R v Smith 1996 Criminal Jur. No. 44

• Jurisdiction: Bermuda
• Judgment Date: 15 December 1998
• Date: 15 December 1998
• Docket Number: Criminal Jurisdiction 1996 No. 44
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Criminal Jurisdiction 1996 No. 44

The Queen

and

Justis Raham Smith

Mr Perry, QC for the Defendant

W Pearce for the Crown

Director of Public Prosecutions v HumphysELR [1977] AC 1

R v NisbetELR [1972] 1 QB 37

DPP v MerrimanUNK [1972] 3 All ER 42

Connelly v DPPUNK (1963) 48 Cr App R 1

R v Horseferry Road Magistrates Court ex parte BennettELR [1994] 1 AC 42

Mundy v R 1998 Civil Appeal No. 4

Teper v RELR [1952] AC 480

GalbraithWLR [1981] 1 WLR 1039

R v Shippey and others [1988] Cr LR 767

Strudwick and MerryUNK (1994) 99 Cr App R 326

R v LombardiUNK [1989] 1 All ER 92

R v BlandUNK [1988] Crim LR 41

Andrew MunroUNK (1993) 97 Cr App R 183

Hui Chi-Ming v RUNK [1991] 2 All ER 897

R v ClarksonUNK [1971] 3 All ER 344

Furbert and Franks v R 1997 Criminal Appeal No. 3

Daley v RELR [1994] 1 AC 117

R v LatifUNK [1996] 2 Cr App R 92

Peyton v R 1997 Criminal Appeal No. 11

R v Derby Crown Court ex parte BrooksUNK (1984) 80 Cr App R 164

Practice Direction (Submission of No Case)WLR [1962] 1 WLR 227

Criminal Code s. 485

Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2 (UK)

Criminal Code s. 286A

Premeditated murder — No case to answer — Jointly charged — Whether Court had jurisdiction to entertain an application of an abuse of process — Identification evidence

RULING

Meerabux, J.

PRELIMINARY

The Defendant, Justis Smith, was charged with premeditated murder of Rebecca Middleton on 13 July 1996. On 9 January 1998 he was jointly charged with Kirk Mundy for murder. At the close of the prosecution's case Mr. Perry on behalf of the Defendant submitted that there was no case for the Defendant to answer under limbs 1 and 2 of Lord Lane's test in GalbraithWLR[1981] 1 WLR 1039, that there was an abuse of the process of the Court and that the Court should exercise its discretion to decline to hear the proceedings. He cited Director of Public Prosecutions v Humphrys (H.L.(E.)ELR[1977] AC 1, Regina v NisbetELR[1972] 1 Q.B. 37, Director of Public Prosecutions v MerrimanUNK[1972] 3 All ER 42, Connelly v Director of Public ProsecutionsUNK(1963) 48 Cr. App. R.1, R v Horseferry Road Magistrates' Court ex parte BennettELR[1994] 1 AC 42, Mundy v The Queen, Court of Appeal Bermuda, Civil Appeal No. 4 of 1998, Teper v The QueenELR[1952] A.C. 480, GalbraithWLR[1981] 1 WLR 1039, R v Shippey and othersUNK[1988] Crim. L.R. 767, Strudwick and MerryUNK(1994) 99 Cr. App. R. 326, R v LombardiUNK[1989] 1 All ER 992, R v Bland[1988] Crim L.R 41, Andrew MunroUNK(1993) 97 Cr. App. R. 183, Hui Chi-Ming v R (P.C.)UNK[1991] 2 All E.R 897.

The Solicitor General for the prosecution submitted that the Court had no jurisdiction to entertain an application of an abuse of process because it should have been made at the beginning of these proceedings and in any event it was only applicable in limited circumstances, the instant case being not one of them. He submitted that there was a case for the Defendant to answer under limb 2(b) of Lord Lane's test in Galbraith. He cited Hui-Chi-ming case, the Humphrys case, the Merriman case, Criminal Law of Queensland (Eight Edition) 1992, at 2109 and 2111, Regina v ClarksonUNK[1971] 3 All ER 344, Galbraith case, Teper case, Teiko Furbert and Sheldon Franks v The Queen, Court of Appeal Bermuda, Criminal Appeal Nos. 3 and 4 of 1997, Daley v The QueenELR[1994] 1 AC 117, R v Latif and Ors.UNK[1996] 2 Cr. App. R. 92.

