Rumley v R

• Jurisdiction: Bermuda
• Judge: Clarke P,Bell JA,Gloster JA
• Judgment Date: 03 December 2021
• Docket Number: Criminal Appeal 2021 No 4
• Court: Court of Appeal (Bermuda)

Between:

James Robert Rumley

Appellant

and

The Queen

Respondent

[2021] Bda LR 122

Before:

Clarke P; Bell JA; Gloster JA

Criminal Appeal 2021 No 4

In The Court of Appeal for Bermuda

Importation of firearm and component parts of firearm — Appeal against conviction and sentence of 14 years — Severing joined counts — Presumption of knowledge

The following cases were referred to in the judgment:

Blackstock (1980) 70 Cr App R 34

Stoddart (1909) 2 Cr App R 217

Attorney General of Hong Kong v Lee [1993] UKPC 20

R v Oakes (1986) 26 DLR (4th) 200

Sheldrake [2004] UKHL 43

R v M [2007] EWCA Crim 3228

R v Choudhury and Abbas [2008] EWCA Crim 3179

Davy v R [2021] Bda LR 40

Mr S Froomkin QC for the Appellant

Ms C Clarke for the Crown

JUDGMENT of Bell JA

Introduction

1. The appellant in this case, James Rumley, was unanimously convicted by a jury on three charges of unlawful importation of a firearm, contrary to section 3(1)(b) of the Firearms Act 1973 (“the Act”), on 25 November 2020 after a trial before Wolffe APJ. Each of the charges involved the importation of component parts of a firearm, which by the definition of a firearm contained in section 1(1) of the Act includes any component part thereof. On 14 December 2020 he was sentenced to 14 years' imprisonment in respect of each charge, such sentences to run concurrently. The sentencing judge gave relatively short reasons for the sentences imposed at the time of sentencing, but indicated to counsel at the time that he would render written reasons for the sentences, which would be sent to counsel in due course. This he did on 21 January 2021. The requisite time periods having expired, Rumley made application to this Court for extensions of time. At a hearing held on 7 October, I granted leave in respect of the appeal against conviction and refused leave in respect of the appeal against sentence. Rumley renewed his application for leave to appeal against sentence to the full court on 28 October 2021.

The grounds of appeal against conviction

2. Counsel for Rumley advanced three grounds of appeal, being:

• i. that the learned trial judge erred in law in refusing to sever the three counts aforesaid

• ii. that the learned trial judge erred in law in admitting evidence which was prejudicial, irrelevant and of no probative value, and

• iii. that the learned trial judge erred in law in directing the jury in respect of the burden of proof with respect to the presumption of knowledge contained in section 31(1)(a) of the Act.

3. Jury selection in the case took place on 9 November 2020, and trial counsel immediately made an application to sever the three counts contained in the indictment. The application was heard on 12 November 2020, the judge's ruling was given on 13 November, and on 16 November, the judge provided detailed written reasons for the ruling previously given. In his ruling, the judge set out the prosecution case against Rumley, and rehearsed the relevant law, starting with reference to section 489A(3) of the Criminal Code Act 1907 (“the Code”), which provides that:

“Where, before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the accused person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

4. The judge then turned to the authorities submitted by counsel on both sides, commenting that there was not much deviation between counsel as to the legal principles. He referred to the cases but said in terms that he did not propose to recite the facts of those cases. In reaching his decision, the judge referred also to section 480 of the Code, which is in the following terms:

“Joinder of charges in indictment

480 (1) A charge or charges for any indictable offence may be joined in the same indictment with any other such charge or charges or with a charge or charges for any summary offence which may lawfully be included in that indictment by virtue of section 13 and of the proviso to section 485(2)—

• (a) if those charges are founded on the same act or omission; or

• (b) if those charges are founded on separate acts or omissions which together constitute a series of acts done or omitted to be done in the prosecution of a single purpose; or

• (c) if those charges are founded on separate acts or omissions which together constitute a series of offences of the same or of a similar character,

but shall not otherwise be so joined:

Provided that no one count of an indictment shall charge an accused person with having committed two or more separate offences.

