Morrison v DPP and Attorney General
| Jurisdiction | Bermuda |
| Judgment Date | 08 May 2001 |
| Docket Number | Civil Jurisdiction 2001 No. 53,Criminal Jurisdiction 1999 No. 11 |
| Date | 08 May 2001 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Wade-Miller, J
Criminal Jurisdiction 1999 No. 11
Ms. Victoria Pearman for the Accused
Ms. Vinette Graham-Allen of the DPP's Office for the Respondent
Connelly v DPPELR [1964 AC 1254
Barker v Wingo 407 US 514
Bell v DPPELR [1985] AC 937
Watson v R 1991 Criminal Appeal No. 9
Gonzalez and Suarez v RUNK (1986) 34 WIR 179
Carter v the State of Trinidad and Tobago [1999] TLR 411
Reid v RUNK (1978) 34 WIR 179
Hui Chi-Ming v RUNK [1991] 3 All ER 897
Gin v Judge Cameron [1993] Cr App R 172
Flowers v RELR [1999] AC 62
Misuse of Drugs Act 1972 s. 4
Bermuda Constitution Order, s. 6
Application by defendant for stay of proceedings — Importation of cocaine — Cocaine hidden rum — Defendant was convicted, but conviction was set aside by Court of Appeal and retrial ordered — 11 jurors in second trial — Many adjournments — Abuse of process — Successive proceedings — Whether third trial permissible
This is an application by Clifton Hopeton Morrison (hereinafter referred to as the Defendant) seeking an order that ‘all further proceedings in this action [case] be stayed under the inherent jurisdiction of the Court on the grounds that to continue this prosecution would be an abuse of process,’
The Defendant arrived at the Bermuda International Airport, on the 6th February, 1999, carrying one piece of luggage and a plastic bag which contained (2) two one -litre Gold label Trelawny Jamaican Rum bottles in a liquor box. The Government analyst examined the fluid taken from the bottles and each was found to contain the controlled drug cocaine.
The Defendant was charged with importation, and possession of a controlled drug intended for supply, alternatively handling of a controlled drug intended for supply, contrary to Section 4 (3), 6 (3) and 7 (1) respectively of the Misuse of Drugs Act 1972 alleged to have been committed on the 6th February 1999.
The first trial began on the 5th of July 1999 and ended on the 16th July, 1999. He was convicted of the offences of importation and possession of a controlled drug, which was intended for supply and was sentenced to 12 years imprisonment. The Defendant appealed his conviction. The hearing of this appeal began on the 5th November, 1999 and concluded 8th November 1999. On the 19th November, 1999 the Court of Appeal set aside the conviction and sentence and remitted the case to the Supreme Court to be retried.
On the 6th of March 2000, a juror wrote to the Registrar requesting that she be excused from jury duty during the period of 1st–9th April 2000 due to special circumstances. On the 10th March 2000 before she was empanelled she was excused by the Honourable Chief Justice. This fact was not brought to the attention of the Jury Officer nor the trial Judge; therefore she was not excused from the panel of Jurors for the relevant period and was empanelled on the 13th of March 2000 to deliberate on the Defendant's second trial.
The “second trial” commenced on Monday the 13th March 2000. On the 16th March 2000 it was adjourned to Monday the 20th March 2000, due to the passing of Defence Counsel's mother. On the 20th March 2000, Counsel Miss Christopher, holding for Defence Counsel requested a further adjournment for a voir dire to be put over to Thursday 23rd March 2000. On the 23rd March 2000 the trial was adjourned to the 28 March 2000 to enable the trial Judge to travel overseas because her Mother passed during the adjourned period. The trial resumed on the 28th March 2000. On the 29th of March 2000 the Juror was excused due to the critical circumstances outlined in her letter above mentioned. The Defendant exercising his legal right objected to proceeding with 11 jurors. The Second trial was thus stopped before it went to the Jury.
On the 3rd April 2000 a trial was scheduled to begin but only 19 out of the requisite 36 jurors, which is required to constitute a jury panel, were present in Court. Because of the deficiency in the numbers, the Defendant objected to selecting from the 19 Jury panel members. The case was adjourned for mention on the 1 st of May 2000.
On the 1st of May 2000 a new trial date was set for the 10th of July 2000.
