Fubler and Others v Attorney General and Commissioner of Police 1994 Civil Jur Nos 53–63

• Jurisdiction: Bermuda
• Judgment Date: 18 July 1994
• Date: 18 July 1994
• Docket Number: Civil Jurisdiction 1994 Nos. 53 to 63
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Ground, J

Civil Jurisdiction 1994 Nos. 53 to 63

BETWEEN

Joanne Elizabeth Fubler

Vincent Rowland Chesterfield

Bridgewater

Curtis Denzil Simons

Tillman Denzil Simons

Tillman Donahue Darrell

Scott O'Brien Morton

David Anthony Brangman

Esmie Isaac

Cordell Isaac

Vincent Basden Tuzo

Ronald James Raynor

Mark Gregory Tucker

Applicants

-and-

The Attorney General

First Respondent

and

The Commissioner of Police

Second Respondent

Mr. John Perry QC for the applicants: and

The Solicitor General for the respondents.

R v Horseferry Road Maistrates, ex parte BennettELR [1994] 1 AC 42

Grant v DPP of JamaicaUNK (1980) 30 WIR 279

R v IRC ex parte RossminsterELR [1980] AC 952

Reynolds v Metropolitan Police CommissionerELR [1985] 1 QB 881

R v Leeds Magistrates Court ex parte DumbletonUNK [1993] CLR 866

Frank Truman Exports Ltd v Metropolitan Police CommissionerELR [1977] QB 952

Marcel v Commissioner of Police of the MetropolisUNK [1991] 1 All ER 845

Drug Trafficking Suppression Act 1988

Bermuda Constitution Order, s. 15

Breach of constitutional rights — Search of law practice's offices — Pending criminal proceedings — Legal professional privilege — Freedom from unlawful search and seizure

JUDGMENT

INTRODUCTION

Each of the applicants has applied by separate Originating Summons pursuant to RSC Order 114 and section 15 of the Constitution of Bermuda (‘the Constitution’) for declaratory relief and for orders that the various different criminal proceedings pending against each of them be dismissed or restrained on the basis of the alleged breach of certain specified constitutional rights. The various applications all arise out of one incident, namely the search by police officers on 22nd October 1993 of the offices of the law practice of Messrs. Hall & Associates at 69 Front Street, Hamilton. (This practice is not a partnership, but consists of the proprietor, Mr. Julian Hall, and his three associates.)

The point of law in each application is identical, and they were therefore' consolidated by order of Wade J on 31st March 1994, and come before me in that form. The judge in fact ordered that all the applications concerning indictable offences be consolidated into one matter, and the summary offences into another, but that has never been embodied in the Court documents. At the outset the Solicitor General suggested that I only deal with the applications relating to indictable matters, which he identified as those on behalf of Fubler, Bridgewater and Brangman, and postpone consideration of the remainder. However, I did not see any real distinction between the two groups of applications, and I directed that both proceed together. I have made no distinction between these categories in this judgment, as I remain of the view that there is no material distinction in the principles to be applied.

The search of which complaint is made was carried out pursuant to two warrants obtained from a Magistrate under the provisions of section 31(2)(c) of the Drug Trafficking Suppression Act 1988. The validity of the warrants and the legality of the search has been challenged in a separate application, but on 1st July 1994 the warrants were upheld by a unanimous decision of the Court of Appeal. The reasons for that decision have not yet been given, but for the purposes of this judgment all that matters is that the warrants were lawful. The first warrant was obtained on 21st October, the day before the search, and the second was obtained during the course of it. Each was obtained on the basis of an allegation against the proprietor of the firm, Mr. Hall, and specified material relating to various named entities and individuals. None of the applicants, nor any enterprise with which they were associated, was among the individuals and entities identified in the warrants.

Prior to the search each of the applicants had retained Messrs. Hall & Associates as their defence attorneys. The evidence on this does not come from the applicants themselves, as none of them have sworn affidavits in support. Instead, it is said on their behalf by Steven Gibbons, the practice's financial controller, that—

‘… the private and confidential file compiled by the legal professional personnel of Hall & Associates in preparing the defence(s) of the … applicants … were situated within the areas in which the police officers conducted their extensive file search. Although I am unable o say (as regards any specific file) that I directly witnessed its perusal by these police officers, I do say that these applicants ' files were in all probability read and/or perused and/or speed scanned by them. I say further that these said files contained at the time of such perusal confidential information communicated by these applicants or on their behalf to professional legal personnel of Hall and Associates for the purpose of preparing their individual defences.’

