Miller (Police Sergeant) v Richardson

• Jurisdiction: Bermuda
• Judgment Date: 17 October 2018
• Date: 17 October 2018
• Docket Number: Appellate Jurisdiction 2018 No 9
• Court: Supreme Court (Bermuda)

[2018] Bda LR 90

In The Supreme Court of Bermuda

Appellate Jurisdiction 2018 No 9

Between:

Fiona Miller (Police Sergeant)

Appellant

and

Charles Richardson

Respondent

Ms Y Gardner Brown and Mr J Rogers for the Appellant

Respondent in person

The following case was referred to in the judgment:

R v Galbraith [1981] 2 All ER 1060

R v Shergill [2016] ONCJ 163

Driving without due care — Appeal against finding of no case to answer — Failure to supply breath sample

JUDGMENT of Subair Williams J

Introduction

1. This is an appeal by the Crown against a no case to answer ruling made by the learned Magistrate, Mr Khamisi Tokunbo, whereby he discharged the Respondent from both counts on Information 17TR06965. The offences concerned were for driving a motor vehicle on 26 November 2016 without due care and attention contrary to section 37 of the Road Traffic Act 1947 (RTA) and failure to comply with demand made by a police officer for breath samples for analysis, contrary to section 35C(7) of the RTA.1

2. Having heard submissions competently made by both sides, I reserved my ruling and indicated that I would provide written reasons within a 6 week timeframe or moderately thereafter. Regrettably, the delivery of this ruling was necessarily delayed beyond what was initially foreseeable on account of my extended medical leave from office during the months of August and September 2018.

Summary of the Evidence

3. The Crown called no vive voce evidence at trial. Instead all of the prosecution evidence was read in by agreement which comprised of one statement from each of the three witnesses, namely PS 704 Watson, PC 2505 Tavin Trott and civilian witness Charles Clarke.

4. The evidence was that on 26 November 2016 at approximately 2:30am, the police witnesses were called to a report of a single-vehicle collusion on North Shore Road, Pembroke Parish. Upon arrival, the police witnesses observed the presence of a fire truck and a white Kia Cerato registration # 46565 with no driver or passengers inside of the car. The car was stationary and occupied both carriageways, facing in a south easterly direction toward the exterior wall surrounding Government House grounds. Photographs of the scene were taken and produced in evidence before the learned Magistrate.

5. PS Watson in his witness statement reported that he saw exterior damage to the front nearside of the car which appeared to him to be ‘a broken axle car, extensive front nearside damage to the wing and the passenger door was buckled.’ PC Trott described the car damage as extensive and being to the ‘left-front side, right-front side and front windshield.’ Police also noticed damage to the exterior wall of Government House which

was consistent with the vehicle striking the wall and spinning into the road. Enquiries revealed that the white car was registered in the Respondent's name.

6. Civilian witness, Mr Charles Clarke, made himself known to police at the scene of the accident. In his witness statement he reported that at approximately 2:00am he was at home when he heard a loud bang and figured that it was a road traffic accident. He said that it took him less than a minute to go outside and that he saw a white car occupying both sides of the road. He also reported visible damage to the wall entrance to Government House.

7. As Mr Trott approached the damaged car, he observed a man who resembled the Respondent sitting on the ground and appearing to be in pain with no one else in sight at the time. He returned to his house to make a 911 emergency call but upon his return to the scene the injured man was nowhere to be seen.

8. At approximately 4:30am on the same day, PS Watson and PC Trott attended the King Edward Memorial Hospital and spoke with the Respondent in a treatment room in the Emergency Department. Amongst the various verbal exchanges made, the Respondent was quoted as having said; “I was driving I struck the wall, I'm really messed up—it hurts.”

9. PS Watson stated that he noted the smell of intoxicants on the Respondent and observed that his eyes were glazed. PC Trott also stated that the Respondent's eyes were glazed but said that he could not smell for any intoxicants on the Respondent due to other smells present...