Attorney General v Paul De La Chevotiere

• Jurisdiction: Bermuda
• Judgment Date: 12 March 1991
• Date: 12 March 1991
• Docket Number: Criminal Appeal No. 11 of 1990
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Roberts, P.

dacosta, J.A.

Henry, J.A.

Criminal Appeal No. 11 of 1990

Attorney General

Appellant

and

Paul De La Chevotiere

Respondent

McMillan and Miss Kenny (Attorney General's Chambers for Appellant

Perry Q.C. and Duncan (Vaucrosson's) for Respondent

Chapman v R 1984 Criminal Appeal No. 3

R v CCC ex parte RandleTLR The Times 20 November 1990

Court of Appeal Act 1964, s. 1, 16, 17(2)(a)

Criminal Code s. 503, 504(1)

Appeal by Attorney General against order quashing indictment against defendant after hung jury — Whether Attorney General had power to appeal judge's decision — Procedure to be followed when defendant wishes to quash indictment — Indictment quashed before plea taken, therefore no ‘trial on indictment’ in this case

JUDGMENT

Roberts, P.

Preliminary

The Respondent faces four charges of incest and four of indecent assault between 1st August, 1972, and 31st August, 1975. Thus his trial, if it were to proceed now, would be for offences committed between 15 and 18 years ago.

The Respondent was arraigned on these eight counts on 20th September, 1989, and pleaded not guilty to all of them. After a twelve day trial, the jury was unable to agree and the matter was set down for retrial in the Supreme Court on 11th June, 1990.

‘Before the defendant was rearraigned, but after the formalities of s.503 of the Criminal Code had been complied with,’ according to the judge, Martyn Ward J., a submission was made by the Respondent that the indictment should be quashed. As will presently appear however the record does not disclose that all the formalities of s.503 were complied with.

The judge, after hearing argument for both sides, made an order quashing the indictment. He appears to have done so on a number of grounds:

• (a) that the indictment was ‘calculated to prejudice or embarrass (the accused) in his defense to the charges’;

• (b) that a retrial of the accused would offend section 6(1) of the Bermuda Constitution Order, 1968, which guarantees to an accused person a ‘fair hearing’ at his trial;

• (c) that a retrial of the Respondent would amount to an abuse of the process of the court and that the court had an inherent jurisdiction to prevent any such abuse.

The Attorney General has appealed against the quashing of the indictment under section 17(2)(a) of the Court of Appeal Act, 1464. Before taking the matter further, however, we must decide whether or not the Attorney General has power, under that section, to appeal against the decision of Martyn Ward J.

Section 17(2)(a)

This section so far as it is material reads as follows:

‘(2) In any of the following cases, that is to say:

• (a) where an accused person tried on indictment is discharged or acquitted …

• (b) …

• (c) …

then the Attorney General … may appeal to the Court of Appeal against the judgment of the Supreme court on any ground of appeal which involves a question of law alone.’

It was not...