Kenneth Hurf Williams v HM the Queen

• Jurisdiction: Bermuda
• Judge: Bell JA,Gloster JA,Kay JA
• Judgment Date: 11 December 2020
• Neutral Citation: BM 2020 CA 17
• Court: Court of Appeal (Bermuda)
• Docket Number: Case No: Civ/2020/7
• Date: 11 December 2020

[2020] CA (Bda) 17 Crim

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS

APPELLATTE CRIMINAL JURISDICTION

THE HON. MRS. JUSTICE SUBAIR WILLIAMS

CASE NUMBER 2019: No. 011

Dame Lois Browne-Evans Building

Hamilton, Bermuda HM 12

Before:

JUSTICE OF APPEAL Sir Maurice Kay (PRESIDING)

JUSTICE OF APPEAL Geoffrey Bell

and

JUSTICE OF APPEAL Dame Elizabeth Gloster

Case No: Civ/2020/7

Between:

Kenneth Hurf Williams

Appellant

and

Her Majesty the Queen

Respondent

Mr. Jerome Lynch, QC and Ms. Sara-Ann Tucker of Trott & Duncan Ltd. for the Appellant

Ms. Maria Sofianos, Office of the Director of Public Prosecutions for the Respondent

Hearing date: 18 November 2020

APPROVED JUDGMENT

Bell JA

Introduction:

1 On 20 November 2020, we gave judgment allowing the above appeal, quashing the Appellant's convictions and directing verdicts of acquittal. We indicated that we would give reasons for our decisions in due course. This we now do.

2 The Appellant in this case was convicted in the Magistrates' Court by the Worshipful Tyrone Chin on nine counts involving offences against a young female child, as follows:

Count 1

On a date unknown between 8 April 2014 and 20 April 2014, knowingly showed a 12 year old child offensive material namely, sexually explicit and You Tube videos contrary to section 182C of the Criminal Code.

Count 2

On a date unknown between 8 April 2014 and 20 April 2014, whilst being a person in a position of trust, did, for a sexual purpose, directly touch (with the hand) the breast of a young person under the age of 14 years old contrary to section 182B(1)(a) of the Criminal Code.

Count 3

On a date unknown between 5 August 2014 and 28 August 2015 whilst being a person in a position of trust, did, for a sexual purpose, directly touch (with the penis) the buttocks (under her clothing) of a young person under the age of 14 years old contrary to section 182B(1)(a) of the Criminal Code.

Count 4

On a date unknown between 5 August 2014 and 28 August 2015 whilst being a person in a position of trust, did, for a sexual purpose, directly touch (with the Appellant's penis) the buttocks (over her clothing) of a young person under the age of 14 years old contrary to section 182B(1)(a) of the Criminal Code.

Count 5

On 23 January 2016 intruded upon the privacy of a girl, in such a manner as to be likely to alarm a girl and did in fact alarm a girl, contrary to section 199(2) of the Criminal Code.

Count 6

On a date unknown between 5 August 2015 and 23 January 2016, in the Islands of Bermuda, wilfully and without reasonable excuse committed an indecent act in the presence of a child contrary to section 198(2) of the Criminal Code.

Count 8

On a date unknown between 1 January 2015 and 23 January 2016 did directly touch (with the Appellant's fingers) the vagina of a young person under the age of 14 years old contrary to section 182A(1)(a) of the Criminal Code.

Count 9

On a date unknown between 1 January 2015 and 23 January 2016 did directly touch (with the Appellant's fingers) the vagina of a young person under the age of 14 years old contrary to section 182A(1)(a) of the Criminal Code.

Count 11

On a date unknown between 1 January 2015 and 31 December 2015 did directly touch (with the Appellant's body) the body of a young person under the age of 14 years old contrary to section 182A(1)(a) of the Criminal Code.

3 The Appellant was convicted by the magistrate on 15 May 2019 and sentenced on 26 July 2019. The sentence for each offence comprised a term of imprisonment ranging between 6 months and 18 months, and the magistrate divided these into three groups based on the timeframe within which the offences in question had occurred, with all the sentences within each such group to run concurrently, and the three groups together to run consecutively. The net effect was that the total sentence amounted to three years' imprisonment. The Appellant appealed the convictions to the Supreme Court, which appeal was heard by Subair Williams PJ on 1 July 2020. Her judgment dismissing the appeal was handed down on 28 August 2020.

The Proceedings before the Magistrate

4 The magistrate's judgment helpfully set out the chronological history of the trial, and I duplicate that, as follows:

“ Evidence of the Child Complainant:

(1) Hearing:	22 August 2017.
(2) Hearing:	23 August 2017: adjourned as no Government internet therefore no Skype evidence for a vulnerable witness
(3) Hearing:	24 August 2017: continuation.
(4) Hearing:	25 August 2017: did not occur — adjourned to 31 August 2017.
(6) Hearing:	1 September 2017: Maria Sofianos (Crown) stuck in another jurisdiction without use of her passport, could not arrive for 31 August 2017.
(7) Hearing:	6 September 2017: continuation.
(8) Hearing:	19 September 2017: continuation: adjourned to 30 October 2017.
(9) Hearing:	30 October 2017: end of the child's evidence.
(10) Hearing:	3 November 2017: Read in statements of Pauline DeShield and Joy Bean.
(11) Hearing:	18 December 2017: vacated.
(12) Hearing:	16 January 2018: Abandonment of Mistrial Application by S. Tucker (Defendant). Adjourned to 1 February 2018.”

