R v AB and CD (Stay)

• Jurisdiction: Bermuda
• Judgment Date: 30 January 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Criminal Jurisdiction 2021 No 17

Between:

The King

Plaintiff

and

AB and CD

Defendant

[2023] Bda LR 28

Criminal Jurisdiction 2021 No 17

In The Supreme Court of Bermuda

Application for stay of proceedings — Abuse of process — Change of decision not to prosecute — Integrity of the criminal justice system — Serious sexual assault

The following cases were referred to in the judgment:

Beckford [1996] 1 Cr App R 94

Connelly v DPP [1964] AC 1254

R v Maxwell [2011] 4 All ER 941

R v Latif and Shahzad [1996] 1 WLR 104

R v Scott Crawley [2014] EWCA Crim 1028

D Ltd v A [2017] EWCA Crim 1172

R v Croydon Justices ex parte Dean [1992] QB 769

R v Mark Bloomfield [1997] 1 Cr App R 135

R v Mulla [2003] EWCA Crim 1881

R v Abu Hamza [2007] QB 659

R v Killick [2011] EWCA Crim 1608

R v LG [2018] EWCA Crim 736

Ms E Christopher for the Crown

Ms S Tucker for the Defendant

RULING of Wolffe J

1. By way of an Indictment dated 28th June 2021 the Defendants were charged with the sole count of Serious Sexual Assault, contrary to section 325(1)(d) of the Criminal Code Act 1907 (the “Criminal Code”).

2. The Defendants made an application for a stay of proceedings for abuse of process on the grounds that a stay, against the factual and procedural backdrop of this case, is necessary to protect the integrity of the criminal justice system. On 27 September 2022 I acceded to the Defendants' application for a stay and I accordingly released the Defendants from their bail obligations. The following paragraphs detail my reasons for doing so.

The Chronology

3. It would be of assistance to catalogue the largely undisputed chronology of this matter. It is as follows:

27 April 2019	The serious sexual assault is alleged to have occurred.
18 November 2019	The Complainant makes a formal complaint of serious sexual assault to the police against the Defendants.
29 November 2019	Both Defendants are arrested for the offence of serious sexual assault and submitted to an audio/video police interview. Phones and laptops belonging separately to Defendant AB and Defendant CD are also seized
28 January 2020	A recorded police interview of Defendant AB is conducted by police officers of the Bermuda Police Service (“BPS”).
31 January 2020	Defendant AB provides a handwritten witness statement.
4 February 2020	Defendant CD provides a handwritten witness statement.
21 May 2020	Then Deputy Director of Public Prosecutions Ms Cindy Clarke (“DDPP Clarke”) approves criminal charges to be laid against the Defendants.
19 June 2020	By way of a 9 page letter to the Commissioner of Police then Director of Public Prosecutions Mr Larry Mussenden (“DPP Mussenden”), who was then DDPP Clarke's superior, decides that that there shall be no prosecution against the Defendants for Serious Sexual Assault or for the second offence of Perverting the Course of Justice (contrary to section 134 of the Criminal Code). It is accepted by both parties that DPP Mussenden, as Director of Public Prosecutions (“DPP”), had the ultimate authority in deciding whether charges should be laid.
29 June 2020	The Complainant institutes Judicial Review (“JR”) proceedings against DPP Mussenden's decision not to prosecute the Defendants (Police Constable GA v Director of Public Prosecutions, Police Sergeant AB and Police Sergeant CD (Case No 208 of 2020). The Complainant sought the following: an Order for a Declaratory Ruling in respect of DPP Mussenden's decision not to prosecute; an Order of Certiorari to quash DPP Mussenden's decision; and, an Order of Mandamus that DPP Mussenden reconsidered his decision not to prosecute. In support of his JR application the Complainant swears an affidavit on the same date.
16 July 2020	DPP Mussenden swears an affidavit in response to the Complainant's affidavit explaining, inter alia: that the Defendants were initially charged and then those charged were withdrawn; that an Information in respect of any alleged offences committed by the Defendants was never laid before the Magistrates' Court; the process involved in the Department of Public Prosecutions Office in respect of approving charges against defendants; and, the reasons why he decided not to have the Defendants prosecuted.
26/27 October 2020	Hargun CJ hears the Complainant's judicial review application.
3 December 2020	DPP Mussenden is appointed Puisne Judge of the Supreme Court of Bermuda.
4 December 2020	DDPP Clarke is appointed Director of Public Prosecutions.
5 December 2020	DPP Clarke is asked by the Commissioner of Police to revisit the evidence which underpinned the allegations of serious sexual assault against the Defendants
5 January 2021	Hargun CJ rules to dismiss the relief sought by the Complainant in the JR.
21 January 2021	DPP Clarke approves the prosecution of the Defendants stating that in her view there was a realistic prospect of conviction against each Defendant.
27 April 2021	An Information is laid in the Magistrates' Court of Bermuda against the Defendants for the sole offence of serious sexual assault.
21 May 2021	The Defendants appear in the Magistrates' Court to answer to the charge. The matter is adjourned to the Supreme Court of Bermuda's Arraignment session on 1 July 2021.
18 June 2021	The Prosecution lay an Indictment before the Supreme Court particularising the offence of serious sexual assault against the Defendants.
1 July 2021	The Defendants appear in the Supreme Court to answer to the said Indictment
14 March 2022	DPP Clarke swears an affidavit stating why she, as Deputy DPP, recommended a prosecution of the Defendants on 21 May 2020.
12 April 2022	DPP Clarke swears a second affidavit expanding upon her decision to prosecute the Defendants.