On that basis the applicants claim that their Constitutional rights have been infringed. In particular they say that the infringement affects their rights to a fair hearing (s. 6(1)); to be given adequate time and facilities for the preparation of their defence (s. 6(2)(c)); to defend themselves by the counsel of their choice (s. 6(2)(d)); to be afforded facilities to examine by counsel the witnesses called for the prosecution on the same conditions as those applying to witnesses called by the prosecution (s. 6(2)(e)); and to be protected from the unlawful search of their property, being their defence files (s. 7).

The evidence on behalf of the applicants is contained in affidavits sworn by Mr. Gibbons and by the practice's office administrator, Ms. Stephanie Butler. These affidavits were originally filed in the proceedings challenging the validity of the warrants, but they have been introduced into these proceedings by being exhibited to a covering affidavit from each of the deponents. On behalf of the respondents there was affidavit evidence from four of the officers involved in the search, being Supt. Rose (who was in charge), two detective sergeants, and the detective constable who did the actual searching. Each deponent attended before me and was cross-examined on his affidavit evidence. The review of the facts which follows embodies my findings based upon this evidence, although I have only made specific findings where there was a dispute as to a significant matter.

THE FACTS

Shortly before 9 am on 22nd October 1993 the police attended at the offices of Hall & Associates with the search warrant dated 21st October 1993 (‘the first warrant’). The practice's financial comptroller Mr. Gibbons found them in the reception area on his arrival, and they produced the warrant to him. There followed a telephone conversation with Mr. Hall at home, as a result of which Mr. Gibbons was instructed by Mr. Hall co-operate with the search. Mr. Hall did not himself come to the office during the search, and it was Mr. Gibbons who assumed responsibility on behalf of the practice for managing the office during the course of it. There were certain of the associates on the premises at various times, but they did not actually attend the search.

Having been instructed by Mr. Hall to co-operate, Mr. Gibbons then went to the file room and produced to the officers from the live files section a file entitled ‘Elmhurst Productions,’ which was plainly responsive to the warrant. Supt. Rose, the officer in charge, then insisted on searching the file room, ostensibly for any files that had been misplaced or misfiled.

The file room contained both the current and the closed files of the practice. These were held in filing cabinets. There were three cabinets with the live files, each consisting of 4 drawers, making twelve draws in all. In all in that room there were three cabinets with three draws, six with four draws and one with two draws. Everyone accepts that there were a lot of documents in the room—in fact the firm had 1369 file titles, including both live and dead, civil and criminal, although some would be out at the time.

There is some conflict over the course of this search. The police officers maintain that there was one searching officer, D. C. Wormall, who went through the drawers of the various filing cabinets in the file room looking only at the name tags on each file. The purpose of this, according to him, was to ascertain whether any files had been placed in the cabinets out of alphabetical order. During this process D.S. Arnfield stood by to note the names of any relevant files. When D.C. Wormall came upon a relevant file heading he says he would look briefly at the file simply for the purpose of checking that the file had something in it. Mr. Gibbons on the other hand says that on occasion, during the short time that he remained in the room during this process, D. C. Wormall looked at the covers of the files, as if to compare their names with the visible file tags. Ms. Butler, the office administrator, who also functioned as Mr. Hall's secretary, was present during much of this search, having been directed to oversee it by Mr. Gibbons from about 9.15 am, shortly after her arrival. Her evidence was that D.C. Wormall went further. Before me, she said that on occasion he would open a hanging folder and leaf through the file inside while it was still in the folder, and on occasion he would lift out a file or a piece of paper. Occasionally he would nod to Arnfield who would walk over and have a look and either make a note or nod to him to continue. When that happened the officers would spend a minute or so on what they were reading. Ms. Butler asserts that, during the search of the live files, this happened about once per draw. In her second affidavit she had stated that she witnessed what clearly appeared to me to be the reading of the contents of several files by these officers: having seen her cross-examined I have no doubt that that was an overstatement and...