Robinson v Commissioner of Police 1995 Appellate Jur No 22

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judgment Date: 14 September 1995
• Docket Number: Appellate Jurisdiction 1995 No. 22
• Date: 14 September 1995

BETWEEN:

Andrew Robinson

Appellant

-and-

The Commissioner of Police

Respondent

Ground, J

Appellate Jurisdiction 1995 No. 22

In the Supreme Court of Bermuda

Sexual assault — Function of Appellate Court — Delay — Whether fair trial

R v Davis 1977 Criminal Appeal No. 4

Dos Santos v Approo (1970) 17 WIR

Benmax v Austin Motor Co. Ltd.UNK [1955] 1 All ER 329

Watt or Thomas v ThomasELR [1947] AC 48

Criminal Code, s. 323

Mr. D. Duncan for the appellant; and

The Attorney General and Ms. N. Grewal for the respondent.

JUDGMENT

Introduction

This is an appeal from the appellant's conviction before the Magistrate of an offence of sexual assault contrary to section 323 of the Criminal Code (as amended), and for breaking and entering a dwelling house with intent to commit a felony, contrary to section 354(1) and (2) of the Criminal Code. The maximum penalty before the Magistrate on section 323 is 5 years imprisonment, so this was a serious matter.

The case against the appellant was that in the early hours of the morning of 25th July 1993 he entered the apartment of the complainant through a bathroom window and commenced performing a sexual act upon her while she slept, whereupon she woke up and required him to leave. The appellant admitted the circumstances of his entry, but maintained that he had been invited in by the complainant, with whom he claimed he was acquainted. He denied the sexual contact alleged. The complainant not only denied any invitation, but also denied any acquaintance at all with the accused.

The grounds of appeal are (i) that, in view of the number of adjournments of the trial, the appellant was not afforded a fair hearing within a reasonable time as required by the Constitution; (ii) that upon weighing up all the evidence the conviction cannot be supported; (iii) that the Magistrate erred in not rejecting outright the Crown's closing allegation of collusion between the defence witnesses, as that had never been put in cross-examination; (iv) and that improper collateral questions were allowed of one defence witness, P.C. Byrd.

The Magistrate supplemented her written ruling with a statement that she had ruled that the defence evidence was not creditworthy, and not that there had been collaboration or collusion. In the light of that, the defence abandoned the third ground of appeal.

The second ground was argued on the basis that the decision was insupportable because the Magistrate misdirected herself on the question of whether and to what extent the complainant and the appellant were known to each other. Under this head of argument the appellant also raised the point that the Magistrate gives no indication of how or why she rejected the evidence of the defence witnesses on this question.

Function of Appellate Court

A question was raised at the outset as to the proper function of the Supreme Court on an appeal from the Magistrates' Court, and so I will briefly review the principles on which this Court acts. It hears appeals by way of argument on the record: section 16(1)(a) of the Criminal Appeal Act 1952. The Court's function is to review the decision of the Magistrate, and on doing so it is required to allow the appeal if it appears to the Court (a) that upon a weighing up of all the evidence, the conviction ought not to be supported; (b) that it should be set aside on the ground of a wrong decision in law; or (c) that on any ground there was a miscarriage of justice. Otherwise the Court is obliged to dismiss the appeal, and there is a proviso that even though it decides a point in the appellant's favour, the Court may dismiss the appeal if it appears that no substantial miscarriage of justice has occurred.

These provisions were considered by the Court of Appeal (J.A.s Hogan, Georges and Blair-Kerr) in Davis(1977) (Cr. App. No. 4 of 1977) (Vol. 5, p. 188), where it said:

‘The Supreme Court thus has wide powers of review on facts on an appeal from a Magistrate. ‘Weighing up all the evidence’ and deciding whether a conviction can be supported amounts, in effect, to a rehearing of the case. Findings based on credibility of witnesses would be difficult to challenge but even such findings could be reviewed if it could be shown that they could not be supported on a close examination of the evidence.’

In performing this function the Court is acting in exercise of its supervisory jurisdiction over the summary court, and its starting point will be the reasons given by the Magistrate. Those reasons are required by section 21 of the Summary Jurisdiction Act 1930, which provides that—

‘When the case on both sides is closed the Magistrate composing the court shall record his judgment in writing; and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision …’

Moreover those reasons should:

‘… show an awareness of the salient issues, an assessment of the material evidence and an appreciation of the relevant law.’Peter -v- PetersUNK(1969) 14 W.I.R. 457.

It was urged upon me for the Crown that the appeal is from the decision of the Magistrate and not from his reasons, and I was referred to Dos Santos -v- Approo(1970) 17 W.I.R. That particular case was decided under rules which provided for a re-hearing (per Crane J.A. at p. 231), and in view of the comments of the Court of Appeal in Davis does apply. However, it is of limited assistance. It has long been recognised that where a court of first instance has made findings of principal facts, an appellate court is in as good a position as the first instance judge to determine what are the proper inferences to draw from them: see e.g. Benmax -v- Austin Motor Co. LtdUNK[1955] 1 All ER at p. 329. The task of making those findings of principal fact is properly one for the Court of first instance. Where that court goes demonstrably astray in doing so, an appellate court conducting a rehearing may be able to substitute its own findings from a consideration of the record, but there will be other cases where the Court is simply not able to perform that process with any degree of confidence. This will especially be so where the resolution of a conflict depends upon a consideration of demeanour. In any such case the defendant in the criminal trial will get the benefit of the doubt and the appellate court may be driven to quash the conviction.

It is, of course, a cardinal rule that the trial court is the best court to judge the credibility or reliability of witnesses, and the appellate court, even when conducting a rehearing, should not interfere with the trial judge's findings in that respect unless it appears that he ‘has not taken proper advantage of his having seen and heard the witnesses.’ That may be apparent because the reasons given by the Judge are not satisfactory, or because it unmistakably so appears from the evidence: per Lord Thankerton in Watt or Thomas -v- ThomasELR[1947] AC at p. 48. In other words, it is not the case that an appellate court is unable to question a trial judge's statement that he prefers the evidence of one witness to another. Where he gives reasons for that preference, they can be examined to see if they sustainable. In some cases a reference to demeanour alone may be sufficient, and no further explanation may be necessary. However, there will be cases where that does not suffice and the circumstances call for some further explanation of the preference of one witness over another, so that the appellate court can determine if it has been arrived at judicially, and applying proper principles.

Ground One—Delay

The accused was charged on 27th July 1993 and the case came on for trial on 6th December 1993. At that point it had been brought on for trial with reasonable expedition, and no complaint is, or could be, made of the interval between charge and trial. Once it started, the hearing continued on the 7th and 9th December. However, it was far from being finished on the 9th December, and was then adjourned part-heard upon the conclusion of the complainant's evidence. There then followed a lamentable series of adjournments, which are only partly explained by the record and the Magistrate's comments.

The case was initially adjourned to 13th January 1994, but did not come on that day, for which no explanation is recorded. It was then set for 7th March, three months after the last evidence was taken. On that occasion some further Crown evidence was heard, and it was then further adjourned to 17th March. On that date two short witnesses were taken, and the matter was then adjourned, apparently to 26th and 27th April, when it could not be heard due to the engagement of Crown Counsel in the Supreme Court: that appears from the letter at pages 10 and 11 of the appeal bundle and not from the record of the hearing. The matter was then fixed for 8th June 1994, a further gap of nearly three months since the last hearing. On the 8th June the Crown called one further witness and then closed its case...