R v Durrant and Gardner

• Jurisdiction: Bermuda
• Judgment Date: 23 November 2006
• Date: 23 November 2006
• Docket Number: Criminal Appeal 2006 No. 2
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Zacca, P; Evans, JA; Mantell, JA

Criminal Appeal 2006 No. 2

BETWEEN:

The Crown

Appellant

and

Kenneth Sinclair Durrant

and

Javon Ernest Gardner

Respondents

Mrs V for the Appellant

Mr J Perry, QC and Mr P Mendelle, QC for the Respondents

The following cases were referred to in the judgment:

Connelly v DPPELR [1964] AC 1254

Royal Gazette and Robinson v R Criminal Appeal No. 7 of 1970

Attorney General v de la ChevotiereBDLR [1991] Bda LR 2

R v CCC ex parte RandleTLR The Times 20 November 1990

R v HumphreyELR [1977] AC 1

Court of Appeal Act 1964, s. 16, 17

Conspiracy to murder — Retrial — Stay — Right of appeal — Meaning of ‘discharged’

JUDGMENT of Sir Anthony Evans, JA

1. On 22 February, 2005 Greaves J, on the application of the Director of Public Prosecutions, consented to the preference of a Voluntary Bill of Indictment charging Kenneth Sinclair Durrant and Javon Ernest Gardner, the Respondents to this appeal, with six joint offences.

2. The Indictment was dated 25 February 2005. The six charges were:

Count 1–5 Conspiracy to murder, each count having a separate intended victim, and

Count 6 Conspiracy to defeat justice.

3. The counts were linked in the following way. The offences were alleged to have been committed on about 29 November 2004. Each of the persons named as an intended victim was a witness or potential witness in proceedings which at that date were pending against Gardner in the Bermuda Magistrates' Court, charging him with assault and firearms offences. The prosecution alleged in the present case that Gardner conspired with Durrant to cause five of the potential witnesses to be murdered so as to prevent them from giving evidence in the Magistrate Court proceedings. The killings were to be carried out, it was alleged, by a third person who lives in Jamaica.

4. Hence the charge of conspiracy to defeat justice was added as count 6 to the Indictment charging conspiracy to murder in counts 1–5. Durrant and Gardner (‘the defendants’) were arrested in Bermuda after custom officers in the U.S.A. intercepted a package they had sent to the third person in Jamaica, containing a document with instructions for the contract killing of the five intended witnesses, together with US $1900.00 in cash.

5. The defendants filed a Notice of Motion dated the 1 April 2005 to quash the indictment and they issued an Originating summons dated 18 April 2005 to stay the Indictment. Both proceedings were dismissed by the Chief Justice on 1 June 2005.

6. The defendants' trial on indictment began on 2 November 2005 before Greaves J and a jury. It continued until 18 November 2005 when the jury failed to agree on counts 1–5 (conspiracy to murder) and acquitted both defendants on count 6 (conspiracy to defeat justice).

7. The judge thereupon discharged the jury, and counsel for the prosecution asked for the matter to be ‘set for mention on 1 December arraignment for retrial date.’ The application was not opposed and the Judge said only ‘yes’. Following submissions as to bail, the judge said, ‘My decision is that you be remanded in custody until the 1st of December at the arraignment session’.

8. On 7 December 2005 the defendants applied by Notice of Motion (later redated 30 January 2006) for an order of the Supreme Court ‘that all further proceedings against them here be permanently stayed’. The accompanying affidavits by the defendants' counsel stated that the ground was that ‘in the light of the jury's verdict and the circumstances of this case it would be an abuse of process for the Crown to try (the defendants) again on the five counts of conspiracy to murder.’

9. The application was heard by Greaves J on 3 February 2006. He made the following ‘the stay order’:-

‘(i) The indictments herein against both Applicants in respect of counts one through five be stayed.

(ii) The bail which was granted to both Applicants is set aside and the Applicants are ordered to be released in respect of this matter’.

10. The DPP gave notice of appeal against this order on 13 February 2006. In response, the defendants objected that the Court of Appeal has no jurisdiction to hear an appeal against the stay order. Their objection, as developed by learned counsel in argument before this Court, is essentially on three grounds:—

(i) The stay order was made by the Judge in the exercise of the Courts' inherent jurisdiction to prevent abuse of process, as recognised in DPP v ConnellyELR[1964] AC 1254 (HL). The jurisdiction of the Court of Appeal is regulated by the Court of Appeal Act 1964 (the Act) which does not give the right of appeal against such an Order;

(ii) an appeal by the DPP against the granting of a stay is outside the scope of section 17 (2) (a) of the Act in any event; and

(iii) the right of appeal given to the DPP by section 17 (2) is limited to ‘any ground of appeal which involves a question of law alone,’ which the projected appeal is not.

11. Section 17 (2) which is at the heart of the objection to jurisdiction reads as follows:—

‘2) Where

a) an accused person tried on indictment is discharged or acquitted …… ; or

b)……….

c)………..

the [DPP] or the informant, as the case may be, may appeal the Court of Appeal against the judgment of the Supreme Court on any ground of appeal which involves a question of law alone’.

12. Having heard submissions on the question of jurisdiction the Court reserved its judgment on those issues and de bene esse heard submission on the appeal as to its merits.

Statutory jurisdiction only

13. The DPP acknowledges that the jurisdiction of the Court of Appeal is entirely statutory and relies...