ABUSE OF PROCESS

On 21 October 1996 there was a short form preliminary inquiry in relation to the charge of premeditated murder and at that inquiry the Defendant was committed to trial for the alleged offence of premeditated murder. The relevant and essential evidence to support the committal was based on the statement of Kirk Mundy. It was contended then that the Defendant alone committed the offence of premeditated murder. The committal charge for premeditated murder was duly preferred under section 485(2)(a) of the Criminal Code.

Before the trial of premeditated murder the prosecution sought and obtained a voluntary bill of indictment under section 485(2)(c) of the Criminal Code against the Defendant and Kirk Mundy alleging murder. The evidence to support the voluntary bill was based on the statements of Dr. Baden and Dr. Lee. It was contended that both the Defendant and Mundy were jointly involved in the murder. That voluntary bill has not seen the light of day in this Court.

The Defendant is facing trial based on the indictment which was the product of the committal proceedings. No count was added under proviso (i) of section 485(2) of the Criminal Code to that indictment and there was no amendment to that indictment. It is to be noted that section 489 of the Criminal Code provides for amendment to an indictment. At this trial the evidence to support the offence of premeditated murder is not based on the evidence which was disclosed at the committal proceedings to support the committal, but the evidence which has been given to support the offence is the evidence which was put before the Supreme Court to support the charge of simple murder and, moreover, it has been used and given to support the view that the Defendant and Kirk Mundy committed premeditated murder. I will examine the law concerning indictments. But first I will consider the abuse of process arguments.

What is the doctrine of abuse of process. Can it be applied to criminal jurisdiction? Has this Court at this stage of the proceedings jurisdiction to entertain a challenge to the indictment on the ground of abuse of process. If the Court has jurisdiction what sanction the Court can impose to deal with an abuse of process in the instant case?

DOCTRINE

First, what is the doctrine of abuse of process? I think that it is apposite to refer to what Lord Bridge and Lord Lowry said in the Bennett case. At 66 and 67 Lord Bridge said as follows:

“In the common law jurisdiction closest to our own the opinion expressed by Woodhouse J. in the New Zealand case of Reg. v. HartleyUNK[1978] 2 N.Z.L.R. 199, in which he describes the issue as ‘basic to the whole concept of freedom in society,’ has already been cited by my noble and learned friend, Lord Griffiths, and I need not repeat it. In the later case of Moevao v. Department of LabourUNK[1980] 1 N.Z.L.R. 464, 475-476, Woodhouse J. cited the relevant passage from his own judgment in Hartley and added:

‘It is not always easy to decide whether some injustice involves the further consequence that a prosecution associated with it should be regarded as an abuse of process. And in this regard the courts have been careful to avoid confusing their own role with the executive responsibility for deciding upon a prosecution. In the Connelly case Lord Devlin referred to those matters and then, as I have said, he described as their “inescapable duty to secure fair treatment for those who come or who are brought before them.” He said that “the courts cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of law is not abused” ([1964] A.C. 1254, 1354…). Those remarks involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function. It is essential to keep in mind that it is “the process of law,” to use Lord Devlin's phrase, that is the issue. It is not something limited to the conventional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase “abuse of process” by itself does not give sufficient emphasis to the principle that in this context the court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general. It is for reasons of this kind that I remain of the opinion that the trial judge would have been entirely justified in the Hartley case in stopping the prosecution against the man Bennett.’

Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any other proper system of law than the maintenance of the rule of law itself.”

Likewise in Bermuda many of the basic principles to which we seek to give effect stem from common roots. Lord Lowry at 73 and 74 said:

“The first essential is to define abuse of process, which in my opinion must mean abuse of the process of the court which is to try the accused. Archbold, Criminal Pleading Evidence & Practice, 43^rd ed. (1993), para. 4–44 calls it ‘a misuse or improper manipulation of the process of the court.’ In Rourke v The Queen(1977) 76 D.L.R. (3d) 193 Laskin C.J.C. said, at p. 205. ‘The court is entitled to protect its process from abuse’ and also referred, at p. 207, to ‘the danger of generalising the application of the doctrine of abuse of process.’ In Moevao v. Department of LabourUNK[1980] 1 N.Z.L.R. 464, 476, Woodhouse J. spoke approvingly of ‘the much wider and more serious abuse of the criminal jurisdiction in general,’ whereas Richmond P., giving expression to reservations about the view in which he had concurred in Reg. v. HartleyUNK[1978] 2 N.Z.L.R. 199, referred, at p. 471, to the need to establish ‘that the process of the court in itself being wrongly made use of.’ I think that the words used by Woodhouse J. involve a danger that the doctrine of abuse of process will be too widely applied and I prefer the narrower definition adopted by the President.”

I adopt and apply the above principles to the instant case and I do not see any force in the argument of the Solicitor General as to the narrow...