Gardner and Durrant v DPP

• Jurisdiction: Bermuda
• Judgment Date: 01 June 2005
• Docket Number: Civil Jurisdiction 2005 No. 93
• Date: 01 June 2005
• Court: Supreme Court (Bermuda)

In the matter of s. 15 of the Bermuda Constitution Order 1968

Between:

Javon Ernest Gardner

1^st Plaintiff

and

Kenneth Sinclair Durrant

2^nd Plaintiff

and

The Director of Public Prosecutions

Defendant

[2005] Bda L.R. 21

Civil Jurisdiction 2005 No. 93

Criminal Jurisdiction 2005 No. 18

In The Supreme Court of Bermuda

Procedure — Practice — Long form preliminary inquiry — Voluntary bill of indictment — Whether unconstitutional — Conspiracy charge — Whether judge of supreme court can review decision of another — Right to fair trial

The following cases were referred to in the judgment:

R v Raymond [1981] 2 All ER 246

R v Manchester Crown Court ex parte Williams and Simpson [1990] Crim LR 654

R v Crown Court at Snaresbrook ex parte Director of the Serious Fraud Office The Times 26 October 1998

Brooks (Lloyd) v Director of Public Prosecutions (1994) 44 WIR 332

Bermuda Industrial Union v BAS-Serco [2003] Bda LR 64

R v Lambert [unreported]

Ms V. Pearman for the 1^st Plaintiff

Mr C Attridge for the 2^nd Plaintiff

The DPP for the Defendant

Mr M Douglas for the Attorney General

JUDGMENT of Ground, CJ

Introduction

The plaintiffs in the civil action are themselves defendants in the criminal matter. According to their brief Statement of Facts in support of the relief claimed in the Originating Summons, the plaintiffs were charged in the Magistrates Court on 20^th December 2004 with various conspiracies. The papers were served on them and eventually1 2005 they elected a long form preliminary inquiry which was set down for 28^th and 29^th March 2005. However, before that could be heard, on 24^th February 2005 the plaintiffs were informed that a judge had consented to the preferment of a voluntary bill against them. The file shows that such consent was given by Greaves J on 22^nd February, and that the indictment was signed by the Registrar on the 25^th February. On 1^st March the plaintiffs appeared and were arraigned on that indictment, on which occasion they were not required to plead on the basis that a motion to quash the indictment was to be made.

This matter came before me on:

(i) the plaintiffs' Originating Summons of 19^th April 2005 for a stay of the criminal prosecution and for declarations –

(a) that the statutory provisions which govern the process by which a voluntary bill of indictment is preferred before the Supreme Court are unconstitutional; and

(b) that the manner in which the DPP has preferred the voluntary bill of indictment in this matter is unconstitutional.

(ii) A Notice of Motion of 1^st April 2005 by the defendants in the criminal proceedings that the indictment be quashed on the grounds that:

(a) it is formally defective in that it charges an offence which is not disclosed on the papers placed before the Court; and

(b) that the Court may have been misled in that information which is vital to any determination of a prima facie conspiracy may have been omitted from the file placed before the Court when the Director of Public Prosecutions sought consent for the voluntary bill in question.

The matter first came before me on 27^th April, when the DPP submitted that, as the Originating Summons sought to attack legislation, the Attorney General should be given notice and, if he wished, be heard. I acceded to that, and ordered service on the Attorney General. However, I considered it important that the matter proceed quickly because it concerned (i) a Constitutional issue; and (ii) a criminal matter, in which the plaintiffs were in custody, and were refusing to plead until their various challenges to the indictment had been considered.

The matter was then listed for hearing on 6^th May, when it proceeded, the Attorney General being represented. On that date I rejected a preliminary point taken by counsel on behalf of the Attorney General that the Originating Summons in the civil matter was not supported by an affidavit. The point was technically valid, but I thought it a poor one when all the material facts were within the knowledge of the prosecutor, and indeed were effectively admitted in an affidavit of 5^th May filed on behalf of the DPP.

More substantially, it was objected by the DPP at the outset that I did not have jurisdiction to hear any of these matters, either on the Constitutional application or on the application to quash the indictment. It was said that a Judge had no jurisdiction to review the decision of another Judge of co-ordinate jurisdiction. However, I did not rule on the point at the outset, as it was not immediately clear that that was what I was being asked to do. Having heard full argument I came to the decision that it was proper for me to hear the Constitutional challenge to the legislation itself, as that did not involve a review of the decision of a fellow judge. Even then I thought that the point was finely balanced, but as the Supreme Court has original jurisdiction in Constitutional matters, I came down on the side of entertaining the application.

However, I thought the second limb of the Constitutional challenge (that the manner in which the DPP had preferred the voluntary bill was unconstitutional) was really a veiled attack on the way the Judge determined to handle the matter – for it was always open to him to order service of the defendants. I consider that it is a fundamental principle that one Judge of the Supreme Court cannot sit in appeal from, or review the decisions of, another. Thus Judicial Review does not generally lie against the Supreme Court (see White Book, 1999 ed., note 53/14/26). That principle has been specifically applied to voluntary bills: in R v Raymond[1981] 2 All ER 246 CA at 255 a – b the Court...