is, I believe, and hope, the unusual case, in which a
dishonest policeman, anxious to improve his detection record, tries very hard with
the help of an agent provocateur to induce a young man with no criminal tendencies
to commit a serious crime; and ultimately the young man reluctantly succumbs to
the inducement. In such a case, the judge has no discretion to exclude the evidence
which proves that the young man has committed the offence. He may, however,
according to the circumstances of the case, impose a mild punishment upon him or
even give him an absolute or conditional discharge and refuse to make any order for
costs against him. The policeman and the informer who had acted together in
inciting him to commit the crime should however both be prosecuted and suitably
punished. This would be a far safer and more effective way of preventing such
inducements to commit crimes from being made, than a rule that no evidence should
be allowed to prove that the crime in fact had been committed.”

However, he considered that the court did have some residuary duty to consider excluding
evidence if justice so required it when he commented at 444 - 445:

“There remains the point of view which has been certified to be of general public
importance thus, ante, p 424 F:

‘Does a trial judge have a discretion to refuse to allow evidence -- being evidence
other than evidence of admission -- to be given in any circumstances in which such
evidence is relevant and of more than minimal probative value?’

…In my opinion, the decision as to whether evidence may be excluded depends

entirely upon the particular facts of each case and the circumstances surrounding it
-- which are infinitely variable. I consider that it is a clear principle of the law that a
trial judge has the power and the duty to ensure that the accused has a fair trial.
Accordingly, among other things, he has a discretion to exclude legally admissible
evidence if justice so requires: See Lord Reid's speech in Myers v. Director of
Public Prosecutions [1965] A.C. 1001, 104.

It follows that:
 1. An accused cannot be convicted unless the prosecution proves his guilt
beyond a reasonable doubt. To allow an accused to be convicted when there
is no evidence before the court capable of proving his guilt beyond a
reasonable doubt would obviously be unfair.

2. A confession by an accused which has been obtained by threats or

promises is inadmissible as evidence against him, because to admit it would
be unfair.

3. The judge has a discretion to exclude evidence procured, after the

commission of the alleged offence, which although technically admissible
appears to the judge to be unfair. The classical example of such a case is
where the prejudicial effect of such evidence would be out of proportion to
its evidential value. Harris v. Director of Public Prosecutions [1952] A.C.
694 p 707; Kuruma v. the Queen [1955] A.C. 197; Reg v. Selvey [1970] A.C.
304.

4. Very recently, at ‘a trial within a trial’ an accused gave evidence (accepted

as true by the judge) that a confession upon which the Crown wished to rely
was forced out of him; but nevertheless the accused admitted in cross-
examination that the confession was true. The Privy Council ruled that when
the trial was resumed the Crown could not offer evidence or cross-examine
the accused about anything he had said at the ‘trial within a trial,’ to allow
the Crown to do so would have been unfair: See Wong Kam-Ming v. the
Queen [1980] A.C. 247.

I recognize that there may have been no categories of cases, other than those to
which I have referred, in which technically admissible evidence proferred by the
crown has been rejected by the court on the ground that it would make the trial
unfair. I cannot, however, accept that a judge's undoubted duty to ensure that the
accused has a fair trial is confined to such cases. In my opinion the category of such
cases is not and never can be closed except by statute. I understand that the answer
given by my noble and learned friend, Lord Diplock, to the certified question
accepts the proposition which I have just stated. On that basis, I respectfully agree
with that answer.”.

Lord Fraser of Tullybelton, at pp 449 to 450 does not appear to have gone so far as
Lord Salmon had since he considered any such duty to exclude evidence to apply to
evidence obtained from an accused person:

“I recognise that there does not appear to be any decision by an appellate court in
England clearly based upon an exercise of the discretion except when the excluded
evidence either (1) is more prejudicial than probative or (2) relates to an admission
or confession. I do not record the case of Reg v.Payne [1963] 1 WLR 637 as an
authority in favour of such a discretion. The Court of Criminal Appeal held that
evidence described by Lord Parker, CJ, at p 639 as ‘clearly admissible’ ought to
have been excluded and the conviction was quashed on that ground. The evidence in
 question was that of a doctor relating to a medical examination of an accused person
who was charged with driving a motor car under the influence of drink. The accused
had been induced by a trick to permit (and, I would suppose, cooperate in) a medical
examination of himself and thus to provide material for incriminating evidence by
the doctor who examined him and I regard the decision as being based, at least in
part, on the maxim nemo tenetur se ipsum accusare. But notwithstanding the
absence of direct decision on the point, the dicta are so numerous and so
authoritative that I do not think that it would be right to disregard them, or to treat
them as applicable only to cases where the prejudicial effect of the evidence would
outweigh its probative value. If they had been intended to have such a limited
application, the references to the Scottish cases would be inexplicable. In any event,
I would be against cutting down their application to that extent.

On the other hand, I doubt whether they were ever intended to apply to evidence
obtained from sources other than the accused himself or from premises occupied by
him. Indeed it is not easy to see how evidence obtained from other sources, even if
the means for obtaining it were improper, could lead to the accused being denied a
fair trial. I accordingly agree with my noble and learned friends that the various
statements with regard to the discretion to which I have referred should be treated as
applying only to evidence and documents obtained from an accused person or from
premises occupied by him. That is enough to preserve the important principle that
the judge has an overriding discretion to exclude evidence, the admission of which
would prevent the accused from having a fair trial…”

71

Lord Scarman in his speech beginning at page 450 summarizes the law in these terms:

“My Lords, the certified question, though superficially concerned with the exercise
of a criminal judge's discretion as to the admission of evidence, raises profound
issues in the administration of criminal justice. What is the role of the judge? How
far does his control of the criminal process extend? It is his duty, as we all know, to
ensure that an accused has a fair trial: but what does ‘fair’ mean in this context? And
does not the prosecution also have rights which the judge may not by the exercise of
his discretion override? These problems lie at the root of the criminal justice of a
free society.

The drama of the common law wears two faces. The first, and sterner, face is that
subject to exceptions, of which hearsay evidence is far the most important, evidence
which a judge rules relevant is admissible, however obtained. ‘It matters not how
you get it; if you steal it even, it would be admissible…” - this was the stark
assertion of principle by Crompton, J. in Reg v Leatham (1861) 8 Cox CC 498, 501.
The modern formulation of the principle is to be found in the opinion of the Judicial
Committee of the Privy Council prepared by Lord Goddard, C.J. in Kuruma v. The
Queen [1955] A.C. 197, 203:
‘In their Lordships’ opinion the test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If it is, it is admissible and
the court is not concerned with how the evidence was obtained.’

Consistently with this general rule of evidence the courts have resisted all attempts
to introduce into English substantive law a defence of entrapment: Reg v. McEvilly,
60 Cr App R 150. In Reg v. Mealey, 60 Cr App R 59, Lord Widgery, C.J. said
bluntly, at p. 62:

‘It is abundantly clear on the authorities which are contradicted on this point, that if
a crime is brought about by the activities of someone who can be described as an
agent provocateur, although that may be an important matter in regard to sentence, it
does not affect the question of guilty or not guilty.’

