Astwood (Police Sergeant v SB

• Jurisdiction: Bermuda
• Judgment Date: 24 April 2025
• Docket Number: Apellate Jurisdiction 2025 No 3
• Court: Supreme Court (Bermuda)

Between:

Jerome Astwood (Police Sergeant)

Appellant

and

SB

Respondent

[2025] Bda LR 41

Apellate Jurisdiction 2025 No 3

In The Supreme Court of Bermuda

Intrusion — Appeal by Informant against Magistrate's discharge — Whether discharge is appealable — Whether the DPP's consent to institute proceedings is delegable —

The following cases were referred to in the judgment:

R v Durrant and Gardner [2006] Bda LR 85

R v AH and AW [2023] Bda LR 123

R v NM (unreported 24 December 2014)

Whitter v DPP [2002] Bda LR 33

Philpott v Wolffe and Cooke [2011] Bda LR 72

Miller v James [2019] Bda LR 23

Durham and Durham v R [2023] Bda LR 50

R v Pearce (1981) 72 Cr App R 295

R v Lalchan [2022] EWCA Cri 736

R v Walker [2016] EWCA Crim 751

Mr A Duncan for the Appellant

Ms N Smith for the Respondent

JUDGMENT of Richards J

Introduction

1. The facts of the offence alleged in these proceedings are almost entirely irrelevant to the issue before me. All I need say about them is that the Information (23CR00123) contains a single charge, contrary to section 199(2) of the Criminal Code. This offence is commonly called Intrusion.

2. That matter was tried before a Learned Magistrate, the Worshipful Mr C Craig S Attridge on 5 and 19 September 2024 (“the Magistrate”). Following further argument on 16 December 2024, the Magistrate issued a detailed written Ruling dated 31st January 2025. He concluded that “…these proceedings should never have been instituted. Instituted as they were without the consent of the Director. They are a nullity — or invalid should nullity offend—and on that basis the Court has no choice but to discharge the Defendant”.

3. There is before me an appeal against that decision, brought pursuant to section 4(1)(a) of the Criminal Appeal Act 1952 (“CAA”).

4. As announced in court on 17 April 2025, I have decided to allow the appeal, set aside the Magistrate's decision and remit the matter to him with a direction to proceed to judgment on the charge of Intrusion (a disposal permitted by section 19(2) of the CAA). I provided brief oral reasons for my decision at that time and now explain more fully in writing.

The Supreme Court's Appellate Jurisdiction

5. This first issue is, I must recognise, substantially if not entirely, of my own devising. Nevertheless, I consider that I must resolve whether the Magistrate's decision is one that is properly susceptible to this Court's appellate review at the instance of the Informant pursuant to section 4(1)(a) of the Criminal Appeal Act 1952. Section 4 provides as follows:

“Point of law; appeal by informant

4 (1) A person who was the informant in respect of a charge of an offence heard before and determined by a court of summary jurisdiction shall have a right of appeal to the Supreme Court, in the manner provided by this Act, upon a ground which involves a question of law alone—

• (a) where the information was dismissed, then against any decision in law which led the court of summary jurisdiction to dismiss the information;

• (b) in any other case, against any decision in law which led the court of summary jurisdiction, after convicting the defendant in those proceedings, to impose a particular sentence or to deal with him in a particular way.

(2) For the purposes of this section, a decision of a court of summary jurisdiction in respect of a trial on an information—

• (a) discharging an accused person on the grounds that there is no case to answer;

• (b) staying proceedings as an abuse of process; and

• (c) issuing a ruling which would otherwise have the effect of terminating the trial, shall be deemed to involve a question of law alone.”

6. On 28 February 2025, I pointed out to Counsel then appearing on this matter (who were not those who subsequently argued the appeal) that since the Magistrate had not purported to “dismiss” the information, I would need to be addressed on whether his determination was appealable under section 4(1)(a) and, if not, whether it could be reviewed in any other way (I had in mind the remedies available in this Court on an application for Judicial Review). It may be that this was not conveyed to Mr Duncan and Ms Smith because, when filing their subsequent written submissions, neither side sought to address the issue. Undeterred, I raised it again during oral argument. Improvising perhaps, Mr Duncan offered a number of responses and some others subsequently in writing.

