Cox v R

• Jurisdiction: Bermuda
• Judgment Date: 10 January 2014
• Date: 10 January 2014
• Docket Number: Appellate Jurisdiction 2013 No 18
• Court: Supreme Court (Bermuda)

[2014] Bda LR 2

In The Supreme Court of Bermuda

Appellate Jurisdiction 2013 No 18

Between:

Devaun Jamal Cox

Appellant

and

The Queen

Respondent

Mr K Worrell for the Appellant

Ms T Burgess and Mr L Ricketts for the Respondent

The following cases were referred to in the judgment:

DPP v BhagwanELR [1972] AC 60

DPP v WithersELR [1975] AC 842

R v WhitehouseELR [1977] QB 868

R v McVitieELR [1960] 2 QB 483

R v HodgsonWLR [2009] 1 WLR 1070

R v Manchester Justices, ex parte LeverELR[1937] 2 KB 96

Richards v RELR [1993] AC 217

Intruding on the privacy of a girl — Appeal against conviction and sentence — Defective information — Sentenced on basis of change of plea, but plea was never changed — No conviction — Practice in Magistrates' Court

JUDGMENT of Hellman J

Introduction

1. On 16^th May 2013 before the Magistrates' Court (Wor Archibald Warner, Senior Magistrate) the Appellant, Devaun Cox (‘Mr Cox’), was sentenced to 3 years' imprisonment, to be followed by 2 years' probation, for the offence of intruding on the privacy of a girl contrary to section 199(2) of the Criminal Code Act 1907 (‘the Code’). He appeals against conviction and sentence.

2. During the course of argument the grounds of appeal were distilled to just two:

• i. That the information was defective, such that the particulars alleged did not amount to an offence known to law.

• ii. That Mr Cox was sentenced on the erroneous basis that he had changed his plea from ‘not guilty’ to ‘guilty’, whereas he had not changed his plea. He was therefore never convicted or alternatively was convicted on an erroneous basis.

3. I shall deal with each ground in turn. I should first record my gratitude to Mr Worrell, who appeared for the Appellant, and Ms Burgess and Mr Ricketts, who appeared for the Respondent, for their helpful submissions.

The defective information

4. The information read as follows:

Davaun (sic) COX dob 06-Aug-84

Of: No Fixed Abode

OFFENCE

On a day and date unknown between the 1^st day of March 2012 and the 31^st day of March 2012, in the islands of Bermuda, did intrude upon the privacy of a girl and did in fact alarm, insult or offend the girl, namely [the complainant].

Contrary to section 199(2) of the Criminal Code

5. Section 199(2) of the Criminal Code provides as follows:

‘Any person who intrudes upon the privacy of a woman or girl in such a way as to be likely to alarm, insult or offend a woman or girl and does in fact alarm, insult or offend the woman or girl whose privacy he intrudes upon is guilty of an offence, and is liable on conviction by a court of summary jurisdiction to imprisonment for five years and on conviction on indictment to imprisonment for a term not exceeding ten years.’ [Emphasis added.]

6. The information therefore omits an essential ingredient of the offence. The prosecution must prove not only that the defendant causes subjective alarm, insult or offence to the woman or girl whose privacy he intrudes upon, but that such intrusion was objectively likely to cause alarm, insult or offence. In other words, if the prosecution were to prove only the facts particularized in the information, but no more, Mr Cox would not be guilty of any offence.

7. I was initially attracted by the argument that in those circumstances the facts stated in the information would not amount to an offence known to law. The consequences of such a finding in relation to an indictment would be as stated in the 2014 edition of Archbold at paragraph 7–74:

‘Where the facts stated in the indictment do not amount to an offence known to law, the conviction will be quashed: DPP v BhagwanELR[1972] AC 60, HL; DPP v WithersELR[1975] AC 842, HL. This is so even though no point is taken at the trial and the defendant pleaded guilty: R v WhitehouseELR[1977] QB 868, 65 CrAppR 33, CA.’

8. By parity of reasoning this principle would apply with equal force to the facts stated in an information.

9. In Bhagwan and Withers the indictments contained a statement of an offence not known to law, namely conspiracy to evade the control on immigration imposed by the Commonwealth Immigrants Act 1962 [Bhagwan] and conspiracy to effect a public mischief [Withers].

10. In Whitehouse the indictment contained two counts of incitement to commit incest. This was an offence known to law. However the conduct alleged in the particulars was not capable of amounting to that offence. The defendant was charged with inciting his daughter to commit the crime of incest, but as the law deemed his daughter to be incapable of committing that crime, the defendant could not be guilty of inciting her to commit it.

11. However the courts have distinguished between an indictment that discloses no known offence, as in the examples cited above, and one that, like the information in the present case, describes a known offence with incomplete particulars.

12. For example, in R v McVitieELR[1960] 2 QB 483, EWCA, the defendant was convicted of possessing explosives, contrary to section 4(1) of the Explosive Substances Act 1883. The particulars alleged that the defendants ‘had in their possession a certain explosive substance … under such circumstances as to give rise to a reasonable suspicion that it was not in their possession for a lawful object’. As the Court of Appeal accepted, the particulars should have alleged ‘knowingly had in their possession’. However the Court declined to allow an appeal against...