The Queen v Jahmico Trott
| Jurisdiction | Bermuda |
| Judge | Juan P. Wolffe |
| Judgment Date | 14 October 2019 |
| Court | Supreme Court (Bermuda) |
| Docket Number | CRIMINAL JURISDICTION 2017: No. 027 |
[2019] SC (Bda) 81 Cn
In The Supreme Court of Bermuda
CRIMINAL JURISDICTION 2017: No. 027
2019: No. 010
Counsel for the Prosecution: Mr. Carrington Mahoney
Counsel for the Accused: Mr. Archibald Warner
Ms. Victoria Greening
Criminal practice and procedure — Application by prosecution for joinder of charges on a 2017 and 2019 indictment — Whether charges were founded on the same act — Whether accused would suffer any prejudice if the 2017 and 2019 indictment were joined.
Section 480 of the Criminal Code Act 1907 (“Criminal Code “) — Joinder of charges in an Indictment
The Prosecution seeks to join the charges of Case No. 27 of 2017 (the “2017 Indictment”) with the charges of Case No. 10 of 2019 (the “2019 Indictment”) pursuant to section 480(l)(a) of the Criminal Code Act 1907 (the “Criminal Code”).
By way of background, in respect of the 2017 Indictment the Accused is charged with the following: (i) Attempted Murder, contrary to section 289 of the Criminal Code; (ii) Using a firearm whilst committing an Indictable Offence, contrary to section 26A of the Firearms Act 1973; (iii) Carrying a Firearm with Criminal Intent, contrary to section 17 of the Firearms Act 1973; and (iv) Handling a Firearm, contrary to section 19A of the Firearms Act 1973. The Accused was initially charged with a Troy Sinclair Burgess Jr. in respect of the first two counts.
It is important to note that in late February/early March of 2018 a full jury trial was conducted in respect of the 2017 Indictment and that on the 7 th March 2018 the jury, by a majority verdict, found the Accused “Guilty” on all four (4) counts. Mr. Burgess was unanimously found “Not Guilty” by the jury on both of the counts on which he was charged. On the 6 th April 2018 the Accused was sentenced to a term of imprisonment of 25 years.
However, the Accused appealed his conviction on six grounds, as well as his sentence (Criminal Appeal No. 5 of 2018). On or about 15 th March 2019 the Court of Appeal upheld the Accused's appeal in respect of one ground only, particularly that his trial Counsel, Mr. Charles Richardson, failed to follow his instructions to call an alibi witness whom Mr. Richardson supposedly had a previous sexual relationship (this relationship was unknown to the Accused). The matter was therefore remitted to the Supreme Court to set another trial date. The trial date for the 2017 Indictment is still pending.
In respect of the 2019 Indictment the Accused is charged with the following: (i) Corruption of a Witness, contrary to section 125(1)(b) of the Criminal Code; and (ii) Intimidating a Witness, contrary to section 125A(a) of the Criminal Code. The Information in respect of this case was first laid before the Magistrates' Court on or about 21 st February 2019 and on that same date the matter was sent to the Supreme Court pursuant to section 27 of the Criminal Jurisdiction and Procedure Act 2015. The 2019 Indictment is dated the 19 th March 2019 and in respect of it the Accused appeared in the Supreme Court for the first time on 1 st April 2019. He pleaded not guilty to the offences charged and to date a trial date has not as yet been set.
By virtue of this joinder application the Prosecution now seeks to have the charges of the 2017 Indictment and those of the 2019 Indictment joined so that effectively, if this application is successful, both matters can be tried together.
Section 480 of the Criminal Code stipulates as follows:
“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.”
The Prosecution relies upon section 480(1)(a) of the Criminal Code. Specifically, that the charges of the 2017 Indictment and those of the 2019 Indictment “are founded on the same act or omission” and therefore their respective charges should be joined. To the contrary, Counsel for the Accused submits that both indictments are not founded on the same act, and that if both indictments are joined then this would be adverse and prejudicial to the Accused. In this regard, it is submitted that a conviction in respect of the 2019 Indictment would render it impossible for an acquittal to be delivered in respect of the 2017 Indictment.
As to what amounts to “founded on the same act” for the purposes of section 480(l)(a) of the Criminal Code the 2019 iteration of Archbold is of assistance. In paragraph 1–267 of Archbold it states:
“The question of whether the charges are “founded on the same facts “, within the meaning of rule 3.21(4)(a) of the 2015 rules, should be tested by asking whether the charges have a common factual origin; if the “subsidiary” charge could not be alleged but for the facts which give rise to the “primary” charge, the charges are founded on the same facts for the purpose of the rule”
It should be noted that Counsel were in agreement that the word “act” in section 480(l)(a) of the Criminal Code bears no difference to the word “facts” in rule 3.21(4)(a) of the United Kingdom's Criminal Procedure Rules 2015.
The above extract from Archbold referenced the authority of R v. Barrell and Wilson, (1979) 69 Cr.App.R. 250, an authority to which Mr. Mahoney extensively referred. In Barrell the three appellants (referred to in the decision as “B, M and W”) attacked the manager and attendant of a discotheque and consequently were charged with affray and assault occasioning bodily harm. Two months after being released on bail and before the trial W alone went to the manager and allegedly offered him money to alter his evidence at the committal proceedings. When the matter came up for trial W was charged alone with a third count of attempting to pervert the course of justice. An application to have this third count severed from the indictment was rejected by the trial judge, the trial proceeded and the jury were directed to consider each count separately. B and W were convicted of the offences for which they were charged and at the appeal of their convictions it was argued that “count 3, so far from being founded on the same facts as the first count 1, derived from a new and different set of facts which was not only different in nature but also separated by a substantial interval of time from the set of facts which gave rise to counts 1 and 2, and that to justify a joinder the subsidiary offence must be an integral part of the primary offences and must not be separated by any distance of time”. Counsel for the appellants in Barrell also submitted that in any event severance should have been ordered because the prejudice created by the allegations set out in count 3 was such as to preclude the possibility of an acquittal on the first two counts.
In dismissing the appeal, the Learned Justices of the Court of Appeal held that:
-
(i) “Founded on the same facts” did not mean that the facts in relation to the respective charges must be identical in substance or virtually contemporaneous.
-
(ii) The test was whether the charges had a common factual origin.
-
(iii) In respect of any prejudice which may be caused, even if count 3 was not tried with counts 1 and 2 the evidence which related to count 3 would have been relevant and admissible against Wilson in respect of counts 1 and 2 i.e. whatever “odium” which arose from having count 3 on the indictment would be the same as if it was severed. Further, that in any event the jury would be directed to consider each count separately.
This reasoning of Barrell was followed in the later authorities of R v. Cox [2001] EWCA Crim 728 and R v. Roberts [2008] EWCA Crim 1304. Cox, which is cited in Roberts, is a case where the appellant was committed for trial for offences involving a PC Tucker. Whilst on bail for the offences he was stopped again by PC Tucker for driving whilst disqualified and when he was arrested and taken to the police station he threatened PC Tucker. He was committed a second time and the offence of witness intimidation was joined with the driving whilst disqualified charge. The judge ordered that the witness intimidation count should be severed from the second indictment and joined with the first indictment. It was argued that the first indictment was a nullity because the counts had been improperly joined. However, Toulson J said:
“[21] We consider that two offences may fairly be said to be founded on the same facts or evidence where there is sufficient factual or evidential overlap to make it both just and convenient for them to be tried together. Here the evidence of PC Tucker on the trial (if there had been one) for...
To continue reading
Request your trial