Dennis Robinson v The Director of Public Prosecutions

• Jurisdiction: Bermuda
• Judge: Delroy Duncan
• Judgment Date: 13 September 2019
• Neutral Citation: [2019] SC Bda 60 Civ
• Docket Number: CIVIL JURISDICTION
• Court: Supreme Court (Bermuda)
• Date: 13 September 2019

[2019] SC (Bda) 60 Civ

In The Supreme Court of Bermuda

Before:

The Hon. Assistant Justice Delroy Duncan

CIVIL JURISDICTION

2019: No. 061

IN THE MATTER OF ORDER 114 OF THE RULES OF THE SUPREME COURT OF BERMUDA

Between:

Dennis Robinson

1 ^st Plaintiff

Rebecca Wallington

2 ^nd Plaintiff

and

The Director of Public Prosecutions

1 ^st Defendant

The Attorney General

2 ^nd Defendant

Appearances:

Mr Mark Pettingill and Ms Victoria Greening, Chancery Legal Limited, for the Plaintiffs

Ms Tanaya Tucker, The Attorney General's Chambers, for the Defendants

Constitutional right to be tried within a reasonable time section 6 (1) of the Bermuda Constitution — Delay between charge and conclusion of retrial — calculation of delay — relevance of complexity of the case — conduct of the defence and the judicial and administrative authorities — relevance of time in custody due to revocation of parole — the test for prejudice suffered — remedies for delay

Introduction

1 In this case, both Plaintiffs complain that the criminal justice system in Bermuda has taken too long to hear and determine the charges they face in the Magistrates' Court. They claim that being subjected to a retrial following their aborted first trial is an abuse of process of the court. They seek a permanent stay of the criminal charges.

2 The facts of this case are unusual in so far as they concern the First Plaintiff. The First Plaintiff seeks a stay preventing his retrial because even though he was granted bail for the charge he faces, that charge led to the Parole Board revoking his parole. His counsel Mr Pettingill and Ms Greening allege the consequence of the revocation of his parole is that the First Plaintiff has served and continues to serve more time in custody awaiting retrial than he would serve if he were convicted of the offence for which he has been charged.

3 The position the First Plaintiff finds himself in is unusual. However, in the case of Shane McCoy Smith v The Minister of Health and Social Services and The Commissioner of Prisons (2 April 1996) Civil Jurisdiction 1996 No.19, former Chief Justice Richard Ground anticipated the problem the First Plaintiff now faces when he made the following prescient remark:

“When the reason for recall is pending criminal charges in respect of some offence alleged to be committed while on licence, I do not think the Minister need wait until the Court has disposed of those charges. To do so might well defeat the whole process if the trial is delayed as it often maybe.”

Chief Justice Ground repeated the same caution in the case of Trott v The Parole Board, The Commissioner of Prisons and the Minister of Health and Social Services [2004] Bda L.R. 54 at page 3.

The Constitutional Application

4 The Plaintiffs filed their Originating Motion under section 15(1) of the schedule to the Constitution of Bermuda (“the Constitution”). Both Plaintiffs claim that the Defendants are in contravention of section 6(1) of schedule 2 of Chapter 1 of the Constitution. They seek an order declaring criminal case 17CR00039 unconstitutional and dismissal of the case.

5 In paragraph 9 of the Originating Motion, the Plaintiffs contend they have a right to be heard “within a reasonable time”, and there has been a contravention of this fundamental and Constitutional right. And in paragraph 10, the First Plaintiff contends he has been in custody waiting to be tried for a longer period than he would serve if he were convicted of the offence for which he has been charged.

6 The Defendants, represented by Miss Tucker, roundly reject the Plaintiffs' claim to have their retrial dismissed. First, they contend that the period of time which has elapsed before the conclusion of the criminal trial should not give the Court grounds for real concern. However, if the Court does have real concerns that the period of time is excessive, then the court should look into the detailed facts and circumstances of the case by considering the procedural history of the matter and the nature and extent of the delay. The Defendants contend such an examination will establish the delay was not caused by the Crown and in some instances was caused by the Plaintiffs' counsel. Consequently, the application should be refused.

