Cox (Police Constable) v Ross
| Jurisdiction | Bermuda |
| Judgment Date | 18 September 2009 |
| Date | 18 September 2009 |
| Docket Number | Appellate Jurisdiction 2006 No. 9 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Appellate Jurisdiction 2006 No. 9
Ms C Clarke for the Appellant
Respondent did not appear
R v Deegan [1998] 2 Cr App R 121
Harris v DPP, Fehmi v DPP (1993) 95 Cr App R 235
Cox v Cox (Police Constable) [2008] Bda LR 65
R v Johnson [2004] Bda LR 63
Possession of a bladed weapon - Appeal against acquittal - Whether a folding pocketknife was a bladed weapon - Blade less than 3" long - Discretion of judges in mandatory sentencing
JUDGMENT of KAWALEY, J
1. On February 23, 2006, following a no case submission, the Respondent was acquitted by the Magistrates' Court (Worshipful Archibald Warner, Senior Magistrate) of a single offence of possessing a bladed article contrary to section 315C(1) of the Criminal Code. The particulars alleged that he was in possession of "a black handled lock knife, with a cutting edge of 2.5".
2. On March 6, 2006, the Informant appealed this decision on the grounds that the Learned Senior Magistrate erred in law in (a) ruling that a lock knife with a blade of less than 3" in length was a "folding pocketknife" and therefore not caught by section 315C (3) of the Act; and (b) declining to treat as persuasive English authorities relied upon by the Crown. In counsel's May 28, 2009 'Submissions for the Appellant', an undertaking was given not to seek a retrial if the appeal was allowed.
3. Accordingly, although the Respondent initially appeared in person at the hearing, he took no further part in the appeal once it was made clear that his acquittal was not being challenged in substantive terms. The less than ideal result is that the Crown are seeking in an unopposed appeal hearing to challenge on legal grounds a conclusion reached in the Court below following a fully argued contested hearing at which counsel appeared for both the Informant and the Defendant.
4. At about 1.15 am on January 29, 2006, the Police carried out a search for weapons at a Hamilton night club. The Respondent was found to be in possession of a knife which was produced in evidence as Exhibit 1. He only came to the attention of the searching officers because he appeared to be concealing what turned out to be a bottle of champagne. His employer confirmed that the Respondent was a technician who was required to use such a knife daily with his work and was a very reliable employee.
5. Ms. Elizabeth Christopher for the Respondent submitted that the knife in question was a folding pocketknife and that it was not caught by section 315C (3) because the blade was less than 3" long. It was accepted by Ms. Vaucrosson for the Crown that the blade was 2 " long, but contended (in reliance on English authorities considering an identical statutory wording) that the knife in question fell outside the exception
because its blade was fixed (once opened) and would only fold if a button was pushed. The authorities cited were Archbold 2006, Chapter 24 paragraph 128; R v Deegan[1998] 2 Cr App R 121; Harris v DPP, Fehmi v DPP(1993) 96 Cr App R 235. Ms. Christopher responded by arguing that the Bermuda statutory provisions ought to be interpreted differently because their far more severe penalty provisions. This required any ambiguities to be resolved in favour of the accused.
6. In his careful Judgment, the Learned Senior Magistrate concluded in material part as follows:
"Crown counsel has referred me to 2 authorities on the English legislation (1) Harris v DPP; Fehmi v DPP; and (2) Desmond Garcia Deegan (Deegan) in which (Harris and Fehmi) were dealt with.
In Deegan it was held that to be a folding pocket knife within the exception provided by S. 139 of the Criminal Justice Act 1988 (see Sec 315C (1) in 'the blade had to be readily and immediately foldable at all times simply by the folding process'. Notwithstanding this finding above by the Court of Appeal Waller, L.J. said about S 139 of the Criminal Justice Act 'I also believe that the legislation is ambiguous and that the liberal interpretation is liable to lead to an absurdity.'
I note that Harris and Fehmi is an English Divisional Court decision and Deegan is an English Court of Appeal decision. Thus both of these Courts are persuasive only in the Bermuda Courts.
In my view this S 315C (1) (our legislation) lends itself to more than one interpretation. In the circumstances of this case at bar and Waller, L.J.'s comments mentioned earlier, this case (this legislation) cries out for the applicants interpretation of "the principle against doubtful penalization".
This principle states, 'It is a principle of legal policy that a person should not be penalized except under clear law.' The Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which penalizes a person where the legislator's intention to do so is doubtful, or penalizes him in a way which was not made clear. [Bennion]
As in the mirrored English legislation, I am of the view that the intent of Bermuda legislation is to prevent the carrying of fixed blade knives, not knives like the one in this case which I describe as pen knives which have devices for folding blades for reasons of safety.
In my construction I must also be careful to balance any criteria in our legislation favoring the public good against the principle of doubtful penalization. There is no evidence before the Court regarding the public good benefit to the community as a whole of S 315C (1).
It should be noted that there is no statutory definition of a folding pocket knife in our legislation nor in the English Legislation. Like Waller, L.J. in Deegan I am of the view that this S 315C (2) is ambiguous and a strict interpretation would lead to absurdity. (I will therefore employ the principle against doubtful penalization in the interpretation of S 315C (1)).
I am further fortified in my interpretation by [Bennion] at page 572. 'Whenever it can be argued that an enactment has a meaning required infliction of a detriment of any kind, the principle against doubtful penalization will come into play. If the detriment is minor the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful.' Under S 315C (2) the penalty for carrying a bladed weapon is a mandatory minimum 3 years imprisonment.
Thus in all the circumstances I am not bound, nor am I persuaded, by the English authorities cited. On interpretation of S 315C (2) of the Criminal Code Amendment Act, I rule that the knife Exhibit #1, the subject of this charge, is a folding pocket knife within the exception of S 315C (1) of the Criminal Code Amendment Act 2005. There is a major distinction between folding pocket knives such as Exhibit #1, i.e., pen knives which carry locking devices for safety and other knives with blades, which slide out, or flick or operate on centrifugal force, and which locks in the fixed position."
7. Ms. Clarke for the Appellant essentially relied upon the same authorities relied upon at trial. She submitted that whether a particular item is a bladed article for the purposes of the statute was a question of law for the judge to decide. The Bermudian statute, save for the penalty provisions, mirrored section 139 of the UK Criminal Justice Act 1988. In the absence of a statutory definition in either provision, reference to the common law was required. In the absence of contrary authority, the English case law's definition of what constitutes a "folding pocket knife" should be followed in Bermuda. The essence of this reasoning was that an exempted knife must be able to fold manually without recourse to any locking mechanism such as a button. She accepted that while the legislative history in the UK had been referred to in one of the English cases, no comparable legislative history existed in Bermuda.
8. Counsel also submitted that no evidence was led in relation to the locking mechanism of the knife at trial. This is correct as far as oral testimony recorded...
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