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2003-03-12 01:11:51

Death Penalty Appeal Hinges On Jurisidiction

"what we seem to have now in the system is order, counter- order and disorder."

The Court of Appeal will rule today on whether it has jurisdiction to hear an appeal on whether the mandatory death sentence in the Bahamas is constitutional.

Dame Justice Joan Sawyer, president of the COA, and justices Mustpha Ibrahim, Maurice Churaman, Lorris Ganpatsingh and Emmanuel E. Osadebay questioned Monday whether they have jurisdiction to hear it, because the issue of constitutional validity was never argued before the court.

The appeal was brought to the attention of the justices after the London-based Privy Council remitted it to them for further determination.

Forrester Bowe and Trono Davis, the appellants, were convicted of murder in separate cases and sentenced to death.

Bowe was convicted on Feb. 25, 1998, of murdering Deone Roach and sentenced to death. On April 23, 1998, the court dismissed an appeal against his conviction and on April 10, 2001, the Judicial Committee of the Privy Council dismissed his further appeal against his conviction.

The second appellant, Davis, was convicted on Dec. 13, 1999, of murdering Jerrad Ferguson and sentenced to death. On Oct. 31, 2000, the COA dismissed his appeal against conviction and on July 17, 2001, the Privy Council refused him leave to appeal his conviction.

Subsequently both appellants appealed their case against the sentence imposed upon them.

On Oct. 21, 2002, the Judicial Committee granted them special leave to appeal and remitted their cases to the Court of Appeal to reconsider the matter of sentence.

Bowe is represented by Queen's Counsel Edward Fitzgerald, Philip Davis, and Gina P. Morley, while QC Keir Starmer, Maurice O. Glinton and Ms Morley represent Davis.

Present for the Crown was Bernard Turner, assisted by Gavin Gaskins and Eurika Wilkinson of the Attorney General's Office.

Mr. Fitzgerald in his arguments for Bowe, which were adopted by Mr. Starmer, submitted that based on Section 12 of the Court of Appeal Act, the court had jurisdiction to hear the appeal.

The president informed him that unlike London, which does not have a written constitution, that of the Bahamas is the supreme law of the land, there is no statute that can override it and as judges they must be guided by it.

The president continually stressed to Mr. Fitzgerald that the issue of constitutionality was never raised before them and the process that he chose to "short circuit" the matter has created problems for himself and the court.

When asked by the court why the matter was not remitted to the Supreme Court, Mr. Fitzgerald said that the Crown asked for the matter to be returned there.

Additionally he said that the Crown consented with the decision to have the matter remitted to that court.

Mr. Turner said that the Crown was privy to the application to the Privy Council and admitted to the consent, but agreed with the court that the matter should have been remitted to the High Court to be heard, based on Article 28 of the constitution.

To this the president said, "what we seem to have now in the system is order, counter- order and disorder."

By Jimenita Swain, The Nassau Guardian

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