Philpott v Wolffe (a Magistrate) and Cooke

• Jurisdiction: Bermuda
• Judgment Date: 15 December 2011
• Date: 15 December 2011
• Docket Number: Civil Jurisdiction 2010 No. 449
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 449

In the matter of Order 53 of the Rules of the Supreme Court

And in the matter of a Decision by the Bermuda Magistrates' Court dated 29th November 2010

BETWEEN:

Jo-Ann Philpott

Plaintiff

and

Wor Juan Wolffe (a magistrate), Adrian Cooke

Defendants

Mr R Horseman for the Plaintiff

Mr C Mahoney for the Defendants

The following cases were referred to in the judgment:

R v Hereford Magistrates' Court, ex parte RowlandsUNK [1997] 2 Cr App R 340

Whitter v DPPBDLR [2002] Bda LR 33

Abstract:

Judicial review - Limitation for commencing summary prosecutions

JUDGMENT of Ground, CJ

Introduction

1. This matter comes before me on the application of the defendant in criminal proceedings in the Magistrates Court, seeking to challenge by way of Judicial Review the decision of a Magistrate that certain summary charges were not time-barred by virtue of section 452(1) of the Criminal Code.

2. The proceedings are brought pursuant to leave, which I granted on 20th December 2010. At the time I recorded my reasons for granting leave as follows:

"This is an application for leave to bring proceedings for judicial review of a decision of Wor. Wolffe that a prosecution was not time-barred by section 452 of the Criminal Code. It is essentially a point of law and the facts are not in dispute. I consider that it is a jurisdictional issue, and one which it is appropriate to determine at this point, rather than waiting until the end of the trial. I have read R v Hereford Magistrates' Court ex parte Rowlands & Ors.UNK[1997] 2 Cr App R 340. I consider that this is "an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates' court." I therefore grant leave to bring these proceedings and a stay of the magistrates' court trial pending the hearing of this matter or further order."

3. Section 452 of the Criminal Code provides:

"Limitation of time for commencing summary prosecutions

452 (1) A prosecution for a summary offence must, unless otherwise expressly provided, be begun within a period of six months after the offence is committed or within a period of three months of the date when facts sufficient in the opinion of the Director of Public Prosecutions to justify the institution of criminal proceedings first come to his notice, whichever period last expires:

Provided that, and unless otherwise expressly provided, no prosecution for a summary offence shall be begun more than 12 months after the offence is committed.

(2) A certificate purporting to be under the hand of the Director of Public Prosecutions and specifying the date upon which such facts first came to his notice shall be evidence that such facts first came to his notice upon such date."

4. The basic facts are not in dispute. By an Information dated 12th February 2010 the applicant was charged with the following offences alleged to have been committed on the dates set out in the right-hand column:

Count 1	Common Assault	14th June 2009
Count 2	Offensive Words	14th June 2009
Count 3	Offensive Words	31st July 2009
Count 4	Common Assault	5th August 2009
Count 5	Common Assault	5th August 2009
Count 6	Threatening Words	5th August 2009
Count 7	Offensive Words	28th September 2009

This application only relates to the first 6 counts, it being common ground that count 7 was charged within the statutory time-limit.

5. The chronology is that the complainant made a statement to the police on 9th August 2009. On 4th September a supporting witness made his statement. The applicant was interviewed by the police on 4th November 2009. At that point it seems as if the police had all they needed to decide whether to charge or not. However...