R v Christine Hoskins

• Jurisdiction: Bermuda
• Judgment Date: 22 July 2003
• Date: 22 July 2003
• Docket Number: Civil Jurisdiction 2002 No. 256,Civil Jurisdiction 2001 No. 187
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Simmons, AJ

Civil Jurisdiction 2002 No. 256

BETWEEN:

The Queen

Plaintiff

-and-

Christine Hoskins

Respondent

Proceeds of Crime Act 1997, s. 37

Production order — Legal professional privilege — Procedure to be followed

JUDGMENT

This matter commenced by a Notice of Application (sic) brought by the plaintiff for the enforcement of a production order issued by the Hon. Chief Justice on 19^th June 2002 pursuant to section 37 of the Proceeds of Crime Act 1997. The plaintiff's application is supported by an affidavit of Robin Dyer of the police service. In it he deposes to his attachment the fact that he applied for a production order on 19^th June 2002 and the fact that on 25^th May 2002 the Respondent wrote a letter stating that the requested items sought were subject to legal professional privilege. Both the Production Order and the defendant's letter were exhibited to said affidavit.

The order is addressed to the defendant in her name as a barrister and attorney at the address of her legal practice in these islands. In it are cited the names of two individuals, who are the subjects of the items requested. However the affidavit of Mr Dyer is silent as to the purpose for the production order and grounds on which the order was sought.

The defendant through her counsel makes a preliminary objection to the making and or enforcement of the Production Order on the grounds that the documents sought attract the protection of legal privilege as defined by Section 7 of the Proceeds of Crime Act 1997. The preliminary objection raised by counsel for the defendant by its nature therefore raises a defence which is provided by the act. Secondly, the defendant complains that the affidavit sworn for the purposes of enforcing the order do not disclose sufficient particulars. One can only presume that the affidavit sworn and presented to the Chief Justice did disclose such detail. However every defendant who comes before the Supreme Court has a fundamental right to know the case they are required to answer. The order made by the Chief Justice was not in contravention of the act. The legal privilege that the defendant asserts must be established on the evidence that she presents to the court. That evidence should as in the normal course of a civil case be tested by cross-examination.

Once the defendant presents evidence in support of the defence of legal privilege, it is for the judge to determine from the facts on the balance of probabilities whether legal privilege applies to the documents in question. In my opinion, to decide on that issue now would be dispositive of the matter without having determined the facts upon which the defence is based.

It would therefore be premature for the court to discharge the production order at this stage. Were the court to do so any attorney whether acting under his/her client's instructions or not would be able to defeat a production order by merely asserting legal privilege. That cannot have been the intention of the legislators in light of the very far reaching implications and powers encompassed in the Proceeds of Crime Act 1997. In the circumstances the production order will not be discharged and the defendant's application is hereby dismissed.

Counsel for the plaintiff has raised the issue of the correct procedure to be followed should the defendant's application be refused. To enable this matter to proceed rationally the following directions are given.

• 1. The plaintiff is to file the original affidavit sworn and used to obtain the production order or a supplemental affidavit disclosing the purpose for obtaining the production order and the grounds for believing or suspecting that an offence has been committed and by whom. Said affidavit to be filed within fourteen days of the date hereof.

• 2. The defendant has leave to file an affidavit in reply thereto if necessary fourteen days after service of the plaintiff's affidavit.

• 3. The defendant to lodge the documents referred to in paragraph 6 of her affidavit of 13^th September 2002 with the Registrar of the Supreme Court on or before the period set for filing her reply affidavit for review by the trial judge.

• 4. No further affidavit without leave.

• 5. The deponents of the affidavits are to attend for cross-examination at the hearing.

• 6. The Registrar to fix a date for hearing as soon after the close of pleadings as is possible.

Hon. Assistant Justice Simmons

In The Supreme Court of Bermuda

Civil Jurisdiction 2001 No. 187

BETWEEN:

R

Applicant

and

Christine Hoskins

Respondent

Mr. P Harshaw for the Applicant

Ms. Shade Subair for the Respondent

The following cases were referred to in the judgment:

Francis & Francis v Central Criminal CourtUNK [1988] 3 All ER 775

Inland Revenue Commission v Rossminster Ltd.UNK [1980] 1 All ER 80

Fubler v Attorney General and the Commissioner of PoliceBDLR [1994] Bda LR 64

Re BraswellBDLR [2001] Bda LR 41 20

Commissioner of Police v HallBDLR [1994] Bda LR 20

Proceeds of Crime Act 1997, s. 37

Application to set aside production order — Procedure to be followed — Legal privilege — Guidelines

JUDGMENT of Kawaley, J

Background

By Summons dated November 20, 2002, the Defendant, Miss Christine Hoskins, a barrister-and-attorney, applied for an Order:

‘that the Production Order made herein by the [H]onourable Chief Justice and dated 19^th June, 2002 be set aside and that all connected proceedings be dismissed on the basis that the said Production Order is too vague to be enforced and/or that the material sought from the Defendant is the property of a third party who has a right to prevent disclosure of material sought and/or that the Production [O]rder was based on defective and/or misleading information provided by DC Robin Dyer and/or directions as to the class of material sought under the Production Order and the date range in which those documents must fall in order to be affected by the Production Order AND THAT the Defendant be awarded her costs of this application.’

At the beginning of the hearing of the present application, the Acting Director of Public Prosecutions (‘DPP’) appeared with Miss Subair to move a preliminary objection (in respect of which I was requested to give a separate ruling), and creditably conceded that as the June 19, 2002 Production Order (‘the Production Order’) was possibly the first sought under section 27 of the Proceeds of Crime Act 1997 (‘the Act’), the Crown's conduct of the present proceedings had not been free from difficulties. Although the Crown did not formally withdraw the preliminary objection as the Acting DPP wished a ruling on it as a guide for the procedural conduct of future cases, Mr. Ratneser consented to my proceeding to hear the present application on its merits and expressly requested that I deliver judgment on the merits in advance of my ruling on his preliminary objection, in relation to which preliminary application Counsel agreed to submit written submissions to supplement their brief oral arguments.

I should also note that there has never been any suggestion that Miss Hoskins has been other than innocently involved in the matters under investigation, nor has there been any suggestion that she has responded to the Production Order in less than a professional manner.

The Production Order

The Production Order provided in salient part as follows. The Applicant/Defendant was ordered to give a police officer pursuant to section 27 of the Act access to:

‘All files and associated documents and accounts and other records used in the ordinary course of business, whether those records are in written form, are kept on microfilm, magnet tape or any other form of mechanical or electrical data retrieval mechanism, paid cheques, inter account transfers, telegraphic transfers, and correspondence concerning any transactions relating to conveyancing for or on behalf of...