Flood v R

• Jurisdiction: Bermuda
• Judgment Date: 08 August 2016
• Date: 08 August 2016
• Docket Number: Appellate Jurisdiction 2016 No 33
• Court: Supreme Court (Bermuda)

[2016] Bda LR 88

In The Supreme Court of Bermuda

Appellate Jurisdiction 2016 No 33

Between:

Terry Darrell Flood

Appellant

and

The Queen

Respondent

Mr P Sanderson for the Appellant

Mr K Swan for the Respondent

The following cases were referred to in the judgment:

Grant v R; Lambe v Miller[2012] Bda LR 17

Cox & Dillas v R [2008] Bda LR 65

Widdowson v Newgate Meat Corp (unreported CA 19 Nov 1997)

Nicholson v Brown [1974] RTR 177

Petty v Miller (Police Sergeant) [2012] Bda LR 87

R v Anderson [1972] EWCA Crim J0118–3

Grievous bodily harm — Driving taxi without due care and attention — Mitigating circumstances — Special reasons — Obligatory disqualification

JUDGMENT of Kawaley CJ

Background

1. The Appellant, who appeared in person below, on May 6, 2016 pleaded guilty in the Magistrates' Court (Wor Khamisi Tokunbo) to causing grievous bodily harm to Rozetta Augustus by driving his taxi without due care and attention on Church Street on November 23, 2015, contrary to section 37A of the Road Traffic Act 1947 (“RTA”).

2. The Prosecution case was that the complainant was riding a motor cycle which was stationary waiting for a green traffic light at the junction of Church and Parliament Streets when she was struck by the Appellant's vehicle from the rear at around 7.15 pm. Although it was dark, the collision occurred in a well-lit area when it was raining and the roads were wet. The complainant suffered a broken wrist, dental trauma and facial abrasions.

3. The mitigating circumstances advanced by the Appellant before the Learned Magistrate were his long driving history with a clean record and poor visibility due to weather conditions. I assume in the Appellant's favour that he additionally mentioned, as his counsel contended, that one of the two streetlights at the junction was not working.

4. The Learned Magistrate correctly, it is common ground, determined that a first offence under section 37A of the RTA carries an obligatory 2 years disqualification. Section 4 (1) (a) of the Traffic Offences (Penalties) Act 1976 (“TOPA”) came into play:

“(a) the word “obligatory”, the court shall order him to be disqualified for such period as is specified in that head as the period of obligatory disqualification in relation to that offence unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified…”

5. The appeal accordingly turned primarily on the question of whether the Learned Magistrate was wrong to conclude that (a) special reasons as that term of art is legally understood had not been established by the Appellant, and this was because (b) poor visibility imposed an added duty to take care on the Appellant rather than constituting a special mitigating factor. These questions were, in light of the authorities placed before the Court by counsel in the course of the hearing, not difficult to resolve. However Mr Sanderson advanced further arguments, potentially supported by somewhat indirect authority, which merited further consideration. These were the contentions, firmly disputed by Ms Swan, that the following mitigating factors also constituted “special reasons” in the requisite TOPA sense:

• i. the carelessness which occurred involved only momentary inattention; and

• ii. the injury suffered by the complainant fell at the lower end of the grievous bodily harm scale.

The legal parameters of special reasons

6. Ms Swan referred the Court by way of authority for the legal definition of the term “special reasons” to the following helpful and very pertinent statements by Ground CJ in Grant v R, Lambe v Miller[2012] Bda LR 17 at page 3:

• “8. The expression “special reasons” occurs in various provisions of the United Kingdom legislation dealing with disqualification. Apparently, there were divergent opinions on its meaning, as it was not statutorily defined, but these were resolved by the decision in Whittall v Kirby[1946] 2 All ER 552, a decision of the King's Bench Divisional Court presided over by the then Chief Justice, Lord Goddard. He endorsed the following statement of the law from R v Crossan[1939] 1 NI 106, at pp. 112, 113:

‘A “special reason” within the exception is one which is special to the facts of...