Brannan v. Peek [1948] 1 KB 68 , Browning J.W.H. Watson (Rochester) Ltd. [1953]

1 WLR 1172, Reg v. Birtles [1969] 1 WLR 1047, illustrate that this is the practice of
the courts, even when strongly critical of police methods in the obtaining of
evidence. The authorities are, my Lords, soundly based. It would be wrong in
principle to import into our law a defence of entrapment. Incitement is no defence in
law for the person incited to crime, even though the inciter is himself guilty of crime
and may be far the more culpable. It would confuse the law and create unjust
distinctions if incitement by a policeman or an official exculpated him whom they
incited to crime whereas incitement by others - perhaps exercising much greater
influence - did not. There are other more direct, less anomalous, ways of controlling
police and official activity than by introducing so dubious a defence into the law.
The true relevance of official entrapment into the commission of crime is upon the
question of sentence when its mitigating value may be high: see Reg v. Birtles.

The second, and merciful, face of the law is the criminal judge's discretion to
exclude admissible evidence if the strict application of the law would be operate
unfairly against the accused. Viscount Simon so described the discretion in Harris v.
Director of Public Prosecutions [1952] A.C. 694, but immediately proceeded to
limit its scope. He said at p 707:

‘If such a case arose, the judge may intimate to the prosecution that evidence of
‘similar facts’ affecting the accused, though admissible, should not be pressed
because its probable effect ‘would be out of proportion to its true evidential value’
(per Lord Moulton in Rex v. Christie [1914] A.C. 545, 559). Such an intimation rests
entirely within the discretion of the judge.’

In this passage Lord Simon was certainly not envisaging a power in the judge to stop
the prosecution prosecuting, or presenting admissible evidence in support of its case.
He was speaking not of judicial power but of judicial influence; of a judicial
practice, not a rule of law. In so limiting the discretion he was agreeing with the
views expressed by this House in Rex v. Christie [1914] A.C. 545, and in no way
differing from the famous interjection of Lord Halsbury, LC, (reported only in the
Criminal Appeal Reports, 10 Cr App R 141, 149) that he:
‘must protest against the suggestion that any judge has the right to exclude evidence
which is in law admissible, on the ground of prudence or discretion, and so on.. ‘

In my judgment, certain broad conclusions emerge from a study of the case law.
They are:

(1) that there is one general discretion, not several specific or limited
discretions;

(2) that the discretion now extends further than was contemplated by Lord
Haslbury and Lord Moulton in Christie's case, or even by Lord Simon in
Harris v. Director of Public Prosecutions [1952] A.C. 694: it is now the law
that ‘a judge has a discretion to exclude legally admissible evidence if justice
so requires’ (Lord Reid in Myers v. Director of Public Prosecutions [1965]
A.C. 1001, 1024);

(3) that the formula of prejudicial effect outweighing probative value, which
has been developed in the ‘similar fact’ cases, is not a complete statement of
the range or the principle of the discretion;

(4) that the discretion is, however, limited to what my noble and learned
friend, Viscount Dilhorne, calls the ‘unfair use’ of evidence at trial; it does
not confer any judicial power of veto upon the right of the prosecution to
prosecute or to present in support of the prosecution's case admissible
evidence, however obtained.

These broad conclusions leave unresolved the critical question as to the limits of the
discretion and the principle upon which it is founded. It may be, as Lord
MacDermott, CJ, said in Reg v. Murphy [1965] NI 138, 149, that unfairness, which
will be found to be its modern justification, cannot be closely defined. One must,
however, emerge from the last refuge of legal thought - that each case depends on its
facts - and attempt some analysis of principle.

It is tempting to accept that there are several discretions specific to certain situations.
Certainly the law has developed by reference to specific situations in which
admissible evidence has been either excluded or said to be liable, at the judge's
discretion, to be excluded…

Notwithstanding its development case by case, I have no doubt that the discretion is
now a general one in the sense that it is to be exercised whenever a judge considers
it necessary in order to ensure the accused a fair trial. Reg v. Selvey [1970] A.C. 304
can be seen to be of critical importance. Viscount Dilhorne concluded by saying at
pp 341-342:

‘It [i.e. its exercise] must depend on the circumstances of each case, and the
overriding duty of the judge to ensure that a trial is fair’ (my emphasis).
Lord Hodson, Lord Guest and Lord Pearce, with whom Lord Wilberforce agreed,
were clearly of the opinion that the discretion was a general one. Lord Hodson said
at p 349: ‘Discretion ought not to be confined save by the limits of fairness.’ Lord
Guest said, at p 352, that the discretion ‘springs from the inherent power of the
judge to control the trial before him and to see that justice is done in fairness to the
accused’: and Lord Pearce echoed his words at p 360F.

The review of the authorities by this House in Selvey's case reveals how
comparatively recent a judicial development this discretion is. Its history is
associated with the recognition of the admissibility of ‘similar fact’ evidence. As
this rule of evidence became established, judges were alert to prevent its abuse
where probative value was slight and prejudicial effect upon a jury likely to be great.
But other more basic matter contributed to the development: in particular, the
common law principle against self-incrimination, and the side-effects of the
Criminal Law Evidence Act 1898 which by conferring upon the accused the right to
give evidence on his own behalf exposed him to the perils of cross-examination.
Against this comparatively modern background the judges have had to discharge
their duty of ensuring the accused a fair trial…

The modern discretion is a general one to be exercised where fairness to the accused
requires its exercise.

Authority, therefore, strongly suggests that the discretion is based upon, and is co-
extensive with, the judge's duty to ensure that the accused has a fair trial according
to law. The two faces of the law reveal the nature and limits of this duty. The
accused is to be tried according to law. The law, not the judge's discretion,
determines what is admissible evidence. The law, not the judge, determines what
defences are available to the accused. It is the law that, subject to certain recognised
exceptions, evidence which is relevant is admissible. It is the law that there is no
defence of entrapment. The judge may not use his discretion to prevent a
prosecution being brought merely because he disapproves of the way in which
legally admissible evidence has been obtained. The judge may not by the exercise of
his discretion to exclude admissible evidence secure to the accused the benefit of
bringing or abandonment of prosecutions; nor have they the right to adjudicate in a
way which indirectly usurps the functions of the legislature or jury. For legislation
would be needed to introduce a defence of entrapment; and, if it were to be
introduced, it would be for the jury to decide whether in the particular case effect
should be given to it.

I can now answer the questions posed at the beginning of this opinion. The role of
the judge is confined to the forensic process. He controls neither the police nor the
prosecuting authority. He neither initiates nor stifles a prosecution. Save in the very
rare situation, which is not in this case, an abuse of the process of the court (against
which every court is in duty bound to protect itself), the judge is concerned only
with the conduct of the trial. The Judges' Rules, for example, are not a judicial
control of police interrogation, but notice that, if certain steps are not taken, certain
evidence, otherwise admissible, may be excluded at the trial. The judge's control of
the criminal process begins and ends with trial, though his influence may extend
beyond its beginning and conclusion. It follows that the prosecution has rights,
which the judge may not override. The right to prosecute and the right to lead
admissible evidence in support of its case are not subject to judicial control. Of
course when the prosecutor reaches court, he becomes subject to the directions as to
the conduct of the trial by the judge, whose duty it then is to see that the accused has
a fair trial according to law.