Evidence of the Child's Mother:

(13) Hearing:	1 February 2018: continuation.
(14) Hearing:	6 February 2018: continuation.
(15) Hearing:	23 February 2018: continuation. The Court (T. Chin) on holiday leave 12–16 March 2018 and then UK training 19–23 March 2018. Adjourned to 29 March 2018.
(16) Hearing:	29 March 2018: Sara Tucker (Defendant) absent due to a burn. Adjourned to 2:30 today.
(17) Hearing:	29 March 2018 2:30 adjourned to 6 April 2018 due to Sara Tucker's burn injury.
(18) Hearing:	6 April 2018: continuation. T. Chin on leave 9–23 April and Maria Sofianos in Supreme Court trial on 30 April for 2 weeks. Adjourned to 15 May 2018 with continuation on 18 May 2018.
(19) Hearing:	15 May 2018 continuation. Adjourned to 1 June 2018. D.C. Simmons end of the Mother's evidence.

D.C. Rock's Evidence:

(20) Hearing:	1 June 2018: continuation. T Chin off island 19–22 June Sara Tucker not available 27 June 2018. Maria Sofianos not available 5 July 2018. Adjourned to 9, 18 and 19 July all days.
(21) Hearing:	9 July 2018: continuation. Adjourned to 18 and 19 July 2018. Sara Tucker on leave 6–8 August and Maria Sofianos on leave 21 Sept – 5/6 Oct. 2018. The Court said to pencil in 12, 13, 14 Sept. 2018 in order to finish this case ASAP.
(22) Hearing:	19 July 2018: continuation. Adjourned to 12 Sept. 2018. D.C. Rock completed.
(23) Hearing:	12 September 2018: continuation. Crown amends information by Section 489. Crown withdraws counts 7 and 10.
(24) Hearing:	13 Sept. 2018: continuation. Sara Tucker off island 18 Sept-2 Oct 2018 and then Supreme Court trial until 12 October 2018. T. Chin off island 21–24, 26 and 29 September-22 October 2018. Adjourned to 17 September 2018 to give Ruling of Sara Tucker's No Case to Answer.
(25) 17 September 2018:	Court requires additional time to draft Ruling due to too short time span and voluminous notes. Adjourned to 31 October 2018 and the Court pencils in 7, 8, and 9 November 2018 for continuation.
(26) 31 October 2018:	continuation. Ruling: Case to Answer.

Kenneth Williams' Evidence:

(27) Hearing:	7 November 2018: Start of defendant's case.
(28) Hearing:	8 November 2018: continuation, adjourned to 9 November 2018.
(29) Hearing:	9 November 2018: continuation, adjourned to 30 November 2018.
(30) Hearing:.	30 November 2018: no continuation as short 1 magistrate due to food poison. Adjourned to 3 December 2018
(31) Hearing:	3 December 2018: continuation. After only 33 questions in cross-examination Kenneth Williams asks for adjournment due to food poison. Adjourned to 10 December 2018.
(32) Hearing:	10 December 2018: continuation. Sara Tucker off island 17 Dec. 2 January 2019 during which Court has several availabilities. Adjourned to 3 January 2019 and continue on 9, 10 and 11 January 2019.
(33) Hearing:	3 January 2019: continuation. Adjourned to 7 January 2019. Both sides reminded that if case not finished on 7, 9, 10 or 11 January 2019 then continuation date will be in April/May 2019 as T. Chin given new Court in Magistrates Court 3.
(34) Hearing:	7 January 2019: continuation. Finish K. Williams evidence and start with Theresa Rawlins. Court available on 8 January 2019 both Counsel not available therefore adjourned to 9 January 2019.

Theresa Rawlins' Evidence:

(35) Hearing:	9 January 2019: continuation. Adjourned to 10 January 2019.
(36) Hearing:	10 January 2019: continuation. Adjourned to 11 January 2019.
(37) Hearing:	11 January 2019: continuation. End of T. Rawlins' evidence. Court available 15, 22 and 29 January 2019 but not Maria Sofianos. Court available 5 February but not Maria Sofianos. 19 Feb' 2019 set aside. Adjourned to 12 February 2019.
(38) Hearing:	24 and 25 January 2019: Sara Tucker's application for a mistrial for failure of investigating officer to disclose evidence of a material nature to Crown and by extension to Defence Counsel. Adjourned to 25 January 2019.
(39) 28 January 2019:	Ruling against mistrial application adjourned to 31 January 2019 for continuation.
(40) 31 January 2019:	Maria Sofianos' daughter is ill at school. Court available 1st February 2019 but both counsel are not available. Maria Sofianos in Supreme Court trial 4–8 February 2019. Adjourned to 12 February 2019 for continuation. Sara Tucker to contact Maria Sofianos for continuation dates after 12 February 2019.
(41) Hearing:	12 February 2019: continuation. The Court...