Herman Morris Santucci v R
| Jurisdiction | Bermuda |
| Judgment Date | 07 July 1989 |
| Docket Number | Criminal Appeal No. 23 of 1988 |
| Date | 07 July 1989 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
Sir Alastair Blair-Kerr
Harvey da Costa, J.A.
Sir Denys Roberts, J.A.
Criminal Appeal No. 23 of 1988
and
Mr. Tim Marshall (Appleby, Spurling & Kempe) for Appellant
Mr. Stephen Harrison (Attorney General's Chambers) for Respondent
R v KrayUNK (1969) 53 Cr App R 569
R v Muir (1938) Cr App R 164
Boardman v DPPUNK [1976] 3 All ER 887
R v SimsUNK [1946] 1 All ER 701
Novacs (1977) Cr App R 107
Appeal against conviction and sentence of 3 years — Joinder of charges — Deprivation of liberty — Indecent assault
At the end of the applications for leave to appeal against conviction and sentence, we refused leave to appeal against conviction, granted leave to appeal against sentence and said that we would give our reasons later.
After granting leave to appeal against sentence, we reduced the terms of imprisonment imposed by the judge of 5 years, 3 years and 12 months, all such sentences to run concurrently, to sentences of 2 years, 2 years, and 8 months, to run concurrently.
The appellant was originally charged on nine counts. The first three of these concerned Franklin Messiah James, aged 17 years at the time of the offences on 9th August, 1987.
The second three related to Randolph Brendon Levon between 1st December 1986 and 16th April 1987.
The defendant pleaded not guilty to all charges on arraignment on 6th December, 1988 before Martyn Ward J.
After these pleas were taken, the Crown announced that it would not be offering any evidence on counts 7, 8 and 9.
The appellant thereupon asked the judge to sever the indictment and try the charges on the first three counts separately from those on the next three. The Crown opposed such a severance.
The judge ruled that the trial should proceed on all six counts.
At the conclusion of the Crown case, the judge directed the jury to return a verdict of not guilty on counts 4, 5 and 6, leaving only the first three counts.
On the latter, the defendant was convicted by the jury and sentenced to various terms of imprisonment.
The appellant's applications for leave to appeal against conviction and sentence were refused by a single judge on 29th December, 1988 and renewed to this court.
The sole ground of appeal against conviction was that the judge was wrong in law in permitting Counts 1, 2, 3 of the indictment to be tried together with Counts 4, 5 and 6.
Section 480 of the Criminal Code deals with the joinder of charges in an indictment.
Subsection (1)(a) provides inter alia that charges for any indictable offences may be joined in the same indictment if ‘those charges are founded on separate acts or omissions which together constitute a series of offences of the same or of a similar character.’
Counts 1 to 3 involved one incident with Frank Messiah James on 9th August, 1987. The defendant was charged with depriving James of his liberty (Count 1), with indecently assaulting him (Count 2) and with wilfully committing an indecent act (Count 3).
Counts 4 to 6...
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