7. One such response was that section 2 of the CAA affords a broad general route of appeal upon which the Informant could rely instead of section 4. I reject that argument. First, the former section clearly provides that this Court has an appellate jurisdiction over courts of summary jurisdiction that is “subject to and in accordance with this Act” (ie including section 4). Secondly and in contrast to the position with appeals under sections 3, 4, 4A, 5 or 6, no subsequent section of the Act makes detailed provision as to how an appeal under section 2 is to be heard or the Court's powers on determination of the same. Lastly, this argument is essentially analogous to an argument rejected by the Court of Appeal in R v Durrant and Gardner[2006] Bda LR 85 and R v AH & AW[2023] Bda LR 123. Speaking in terms of sections 16 and 17 of the Court of Appeal Act 1964 (equivalent, in my judgment, to sections 2 and 4 of the CAA), the Court of Appeal has clearly and on more than one occasion held that “there is no section 16 right of appeal which is independent of restrictions imposed by section 17”1.

8. Mr Duncan also referred me to section 5 of the Criminal Jurisdiction and Procedure Act 2015 (“CJPA”). He says, in essence, that that section only permits a Magistrate hearing a summary trial to “convict the accused person or dismiss the information”. Since he clearly did not convict the Respondent (the argument runs), the Magistrate must be taken to have dismissed the information. It is true, as I observed in argument, that Magistrates may also stay proceedings as an abuse of process. Viewed through the lens of section 5, such a disposal must presumably also fall to be regarded as a dismissal of the Information (which may suggest a similar reading of section 4 of the CAA). However,

I do not think section 5 can supply a complete answer to the jurisdictional question. It begins with the words “on the summary trial of an information” and I construe the Magistrate as having found that there was no valid information before him. If indeed there was not, there could not have been any valid summary trial either.

9. Ms Smith has not contended that the Magistrate's decision is not appealable via section 4(1)(a) of the CAA. In her place I might have been tempted to argue otherwise, particularly if there is, as Mr Duncan suggested in argument, some impediment to the Director of Public Prosecutions (“DPP”) instead seeking to invoke this Court's powers on an application for Judicial Review2. Ultimately, however, I have concluded that the Respondent's concession is properly made. First the words “in any other case, against any decision in law which led the court of summary jurisdiction, after convicting the defendant …” at the start of section 4(1)(b) clearly imply that, if the court of summary jurisdiction does not convict a defendant, it is to be regarded as having dismissed the information. Secondly, section 4(2)(b) clearly affords a right of appeal against a stay of proceedings as an abuse of process. Although such a disposal is not commonly termed a dismissal, this suggests (even more strongly than anything in section 5 of the CJPA does) that a stay falls within the meaning of “dismissed” in section 4(1)(a). Thirdly, it seems to me that section 4(2)(c) is apt to apply to the decision that the Magistrate made here (that is “a ruling which would… have the effect of terminating the trial”). Mr Duncan did not immediately seize on this provision when I asked him about it during oral argument, but his further written submissions do, in my view correctly, rely upon it.

10. Recapitulating part of what I said above about section 5 of the CJPA, it could again be said re section 4(2)(c) of the CAA that, since the Magistrate found there was no valid Information, he effectively found that there was no trial. Thus, his ruling did not so much terminate a trial as recognise that one had never actually started. However, if the Magistrate's decision was, in the view of this Court, wrong and the Information was valid, there was a trial and his ruling erroneously terminated it. It would further be bizarre if a magistrate could preclude appellate review of what was in effect a dismissal of an information simply by characterising it as something else. I do not suggest for one moment that this Magistrate had any such intention, not least because he expressly recognised that his decision could be appealed under the CAA (see paragraph 31 of his Ruling). Despite what some may regard as an unnecessarily scenic detour (at the instance of this Court), I conclude that he was right to apprehend that that was possible.

11. In my judgment, although the Magistrate never purported to “dismiss” the Information, his decision is to be regarded as a dismissal which may be appealed under section 4(1)(a) of the CAA.

The Substantive Appeal

12. Before embarking upon an analysis of the relevant case law and the parties' submissions, it is necessary to set out some of the relevant legislative provisions:

Section 71(2)—(6) of the Constitution (read in accordance with section 71A and respecting the gender of the present DPP)

“(2) The DPP shall have power, in any case in which she considers it desirable so to do—

• (a) to institute and undertake criminal proceedings against any person before any civil court of Bermuda in respect of any offence against any law in force in Bermuda;

• (b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority...