Cox (Police Constable) v Butterfield
| Jurisdiction | Bermuda |
| Judge | Simmons, J. |
| Judgment Date | 07 July 2008 |
| Docket Number | 17 of 2006 |
| Court | Supreme Court (Bermuda) |
| Date | 07 July 2008 |
Supreme Court
Simmons, J.
17 of 2006
Mr. C. Mahoney of Director of Public Prosecutions, for the appellant;
Mr. A. Doughty of Trott and Duncan for the respondent.
Practice and Procedure - Costs award against informant — Whether adequate reasons were given — Finding that the Director of Public Prosecutions was answerable for prosecutions from his chambers — Costs against the informant void for lack of enforceability.
This appeal made pursuant to section 6 of the Criminal Appeal Act, 1952 is against an order for cost made by the learned Senior Magistrate in favour of the respondent against the appellate.
The sole ground of appeal is that the order should not have been made however in his arguments before the court counsel for the appellant expanded on this ground to include three primary issues of law. The questions arising therefore are:
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a. whether costs were awarded according to statute, in particular with any or adequately stated reasons;
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b. whether the court in ordering costs against the appellant violated the discretion of the Director of Public Prosecutions in determining when to terminate a prosecution;
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c. whether an order for cost against the appellant is void for lack of enforceability.
On the 8th June 2006 the respondent appeared unrepresented before the Learned Senior Magistrate where he was charged in an information containing three offences for which he elected summary trial and pleaded not guilty. Each of the offences related to the defendant's behaviour toward a certain lady with whom he had fathered a child and had enjoyed a familiar relationship.
The Senior Magistrate set the matter for trial for the 27th June 2006 to be heard before him at 9:30 am. It would appear from the context of the supplemental record of appeal transcribed from the Court Smart recording of the 27th June that this early date was set because the respondent told the Senior Magistrate that the complainant would not be appearing to give evidence against him and that she had communicated this to the police prior to that court appearance.
I am reliably informed by both counsel appearing in this appeal and accept as fact that it is the practice of the Senior Magistrate to set an early hearing date in cases where the charges arise in the context of a familiar relationship between the complainant and the defendant and there is an indication that the complainant will not give evidence.
I am informed and accept as fact that in such circumstances the Senior Magistrate asks the prosecutor for verification of the complainant's change of mind and where such cannot be immediately confirmed the Senior Magistrate places an onus on the prosecutor to seek verification from the police for exposition at the early trial date.
I accept as fact that this was the course taken on the occasion that the respondent entered his not guilty plea on the 8th June 2006.
On the 27th June 2006, Crown counsel Miss S. Dill appeared on behalf of the appellant and Mr. Doughty appeared for the respondent. Miss Dill advised the Senior Magistrate that the Crown would not be offering any evidence against Mr. Butterfield.
Thereafter followed a more than thirty minute discussion between the Senior Magistrate, Miss Dill and Mr. Doughty concerning the issue of the Crown offering no evidence; the earliest date at which the Police were aware that they would not be in a position to offer evidence; and the issue of costs. At the end of this discussion the Senior Magistrate dismissed the information and made the order for cost in Mr. Butterfield's favour pursuant to section 28(2)(i) of the Summary Jurisdiction Act 1930.
Mr. Mahoney for the appellant argues that the Senior Magistrate erred in law because there was no evidence upon which he could find that the charges that the respondent faced were, as the Summary Jurisdiction Act requires, “unfounded, frivolous or made from an improper motive”. Counsel also argues that the Senior Magistrate in any event failed to make any such finding in that he did not record such a finding. ( Drepaul v. Bisrott (1995) 54 W.I.R. 242; Sylvan v. Ragoonath and Others (1966) 11 W.I.R. 33).
Counsel for the appellant further argues that in awarding costs against the appellant the Senior Magistrate sought to penalize the Crown in its decision as to who is to be prosecuted or which prosecution should be terminated. ( Jeewan Mohit v. The Director of Public Prosecutions of Mauritius Privy Council Appeal No. 31). Finally he argues that in the circumstances of the costs going against the appellant to the extent that the order is referable to the Director of Public Prosecutions that order is unenforceable and ought not to have been made.
Mr. Doughty for the defendant argues that inadequacy of reasons is not a sufficient ground to allow an appeal if there are circumstances wherein the appellate court is able to discern with the assistance of counsel what the central issue of the case is. Counsel for the respondent argues that with the assistance of the Court Smart Recording the court can assess the reasoning of the Senior Magistrate. ( English v. Emery Reimbold & Strick Ltd., [2002] 1 W.L.R. 2409 (CA).
Mr. Doughty further argues that imprisonment for non payment of an order of costs notwithstanding, the DPP as a public officer exercising statutory functions is amenable to Judicial Review and therefore is not above the law and the discretion imposed in that officer is subject to the interference of the courts. ( Froomkin v. R. [1990] Bda. L.R. 16; Jeewan Mohit supra).
Whether any or adequate reasons were given for awarding costs
The power in the Magistrates' Court to award costs against an informant in so far as is relevant is set out in Section 28 of the Summary Jurisdiction Act 1930 which provides:
“(1) when a charge is dismissed, and appears to the court to have been unfounded, frivolous or made from any improper motive, the court may order the costs, or any part of the costs, to be paid by the informant, either forthwith or with in such time as the court may allow; and if such costs are not paid the court may commit the informant to prison for a term not exceeding ten days, unless such costs are sooner paid.
“(2) the costs which the court may order to be paid under subsection (1) shall be such sums as may be fixed by the court in respect of–
(i) the expenses incurred by the defendant, including fees payable to his attorney (if any), which sum shall be payable to the defendant;…”.
It is clear from the transcript of the Magistrates' Court hearing that the Magistrate struggled with the interpretation of the phrase “appears to the court” as provided in Section 28 (1) in order to determine where his duty lay when considering the issue of costs. On page 29 commencing at line 1 the Magistrate says this of the phrase:
“Appears that case was…” Yes this worries me, because they say if it appears that it is unfounded, and “appear” is directly related to “looking at”, and when I look at it, you know, in light of what is before the court, as you say the threshold and — and, again, I don't want to step out of bounds, I can't tell the DPP what cases to bring, who to prosecute and who not to prosecute, but if they're simply willing to say “we offer no evidence”, full stop, then that is what I've got to look at”.
It would seem that when Mr. Doughty told the Magistrate that this phrase meant a low threshold, he was suggesting that a lower standard of proof was required by Section 28 and this seems to have been accepted by the Magistrate. If such is the case Mr. Doughty's view of Section 28 of the 1930 Act was misguided.
Firstly, there are only two standards of proof known to the law; the criminal standard and the civil standard. The granting of costs by contrast is an exercise of discretion on the part of the court and has nothing to be concerned with the standard of proof. All that the section requires is that a Magistrate consider all of the relevant facts including the submissions of counsel and if in his judgment the facts warrant it, he may in the exercise of his discretion make an order as to costs.
Secondly, although this is not strictly related to the law, I think it plain from a reading of the transcript that Miss Dill offered an explanation for the Prosecution not being in a position to offer evidence against the respondent. The Prosecutor's position was that in so far as they were aware they had a willing witness on the date of the laying of the information in plea court. When challenged about this at plea court they could not confirm the respondent's contention that no witness would be forthcoming as they had not received any communication from the police to that effect at the time of plea court.
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