What does ‘fair’ mean in this context? It relates to the process of trial. No man is to
be compelled to incriminate himself; nemo tenetur se ipsum prodere. No man is to
be convicted save upon the probative effect of legally admissible evidence. No
admission or confession is to be received in evidence unless voluntary. If legally
admissible evidence be tendered which endangers these principles (as, for example,
in Reg v. Payne [1963] 1 W.L.R. 637), the judge may exercise his discretion to
exclude it, thus ensuring that the accused has the benefit of principles which exist in
the law to secure him a fair trial; but he has no power to exclude admissible
evidence of the commission of a crime, unless in his judgment these principles are
endangered…

The development of the discretion has, of necessity, been largely associated with
jury trial. In the result, legal discussion of it is apt to proceed in terms of the
distinctive functions of judge and jury. No harm arises from such traditional habits
of thought, provided always it be borne in mind that the principles of the criminal
law and its administration are the same, whether trial be (as in more than 90 percent
of cases it is) in the magistrate's court or upon indictment before judge and jury. The
magistrates are bound, as is the judge in a jury trial, to ensure that the accused has a
fair trial according to law; and have the same discretion as he has in the interests of a
fair trial to exclude legally admissible evidence. No doubt, it will be rarely
exercised. And certainly magistrates would be wise not to rule until the evidence is
tendered and objection is taken. Assumptions, such as Judge Buzzard made in this
case, should never be made by magistrates. They must wait and see what is
tendered; and only then, if objection be taken, rule. When asked to rule, they should
bear in mind that it is their duty to have regard to legally admissible evidence, unless
in their judgment the use of the evidence would make the trial unfair. The test of
unfairness is not that of a game: it is whether in the light of the considerations to
which I have referred the evidence, if admitted, would undermine the justice of the
trial. Any closer definition would fetter the sense of justice, upon which in the last
resort all judges have to rely: but any extension of the discretion, such as occurred in
Reg v. Ameer and Lucas [1977] Crim LR 104 - to which my noble and learned
friends, Lord Diplock and Viscount Dilhorne, have referred with disapproval -
would also undermine the justice of the trial. For the conviction of the guilty is a
public interest, as is the acquittal of the innocent. In a just society both are needed.

The question remains whether evidence obtained from an accused by deception, or a

trick, may be excluded at the discretion of the trial judge. Lord Goddard, C.J.,
thought it could be: Kuruma v. The Queen [1955] A.C. 197, 204, Lord Parker, C.J.,
and Lord Widgery, C.J. thought so too: see Callis v. Gunn [1964] 1 Q.B. 495, 502
 and Jeffrey v. Black [1978] Q.B. 490. The dicta of three successive Lord Chief
Justices are not to be lightly rejected. It is unnecessary for the purposes of this
appeal, to express a conclusion upon them. But, always provided that these dicta are
treated as relating exclusively to the obtaining of evidence from the accused, I would
not necessarily dissent from them. If an accused is misled or tricked into providing
evidence (whether it be an admission or the provision of fingerprints or medical
evidence or some other evidence), the rule against self-incrimination - nemo tenetur
se ipsum prodere - is likely to be infringed. Each case must, of course, depend on its
circumstances. All I would say is that the principle of fairness, though concerned
exclusively with the use of evidence at trial, is not susceptible to categorisation or
classification and is wide enough in some circumstances to embrace the way in
which, after the crime, evidence has been obtained from the accused…”

72

Since Sang, the House of Lords has revisited such of this question as extends beyond the
“entrapment” defence in Bennett v. Horseferry Road Magistrate's Court [1993] 3 All E.R. 138.

That case concerned - to quote the facts from the judgment of Lord Bridge of Harwich at pp 152
- 153:

“…When a person is arrested and charged with a criminal offence, is it a valid

ground of objection to the exercise of the court's jurisdiction to try him that the
prosecuting authority secured the prisoner's presence within the territorial
jurisdiction of the court by forcibly abducting him from within the jurisdiction of
some other state, in violation of international law, in violation of the laws of the
state from which he was abducted, in violation of whatever rights he enjoyed under
the laws of that state and in disregard of available procedures to secure his lawful
extradition to this country from the state where he was residing?”

73

Lord Griffiths, at pp 148 - 152 stated:

“…Your Lordships have been urged by the respondents to uphold the decision of the
Divisional Court and the nub of their submissions is that the role of the judge is
confined to the forensic process. The judge, it is said, is concerned to see that the
accused has a fair trial and that the process of the court is not manipulated to his
disadvantage so that the trial itself is unfair; but the wider issues of the rule of law
and the behaviour of those charged with its inforcement, be they police or
prosecuting authority, are not the concern of the judiciary unless they impinge
directly on the trial process. In support of this submission your Lordships have been
referred to R v. Sang [1980] A.C. 402, and those passages in the speeches of Lord
Diplock at pp 436-437 and Lord Scarman at pp 454-455, which emphasize that the
role of the judge is confined to the forensic process and that it is no part of the
judge's function to exercise disciplinary powers over the police or the prosecution…
In answer to the respondent's reliance upon R v. Sang the appellant points to section
78 of the Police and Criminal Evidence Act, 1984 which enlarges a judge's
discretion to exclude evidence obtained by unfair means.

As one would hope, the number of reported cases in which a court has had to
exercise a jurisdiction to prevent abuse of process are comparatively rare. They are
usually confined to cases in which the conduct of the prosecution has been such as
to prevent a fair trial of the accused. In R v. Derby Crown Court, Ex parte Brooks 80
Cr App Rep 164, Sir Roger Ormrod said, at pp 168-169:

‘The power to stop a prosecution arises only when it is an abuse of a process of the
court. It may be an abuse of process if either (a) the prosecution have manipulated or
misused the process of the court so as to deprive the defendant of a protection
provided by the law or to take unfair advantage of a technicality, or (b) on the
balance of probability the defendant has been, or will be, prejudiced in the
preparation or conduct of his defence by delay on the part of the prosecution which
is unjustifiable…

The ultimate objective of this discretionary power is to ensure that there should be a
fair trial according to law, which involves fairness to both the defendant and the
prosecution.'

There have, however, also been cases in which although the fairness of the trial itself
was not in question the courts have regarded it as so unfair to try the accused for the
offence that it amounted to an abuse of process. In Chi Piu Wing v. Attorney-
General [1984] HKLR 411 the Hong Kong Court of Appeal allowed an appeal
against a conviction for contempt of court for refusing to obey a subpoena ad
testificandum on the ground that the witness had been assured by the Independent
Commission Against Corruption that he would not be required to give evidence,
McMullin, VP, said, a pp 417-418:

‘There is a clear public interest to be observed in holding officials of the state to

promises made by them in full understanding of what is entailed by the bargain.’

And in a recent decision of the Divisional Court in Reg v. Croydon Justices, Ex

Parte Dean [1993] 3 All E.R. 129, the committal of the accused on a charge of
doing acts to impede the apprehension of another contrary to section 4(1) of the
Criminal Law Act 1967 was quashed on the ground that he had been assured by the
police that he would not be prosecuted for any offence connected with their murder
investigation and in the circumstances it was an abuse of process to prosecute him in
breach of that promise.

Your Lordships are now invited to extend the concept of abuse of process a stage
further. In the present case there is no suggestion that the appellant cannot have a
fair trial, nor could it be suggested that it would have been unfair to try him if he had
been returned to this country through extradition procedures. If the court is to have
the power to interfere with the prosecution in the present circumstances it must be
because the judiciary accept a responsibility for the maintenance of the rule of law
that embraces a willingness to oversee executive action and to refuse to countenance
behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the
field of criminal law. The great growth of administrative law during the latter half of
this century has occurred because of the recognition by the judiciary and Parliament
alike that it is the function of the High Court to ensure that executive action is
exercised responsibly and as Parliament intended. So also should it be in the field of
criminal law and if it comes to the attention of the court that there has been a serious
abuse of power it should, in my view, express its disapproval by refusing to act upon
it…

The courts, of course, have no power to apply direct discipline to the police or the
prosecuting authorities, but they can refuse to allow them to take advantage of abuse
of power by regarding their behaviour as an abuse of process and thus preventing a
prosecution…

The question then arises as to the appropriate court to exercise this aspect of the
abuse of process of jurisdiction…

Your Lordships have not previously had to consider whether justices, and in
particular committing justices, have the power to refuse to try or commit a case upon
the grounds that it would be an abuse of process to do so. Although doubts were
expressed by Viscount Dilhorne as to the existence of such a power in Reg v.
Humphrys [977] A.C. 1, 26, there is a formidable body of authority that recognizes
this power in the justices.

