DPP v Roberts

• Jurisdiction: Bermuda
• Judgment Date: 24 March 2006
• Date: 24 March 2006
• Docket Number: Civil Jurisdiction 2003 No. 263
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2003 No. 263

BETWEEN:

Director of Public Prosecutions

Plaintiff

and

Kirk Thomas Roberts

Defendant

Ms P Tyndale and Ms C Clarke for the Plaintiff

Mr K Durrant for the Defendant

The following cases were referred to in the judgment:

R v SonejiUNK [2005] 4 All ER 321

Re MundyBDLR [2004] Bda LR 59

R v SekhonWLR [2003] 1 WLR 1655

R v KnightsUNK [2005] 4 All ER 347

Wang v Inland Revenue CommissionUNK [1995] 1 All ER 367

Charles v Judicial and Legal Service CommissionUNK [2003] 2 LRC 422

Proceeds of Crime Act 1997, s. 11

Confiscation order — Procedural irregularities — Time limits

JUDGMENT of Kawaley, J

Introductory

1. On February 20, 2006, the Plaintiff's application for a confiscation order under section 9 of the Proceeds of Crime Act 1997 was listed for hearing for three days. At the commencement of the hearing, Ms. Tyndale informed the Court that the Crown had doubts about the Court's jurisdiction to entertain the application. Defence Counsel in written submissions helpfully supplied to the Court well in advance of the hearing had complained about delay on the Director's part without seeking any positive relief in relation thereto.

2. The hearing was adjourned until the afternoon when Senior Crown Counsel handed in certain authorities to the Court together with a chronology of the proceedings, and sought an adjournment until February 22, 2006 to further research the matter. She indicated that the Attorney-General had requested the Director of Public Prosecutions, who had informed him of the possibly eminent collapse of an important case, to explore means of saving the application. It is unclear why this informal interchange was communicated to this Court. The Director of Public Prosecutions was clearly obliged in all the circumstances to seek to save the application, notwithstanding her duty as an office of the court to fully and frankly disclose any fundamental flaws in her case.

3. On February 21, 2006, the Plaintiff's Counsel supplied the Court with further recent English authorities, which contradicted the previous decisions” clear effect that the procedural errors that had occurred were fatal to the Plaintiff's ability to proceed. The recent House of Lords decision in R v SonejiUNK[2005] 4 All ER 321 appeared to provide compelling authority for the view that, contrary to the position adopted in various earlier eminent authorities: (a) the Court was under a positive duty to make a confiscation order wherever possible, and (b) procedural irregularities in the course of the confiscation proceedings did not deprive the Court of the jurisdiction to make an order.

4. Ms. Tyndale on the morning of February 22, 2006 addressed the Court on the preliminary jurisdictional issue, with reference to the history of the proceedings, the admitted procedural irregularities and the applicable law. Mr. Durrant elected not to respond to these submissions, reserving the right to do so, if so instructed, at the appellate level. I ruled that the Court had jurisdiction to make a confiscation order and that there were no discretionary grounds for refusing the application without regard to the merits.

5. In light of the complexity of the applicable law and (from a Bermudian perspective) its novelty, together with the public importance of clarity as to how such applications should be dealt with in the future, I indicated that I would furnish reasons for the decision to proceed to hear the case on its merits. Those reasons are accordingly set out below.

6. Section 11 of the Proceeds of Crime Act 1997, based on virtually identical United Kingdom counterpart provisions, essentially provides that a confiscation application must be heard within six months of the defendant's conviction unless in exceptional circumstances the court postpones such hearing for a specified period beyond the six months time limit. Where a court postpones the determination of a confiscation application pending an appeal, the hearing must take place within the three months following the determination of the appeal unless the court finds exceptional circumstances justifying a postponement beyond this further time limit.

7. What consequences flow from non-compliance with these rigid time-limits, an issue which has vexed the English courts for several years, is the legal question upon which the preliminary jurisdictional issue turned.

The history of the proceedings

8. On July 8, 2002, the Defendant was convicted of conspiracy to import controlled drugs into Bermuda. The Crown on that date orally applied for a confiscation order under section 9 of the Proceeds of Crime Act 1997. Mr. Pettingill at this juncture was acting for the Defendant. On July 17, 2002, the Defendant filed a Notice of Appeal against his conviction, and on July 18, 2002 the application for a confiscation order was adjourned sine die by the trial judge, Wade-Miller J.

