Police Constable GA v Director of Public Prosecutions and Ors

• Jurisdiction: Bermuda
• Judgment Date: 05 January 2021
• Docket Number: Civil Jurisdiction 2020 No 208
• Year: 2021
• Court: Supreme Court (Bermuda)

[2021] Bda LR 1

In The Supreme Court of Bermuda

Civil Jurisdiction 2020 No 208

Between:

Police Constable GA

Applicant

and

Director of Public Prosecutions

Police Sergeant BR

Police Sergeant SR

Respondents

Mr M Pettingill for the Applicant

Mr B Adamson for the 1^st Respondent

Mr C Richardson for the 2^nd Respondent

Mr M Daniels for the 3^rd Respondent

The following cases were referred to in the judgment:

R v Rogerson [1992] HCA 25

Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20

R v DPP ex parte C [1995] 1 Cr App R 136

R (Pepushi) v Crown Prosecution Service [2004] Imm AR 549

Sharma v Browne-Antoine [2007] 1 WLR 780

S v Crown Prosecution Service [2015] 2868

Matalulu v DPP [2003] 4 LRC 712

Marshall v Director of Public Prosecutions [2007] UKPC 4

R (Monica) v Director of Public Prosecutions [2018] EWHC 3508

R (on the application of Ann Torpey) v Director of Public Prosecutions [2019] EWHC 9

R v Galbraith [1981] 1 WLR 1039 | D[2008] EWCA Crim 2557 |

Application for judicial review — Decision of the Director of Public Prosecutions not institute criminal proceedings — Test to be applied — Whether decision was perverse

JUDGMENT of Hargun CJ

Introduction

1. In these proceedings Mr GA, a Police Constable in the Bermuda Police Service (“BPS”), (“PC A”) seeks judicial review of the decision of the Director of Public Prosecutions (“the DPP”) to allegedly withdraw charges of serious sexual assault and perverting the course of justice against Mr BP, a Sergeant in the BPS, (“PS P”) and Mr SR, also a Sergeant in the BPS, (“PS R”).

2. In these proceedings PC A seeks:

• i. An order for a declaratory ruling that the DPP was mistaken in law and acted with procedural unfairness in withdrawing the filed criminal charges against PS P and PS R and was unreasonable and irrational in his assessment of the evidence and application of the law in determining whether the prosecution should continue.

• ii. An order of certiorari that the DPP's decision to withdraw the charges against PS P and PS R be quashed.

• iii. An order of mandamus that the DPP reconsider his decision on the basis of proper legal analysis of the evidence and any declaratory ruling of this Court.

3. The grounds upon which this relief is sought are as follows:

• i. That the DPP failed to properly review the evidence of the complaint with regard to an allegation of serious sexual assault.

• ii. That the DPP failed to properly bring a prosecution against PS P and PS R and took into account irrelevant considerations of evidence that properly should be left to the trier of fact.

• iii. That the DPP failed in withdrawing the charges against PS P and PS R to properly consider the Department of Public Prosecutions (Bermuda) Code for Crown Counsel; and that his withdrawal of the charges was unreasonable in the circumstances and contrary to the evidence provided by investigating officers and the approval of criminal charges by another senior prosecuting officer.

• iv. That the DPP's decision to withdraw the charges was procedurally unfair, and unreasonable and irrational in the circumstances.

• v. That pursuant to Schedule 2 of the Bermuda Constitution Order 1968 (“the Constitution”), the DPP failed to properly consider section 1 of the Constitution as read with section 71 (A) in properly exercising its power to investigate criminal proceedings and consider the rights of the victim enshrined in the Constitution, namely section 3 protection not to be subjected to inhumane and degrading treatment and section 11 protection relating to his freedom of movement.

The Applicant's Case

4. In brief outline, PC A states that at the beginning of April 2019 he received a WhatsApp message from PS P asking him if he wanted to play cards that evening. PC A agreed and asked PS P to pick him up after he finished his shift that day.

5. In this Witness Statement, PC A states that everyone that knows him knows that he is attracted to and intimate with men but he has never given PS P the impression that he was interested in him.

6. As arranged, PS P collected PC A from his residence in Southampton in a marked police car and said that they were going east to PS R's apartment to play cards. PC A has stated to another witness that he was not sure if it was a friendly drive or if it had any sexual connotations to it.

7. Once they arrived at PS R's apartment, all three officers retired to the bedroom to play strip poker. PS R declined to play the game but watched the other two officers play the game. Soon afterwards, according to PC A's statement, he was left with his undervest and boxer shorts, whilst PS P was sitting next to him in the nude. At the request of PS P, PC A engaged in a form of sexual activity with PS P on the bed. PC A states that at this stage PS P and PS R tried to rape him but he rebuffed their advances by acting “like I was play wrestling”. Eventually, PS P and PS R desisted and left PC A alone. Thereafter, PS P and PS R engaged in sexual intercourse, which PC A observed while sitting on the foot of the bed. It is the allegation of attempted rape that forms the basis of the charge of serious sexual assault.

8. After taking a shower, PS P drove PC A home without any apparent complaint. It appears that PC A and PS P were in PS R's apartment for over 5 hours. No formal complaint of this incident was made by PC A until 7 months afterwards in November 2019.

The DPP's Decision

9. The decision whether or not to institute and undertake criminal proceedings is informed by the policy document headed “Department of Public Prosecutions (Bermuda) Code for Crown Counsel.” Section 4 of that document deals with the issue of the decision whether or not to prosecute. Section 4D sets out “The Governing Criterion”:

I. Sufficiency of the Evidence

The first consideration in commencing or continuing a prosecution is the sufficiency of the evidence. The following principles inform the application of this evidential test:

1. A prosecution should only be commenced or continued if there is sufficient evidence to conclude that a reasonable magistrate or jury, properly directed, is more likely than not to convict the accused of the charge(s) alleged.

2. In circumstances in which there are multiple accused or multiple charges, Crown Counsel should apply the sufficiency of evidence test to each accused and each charge. A prosecution should only proceed against those accused and on those charges that meet the test.

II. The Public Interest

If the sufficiency of evidence test is met, Crown Counsel should then consider whether the public interest requires a prosecution.” (emphasis added)

10. In his affidavit, Mr Larry Mussenden, the DPP, states that his reasons why he believes, based upon his experience as a prosecutor, defence lawyer and as a DPP, that a reasonable jury, properly directed, would (more likely than not) not convict PS P and PS R, are set out in his Decision Letter. He accepts that there is public interest in ensuring that these officers are not (and not considered) above the law. He also accepts that there are difficult questions of consent in sexual assault cases but he has never shied away from prosecuting sexual assault cases where he believed that a reasonable jury would, more likely than not, convict based on the evidence he had seen.

11. In the Decision Letter the DPP expresses the view that the evidence in this case does not meet the DPP Code for Crown Counsel test for charge approval for a charge of serious sexual assault, namely that a reasonable jury, properly directed, is more likely than not to convict. Put otherwise, in his view, the Prosecution has little to no chance of securing a conviction in this case.

12. In coming to the view that a properly directed jury was unlikely to convict PS P and PS R on a charge of serious sexual offense the DPP took into account the following facts:

• i. PC A walked to the bedroom to sit on the bed with PS P.

• ii. PC A suggested to play for clothes or strip poker.

• iii. PC A removed his own clothes down to his undervest and boxer shorts.

• iv. PC A continued playing...