In Mills v. Cooper [1967] 2 Q.B. 459, Lord Parker, CJ, hearing an appeal from
justices who had dismissed an information on the grounds that the proceedings were
oppressive and an abuse of the process of the court said at p 467E:

‘So far as the ground upon which they did dismiss the information was concerned,
every court has undoubtedly a right in its discretion to decline to hear proceedings
on the ground that they are oppressive and an abuse of the process of the court’…

Provided it is appreciated by magistrates that this is a power to be most sparingly

exercised, of which they have received more than sufficient judicial warning (see,
for example, Lord Lane, CJ, in Reg v. Oxford City Justices, Ex parte Smith 75 Cr
App Rep 200 and Ackner, L.J., in Reg v. Horsham Justices, Ex parte Reeves 75 Cr
App Rep it appears to me to be a beneficial development and I am unpersuaded that
there are any sufficient reasons to overrule a long line of authority developed by
successive Lord Chief Justices and judges in the Divisional Court who are daily in
much closer touch with the work in the magistrates court than your Lordshsips. Nor
do I see any force in an argument developed by the respondents which sought to
equate abuse of process with contempt of court. I would accordingly affirm the
power of the magistrates, whether sitting as committing justices or exercising their
 summary jurisdiction, to exercise control over their proceedings through an abuse of
process jurisdiction. However, in the case of magistrates this power should be
strictly confined to matters directly affecting the fairness of the trial of the particular
accused with whom they are dealing, such as delay or unfair manipulation of court
procedures. Although it may be convenient to label the wider supervisory
jurisdiction with which we are concerned in this appeal under the head of abuse of
process, it is in fact a horse of a very different colour from the narrower issues that
arise when considering domestic criminal trial procedures. I adhere to the view I
expressed in Reg v. Guildford Magistrates' Court, Ex parte Healy [1983] 1 W.L.R.
108 that this wider responsibility for upholding the rule of law must be that of the
High Court and that if a serious question arises as to the deliberate abuse of
extradition procedures a magistrate should allow an adjournment so that an
application can be made to the Divisional Court which I regard as the proper forum
in which such a decision should be taken…”

74

Lord Lowry, at p 161 opines:

“…[A] court would have power to stay the present proceedings against the
appellant, assuming the facts alleged to be proved, because I consider that a court
has a discretion to stay any criminal proceeding on the ground that to try those
proceedings will amount to an abuse of its own process either (1) because it will be
impossible (usually by reason of delay) to give the accused a fair trial or (2) because
it offends the court's sense of justice and propriety to be asked to try the accused in
the circumstances of a particular case. I agree that prima facie it is the duty of a
court to try a person who is charged before it with an offence which the court has
power to try and therefore that the jurisdiction to stay must be exercised carefully
and sparingly and only for very compelling reasons. The discretion to stay is not a
disciplinary jurisdiction and ought not to be exercised in order to express the court's
disapproval of official conduct…”

He continued at pp 162 - 164:

“…The philosophy which inspires the proposition that a court may stay proceedings
brought against a person who has been unlawfully abducted in a foreign country is
expressed, so far as existing authority is concerned, in the passages cited by my
noble and learned friend Lord Bridge of Harwich. The view there expressed is: That
the court, in order to protect its own process from being degraded and misused, must
have the power to stay proceedings which have come before it and have only been
made possible by acts which offend the court's conscience as being contrary to the
rule of law. Those acts by providing a morally acceptable foundation for the exercise
of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean
that the court's process has been abused. Therefore, although the power of the court
is rightly confined to its inherent power to protect itself against the abuse of its own
process, I respectfully cannot agree that the facts relied on in cases such as the
 present case (as alleged) ‘have nothing to do with that process’ just because they are
not part of the process. They are the indispensable foundation for the holding of the
trial…

If proceedings are stayed when wrongful conduct is proved, the result will not only
be a sign of judicial disapproval but will discourage similar conduct in future and
thus will tend to maintain the purity of the stream of justice. No ‘floodgates’
argument applies because the executive can stop the flood at source by refraining
from impropriety.

I regard it as essential to the rule of law that the court should not have to make
available its process and thereby endorse (on what I am confident will be a very few
occasions) unworthy conduct when it is proved against the Executive or its agents,
however humble in rank. And, remembering that it is not jurisdiction which is in
issue but the exercise of a discretion to stay proceedings, which speaking of
‘unworthy conduct,’ I would not expect a court to stay the proceedings of every trial
which has been preceded by a venial irregularity. If it be objected that my preferred
solution replaces certainty by uncertainty, the latter quality is inseparable from
judicial discretion. And, if the principles are clear and, as I trust, the cases few, the
prospect is not really daunting. Nor do I consider that your Lordships ought to be
deterred from deciding in favour of discretion by the difficulty, which may
sometimes arise, of proving the necessary facts…

R v. Sang exemplifies a common law rule of evidence, as explained by the speeches

in that case, which applied to all admissible evidence except confessions and certain
evidence produced by confessions (as to which see Lam Chi-Ming v. The Queen
[1991] 2 A.C. 212). The abuse of process which brings into play the discretion to
stay proceedings arises from wrongful conduct by the executive in an international
context. Secondly, although there is no discretion at common law to exclude
evidence (except confession evidence) by reason of wrongful conduct, there is
discretion to stay proceedings as an abuse of process (see Connelly v. DPP [1964]
A.C. 1254, [1964] 2 All E.R. 401) and the alleged facts of the instant case are but
one example of the need for that discretion…

The court must jealously protect its own process from misuse by the executive and
that this necessity gives particular point to the observation of Lord Devlin (which
my noble and learned friend Lord Griffiths has already noted) in Connelly v. DPP at
p 1354:

‘The courts cannot contemplate for a moment the transference to the Executive of
the responsibility for seeing that the process of law is not abused.’”

75

While Lord Oliver of Aylmerton dissented from his brothers, in terms which paralleled those of
Lord Scarman in Sang, he accepted that the court did have the power to prevent abuse of its own
process. He states at pp 157 - 159:
“The appellant invites this House now to say that… a criminal court's undoubted
jurisdiction to prevent abuses of its own process should be extended, if indeed it
does not already extend, to embrace a much wider jurisdiction to oversee what is
referred to generally as ‘the administration of justice,’ in the broadest sense of the
term, including the executive acts of law-enforcement agencies occurring before the
process of the court has been invoked at all and having no bearing whatever upon
the fairness of the trial.

I have to say that I am firmly of the opinion that, whether such a course be properly
described as legislation or merely as pushing forward the frontiers of the common
law, the invitation is one which ought to be resisted. For my part, I see neither any
inexorable logic calling for such an extension nor any social need for it; and it seems
to me to be a course which will be productive of a good deal of inconvenience and
uncertainty.

