Menzies v R

• Jurisdiction: Bermuda
• Judgment Date: 11 June 2015
• Date: 11 June 2015
• Docket Number: Appellate Jurisdiction 2014 No 38
• Court: Supreme Court (Bermuda)

[2015] Bda LR 51

In The Supreme Court of Bermuda

Appellate Jurisdiction 2014 No 38

Between:

Bruce Colin Menzies

Appellant

and

The Queen

Respondent

Ms A Cassidy for the Appellant

Ms N Smith for the Respondent

The following cases were referred to in the judgment:

R v Gardiner [1970] VR 278

R v TaylorUNK [2014] EWCA Crim 1208

R v LiveseyUNK [2013] EWCA Crim 1913

Automatic stay of sentence pending appeal — Restoration of appeal which has been abandoned

RULING of Kawaley CJ

Background

1. On January 6, 2014, the Appellant's former attorneys filed a Notice of Appeal against the decision on December 18, 2013 of the Magistrates' Court (Worshipful Khamisi Tokunbo) convicting him of doing grievous bodily harm contrary to section 306(a) of the Criminal Code.

2. The appeal was filed before sentencing with the unhappy result that all proceedings were stayed pending appeal. Section 11(1) of the Criminal Appeal Act imposes an automatic stay of proceedings once a notice of appeal against conviction is filed. This enables convicted persons, wherever the Magistrate adjourns following entering a conviction after a trial, to delay the sentencing hearing until the appeal is heard, should they elect to appeal conviction before sentencing takes place. Hopefully the Legislature will consider remedial action to prevent the duration of proceedings in the Magistrates' Court being subject to prolongation in this manner.1

3. On November, 2014, the Registry asked counsel for the Appellant to confirm that the appeal record which had been made available was complete and to confirm that it was still proposed to proceed with the appeal. A request was made by counsel to supplement the record although it was pointed out that he was no longer retained. Once the Appellant's contact details were obtained by the Court, a Notice of Hearing for March 31, 2015 was sent out on or about February 10, 2015. On March 24, 2015, one week before the scheduled hearing, the Appellant acting in person filed a Notice of Abandonment of Appeal.

4. On April 2, 2015, the Magistrates' Court very promptly proceeded with the stayed sentencing hearing and the Appellant was sentenced to six months' imprisonment. On April 20, 2015, he applied by Summons in the abandoned appeal proceeding for an order restoring the previously abandoned appeal.

5. The application to restore was heard on May 28, 2015 and a reserved judgment to afford the Crown the opportunity to file written...