On the 10th of July 2000 the trial commenced. I should mention that before the jurors were selected, the trial judge requested that a list of the prospective witnesses be read to the members of the jury panel. They were asked to indicate to the Court if any juror knew, was related to or was friendly with the accused or any of the principal witnesses in the case. Crown Counsel omitted to call one witness' name. When she came to testify one juror indicated that she knew the witness and would not be able to render an impartial verdict. This juror was excused. The Defendant agreed to proceed with 11 jurors.
To complete the chronology of relevant events on the 17th of July 2000 the trial which commenced on the 10th July was aborted due to the jury's inability to arrive at a verdict (a hung jury). The jury was discharged and the case was adjourned to the 1st of August 2000.
On the 1 st of August 2000 at the monthly arraignment, a new trial date was set for the 11th of September 2000 at 9.30 a.m. Ms Pearman Defence Counsel indicated that there would be a pre-trial application for a stay of proceedings.
On the 11th September 2000 Ms Pearman again indicated that she wished to make a pre-trial application under two limbs: first for a stay of proceedings pursuant to S6(l) of the Bermuda Constitution Order 1968; and second that to continue the proceedings constituted an abuse of process. The case was set for mention at the Arraignment Session on the 2nd of October 2000.
On the 2nd of October 2000, the case was warned for trial on 14th of November 2000, with a firm trial date set for 15th of January 2001.
On 14 November 2000 Ms Pearman, again, indicated that she would like to make a pre-trial application for a stay of proceedings prior to the trial which was set to commence 15th of January 2001. The Court informed Ms Pearman that she should file the appropriate papers and liaise with the Registrar. The trial was set for 15 of January 2001.
The issue is joined as to whether the Defendant is about to be tried for the third or fourth time.
The First submission of Ms Pearman is directed towards the successive proceedings. Ms Pearman's argument is that the Defendant has endured the ordeal of three trials, one appeal and one further attempt at a trial in which there was an insufficient pool from which to make up a jury. She said it should perhaps be noted that notwithstanding that the second trial was aborted, the authorities are clear that an aborted trial, or a trial declared a nullity, is material. And although there is authority that in exceptional circumstances a third trial may be ordered, there is no authority for the ordering of a fourth trial.
Further, Ms Pearman submitted that it is an abuse of the process of the Court and/or a breach of the Defendant's constitutional rights, for the prosecution to take the unprecedented step of continuing to seek to secure a conviction against the Defendant in this matter having failed to do so on three previous occasions and in circumstances where the Defendant has been in custody for some twenty-three months
Ms Pearman further submitted relying on the dicta in Connelly v Director of Public Prosecutions (P.C.)ELR[1964] AC. 1254 that the courts have an:
‘Inescapable duty to secure fair treatment for those who come or are brought before them. This duty is ‘manifest’ in the Courts inherent jurisdiction to stay criminal proceedings, by exercise of it's judicial discretion in cases where (i) it would be unfair for the Defendant to be tried; and or (ii) the Defendant would not receive a fair trial.’
Ms Pearman submitted that that the first of these heads of abuse relate to circumstances where as a result of prosecution conduct it would offend the principles of justice to allow the person to be re-tried. The second head relates to the likelihood that successive trials will have prejudiced the Defendant in the conduct of his defence.
Furthermore, maintained Ms. Pearman Article 6 of the Bermuda Constitution Order 1968 guarantees any person charged with a criminal offence ‘a fair hearing within a reasonable time by an independent and impartial court established by law.’
The right to such a fair hearing argued Ms. Pearman is—citing from the principles enunciated by the United States Supreme Court in Barker v Wingo407 US 514 (1972) in reference to a similar provision of the US Constitution, which was accepted by the Privy Council in Bell v DPPELR[1985] AC 937, is—‘designed to protect three interests of the Defendants namely {i} to prevent oppressive pre-trial incarceration; {ii} to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defence may be impaired’. Ms Pearman strenuously argued that if the prosecution were permitted to continue, the proceedings would offend against this safeguard and infringe the Defendant's constitutional right.
Additionally submitted Ms. Pearman a strict interpretation of Article 6(5) of the Bermuda Constitution Order 1968 suggests that before their can yet be another retrial of the Defendant a further order of the Court of Appeal would be required.
I reiterate the issue is joined as to whether the Court is about to begin a third or a fourth trial.
The critical issue for the Court to determine in this matter is the true meaning of what constitutes a trial.
The Director of Public Prosecutions filed an affidavit, which in my judgment, is of crucial importance in this matter. It reads:
(i) That the present prosecutorial practice in Bermuda, where a jury has been unable to return a verdict following a trial, is to conduct a second trial;
(ii) That the current prosecutorial policy is...
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