I can, perhaps, best explain my reluctance to embark upon such a course by

postulating and seeking to answer [the question:] does a criminal court have, or
should it have, any general duty or any power to investigate and oversee executive
abuses on the part of law-enforcement officers not affecting either the fairness of the
trial process or the bona fides of the charge which it is called upon to try and
occurring prior to the institution of the criminal proceedings and to order the
discontinuance of such proceedings and the discharge of the accused if it is satisfied
that such abuses have taken place?…

So as far as [this] question is concerned, I know of no authority for the existence of

any such general supervisory jurisdiction in a criminal court. It is not, of course, in
dispute that the Court has power to prevent the abuse of its own process and that
must, I would accept, include power to investigate the bona fides of the charge
which it is called upon to try and to decline to entertain a charge instituted in bad
faith or oppressively - for instance if the accused's cooperation in the investigation
of a crime has been secured by an executive undertaking that no prosecution will
take place. Thus, I would not for a moment wish to suggest any doubt as to the
correctness of a decision such as that in the recent case of R v. Croydon, ex p Dean
[1993] 3 All E.R. 129, where the court quashed committal proceedings instituted
after an undertaken given to the accused by police officers that he would not be
prosecuted. In such a case doubt is cast both upon the bona fides of the prosecution
and on the fairness of the process to an accused who has been invited to prejudice
his own position on the faith of the undertaking. Where, however, there is no
suggestion that the charge is other than bona fide or that there is any unfairness in
the trial process, the duty of the criminal court is simply to try the case and I can see
no ground upon which it can claim a discretion, or upon which it ought properly to
be invited, to discontinue the proceedings and discharge an accused who is properly
charged simply because of some alleged anterior excess or unlawful act on the part
of the executive officers concerned with his apprehension and detention. That is not
for a moment to suggest that such abuses, if they occur, are unimportant or are to be
lightly accepted; but they are acts for which, if they are unlawful, the accused has
the same remedies as those available to any other citizen whose legal rights have
 been infringed. If they are not only unlawful but are criminal as well, they are
themselves remediable by criminal prosecution. That a judge may disapprove or
even be rightly outraged by the manner in which an accused has been apprehended
or by his treatment whilst in custody cannot, however, provide a ground for
declining to perform the public duty of ensuring that, once properly charged, he is
tried fairly according to law.

In R v. Sang [1979] 2 All E.R. 1222 at 1245 [1980] A.C. 402 at 454 Lord Scarman
observed:

‘Judges are not responsible for the bringing or abandonment of prosecutions; nor
have they the right to adjudicate in a way which indirectly usurps the function of the
legislature or jury.’

Those words were used in the context of a suggested discussion to prevent a

prosecution because of judicial disapproval of the way in which admissible evidence
has been obtained, but they are equally applicable to other executive acts which may
incur judicial disapprobation. Experience shows that allegations of abusive use of
executive power in the apprehension of those accused of criminal offences are far
from rare. They may take the form of allegations of illegal entry on private premises,
of damage to property, of the use of excessive force or even of ill treatment or
violence whilst in custody. So far as there is substance in such allegations, such
abuses are disgraceful and regrettable and they may, no doubt, be said to reflect very
ill on the administration of justice in the broadest sense of that term. But they
provide no justification nor, so far as I am aware, is there any authority for the
proposition that wrongful treatment of an accused, having no bearing upon the
fairness of the trial process, entitles him to demand that he be not tried for an
offence with which he has been properly charged. Indeed, any such general
jurisdiction of a criminal court to investigate and adjudicate upon antecedent
executive acts would be productive of hopeless uncertainty. It clearly cannot be the
case that every excessive use of executive power entitles the accused to be
exonerated. But then at what point and at what degree of outrage is the criminal
court to undertake an inquiry and, if satisfied, to take upon itself the responsibility of
refusing further to try the case?…”

76

Recently, in R v. Dixon and Mann, reported in the Times of 31 December, 1994, (see (1994)
New Law Journal):

“The applicant Dixon was convicted of soliciting the murder of his girlfriend. The
applicant Mann was convicted of soliciting the murder of his wife. In both cases, the
appellants had spoken of their unhappy domestic relationships with a third party. In
each case the confidant informed the police. Each of the applicants were visited by
undercover police officers posing as contract killers. Conversations between the
undercover officers and the appellants were recorded and admitted as part of the
 crown case. In both trials the evidence of the undercover officers was admitted
without objection. In neither trial was the original informant called nor was there
any suggestion that the informant should be called. It was contended, on applications
for leave to appeal against the convictions, the learned judge erred in failing to
consider whether the evidence affected the fairness of the proceedings under s 78 of
the Police and Criminal Evidence Act, 1984. The court should have considered what
had passed between the applicants and the informers before deciding whether to
admit the taped conversations in evidence. It was suggested that the informants may
well have their own axe to grind by inciting the applicants to murder and then
informing.

Held: the applications for leave to appeal would be refused. The crown were entitled
to rely on the unassailable record provided by the tape of conversations between the
undercover officer and suspect. There was no obligation to call the informant.
Indeed, there were strong reasons of public policy for not calling informants. For
instance, to avoid having to call witnesses who were of bad character. Further, the
value of informants would be destroyed if they were required to give evidence, and
they or their families might be put at risk.”

77

In R v. Stagg, unreported, referred to in the article “Watching the Detectives,” by Michael

Doherty, in (1994) New Law Journal,:

“The murder of Rachel Nickell in 1992 sparked a massive police investigation

which failed to obtain any significant forensic or witness evidence. A forensic
psychologist was called in to provide a psychological profile of the killer.
Information given to the police about Stagg's sexual fantasies by a former pen friend
led the police to suspect him. The undercover operation was then instigated in the
hope of obtaining admissions or at least psychological evidence linking him to the
murder. An undercover police woman struck up a correspondence with Stagg and
invited him to send her sexual fantasies. When Stagg eventually produced fantasies
which echoed the method and place of the murder he was arrested and charged.

The prosecution argued that the fantasies produced by Stagg showed him to share a
rare sexual deviancy with the killer, as shown by the profile. The rarity of this
deviancy and the proximity of Stagg to the murder scene meant that the chance of
the murderer being anybody but Stagg was ‘vanishingly thin’. The defence argued
that the fantasies were shaped by the undercover officer and prompted by her
promise of a permanent sexual relationship. Thereby the evidence such that it
‘would have such an adverse effect on the fairness of the proceedings that the court
ought not to admit it’ ( s 78 PA.C.E 1984).

In accepting the defence arguments and declaring the evidence inadmissible, the trial
judge launched an acerbic attack on the police methods. Mr. Justice Ognall called
the investigation ‘a misconceived and deceptive operation’. He urged especial care
 in the use of psychological profiles and stated that ‘if that route involves trespass
into the territory of impropriety, the court must stand firm and bar the way’. He was
satisfied that he could exclude the evidence on the basis either of a circumvention of
Code of Practice C on the questioning of suspects, or on the grounds of general
unfairness.”

78

In R v. Aucott, digested at [1994] 7 CL 70:

“A was prosecuted on an indictment containing five counts of handling stolen

computer equipment in October 1992 with a total value of approximately 30,000
pounds. He was first tried at London Crown Court on June 7, 1993 but on June 15
the trial was aborted just as A had concluded giving evidence on his own behalf. He
was retried on January 4, 1994, but again the trial was aborted at the same very late
stage in the proceedings. On neither occasion was A in any way to blame for the
trial having to be abandoned, nor was there any criticism of the prosecution's
conduct of the original trial. Each time it was ‘the system’ that failed, and the
circumstances were on both occasions exceptional. The prosecution sought to try A
for a third time on April 6, 1994.

