Safiyah Talbot v Fiona Miller

• Jurisdiction: Bermuda
• Judge: S. Subair Williams J
• Judgment Date: 17 September 2020
• Court: Supreme Court (Bermuda)
• Docket Number: APPELLATE JURISDICTION
• Date: 17 September 2020

[2020] SC (Bda) 40 App

In The Supreme Court of Bermuda

APPELLATE JURISDICTION

2019: 36

Safiyah Talbot

Appellant

and

Fiona Miller

(Police Sergeant)

Respondent

Appellant Mr. Bruce Swan, Bruce Swan & Associates

Respondent Mr. Javone Rogers for the Director of Public Prosecutions

Appeal against conviction in the Magistrates' Court — Failure or Refusal to comply with a demand for a sample of breath for analysis — Section 35C(7) of the Road Traffic Act 1947 — Making a false or misleading statement in giving information which was lawfully demanded — Section 122(2) of the Motor Car Act 1951 — Late Applications for Adjournments — Non-Compliance with Case Management Directions

JUDGMENT delivered by S. Subair Williams J

S. Subair Williams J

Introduction

1 The Appellant was tried in the Magistrates' Court on Information 18TR05443 and convicted by Magistrate Craig Attridge on 4 October 2019 for (i) having failed or refused to provide a sample of her breath for analysis, contrary to section 35C(7) the Road Traffic Act 1947 and (ii) having made a false statement to the police, contrary to section 122(2) of the Motor Car Act 1951.

2 Prior to the start of the trial in the Magistrates' Court, the Appellant commenced proceedings in the Supreme Court for judicial review of the decision to charge the Appellant under section 35C(7) the Road Traffic Act 1947 (“RTA”) (See S. Talbot v The Queen[2019] SC (Bda) 9 Civ (7 February 2019). The application was heard on 17 January 2019 and dismissed by the Chief Justice in a reasoned judgment delivered on 7 February 2019.

The Evidence

Evidence underlying the conviction for refusal to provide a breath sample

3 At the trial the Crown called three police officers to give evidence, namely Detective Sergeant Windol Thorpe, Police Constable Kyle Outerbridge and Sergeant Paul Watson. The Appellant gave evidence in her own defence.

4 It was uncontroversial on the evidence that at approximately 6:50am on 14 April 2018, Detective Sergeant Windol Thorpe was travelling westward on Wellington Road in St. George's Parish where he came upon the Appellant's motor car overturned on its rear side. There was extensive damage to the windshield at the general frontal portion of the car. Three individuals were seen to be pushing the vehicle back onto its wheels.

5 Sgt. Thorpe's evidence was that he observed blood on the Appellant's bottom lip and a strong smell of alcohol on her breath. Additionally, he noticed the presence of an opened wine bottle and an unopened WKD blue [vodka] bottle in the Appellant's car.

6 Despite having advised the Appellant to be seated for a check-over, the Appellant left the scene on foot. Sgt Thorpe stated that in answer to his insistence for her to remain at the scene, the Appellant asked him if he knew her cousin [Inspector] Mark Clarke. This caused Sgt Thorpe to telephone Inspector Clarke. However, the Appellant continued to walk away in an eastwardly direction.

7 Thereafter, the Appellant was intercepted by Sgt Thorpe as she was running towards her residence in the vicinity of Cut Road and Redcoat Road. When Sgt Thorpe approached the Appellant and asked her where she had come from the Appellant shared that she had visited her sister's house in Warwick Parish. Sgt Thorpe then asked the Appellant if she had been drinking any alcoholic beverages to which she replied in the affirmative stating that she had had ‘a few’. When pressed further, she said ‘quite a few’. This evidence was corroborated by the accompanying officer, PC Outerbridge.

8 It was Sgt Thorpe's evidence that he formed a belief that the Appellant had been driving impaired based on the occurrence of the accident, her irrational behaviour and the smell of intoxicants on her person. Accordingly, he instructed PC Outerbridge to arrest the Appellant on suspicion of impaired driving. PC Outerbridge complied and stated in his evidence that he too noticed a strong smell of an intoxicant on the Appellant's breath and observed that her eyes appeared to be dazed. When he demanded a sample of the Appellant's breath for analysis, her immediate reply was ‘Yes’, however, shortly thereafter she said; “I will not take that test.” These verbals were corroborated by Sgt Thorpe.