The Allegations against the Defendants

4. The Summary of the Evidence found on page 20 of the Court Record alleges that on 27 April 2019 the Complainant received a WhatsApp message from Defendant AB about going for a drive and playing some cards. The Complainant is a police officer and both Defendants are Sergeants in the BPS. Eventually, Defendant AB picked up the Complainant at his residence in a marked police car and then took him to Defendant CD's residence. After a few minutes the Defendants suggested that they all go into the bedroom to play “strip poker” wherein the loser would remove an article of clothing. The Complainant lost a few rounds and therefore removed articles of his clothing down to his undershirt and boxer-type underwear. He stated that he would not be removing any further clothing. Defendant AB also lost a few rounds and he removed his clothing to the point where he was naked. Defendant CD asked the Complainant what he [the Complainant] was going to do seeing that Defendant AB was naked.

5. It is further alleged that the Complainant then commenced playing with Defendant AB's penis and whilst doing so he felt someone grip and tum his neck. He then felt and saw Defendant CD's penis in his face near his mouth. The Complainant tried to push Defendant CD's penis out of his face but then Defendant AB tried to pull the Complainant's legs apart but was unsuccessful in inserting his penis into the Complainant's rear end. The Complainant told Defendant AB to stop and he tried to fight him off but Defendant CD was holding him down. Defendant CD then released the Complainant and proceeded to have sexual intercourse with Defendant AB whilst the Complainant sat on the edge of the bed. At some point thereafter Defendant AB drove the Complainant home.

6. As stated earlier, the Complainant eventually made a formal complaint of sexual assault against the Defendants approximately 7 months later on 18 November 2019.

Decision

7. It is the contention of the Defendants, through the submissions of their attorney Mr Jerome Lynch KC, that DPP Clarke's decision to prosecute the Defendants after DPP Mussenden's decision not to prosecute and after Hargun CJ's judgment in the JR proceedings that DPP Mussenden's decision was not perverse, is an affront to the proper administration of justice. Therefore, Mr Lynch further asserts, the prosecution against the Defendants should be stayed in order to protect the integrity of the criminal justice system.

8. Before addressing the gravamen of Mr Lynch's arguments it would be useful to set out the case law which shapes stay applications, particularly in relation to the basis of the Defendants' application.

9. It is common ground between Mr Lynch KC and Ms Elizabeth Christopher (for the Prosecution) that the “constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions” (Beckford[1996] 1 Cr App R 94) and that the Court has “an inescapable duty to secure fair treatment for those who come or are brought before them” (Connelly v DPP[1964] AC 1254). Therefore, the Court's overriding power to stay the prosecution of an accused person is fundamental to the administration of the criminal justice system and most importantly for the protection of the accused person's constitutional and legal rights. However, one must be acutely aware that while stay applications are not unfamiliar to the Courts granting them are exceptional and should only be resorted to sparingly or as “a remedy of last resort” (R v Maxwell[2011] 4 All ER 941). Especially if the trial process is equipped to deal with the issues at hand (R (Ebrahim) v Feltham Magistrates' Court, Mouat v DPP[2001] EWHC Admin 130 and R v Scott Crawley et al[2014] EWCA Crim 1028).

10. Further, neither party took issue with the underlying conclusions drawn by Hargun CJ in his judgment in the JR proceedings. In particular, that:

• i. Pursuant to section 71 of the Bermuda Constitution Order 1968 that constitutionally a DPP has the sole power to commence or stop criminal proceedings against an accused person.

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