Held: Staying the proceedings on the grounds of an abuse of process, that where the
prosecution had sought to proceed for a third time against A in circumstances where
he had already faced two almost completed trials, continuing with the prosecution
would itself amount to oppression. In reaching its decision in such cases, the court
should take into account, inter alia, the nature of the charges and the age and
physical condition of A. The prosecution did not intend to be oppressive and, in the
circumstances of the case, A would not have been at any unfair disadvantage where
the prosecution to proceed. The legal categories of grounds on which proceedings
may be stayed are not closed and oppression is a freestanding ground on which a
court may exercise its discretion. In order to determine whether a prosecution should
be stayed the court should ask itself whether trying the accused would offend its
sense of justice propriety. The power of the court to stay proceedings is a power that
can only be exercised in exceptional circumstances ( Attorney-General's Reference
(No 1 of 1990) [1992] CLY 615, Connelly v. DPP [1964] CLY 665, R v. Horseferry
Road Magistrates' Court, ex p Bennett (1994) 98 Cr App R 114 applied; R v.
Riebold [1965] CLY 826 cited).”

79

In R v. Croydon Justices, ex p Dean digested at [1994] 12 CL, 158:

“D, aged 17, was arrested with A and B in the course of a murder investigation. D
made statements implicating himself in acts impeding the apprehension of A and B
and also involving B in the murder. D was led to believe throughout the
investigation that he was a prosecution witness and had the protection of the police.
 The CPS then had him charged with doing acts intending to impede the
apprehension of A and B. At committal, the examining justices refused to inquire
into the question of abuse and also refused to adjourn the proceedings pending an
application to the High Court. D was committed for trial.

Held: Allowing D's application for judicial review, that (1) normally such an
application should have been made to the Crown Court at trial although
exceptionally, the court was able to determine this application on the undisputed
facts; (2) although it had not been shown that D had received any express promise,
the fact that he was given to understand that he was a prosecution witness amounted
to such a suggestion. That, taken into consideration with the assistance which he had
given to the police and his age, meant that it was clearly an abuse for him to be
prosecuted and the committal would be quashed (dicta of Lord Diplock in Hunter v.
Chief Constable of the West Midlands Police [1982] CLY 2382 and of McMullln,
VP, in Chu Piu-Wing Attorney-General [1984] HKLR 417 applied).”

It would be recalled that this decision was referred to approvingly by the House of Lords in
Bennett.

80

The position is summarized by the Divisional Court in R v. Milton Keynes Magistrate's Court,
Ex p Roberts, digested at [1994] 11 CL 95 as follows:

“The jurisdiction of the court to restrain the prosecution was to be exercised only
where to allow the prosecution would be tantamount to endorsing behavior
undermining or degrading the rule of law or where the court process was being
manipulated to the serious prejudice of the accused.”

81

The same volume of Current Law at 105 digests the case of R v. MacLean and Kosten:

“D was found to be carrying cannabis through customs concealed in a car. The

customs officers were anxious to catch the importer as well as the courier and
concocted a scheme whereby the courier was said to be in hospital after a car crash.
This story was used to trap the importer into making arrangements regarding the car
in order to recover the cannabis, and into making various tape-recorded statements
which were used in evidence against him. He appealed against the conviction on the
grounds that the evidence should not have been admissible as it had been unfairly
obtained by trickery.

Held: Dismissing the appeal, that not every trick would result in the exclusion of
evidence, and in this case there had been nothing unfair about the means adopted to
make D incriminate himself R v. Mason (Carl) [1987] CLY 561, R v. Christou; R v.
Wright [1992] CLY 978, R v. Payne [1963] CLY 3051 considered).”
82

It seems to me that, while the Supreme Court has the power and a duty in a narrow category of
cases to restrain the prosecution (whether before itself or before a magistrate's court), the fact
that the prosecution is based on undercover police activity which is “creative” to the point of
being aggressive is not, without more, sufficient ground so to intervene. In a world where groups
of persons combine to commit offences involving illicit drugs, fraud and financial manipulation,
arms trading, acts of “terrorism”, and similar offences without regard to national boundaries, it
would be not merely naive, but dangerous for the court to evolve rules which so shackle police
and state investigators, with or without the assistance of state agents from other countries, as to
leave them impotent to respond to the activities of those who would wreak havoc through local
communities and across international boundaries. This is not to say that the courts consistently
take a benign view of whatever action such state officials choose to pursue. There are clear limits
of propriety and fairness to which the courts must insist that state officials adhere, lest their
behaviour becomes as lawless and reprehensible as that of the persons they pursue.

83

That the court so limits itself is rooted in the principle that it has no responsibility for the
institution or conduct of criminal prosecutions: vide Lord Scarman in Sang. The rule that the
court would not trespass into what is an executive function exists so that no blurred lines would
invite the Executive to interfere in the exercise by the court of its peculiar responsibility. The
courts must be ever alive to the possibility of the public losing faith in the system.

84

The proposition that the police officers here would have themselves committed a criminal
offence is - once one gets past the principle of the legal elements of a crime - an invitation to an
emotional response without regard to the realities of the case. Even if Watson, Chambers and the
DEU and DEA officers were co-conspirators with the appellants, in law, they have not been
charged with any offence before the court. I repeat my observations in Nixon (exerpted at
paragraph 47) and point out that any moral revulsion or lesser reaction which one might feel for
the tactics employed by the police in this case does not impact upon the inquiry by the court into
the conduct of the persons charged.

85

When the behaviour of state officials and their agents is not so egregious as to require the court
to restrain the prosecution or disregard such tainted evidence, the greatest effect that such
evidence has is that it goes to mitigation; the degree of moral blame - worthiness of the persons
charged would be relevant to the question of sentencing. As the House of Lords ruled in R v.
Kingston [1994] 3 W.L.R. 519, the absence of moral fault by a defendant did not suffice by itself
to negate the necessary mental element of the offence with which he was charged.
86

In the present case, neither the DEA nor DEU officers employed oppressive or coercive tactics
on the appellants. They facilitated Watson and Chambers to be conduits between such as the
appellants as were able to supply drugs and the appellant who was willing to receive them - for
whatever purpose he had in mind. I do not find that the evidence here to be such as should have
been excluded or as should have resulted in the prosecution being restrained from proceeding.

87

Mr. MaCaulay next argued together grounds 1, 3 and 5. I agree with Mr. Turner, that the issues
raised by ground 1 and 3 have been previously decided by the Court of Appeal in Lockhart and
Pintard v. COP, Criminal Appeal 15 of 1985, and that, consequently, ground 5 is without merit
as, for the reasons which I have set out earlier, the appellant Curling cannot be said to have been
abetting a conspiracy.

88

Mr. MaCaulay's ground 2 flows from his ground 1 and similarly falls.

89

As to ground 7, Mr. MaCaulay relied on a decision of the House of Lords in R v. Maginnis

[1987] 1 All E.R. 907. The headnote which reads:

“A package of cannabis resin was found in the defendant's car when he was arrested
in connection with an alleged assault. The defendant claimed that the package was
not his, but had been left in the car on the previous evening by a friend of his whom
he expected would collect it from him. He was charged with and convicted of, inter
alia, possession of a controlled drug with intent to supply it to another, contrary to s
5(3) of the Misuse of Drugs Act 1971. He appealed, contending that his intention to
return the package to its owner did not amount to an intention to ‘supply’ drugs
within s 5(3). The Court of Appeal allowed his appeal. The Crown appealed to the
House of Lords.

