COA: Senior magistrate made “basic” fundamental error in immigration case against former Renew Bahamas CEO

COA: Senior magistrate made “basic” fundamental error in immigration case against former Renew Bahamas CEO

NASSAU, BAHAMAS — The Court of Appeal has quashed the conviction and sentences of former Renew Bahamas CEO Michael Cox and his uncle, Maurice.

In a notice to authorities, dated November 9, the Court of Appeal said the appeals of both men were allowed on the ground that the learned magistrate erred when she found that the appellant was engaged in gainful occupation.

It further called on “public authorities” to confer with people more knowledgeable in the law, out of an abundance of caution, when seeking to prosecute individuals for statutory breaches.

Cox and his uncle were fined $3,000 each after they were convicted of working without valid work permits by Senior Magistrate Carolyn Vogt-Evans in 2018.

The men were picked up by immigration officers at a local scrapyard on October 5, 2018.

The senior magistrate also ordered that the men be turned over to the Department of Immigration for deportation.

The Court of Appeal notice said there was an “obvious dearth of evidence to raise even a prima facie case that the appellants were somehow engaged in gainful occupation”.

The notice was sent to the commissioner of the Bahamas Department of Correctional Services, the director of public prosecutions, the Supreme Court Registrar and the commissioner of police.

It continued: “This is a criminal matter and, as in all criminal matters, the prosecution is required to prove beyond a reasonable doubt that the essential elements of the offense are disclosed and are present.”

According to court testimony, Cox was spotted by immigration officers sitting on the forklift at Sanasha’s Development and Heavy Equipment from a distance on October 5, 2018.

It was further alleged that the clothing of both men suggested they had been doing physical labor.

Cox told officers he was at the location to visit the owner of the property, Ronald Miller, while his uncle Maurice told officers he was teaching another worker how to load scrap metals into shipment containers to be exported.

The immigration officers reportedly visited the site after they received a complaint that two Caucasian men were working at a heavy equipment site.

The Court of Appeal notice read: “What is disclosed is that both men were found at a site which apparently dealt with metals and heavy machinery; that both were dressed in a manner which suggested that they were working. While that is entirely suspicious, it does not rise to the level of proof of engaging in gainful occupation.”

The notice further stated that the fines paid by both men be returned.

“In the view of the court’s decision, that is a fundamental error on the part of the magistrate, and in our view a basic error, this decision, as an extemporary decision, will be the decision of the court. We do not intend to write.”

It added: “For future reference, those public authorities when seeking to prosecute persons for breaches of their particular statutes, ought to confer with those persons more learned in the law, more au fait with the law out of an abundance of caution.”