Spencer v R

• Jurisdiction: Bermuda
• Judgment Date: 26 September 2008
• Date: 26 September 2008
• Docket Number: Criminal Jurisdiction 2005 No. 27
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Criminal Jurisdiction 2005 No. 27

BETWEEN:

The Queen

Plaintiff

and

Goodwin Davano Spencer

Defendant

Mr C Richardson for the Applicant/Defendant

The following cases were referred to in the judgment:

Durrant v DPPBDLR [2005] Bda LR 21

R (HM Customs & Excise) v Hickey [unreported 1998]

Voluntary bill of indictment — Right of accused to be heard — Discretion to revoke consent

RULING of Kawaley, J

Introductory

1. Notice of Originating Motion dated September 16, 2008, the Defendant sought a review of my August 6, 2007 decision consenting to the preferment of a voluntary bill of indictment against him on the grounds that it appeared that the Court was under a misapprehension or inadvertently misled as to (a) the nature of the Crown's case, and (b) the essential elements of the offences being considered..

2. The Defendant was arraigned on September 4, 2007, over a year ago. Since at least April of 2008, the Defendant has been aware of the Crown's intention to seek joinder of his trial with two other defendants who were arraigned on April 16, 2008. It is a matter of record that the central basis of the Crown's application for the preferment of a voluntary was the public expense which a full-blown long-form preliminary inquiry would occasion in a case involving a large number of witnesses, many of whom resided overseas. On July 25, 2007, the Assistant Registrar at my request sought confirmation from the Crown as to whether positive steps had been taken to agree with the Defendant's legal advisers a more narrowly focused inquiry. After receiving the confirmation sought by way of a letter from Crown Counsel dated July 26, 2007, I granted the requisite consent.

3. On the face of the Defendant's application to review the ex parte decision I made over 13 months ago, no averment is made of any material misapprehension or misrepresentation as to matters relevant to the exercise of the relevant judicial discretion. The application seemed liable to be summarily dismissed as an abuse of process, being filed some 8 working days before a trial already fixed for hearing and scheduled to last some 4 to 6 weeks and disclosing no reasonable prospects of success. However, out of an abundance of caution, I decided on September 22, 2008 (when the application was first placed before me) to afford the Defendant's counsel an opportunity to make written representations to address my provisional concerns. It seemed to me that if there were sufficiently arguable grounds in support of the application to justify a full inter partes hearing, such grounds ought to be easy to assert in outline form in very short order.

4. If it was proposed to dismiss the application without a full oral hearing, it seemed to me that elementary justice (and the need for transparency) required that a reasoned decision be given to both (a) explain why consent was initially given on an ex parte basis to prefer the voluntary bill of indictment, and (b) why it was decided not to conduct any extensive enquiry before declining to review the initial decision. This course I now follow, having considered summary written submissions from the Defendant's attorneys which have not altered my provisional view as to the merits of the application having particular regard to the stage of the proceedings at which it was made.

Statutory framework and applicable legal principles

5. Section 485 (2)(c) of the Criminal Code provides that, where an accused person has not been committed for trial, an indictment may only lawfully be referred where ‘the bill is preferred by the direction or with the consent of a judge’. Section 485(3) affords the substantive remedy of rendering any counts included in an indictment in breach of subsection (2) liable to be quashed. Section 485(4) confers authority on this Court to make procedural rules relating to the application for consent to prefer a voluntary bill of indictment. The relevant rules are the Indictments (Procedure) Rules 1948.

6. The key procedural requirements for seeking judicial consent under section 485(2)(c) for the preferment of a voluntary bill of indictment where no committal has taken place are as follows: (a) the application must be in writing (rule 4); the application must be accompanied by the proposed bill of indictment and must (unless the DPP is the applicant) be supported by a verifying affidavit (rule 5); (c) the application must (i) state why it is desired to avoid a committal, (ii) be accompanied by witness statements, and (iii) embody a statement that the witnesses will be available at trial and that the case disclosed is ‘substantially true’ to the best of the applicant's belief (rule 6); and (d) unless the judge otherwise directs, the decision shall be signified in writing without affording the applicant or any witnesses an oral hearing. By necessary implication, the application is ex parte in nature and the accused person has no positive right to be heard in all cases (rule 7). However the Privy Council and this Court have affirmed that the judge has a residual discretion to afford the accused a right to be heard. In Gardner and Durrant v DPPBDLR[2005] Bda LR 21, Richard Ground CJ held:

‘15. The leading case on voluntary bills is Brooks (Lloyd) v Director of Public Prosecutions & Anor. (1994) 44 WIR 332, a decision of the Privy Council on appeal from the Court of Appeal of Jamaica. In that case there had been a preliminary inquiry before a Magistrate, who after 16 days ruled that no prima facie case had been made out, and discharged the defendant. The DPP then applied to a Supreme Court Judge for his consent to a voluntary bill, which was given. The appellant was given no notice of the application, nor any opportunity to be heard upon it. The Privy Council held that the exercise of the powers of a judge to consent to a voluntary bill was a procedural step which did not require, either at common law or under the Jamaican Constitution, prior notice to the proposed defendant. The judgment of the Privy Council on this point was given by Lord Woolf, and is worth quoting in full:

“The natural justice issue

The judge in exercising his powers under section 2(2) is doing no more than giving his indorsement to the initiation of proceedings. This is a procedural step which is not required by principles of fairness, the common law or the Constitution to be the subject of prior notice to the person who is to be the subject to the proceedings. If guidance as to the position at common law is required, then it is provided by the decisions of the House of Lords in Wiseman v Borneman. [1969] 3 All ER 275 and R v RaymondUNK[1981] 2 All ER 246. The Constitution adds nothing to the position at common law.

The judge has a residual discretion which he can exercise in exceptional circumstances to require a defendant to be notified and to consider any representations which a defendant may wish, but this case is certainly far from being a case where such action was necessary or even desirable. The judge in order to come to his decision could do no more than study the depositions of the proceedings before the resident magistrate. These were placed before the judge as an exhibit to the affidavit of Crown counsel in the office of the Director of Public Prosecutions and the judge no doubt had proper regard to them. No more was required. There is nothing in this issue.”’

7. The issue in the latter case was whether the ex parte grant of leave to prefer a voluntary bill of indictment offended the Bermuda Constitution's fair trial guarantees. The Chief Justice concluded his analysis of the constitutional position as follows:

‘22. It seems to me that the modern approach, recognised in Snaresbrook, is a salutary one, and that a Judge considering an application for a voluntary bill should normally consider whether or not notice and a chance to make written submissions should be afforded to the defendant. That is an approach which I adopted in a recent application which I considered: see R v Lambert & Ors. Criminal Case No. 17 of 2005. However, whether to do so or not is a matter for the discretion of the individual judge, and its...