Held (Lord Goff dissenting) - A person who was in unlawful possession of a

controlled drug which had been deposited with him by another person for
safekeeping had the necessary ‘intent to supply it to another’ within s 5(3) of the
1971 Act if his intention was to return the drug to that other person and for that other
person's purposes. Although ‘supply’ connoted more than the mere transfer of
physical control of a chattel or object from one person to another (since the handing
over had to be for the purpose of enabling the recipient to use the chattel or object
for his own purposes), it was not a necessary element that the supply be made out of
the provider's own personal resources. It followed that the defendant had been
rightly convicted.”
 I confess to a total inability to appreciate how Mr. MaCaulay relies on this decision,
which, to my mind, emphatically and clearly establishes the opposite proposition
from that one which he contends.

90

As to ground 10, that there should have been separate trials of the appellants from that of
McPhee who - as was revealed during the trial had already been convicted of the substantive
offence of possession dangerous drugs arising from the same incident - Mr. MaCaulay submits
that the evidence as to McPhee in the hotel room was prejudicial to the case of the other
appellants and only became admissible because of the conspiracy charge - by virtue of section 6
of the Evidence Act, Chapter 52 which provides:

“Where in the opinion of the court there is reasonable ground to believe that two or
more persons have conspired together to commit an offence or an actionable wrong,
evidence may be given against each of the persons on anything said, done or written
by any one of them in the execution or furtherance of their common purpose.”

91

Mr. MaCaulay further amended ground 10 adding:

“The failure of the magistrate to have stopped the prosecution of McPhee after the
evidence of ASP Ferguson at page 37 of the transcript and ASP Hutcheson at page
40 resulted in a consideration of the evidence against McPhee at page 27 being taken
into consideration by the magistrate at page 59.”

92

The evidence to which Mr. MaCaulay has referred is that of the forensic chemist Inspector Elbert
Ferguson who, in cross-examination, testified that he had previously given evidence as to the
contents of a black bag in an earlier trial of McPhee on the charges of possession of dangerous
drugs and the evidence of ASP Hutcheson taken after (?) the view of the room at the hotel at
Cable Beach from which he had taken up observation, that McPhee had been convicted of
possession arising from the police activities of that day.

93

In her ruling, the magistrate declared herself satisfied that McPhee was the person to whom the
drugs - subject of the conspiracy charges - were supplied and that the supply was pursuant to an
agreement between McPhee and the agent Watson and Chambers.

94
Mr. MaCaulay argues that had the magistrate stopped the trial, such evidence as related to the
conviction of McPhee could not have been given.

95

Mr. Turner, in answer, pointed out that the application for severance was only made at the close
of the case for the prosecution. In any event, no prejudice was occasioned to any defendant.
Under section 6 of the Evidence Act, evidence became admissible because of the finding of the
conspiracy, however, that section had not been prayed in aid by the prosecution. Whether or not
McPhee had been jointly charged with the other defendants here he would have on the record
still been a co-conspirator. In any event, McPhee's conviction had not been used against the other
defendants; there is nothing on the record to suggest that the magistrate used the fact of his
conviction against the other defendants.

96

According to the record, counsel for Curling and Munroe made application for a separate trial at
the close of the case for the prosecution on the ground that “much of the case pertains to matters
unrelated” to them. The magistrate, after hearing arguments, rejected the application. I am of the
opinion that the magistrate was correct in her decision. Contrary to the proposition which has
been consistently pressed by counsel for the appellants throughout the hearing of this appeal, the
prosecution's case here, and as found by the magistrate, was of a continuing conspiracy - albeit
moving from place to place within The Bahamas and involving different persons at different
points. That the prosecution chose to separate out the peculiar facts relating to the receipt by
McPhee of the drugs at the hotel for a separate case of possession against him does not affect the
totality of the evidence of proving the conspiracy of which he was a part. The fact of his separate
conviction - first raised by the defence in cross-examination - cannot be taken as establishing
either prejudice on the part of the magistrate or as confusion by her of the evidence.

97

Mr. MaCaulay did not pursue his stated ground 8 which I treat as having been abandoned; it
appears to me that that ground could not have been maintained.

98

Mr. Hamilton, for McPhee, who had adopted such of Mr. MaCaulay's positions as represented
common grounds of appeal between their respective clients, withdrew his ground IV in the light
of Thompson.

99
In support of his ground 1, Mr. Hamilton submitted that the only evidence against McPhee was
of possession for which he had been previously tried and convicted. There was no evidence that
McPhee had negotiated with anyone to purchase drugs or sent anyone to Ragged Island or had
given money to anyone. There was no evidence that McPhee paid anyone for such drugs as were
received in the hotel. This is the type of case where the prosecution should have pursued only
such substantive charges as they were able to make out without preferring a charge of
conspiracy.

100

He cites the practice note of the Queen's 8 Bench Division reported at [1977] 2 All E.R. where
Lord Widgery, C.J. says:

“1. In any case where an indictment contains substantive counts and a related
conspiracy count, the judge should require the prosecution to justify the
joinder, or, failing justification, to elect whether to proceed on the
substantive or on the conspiracy counts.

“2. A joinder is justified for these purposes if the judge considers the interest
of justice demands it.”

Mr. Hamilton submits that where, as here, the prosecution brought the substantive charges
separately against the appellant McPhee, it appeared to be a case of them trying to “get around”
the practice direction.

101

He cites the decision of the House of Lords in Verrier v. Director of Public Prosecutions (1966)
50 Cr App R 315, the headnote of which reads:

“It is lawful for a court to pass a greater sentence for conspiracy to commit an
offence than the maximum sentence which could be passed for the substantive
offence where there are grounds for treating the conspiracy as an offence different
from and more serious than the substantive offence, but normally it is not right to do
so and the greater sentence can be justified only in very exceptional cases.

MORRIS (1950) 34 Cr App R 210 ; [1951] K.B. 394 approved.

In a very exceptional case it can be right to add a count for conspiracy even when
the substantive offence has been charged, but the general rule remains that, where
there is an effective and sufficient charge of a substantive offence, the addition of a
count for conspiracy is undesirable, because it will tend to prolong and complicate
the trial.

DAWSON (1960) 44 Cr App R 87 ; [1960] 1 W.L.R. 163 approved.

 It cannot ever be right to pass a greater sentence for an attempt to commit an offence
than the maximum sentence which could be passed for the substantive offence.

PEARCE (1952) 36 Cr App R 149 ; [1953] 1 Q.B. 30 so approved.”

102

Mr. Turner, in answer, submits that what the prosecution did here was consistent with the
practice direction; apart from McPhee and Melvin Maycock, none of the persons charged with
conspiracy in the instant case had been charged with the substantive offence. In this case, the
evidence showed the resources of the defendants to be able to go to Ragged Island, acquire drugs
and have them distributed in New Providence. The practice direction does not forever debar the
prosecution from bringing a conspiracy count and, in the instant case, the question of election did
not arise. The overall criminality here is much wider than McPhee having been found in
possession of a quantity of drugs. The evidence showed him to be involved with Watson and
others at a date earlier than the date of his arrest. When the tape recorded conversation is
considered, it is obvious that McPhee was aware of the purpose of the trip to Ragged Island. Any
discrepancies between the quantity of drugs obtained at Ragged Island and what McPhee was
found with is incidental.

