Mark Linley St Clair Simons v Earl Kirby (Police Sergeant)

• Jurisdiction: Bermuda
• Judgment Date: 14 July 1992
• Docket Number: Appellate Jurisdiction 1992 : No. 10
• Date: 14 July 1992
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Astwood, CJ

Appellate Jurisdiction 1992 : No. 10

BETWEEN:

Mark Linley St Clair Simons

Appellant

and

Earl Kirby (Police Sergeant)

Respondent

Mr Richard Hector for the Appellant

Mr Mark Pettingill for the Respondent

JUDGMENT

The appellant was convicted by a magistrate for the offence of speeding at 52 k.p.h., contrary to the provisions at section 7(2) of the Road Traffic Act, 1947. He was sentenced to pay a fine of $180 and disqualified from driving all motor vehicles for a period of three months.

The appellant appealed his conviction to this court on the grounds.

‘1. That upon weighing up all the evidence the conviction ought not to be supported.

2. THAT the Learned Trial Magistrate:

• (a) failed to make any findings of fact:

• (b) failed to deal with significant discrepancies in the evidence as between the Prosecution and the Defence:

• (c) failed to properly assist the unrepresented lay Appellant in his conduct of the case and further held his lack of expertise as a reason for finding against him: thus failing to hold the scales of justice evenly:

• (d) that far from taking judicial notice of the geography of the location, the Learned Trial Magistrate visited the locus in quo in the absence of the parties and used information from that visit in her judgment without allowing the parties to address her on its implications.

AND because of (a)—(d) above there was a miscarriage of justice.’.

Mr Hector, for the appellant, mounted the appeal on ground No. 2 and did not pursue ground No. 1.

Mr Hector, in his arguments. referred to section 21 of the Summary Jurisdiction Act, 1930, which states:

‘21. When the case on both sides is closed the magistrate composing the court shall record his judgment in writing, and every such judgment shall contain the point or points for determination, the decision therein and the reasons for the decision, and shall be dated and signed by the magistrate at the time of pronouncing it.’.

Mr Hector took me through the grounds of appeal and I heard Mr Pettingill in reply. for the respondent.

The facts of the case are quite straight-forward and simple but, nevertheless. there were some serious discrepancies in the evidence which the magistrate had to resolve before coming to her decision. The officer who operated the hand-held radar device, on which was recorded the appellant's speed. stated that he was operating from a point ‘East of Chapel Road near...