9 The Appellant was subsequently conveyed to South Side Police Station and then to Hamilton Police Station where she was processed by Sergeant Paul Watson who was the final witness for the Crown. At approximately 8:27am Sgt Watson asked the Appellant if she was still refusing to provide a sample of her breath for analysis. He stated that he advised the Appellant that failure to provide a breath sample constituted an offence and he informed her that the penalties for the offence were the same as those for driving whilst impaired. Sgt Watson told the Court that the Appellant indicated her understanding but still refused to take the breath test. He then completed the processing forms and noted her demeanour and his observation of the smell of intoxicants.

10 Sgt Watson stated in his evidence that at approximately 8:49am the Appellant conveyed that she wished to speak to a lawyer and other persons. He stated that she simply indicated that she wished to speak to a lawyer in answer to his question to her in compliance with the Prisoner's Rights form. He said that PC Charles allowed her to make several calls and that she was permitted to stay in the reception area of the station in lieu of being placed in a holding cell. Sgt Watson said that at 9:29am he received a telephone call from the Appellant's lawyer, Mr. Paul Wilson. Sgt Thorpe stated that Mr. Wilson demanded that the Appellant be permitted to provide a specimen of her breath in accordance with his advice to her. This was followed by a subsequent phone call from Mr. Wilson at 9:45am during which Sgt Watson informed Mr. Wilson that he was not going to allow the Appellant to take the test as she had previously refused.

11 The Defence case at trial was that the Appellant initially informed Sgt Watson that she was willing to take the breath test but that she wanted to speak to Mr. Wilson first. This was put to Sgt Watson during cross-examination but he disagreed that the Appellant had ever expressed a willingness to take the test prior to speaking to her attorney. He stated that when he asked the Appellant about taking the test, he was simply seeking clarification on whether she was still refusing to take the test, having initially refused on Red Coat Lane.

Evidence underlying the conviction for providing false information

12 On Sgt Thorpe's evidence, the Appellant told him at the scene of the accident that she was the driver of the car but she identified herself by her sister's name, ‘Sakinah Talbot’ of Cut Road. When he later interacted with the Appellant in the area of her residence, he instructed PC Outerbridge to arrest her. This was at approximately 7:12am. PC Outerbridge stated during his evidence that he arrested the Appellant but it was not until a later period that she was correctly identified to him as ‘Safiyah’ Talbot. When questioned by Magistrate Attridge, PC Outerbridge clarified his belief that he was advised of the Appellant's correct identity prior to his departure from the scene of the accident.

13 Under cross-examination Sgt Thorpe stated that he had previously dealt with the Appellant and was aware that she had a sister named Sakinah. He maintained under cross-examination that the Appellant gave her name as ‘Sakinah’ and not ‘Safiyah’.

14 The Defence, however, challenged this evidence. Mr. Swan, who also represented the Appellant at trial, put it to Sgt Thorpe that the Appellant identified herself by her true name. The Appellant also denied during her evidence under cross-examination that she presented herself to the police as ‘Sakinah’. According the magistrate's note of the evidence, the Appellant was silent on this issue during her evidence in chief.

The Grounds of Appeal

Ground 1:

The Learned Magistrate erred in fact and law when he stated that the Appellant's request to speak with her Lawyer amounted to a refusal to provide a sample of breath for analysis.

15 This ground of complaint was argued by Mr. Paul Wilson in the judicial review proceedings which were determined prior to the start of the trial in the Magistrates' Court. The disputed issues before the Court were listed as follows in Hargun CJ's judgment [para 7]:

• (a) whether exercising her constitutional right to consult an attorney upon arrival at Hamilton Police Station can be interpreted as a refusal to comply with the demand;

• (b) whether police have the authority to refuse to administer the taking of a sample where the indication of a willingness to comply comes within reasonably timely manner;

• (c) whether the rationale of previously decided cases is contrary to the constitutional right to obtain legal advice;

• (d) whether the Applicant's constitutional right to consult an attorney upon arrival at Hamilton Police Station is outweighed by the police need to recover evidence;

• (e) whether a sample of breath amounts to evidence for which defendants should be safeguarded against; and

• (f) whether the constitution should be read as the Supreme Law.

16 Hargun CJ bifurcated these points in the following way [para 8]:

“ All these issues identified by the Applicant resolve themselves into two main questions: (1) does the refusal to comply with the demand for a breath sample because a person wishes to consult with a lawyer amount to a “reasonable excuse” within the meaning of section 35C (7) of the RTA, and (2) if it is not a “reasonable excuse” does the situation created thereby constitute a breach of section 5 of the Bermuda Constitution?”

17 In resolving these questions, Hargun CJ was referred to the binding decision of the Court of Appeal in Sybil Young v McClean Criminal Appeal No 14 of 1993 [pages 55–56]:

“ The...