Factual Background and Procedural History

7 The parties agreed the relevant factual background set out in the affidavit of Senior Crown Counsel Alan J. Richards sworn on 4 April 2019, and repeated in their respective skeleton arguments. I set out the full extensive chronology of events here which will be relevant to the points of law I am required to address in this application:

15 November 2016	Plaintiffs arrested together. Both Plaintiffs charged with possession with intent to supply 418.7 grams of cannabis. Plaintiff Rebecca Wallington charged with simple possession of 4.93 grams of cannabis.
16 November 2016	Plaintiff Dennis Robinson, having been released on license by the Parole Board, was recalled and has been in custody awaiting the outcome of this case since his arrest.
2 February 2017	Defendants due to appear in Plea Court. Wallington appeared, entered a plea of not guilty and elected to have a summary trial. Robinson was not produced by the Westgate Correctional Facility. Trial Date fixed for 13 th April 2017
9 February 2017	Mentioned to allow Defendant Robinson to enter a plea. Robinson entered plea of not guilty and consented to summary trial. Both Plaintiffs granted bail.
28 February 2017	Mention in Magistrates' Court for additional disclosure and directions hearing. Counsel for Defendants sought to have trial date of 13 th April 2017 changed due to medical leave requested by Shawn Crockwell. New date set for 9 th June 2017 and 12 th June 2017.
6 June 2017	Shawn Crockwell, Counsel for Defendants Wallington and Robinson submitted written request for adjournment as he was due to be in the House of Assembly on 9 th June 2017 and off island thereafter attending to an urgent matter.
9 June 2017	Trial due to commence. Counsel for Defendants not present. Counsel from firm held to seek an adjournment. Worshipful Warner not sitting on fixed trial date. Listed matter for 4 th July 2017.
30 June 2017	Victoria Greening wrote to advise she was new counsel for Wallington and had only just received the papers from former Counsel that afternoon. Indicated she would be seeking an adjournment on next occasion. Victoria Greening was not in receipt of full disclosure and files from the DPP and contends the Police had taken Shawn Crockwell's files and requests the file from the DPP.
4 July 2017	Counsel for all parties appeared in Court. Counsel for Wallington informed the Court that she had not yet received all of the material from Chancery Legal. Court ordered that Defence Statement be provided by 14 August 2017. Counsel for Robinson informed the Court that some of the material for Wallington is at the home of Shawn Crockwell, and accepted responsibility for not completing the disclosure to Ms Greening. Court listed matter for trial on 17 and 18 October 2017.
31 July 2017	While still employed by Wakefield Quin, Victoria Greening writes to the Department of Public Prosecutions on behalf of Rebecca Wallington seeking a full set of disclosure, including all interview discs and body cam evidence.
17 October 2017	Trial did not proceed. Adjourned for Mention on 31 October 2017.
31 October 2017	Set for trial on 24 January 2018. Mr Richard Horseman held for Ms Greening.
15 November 2017	Chancery Legal write to the Parole Board on behalf of Dennis Robinson asserting their client was recalled because he was charged with a criminal offence despite the co-accused Wallington acknowledging responsibility in Court. The letter complains Robinson has been granted bail, but is imprisoned as a result of the recall and invites the Parole Board to release Robinson on license so he can remain on bail until completion of trial.
24 January 2018	Trial unable to proceed because Counsel for Robinson and Crown Counsel Richards were in a jury trial before the Supreme Court.
31 May 2018	Trial commenced before Worshipful Warner in Magistrates' Court. Matter did not complete and was adjourned overnight.
I June 2018	Evidence complete and trial adjourned for closing submissions.
28 June 2018	Matter listed for closing submissions. Both Defence Counsel unavailable for this date. Matter was relisted.
II July 2018	Matter listed for closing arguments. Unheard due to Counsel for Robinson and Crown Counsel Richards before Supreme Court for jury trial. Matter adjourned to 18 July 2018.
18 July 2018	Closing submissions heard. Listed for Judgment on 17 August 2018.
17 August 2018	Worshipful Magistrate Warner indicated that Judgment was not yet ready. Matter adjourned until 28 September 2018.
28 September 2018	Worshipful Magistrate Warner indicated that Judgment was not yet ready. Matter adjourned until 11 October 2018.
5 October 2018	Worshipful Magistrate Warner formally advised Court that he had become aware of a conflict (previously explicitly notified to all Counsel in private) and recused himself from the proceedings.
23 October 2018	Crown Counsel Richards wrote to Senior Magistrate to explain history of proceedings and requested that the matter be mentioned before another Magistrate so that a fresh trial counsel be listed.
6 December 2018	Matter mentioned before Magistrate Tokunbo. Trial date fixed for 29 January 2019.
28 January 2019	Court and Department of Public Prosecution sent a copy of draft Originating Summons regarding Constitution motion.
29 January 2019	Matter listed for trial before Senior Magistrate. Ms Greening (now of Chancery Legal) holding matter for Mr Pettingill who was said to be unwell. Matter adjourned until 15 March 2019 for update regarding Originating...