Cox (Police Constable) v Butterfield

JurisdictionBermuda
Judgment Date01 July 2008
Docket NumberAppellate Jurisdiction 2006 No. 17
Date01 July 2008
CourtSupreme Court (Bermuda)

In The Supreme Court of Bermuda

Simmons, J

Appellate Jurisdiction 2006 No. 17

BETWEEN:
Angela Cox (Police Constable)
Appellant
and
Robert Llewellyn Butterfield
Respondent

Mr C Mahoney for the Appellant

Mr A Doughty for the Respondent

The following cases were referred to in the judgment:

Drepaul v BisrottUNK (1995) 54 WIR 242

Sylvan v Ragoonath and othersUNK (1966) 11 WIR 33

Mohit v Director of Public Prosecutions of MauritiusWLR [2006] 1 WLR 3343

English v Emery Reibold & Strick LtdWLR [2002] 1 WLR 2409

Froomkin v RBDLR [1990] Bda LR 16

Whitter v Director of Public ProsecutionsBDLR [2002] Bda LR 33

Appeal against order for costs — Discretion — Void for lack of enforceability — Adequate reasons

JUDGMENT of Simmons, J

1. 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.

2. 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:

  • i. whether costs were awarded according to statute, in particular with any or adequately stated reasons;

  • ii. 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;

  • iii. whether an order for cost against the Appellant is void for lack of enforceability

The factual background

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

Arguments Of Counsel

10. 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 BisrottUNK(1995) 54 W.I.R. 242; Sylvan v Ragoonath and OthersUNK(1966) 11 W.I.R. 33).

11. 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.

12. 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...

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