Law report - requirement to take a full plea

Cox v the Queen [2014] SC Bda 2 App

The Appellant had been sentenced to a term of imprisonment for a sex offence on the basis of a purported guilty plea in the Magistrates Court. He appealed against his conviction and sentence.

Unfortunately, it appeared that this was based on a mistake. Although the appellant had indicated that he had wished to change his plea from not guilty to guilty, this was not formally accepted by the court. The matter was adjourned and, the next time it came before the court, the court mistakenly proceeded on the basis that he had already pleaded guilty.

Justice Hellman ruled that there had not been any conviction, as the law provides that there can only be a conviction after a plea or finding of guilt (at [21]-[32]). However, he went on to quash the conviction (at [39]). He also ruled that it would not be in the interests of justice to order a re-trial on the basis that he had already spent over a year in prison, the offence was not a particularly serious one, and it would be an ordeal for the 13 year old complainant to have to give evidence again.

Comment - The judge commented that it might appear illogical to quash a conviction that had not actually occurred (at [44]). He also said that he could achieve a similar result by treating it as an application for judicial review and granting public law relief (at [45]).

I think that the judge's indication of a similar result with public law relief points to a solution which would have avoided any logical inconsistency. In my view, the proper analysis is one of an unlawful imprisonment, which could have been dealt with by treating the appeal as an application for habeas corpus or judicial review, and making an order mandating the prisoner's release and a declaration that he had not been convicted.

Law report - sentencing for drugs offences

Clarence James and Delroy Duncan v Raynor [2013] SC (Bda) 9 App

The Appellants were appealing against conviction and sentence for importation of cocaine. I had a moment of early morning confusion upon starting to read this judgment, as Delroy Duncan is the name of the President of the Bermuda Bar Council. However, I have it on good authority that this is an entirely different Delroy Duncan.

The noteworthy element of the judgment is the appeal against sentence. The appellants had both been sentenced to nine years in prison, which was higher than the recommendation of 7.5 years each by the Crown Counsel.

Kawaley CJ gave guidance on how defendants should be sentenced for drugs offences.

s.27B of the Misuse of Drugs Act states that the Court shall have regard to the street value of the drug and of its effect on society, and then add fifty per cent to the basic sentence.

s.27B does not define what a basic sentence is. If it is taken to mean sentences commonly given, then you could end up with sentences being rapidly inflated as 50% uplifts would start being added to basic sentences which already included a 50% uplift. To avoid this problem, it is necessary to consider what the sentence would have been before s.27B was brought in in 2005. Fifty percent is then added to that.

Comment - this case illustrates the problem with sloppy draftsmanship. Clearly parliament thought that drugs offenders were not being sentenced harshly enough, and came up with a solution of adding a 50% uplift to sentences. However, we now have a situation where judges are required to do a slightly complex exercise, looking back to 2005, to come up with a justifiable sentence. And the issue had to be litigated to work out what parliament meant, which has cost the public money.

One wonders whether the same result could have been arrived in a more straightforward manner by simply upping the maximum sentences, indicating that these were now seen as offences of greater gravity.

Law report - expert evidence on gang members

Cox v R (2011) Crim App 15/15A
Myers v R (2011) Crim App 17

The Appellants had been convicted of murder and using a firearm. In both cases the Prosecution had relied on "gang evidence", i.e. evidence of specialist police officers who were familiar with the gangs on the island.

The officers gave evidence that the Appellants were members of 42nd Street (Cox) and Parkside (Myers), which were rival gangs, and that their victims were members of the other gang. The officers gave evidence of a feud between the gangs and of the ongoing tit for tat retaliation between them, which they said was sufficient reason for the Appellants to kill rival gang members

The Appellants appealed on the grounds that the evidence was irrelevent, amounted to hearsay, that the police officers were not experts and so unable to give an expert opinion, and was inadmissible as it was putting evidence of general bad character before the court which could prejudice the jury.

It was HELD by Evans JA and Zacca JA that the evidence of the police officers was relevant as evidence of a motive is clearly relevant to whether somebody is guilty.

The police officers dealt with the gangs on a daily basis and so had sufficient expertise to give their expert opinion on how the gangs operated.

Although the gang evidence might show the bad character or tendency to violence of the accused, it was directly relevant to the offence and, without that evidence, the case put to the jury would appear incomprehensible or incomplete.

As long as the judge explains the source of the witness' expertise, it is acceptable to describe a police officer as an expert. However, "gang expert" is not a particularly helpful term, and it would be better to spell out that he is an expert on gang behaviour.