(2) Notwithstanding anything in subsection (1), where it appears to the Court that an accused person is likely to be prejudiced by any joinder of charges against him, the Court—

• (a) may require the prosecutor to elect upon which one of the several charges he will proceed; or

• (b) may direct that the trial of the accused person be had separately upon each or any of the charges.”

5. The judge found that all three of the counts in the indictment were founded on separate acts which together did constitute a series of offences of the same or a similar character. Specifically, he referred to the overlapping evidential and cross-admissible features of the case in the following terms:

“[12] It did not appear that Counsel for the Defendant were robustly submitting that the counts on the Indictment do not constitute a series of offences which are of the same or of a similar character. If they did then I should make it clear that I find that there is a sufficient nexus between all three of the counts on the Indictment in that they are founded on separate acts which together constitute a series of offences of the same or of a similar character. In this regard, I specifically refer to the following overlapping evidential and cross-admissible features of this case:

All of the counts involve the importation of firearms parts in the same manner

• i. i.e. by the use of international couriers.

• ii. All of the firearm parts were imported from Pennsylvania. The firearm parts in respect of counts 2 and 3 were shipped from Pittsburg, Pennsylvania where the Defendant resides.

• iii. All of the firearm parts were shipped from a FedEx facility in Pennsylvania. Therefore, no other overseas courier company was used to allegedly send the firearm parts to Bermuda.

• iv. All of the firearms parts were shipped to the FedEx facility in Bermuda. Therefore, no other local courier company was used to allegedly receive and deliver the firearm parts once in Bermuda.

• v. All of the firearm parts were found in packages which were labelled to contain innocuous items.

• vi. The firearm parts in Counts 1 and 2 were addressed to persons who were allegedly unaware that they were being sent to them.

• vii. The firearm parts in Counts 2 and 3 were allegedly imported on the same day.

Therefore, the counts on the Indictment have commonality in time, place and circumstances, and it is for this reason that I find that the counts on the Indictment were properly joined.”

The submissions of counsel

6. Mr Froomkin QC, Rumley's counsel, accepted in his written submissions that the judge had accurately reviewed the leading authorities and had extracted some of the relevant principles, but maintained that he had failed to apply them properly to the application before him. He urged that the evidence in respect of the three counts was not “cross admissible”, stressing that the only live issue to be determined was whether Rumley had knowledge of the prohibited items in the three packages. Specifically, he criticised the judge for referring in his summation to the prosecution's reliance on similarities of the allegations between the counts, when the Crown had indicated that it was not relying upon “similar fact evidence”, but rather was relying on a series of events. He also criticised the judge for having failed to caution the jury regarding the danger of misusing evidence which was admissible on one count but inadmissible on others. And while counsel was critical of the judge's reference to the similarity of the allegations, he had just cautioned the jury that they still had to consider the evidence of each count separately and reach a verdict on each count separately. I pause to note that these later complaints did not go directly to the judge's ruling on severance.

7. For the Crown, Ms Clarke's starting position was that the discretion granted to the judge to order separate trials of different counts was a wide one, which would only be interfered with by the Court of Appeal if it could be shown that the judge's discretion was not exercised upon the usual and proper principles – see Blackstock[1980] 70 Criminal Appeal Reports 34. She maintained that there was no indication that the judge had misconceived the facts, misstated the law, or took into or left out of account something which he ought to have regarded or disregarded. She submitted that the judge had directed the jury properly on returning separate verdicts on each of the counts, and how to deal with the similarities of the allegations.

8. The second ground of appeal related to evidence which the Prosecution had led regarding prior instances when Rumley had shipped packages to Nyna Lightbourne, who was the mother of his daughter. Ms Lightbourne was the addressee of the package referred to in the second count. Mr Froomkin maintained that such evidence was prejudicial, irrelevant and of no probative value. The first of the three packages which were the subject of the charges had been sent on 3 June 2019, and the latter two sent separately on 14 October 2019. Evidence of calls between September 2018 and October 2019 and WhatsApp messages...