Cox v The Queen
| Jurisdiction | Bermuda |
| Judge | Hellman, J. |
| Judgment Date | 10 January 2014 |
| Court | Supreme Court (Bermuda) |
| Docket Number | 18 of 2013 |
| Date | 10 January 2014 |
Supreme Court
Hellman, J.
18 of 2013
Mr. Kamal Worrell, Lions Chambers, for the appellant.
Ms. Takiyah Burgess and Mr. Loxly L A Ricketts, DPP's Chambers, for the respondent.
Criminal Practice and Procedure - Appeal against conviction and sentence — Intruding on the privacy of a girl contrary to section 199(2) of the Criminal Code Act, 1907 — Whether the information was defective since the particulars alleged therein did not amount to an offence known in law — Whether the appellant was lawfully convicted or erroneously convicted.
On 16th 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.
During the course of argument the grounds of appeal were distilled to just two:
(1) That the information was defective, such that the particulars alleged did not amount to an offence known to law.
(2) 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.
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 information read as follows:
Davaun (sic) COX dob 06-Aug-84
Of: No Fixed Abode
OFFENCE
- On a day and date unknown between the 1st day of March 2012 and the 31st 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
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.]
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.
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. Bhagwan [1972] A.C. 60, HL; DPP v. Withers [1975] A.C. 842, HL. This is so even though no point is taken at the trial and the defendant pleaded guilty: R. v. Whitehouse [1977] Q.B. 868, 65 Cr.App.R. 33, CA.
By parity of reasoning this principle would apply with equal force to the facts stated in an information.
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].
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.
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.
For example, in R v. McVitie [1960] 2 Q.B. 483, E.W.C.A., 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 conviction. It noted the defendant had admitted that he knew he had explosives in his possession, and that it was conceded that he was not prejudiced by the omission. The Court held that the omission did not make the indictment bad, in the sense of invalid, but merely defective.
McVitie was cited with approval by the Court of Appeal in R v. Hodgson [2009] 1 W.L.R. 1070, EWCA. The defendants both pleaded guilty to one count of “inflicting grievous bodily harm, contrary to section 18 Offences against the Person Act, 1861” whereas the count should have alleged “inflicting grievous bodily harm with intent”.
Lord Philips, C.J., commenting on the defendants' arguments, stated:
These arguments were based on the premise that if the indictment does not spell out the mental element of a crime, it is to be read as if the crime has no mental element. That is a false premise. It may well be that, at least in the case of some offences, it is desirable practice to state the mental element of the offence in the indictment. But if the mental element is not stated expressly, it may be implicit from the statement of offence and the particulars that are given. In such a case the critical issue will be whether the indictment contains sufficient information as to the nature of the charge.
This proposition is well exemplified in the case of theft. The offence of theft requires the specific intent permanently to deprive the owner of the property stolen, but there is no requirement to spell this out in the indictment: …
The requirement in England and Wales that the indictment should contain sufficient information about the charge derives from section 3(1) of the Indictments Act, 1915. It is not limited to the mental element of an offence. The equivalent provision in Bermuda is section 477(1) of the Code:
An indictment shall be intituled with the name of the Supreme Court, and must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person, if any, alleged to be aggrieved, and as to the property, if any, in question, as may be necessary to inform the accused person of the nature of the charge.
Section 491 of the Code provides:
The provisions of sections 477 to 490 relating to indictments apply to informations preferred against offenders upon their trial before courts of summary jurisdiction.
In my judgment, what is necessary to inform the accused person of the nature of the charge is dependent on the particular facts of the case. Here, the prosecution case was that Mr. Cox approached the complainant while she was travelling alone on a bus, made inappropriately suggestive remarks and ogled her in a lewd way, then asked her where she lived and whether he could come home with her. The incident ended when the complainant got off the bus. It was implicit in the information that the prosecution were alleging that this conduct was objectively likely to cause alarm, insult or offence. I am therefore satisfied that the information complied with the requirements of section 477(1) of the Code. This ground of appeal is dismissed.
The trial began on 13th February 2013 when the complainant and her mother gave evidence. The court adjourned after the complainant had given her evidence in chief to allow Mr. Cox, who was unrepresented, to apply for Legal Aid. It appears that the Defendant submitted the relevant papers to the Legal Aid Office. However they had not yet been processed when the matter returned to court on 13th March 2013.
Following a short discussion about the legal aid position, Mr. Cox volunteered that he wanted to change his plea. The following exchange then took place.
Mr. Cox: Can I just plead guilty with an explanation?
Court: Do you understand what's going on sir?
Mr. Cox: Yes. But …
Court: All right. Just a minute. One question at a time. Yes or no. Right. Yeah. And you want to plead guilty to this?
Mr. Cox: With an explanation. Can I explain myself?
Court: Sir, you're always given the explanation, opportunity to explain yourself. But explaining yourself is something called different to um … um … pleading guilty. So you want to plead guilty?
Mr. Cox: Yes. With an explanation, sir.
Court: Okay. You will be given an opportunity.
Mr. Cox: All right.
Court: In light of that, what I am going to do is adjourn this matter for a week, if not, for a few days, and by that time we will have a Legal Aid counsel who should be able to handle a guilty plea on short notice without, you know, without...
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