103

Mr. Turner relies on the judgment of Gonsalves-Sabola, J. as he then was, in the appeal of
Lockhart, et al v. COP, Criminal Appeal number 30 of 1986, which point did not form part of the
further appeal of that case to the Court of Appeal:

“…It was submitted that the joinder on the charge sheet of the conspiracy charge to
the two counts of possession of dangerous drugs was unjustifiable. The Practice
Direction issued on May 9, 1977 by Lord Chief Justice Widgery after consultation
with the judges of the Queen's Bench Division was relied on… The complaint made
in this appeal is that the prosecution should have been made to elect under paragraph
one of the Direction whether to proceed on the substantive or on the conspiracy
count. It was submitted that since that was not done at first instance, fatal
consequences in this count should attend the omission. The rebuttal, at least in part,
of that submission is that in keeping with paragraph two of the Practice Direction it
is not too late to justify the joinder of the conspiracy count if it appears from the
record and the court so considers, that the interest of justice demanded it. The case
of Jones and Others (1974) 59 Cr App R 120 spoke to the point three years before
the Practice Direction was issued. James, L.J. in the course of delivering the
judgment of the Court of Appeal, explained that the court's approach to the question.
He said at page 124:

‘In our view, the judge was right in his refusal to quash this count. The question
whether a conspiracy charge is properly included in an indictment cannot be
answered by the application of any rigid rules. Each case must be considered on its
own facts. There are, however, certain guiding principles. The offences charged on
 the indictment should not only be supported by the evidence on the deposition or
witness statements, but they should also represent the criminality disclosed by that
evidence. It is not desirable to include a charge of conspiracy which adds nothing to
an effective charge of a substantive offence. But where charges of substantive
offences do not adequately represent the overall criminality, it may be appropriate
and right to include a charge of conspiracy.’

In the instant case charging the appellants merely with being found in possession of
the dangerous drugs on the vessel would have inadequately represented the overall
criminality of their activities. The prosecution, after all, had evidence in statements
made by the appellants which pointed to a plot, a conspiracy to export dangerous
drugs in very substantial quantities. Such a conspiracy ought not to be glossed over.
The court judicially notices the prevailing exploitation by international drug traders
of the geographical propinquity to the North American continent of the Bahamian
archipelago, and considers that drug related conspiracies potentially involving that
continent carry a particular taint of criminality. Such conspiracies can disturb the
tranquility of international relations thus making it desirable in appropriate cases to
charge offenders with specific conspiracy counts in addition to counts for
substantive offences. What makes it clearly appropriate in the instant case to include
the conspiracy count is that the possession of the dangerous drugs was not the end
objective of the antecedent conspiracy…”.

104

In my judgment the present case is clearly one where conspiracy charges were appropriately laid
and the appellants can have no complaint grounded on the application of the principles contained
in Lord Widgery's practice note, because the prosecution did here precisely what the practice
note contemplated. It is manifestly not the law that when the prosecution elects to proceed on a
substantive rather than a conspiracy charge, or vice versa, that the opportunity to proceed with
the other charge is forever lost. The accused person is adequately protected by other rules of
criminal procedure which disallow “oppressive” prosecution or which proscribe being twice
punished for the same activity which might give rise to separate offences in law.

105

In support of his ground 2, Mr. Hamilton the ground canvassed by Mr. MaCaulay (at paragraphs
40 ff above) he submitted that the police have no authority to have authorized Watson to commit
the offence which he did. Watson's evidence had to be corroborated and the said audio tapes
could not provide such corroboration.

106

I consider that I have adequately dealt with this ground of paragraphs 56 through 86. I need only
add that the failure of the appellant to testify - thereby preventing the magistrate from making
comparisons of his voice with what was on the tape - would not have prevented the magistrate
from determining the identity of the appellant by the context of the conversation in light of the
evidence of Ramsey as to the identify of the persons in the room.

107

Mr. Hamilton's final ground was that of the question of sentence. He relied again on Verrier and
submits that no greater punishment should be inflicted on McPhee for his conviction on this
charge than that which he had received for the substantive count. Mr. Turner replied that the
prosecution did not seek to have the sentence increased.

108

It appears to me that the short answer to this question lies in section 128(1) of the Penal Code:

“…Where a person does several acts against or in respect of one person or thing,
each of which acts as an offence, the whole of which acts are done in execution of
the same design, and, in the opinion of the court, before which the person is tried,
form one continuous transaction, the person maybe punished for the whole of such
acts as one offence or for any one or several of such acts of one offence, or all or any
of the facts proved to have been committed may be taken into consideration
awarding punishment, but he shall not be liable to separate punishments as for
several offences…”

This Court has previously, in the decision by former Senior Justice Malone, neither the title nor
reference of which I now recall, decided that that provision applies to offences under the
Dangerous Drugs Act. I do not remember how that learned judge dealt with the question of how
this rule under the Penal Code applies to offences under a different statute such as the DDA.
Nevertheless, I respectfully adopt his views as being nothing more than what logic, common
sense and fairness would indicate. Counsel advises that McPhee has appealed his conviction on
the substantive charges and that that appeal has not yet been determined. In the result, any
discrepancy of sentence will be resolved by this Court at the last of the two appeals - according
to the prescriptions of 128(1) of the Penal Code.

109

Mr. Bostwick argued for his ground 8, which was peculiar to the appellants Melvin Maycock and
Nehemiah Maycock, that the evidence of the prosecution as to the identity of them was so poor
as to be of little value on the application of Turnbull principles. The magistrate gave no reasoned
judgment as to why she accepted the evidence of Watson as to identification. He adopts the
views of the Jamaican Court of Appeal in Carroll (vide paragraph 29).

110
According to the record, Watson testified that when he went to the house at Ragged Island where
Curling had entered and emerged from a room with two other persons:

“There was light when I went in the house. We counted the money in the living
room. I had seen, known the persons in the house from Nassau, they were [Melvin
Maycock and Nehemiah Maycock identified].”

He later described how they along with Charles Curling took the bags to the dock. Subsequently,
in cross-examination he said that there was no light at the dock, but there was “adequate
lighting” in the house. He had seen Nehemiah Maycock before that date in Nassau “a few times,
it could have been 3 or 33 times.” He had seen Melvin Maycock “more than ten times,” mostly
in the South Beach area of New Providence.

111

Mr. Turner submits that the magistrate appreciated the issue of identification as she acquitted
Charles Curling, both on his defence of alibi and “given the evidence of identification.”

112

She does not address the issue of identification in her ruling when she convicted the appellants
Nehemiah Maycock and Melvin Maycock. It seems to me, notwithstanding the urging of defence
counsel at trial as to the issue of identification of Melvin and Nehemiah Maycock, the evidence
taken as a whole is such as that, while the magistrate would have had to be satisfied as to the
identity of each defendant, no need for a Turnbull warning to herself was necessary, because the
evidence of Watson, which she accepted, was that he had sat in the house counting money (an
activity which could not be conducted with inadequate lighting) with Lealand Curling and
Nehemiah and Melvin Maycock, both of whom he had seen in New Providence previously. The
evidence pointing to them was clearly of a different nature from that pointing to Charles Curling
who was seen only at the dock.

113

I find, therefore, that the magistrate was entitled on the evidence to find that Nehemiah Maycock
and Melvin Maycock were the persons whom Watson had met in the house at Ragged Island.

114

In the result, I dismiss the appeal of each of the appellants in this conjoined appeal and I affirm
the conviction by the learned magistrate and her sentence of four years in prison imposed on
each appellant.

115
On Friday past, 28 April, 1995, when I dismissed these appeals and confirmed the sentence
imposed by the learned magistrate, I overlooked the fact that, although there had been no appeal
against sentence, the record disclosed the magistrate had failed to impose separate sentences in
respect of each of the counts on which the appellants had been convicted.

116

For the reasons which appear at paragraphs of my judgment in Williamson et al v. COP, Appeals
nos. 55, 56 and 57 of 1993, I direct the magistrate to cause the appellants here to be brought back
before her at the earliest convenient date in order that she might make the “technical” correction
necessary in the sentences imposed which would, of course, effectively remain at four years in
prison.