The Court of Appeal suggested that careful consideration in future cases should be given as to:

• distinguishing factual evidence from opinion evidence;
• what parts of factual evidence are based on hearsay;
• establishing an officer's qualifications and experience;
• using terms such as "experienced police officer" or "expert on gang behaviour" rather than "gang expert";
• directing the jury as to the scope of the opinion evidence  and the basis for admitting it;
• bearing in mind the potential prejudice to the defendent of the evidence before admitting it

The two judges dismissed the appeals

Auld JA also said that he would dismiss the appeals but dissented on the issue of the gang evidence. There was enough scientific and factual evidence to show that the defendants intended to kill their victims, without relying on the gang evidence. He said that at best the evidence shows a shared motive with other people, but does not provide evidence that the jury can rely on to be sure of the defendant's guilt.

 He also explained his unease with using gang evidence generally. Gang evidence is not a science, and so it is difficult for a trial judge to determine in what circumstances a purported expert is in fact an expert. If trial judges do not sufficiently scrutinise the issue of the value of the evidence and the prejudice to the defence, then there is a danger of drifting into a culture of prosecutors attempting to bolster borderline cases with gang evidence of limited value but which is highly prejudicial.
Such evidence should be admitted only when it has a clear probative effect or supporting the effect of other evidence, balanced against its prejudice to the defence.

It would be difficult for the defence to find its own experts to counter the prosecution's gang evidence and, given their relationship with the prosecution, police officers are unlikely to be perceived as impartial, which is normally expected of expert witnesses.

Comment - it appears that the issue of gang evidence will go onwards and upwards to the Privy Council for final determination.

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.

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 - Using hand-held devices while driving

Farnworth v R [2012] SC (Bda) 36 App (20 July 2012)

The Appellant had been convicted in the Magistrates' Court of using a hand held device (an iPod) while driving a motorcycle, contrary to regulation 44 of the Motor Car (Construction, Equipment and Use) Regulations 1952. There was no evidence that she had touched the device with her hands whilst driving.

The decision of the Magistrate was upheld, as listening to an iPod via earphones amounted to "use" [17]-[18], [20]. Kawaley CJ mooted whether the enactment was a disproportionate response to objectively identifiable public safety concerns, a question that he suggested might arise in a constitutional complaint regarding the right to receive information and ideas under section 9 of the Constitution [21].


Comment - this was a conviction of a motorcyclist. It is unclear whether a car driver who has plugged a hand-held device into a car audio system, in the same way that one might insert a CD, would also be liable. For example, the music would be turned on or off via the dashboard controls, rather than having to handle the device. Is he using the device, or merely using the car's audio system?

Liability is even less clear if there is a passenger in the car who has control of the hand-held device plugged into the audio system. Presumably the driver could claim that it is the passenger using the device, but this is still open to interpretation.

Law Report - appeal against "manifestly inadequate" sentence

In Raynor v Davis [2012] SC (Bda) 29 App (1 June 2012), the Respondent was sentenced by the Magistrates' Court to one year in prison after pleading guilty to a charge of burglary. He had broken into the hotel room of a couple both in their seventies. When the husband sought to restrain him, the Respondent shouted that he had a gun, before escaping from the scene. The incident had the potential to damage Bermuda's commercial interests, due to the negative publicity from attacks on tourists. At the time of the offence the  Respondent was on probation for Prowling.

The Appellant, a police officer, appealed on the grounds that the sentence was manifestly inadequate.

Kawaley CJ noted that the Respondent's record reads like the resume of a man who has dedicated his life to the diligent pursuit of non-violent property offences. The Supreme Court can be greatly assisted by UK Sentencing Council Guidelines, although they are of limited value to the Magistrates' Court. Drug addiction is not a mitigating factor.

The dictum of L.A Ward J in Osborne v Harvey [1987] Bda LR 78 was followed, where he said:
"The leading authority in Bermuda on the meaning of ‘manifestly inadequate’ is
Plant (R) v Robinson Criminal Appeal No. 1 of 1983 in which the Court of Appeal
held that manifestly inadequate means obviously inadequate, that is to say
obvious to the appellate tribunal that the sentence is much too low and fails to
reflect the feelings of civilized society to the crime in question. It also stated that a
sentence is manifestly inadequate when it is obviously insufficient because the
judge or magistrate has acted on a wrong principle or has clearly overlooked, or
undervalued, or overestimated, or misunderstood some salient features of the
evidence. It is a failure to apply right principles"

In the circumstances the one year sentence was manifestly inadequate. A sentence of 30 months was substituted, taking into account that the Respondent was also serving other sentences.