Monday, 19 November 2012

law report - non disclosure of police interview, mistrial

Simons v Miller [2012] SC (Bda) 67 App

The Appellant had been convicted in the Magistrates' Court. Part of the Magistrate's reasoning for convicting him was that his evidence in defence lacked credibility and depended on allegations about prosecution witnesses that had not been put to them in cross-examination.

He was appealing as the police interview had not been disclosed before trial.

Kawaley CJ listened to the Respondents submissions that counsel for the Appellant was aware of the existence of the interview, as it was mentioned in the Police Officer's statement, but had not asked for it; and that the Magistrate had relied on other evidence to find the Appellant guilty.

It was held that the failure to disclose the interview record had denied the Appellant a fair trial. Whether or not an appeal is upheld will depend on whether the failure to disclose was material to the outcome. In this case, the interview record might have influenced the Magistrate's reasoning in that it would show that the Appellant's evidence was not a recent invention but had been maintained from the start.This might positively affect his credibility, notwithstanding that defence allegations were not put to witnesses in cross-examination.

Even though some of the fault lay at the feet of the Defence, the appeal was upheld, and the case remitted to a different magistrate.

Comment - attention is also drawn to the English Court of Appeal case of R v Hadley [2006] EWCA 2544, where it was held that an appeal would be upheld if the non-disclosed evidence was capable of affecting the jury's mind, i.e. unless the other evidence against the accused was so strong that the undisclosed material could have made no difference to the outcome.

Thursday, 15 November 2012

Law report - enabling trusts / trustees

Re ABC Trust [2012] SC (Bda) 65 Civ (13 November 2012)

All parties sought to amend the Trusts to allow modern charging provisions for professional trustees; to change the perpetuity period; and to change a provision of the charitable trust.

Kawaley CJ noted that changes could be made to a trust document if it was expedient to the Trust, consistent with the equitable principles governing trusts [6].

There is nothing controversial about allowing modern professional trustees to charge their usual rates [8].

In this case, there were benefits to extending the perpetuity period - to give future generations the benefit of the trusts and to avoid ruining young beneficiaries  who would otherwise receive substantial sums of money at a young (irresponsible??) age [10].

It made good practical sense that the charitable trustees should not have to consider the law of Prince Edward Island in determining whether a purpose was charitable, and the change was approved [12].

Law report - Paternity blood tests in the Magistrates' Court

Re C: A child [2012] SC (Bda) 64 App (9 November 2012)

The Magistrates' Family Court had ordered that the alleged father of a child take a blood test to ascertain whether he was the father. As Kawaley CJ noted, this was somewhat surprising, as counsel for the mother of the child had conceded that the Magistrate had no authority to make such an order [10].

Kawaley CJ upheld the appeal against the order. He directed that the Family Court could in future properly encourage the parties to resolve parental disputes by mediation to avoid applications to the Supreme Court [29].

The Supreme Court would probably deal adminstratively with consensual requests to substitute historical Magistrates' Court orders for a Supreme Court order [28].

Wednesday, 14 November 2012

Law report - special reasons not to disqualify from driving for 12 months

Petty v Miller [2012] SC (Bda) 63 App (5 November 2012)

The Appellant had pleaded guilty to driving over the alcohol limit, driving an unlicensed vehicle and without insurance. He had been riding a toy scooter, not as a means of transport, but just riding it outside of his house, at a low speed, and with a low risk of harm. In the Magistrates' Court it was submitted that these were special reasons why he should not be disqualified for the usual 12 months.

However, the Magistrate said that these were not special reasons. He was disqualified for 12 months for the alcohol charge and also fined in respect of the charges.

The appeal was on the grounds that the Magistrate had failed to give reasons for his findings, that there were special reasons in this case, and that the fines were excessive.

On appeal, Kawaley CJ held that there were special reasons, namely the nature of the vehicle being a toy scooter with a low speed, that the Appellant was just outside of his house. The risk of harm was not a special reason on the facts of this case [11].

The period of 12 months' disqualification was reduced to 3 months [13].

Kawaley CJ was not minded to interfere with the fines, as although it is easy to dismiss the idea of having insurance or a licence for a toy scooter, the law is there to ensure that road users are insured, etc. for the benefit of other road users [14].

Comment - this is a case that I am particularly familiar with, as I represented Mr Petty on appeal.

Please note that you will not get off lightly if you try to use a toy scooter instead of an ordinary scooter to ride home after while over the alcohol limit. This was a case on special circumstances where he was just outside of his house and riding a very short distance, not to go anywhere.

Law report - Wrongful acquittal by Magistrate

Miller v PS [2012] SC (Bda) 62 App (31 October 2012)

The Respondent had been acquitted by the Magistrate after a submission by his counsel that he could not be found guilty as he committed the offence whilst unlawfully detained.

The Appellant appealed on the grounds that this was not a lawful reason to acquit somebody.

Kawaley CJ considered Cumberbatch v Crown Prosecution Service [2009] EWHC 3353 (Admin), an English case where the appellant was acquitted on the basis that he was resisting police officers who were themselves acting unlawfully.

The present case was different, as the unlawful detention was not an essential element of PS's criminal acts [8].

The Magistrate should have allowed Crown Counsel to address him on the point [9].

Although the appeal would be allowed, the matter would not be remitted. The child should not have been in prison and these matters were at the low end of criminal liability. The no case to answer might have succeeded were it not for evidence that accidentally came out in cross examination. Re-connecting the child to the criminal justice system in all the circumstances would not serve his best interests or the wider public interest [11]

Law report - Can Supreme Court award child support payments

A v B [2012] SC (Bda) 60 Civ (26 October 2012)

The Applicant brought an action to claim child support payments from the Respondent in the Supreme Court.

The Respondent objected, saying that such claims had to be brought in the Magistrates' Family Court.

Hellman J held:

The parties cannot voluntarily submit to Supreme Court jurisdiction if the Court lacks jurisdiction to hear that case [7].

The relevant sections of the Children's Act suggest that such applications are to be brought in the Magistrates' Court [14].

There were two Bermuda judgments with conflicting views on whether the Supreme Court could in fact be used for such claims: W v M [2009] SC (Bda) 18 Civ, and Harshaw v Reid [2012] SC (Bda) 18 Civ. In neither case was the issue central but Harshaw v Reid concerned a barrister's bills and did not receive full argument on the point, nor was W v M put before the court. Hellman J preferred the view in W v M that the Supreme Court could not be used [27].

The Supreme Court did not have inherent jurisdiction, the matter having been legislated by parliament as to where a claim should be brought. The Supreme Court continued to have inherent jurisdiction for matters relating to children outside of the statutory scheme [33].