9. On January 6, 2003, the Chief Justice on the Crown's application (but effectively by consent) postponed the application beyond the six months time-limit and ordered that the matter be re-listed within 14 days of the disposition of the appeal. At this juncture, Mr. Bailey was acting for the Defendant. The Defendant's appeal was dismissed by the Court of Appeal on June 20, 2003, and the Crown sought to have the matter listed within the next fourteen days as prescribed by the January 6, 2003 Order.

10. In the event, on July 4, 2003, the Plaintiff filed a formal application under section 9 for the first time (supported by the First Prosecution Statement sworn and filed on the same date), which application was not heard until August 6, 2003, well within the three months statutory time limit. In the interim, the Defendant on July 23, 2003 had filed notice of an application for special leave to appeal to the Privy Council.

11. On August 6, 2003, Simmons J acceded to the consensual application, made formally by the Plaintiff, and postponed the application to be re-listed after the determination of the appeal to the Privy Council ‘so long as the application for relisting is made within the statutory time frame provided for in section 11(6) of the Proceeds of Crime Act 1997’. Mr. Bailey was still acting at this point.

12. Thus far, the Plaintiff's case was, to all appearances at least, “gremlin free”. But the problems began, and multiplied in the following way. Firstly, the Privy Council dismissed the Defendant's appeal on December 18, 2003. Formal notification of this decision was issued by the Judicial Committee on February 11, 2004, but not formally notified to the Plaintiff until March 4, 2004, on which date the Plaintiff promptly applied to re-list the confiscation application for hearing.

13. Secondly, and more crucially, the three month time-limit prescribed by section 11(6) of the Act very arguably expired on March 18, 2004. Yet the Plaintiff did not insist on a date before that deadline. The matter was fixed for March 24, 2004, and the Court was asked merely to compel the Defendant to supply further information within 28 days. Crown Counsel is recorded as having referred to the three months time-limit, but declined the Chief Justice's invitation that the application be listed for hearing immediately after the 28-day disclosure period expired.

14. No application was made on the grounds of exceptional circumstances to postpone the determination of the application beyond the three months time-limit fixed by at the March 24, 2004 hearing. To the extent that it might have been arguable that the three months period expired within three months of the date when the Privy Council formally pronounced its decision, May 11, 2004, no application was made within such extended period. Nor indeed was any postponement application made within three months of March, 2004 when the Plaintiff was first formally notified of the dismissal of the appeal1.

15. On April 20, 2004, within the 28 day time period, the Defendant (seemingly acting in person) filed in the Registry a response to the Crown's information request dated April 19, 2004. He attached a letter to Inter-Rights and implied he was pursuing an ‘appeal’ to the European Court of Human Rights. Mr. Pettingill had appeared on March 24, 2004, but never formally came back on the record.

16. The matter in fact remained, it would seem, in a state of suspended animation until August 26, 2004 when the Crown applied to restore the application. On July 4, 2004 however, the Defendant had pleaded guilty to a charge of handling cannabis (severed from the indictment on which he had previously been tried) and was sentenced to four years imprisonment.

17. Had the Crown considered that the subsisting confiscation application was potentially time-barred, a fresh application could have been made on July 4, 2004. in fact, the Plaintiff's Counsel admitted that the Police had requested that such an application be made. On August 30, 2004, the Second Prosecutor's Statement was sworn but neither filed nor served. (It was eventually filed in Court on January 20, 2005, and possibly served on or about that date as well).

18. The application was next heard on September 22, 2004 when the Chief Justice further adjourned the matter (to a date to be fixed by the Registrar) on the grounds of exceptional circumstances. The Defendant (who was now appearing in person) rightly claimed to have duly filed his response. But the papers were not at that point (the court file reveals) on the correct court file2, and clearly had not been served, so he was given a further 28 days to respond.

19. On October 7, 2004, Browne Scott came on the record, and on October 18, 2004, the Defendant's further response was duly filed. On November 12, 2004, the fourth and fifth prosecution statements were sworn. A third party application filed by Capital G Bank was due to be heard on October 18, 2004, but this date was...