The Queen v Tonae Perinchief-Leader
| Jurisdiction | Bermuda |
| Judge | Clarke,Smellie JA,Gloster JA |
| Judgment Date | 23 July 2020 |
| Neutral Citation | BM 2020 CA 13 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Case No: Crim/2019/9 |
| Date | 23 July 2020 |
[2020] CA (Bda) 11 Crim
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL CRIMINAL JURISDICTION
THE HON. MRS JUSTICE SIMMONS
CASE NUMBER 2019: No. 14
Sessions House
Hamilton, Bermuda HM 12
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Anthony Smellie
and
JUSTICE OF APPEAL Dame Elizabeth Gloster
Case No: Crim/2019/9
Mr. Alan Richards (Office of the Director for Public Prosecutions) for the Appellant
Mr. Charles Richardson (Compass Law Chambers) for the Respondent
Hearing dates: 16 th June 2020
Clarke P:
At 5.15. a.m. on Monday 6 July 2015, police officers went to execute a search warrant, issued under the Misuse of Drugs Act, at the upper apartment of a house at 36 Railway Trail, Sandy's, the address of Tonae Perinchief-Leader (“the Respondent”). The subject of the warrant was Michael, her uncle. The account of what follows is derived from the police evidence contained in the record. The police were allowed in by the Respondent's mother who told them that her elderly mother was in a bedroom and that the Respondent and her brother were in another bedroom. When the officers went to the Respondent's bedroom, one of them – DC 2316 Smith – knocked on the door. The Respondent opened the door. Also in the bedroom was her brother, Antonio, who was asleep on the floor. In the search of that room, two suitcases were found on the western side of the room– one dark brown and one black. DC Smith asked the Respondent who they belonged to and the Respondent stated, “ It is mines”.
The brown suitcase contained a purple plastic bag in which there was a revolver covered in clear cellophane, wrapped in a white tee shirt. When DC Smith asked the Respondent what the object was, the Respondent replied, “ I don't know”. The brown suitcase also contained a brown bag with a zippered pouch. The bag contained three duct taped packages and a clear plastic bag, containing what looked like ammunition. When asked if the bag belonged to her the Respondent said, “ It is mine”. When asked what the items in the brown bag were, the Respondent again replied, “ I don't know”. When the Respondent's brother was asked about the firearm and ammunition, found in the suitcase he said “ Nothing. I don't even live here”.
When officers searched the black suitcase, they found a shot gun, wrapped in cellophane tape, and two large trash bags, which, or one of which, contained boxes of what appeared to be ammunition. In total 485 rounds of ammunition of eight different types were found. The Respondent was arrested and detained in relation to the firearms. She was interviewed at the police station twice. She replied “ no comment” to most of the questions. She confirmed at the start of both interviews that 36 Railway Trail was her current address. She did the same on her reception at Hamilton Police Station.
On 19 March 2019 the Respondent was sent for trial pursuant to section 23 of the Criminal Jurisdiction and Procedure Act 2015 (“the CJPA 2015”) in respect of four offences which formed the subject matter of the subsequent indictment. On 12 April 2019, almost four years after the execution of the search warrant, an indictment was signed containing four counts. Two of the counts were for handling firearms and two for knowingly handling ammunition, contrary in each case to section 19 A (1) of the Firearms Act 1973.
On 1 May 2019, the Respondent was arraigned and pleaded not guilty before the Supreme Court to all four counts. On 6 May 2019, her then counsel, who was not the counsel who appeared for her when she was arraigned, informed the court that he would not be making an application to dismiss on the ground of insufficiency of evidence pursuant to section 31 of the CJPA 2015. At a later date, Mr Charles Richardson, her new counsel, made precisely such an application.
In a decision dated 14 August 2019, following on a hearing on 8 August 2019, the Honourable Justice Charles-Etta Simmons dismissed all the charges. (The date of 14 August may be a mistake for 14 October 2019). The Crown appeals from that decision. For reasons I shall set out later in this judgment, we are satisfied that we have jurisdiction to hear the Crown's appeal.
On reviewing the papers, I considered that the case raised some jurisdictional issues which did not seem to have been addressed in the Supreme Court (because of two earlier decisions to which I refer below), and I invited written submissions upon them. The central issue is whether, pursuant to section 3 of the CJPA 2015, the Supreme Court had jurisdiction to hear a dismissal application at the point when it did, namely after the arraignment. This issue and the consequences that flow from its determination can only be understood by reference to the relevant statutory provisions.
By section 19A of the Firearms Act 1973:
“(1) It is an offence for a person to knowingly handle a firearm or ammunition without lawful authority.
(2) A person “handles” a firearm or ammunition if—
(a) he is in any way concerned with removing, harbouring, keeping or concealing a firearm or ammunition, or anything containing a firearm or ammunition; or
(b) he deals in any manner with a firearm or ammunition.”
Section 31 of the Act then provides:
“(1) In a prosecution under this Act and without prejudice to any other provision of this Act—
(a) where it is proved that a person imported anything containing a firearm or ammunition it shall be presumed, until the contrary is proved, that such person knew that such firearm or ammunition was contained in such thing;
(b) where it is proved that a person had in his possession or custody or under his control anything containing a firearm or ammunition, it shall be presumed until the contrary is proved, that such person was in possession of or handled such firearm or ammunition.
(2) The presumptions provided by subsection (1) shall not be rebutted by proof that a person never had physical possession of the firearm or ammunition.”
Section 31 of the CJPA 2015 provides:
“31 Application for dismissal
(1) A person who is sent for trial under section 23 or 24 on any charge or charges may, at any time—
(a) after he is served with copies of the documents containing the evidence on which the charge or charges are based; and
(b) before he is arraigned (and whether or not an indictment has been preferred against him),
apply orally or in writing to the Supreme Court for the charge, or any of the charges, in the case to be dismissed.
(2) The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him.
(3) No oral application may be made under subsection (1) unless the applicant has given to the Supreme Court written notice of his intention to make the application.
(4) Oral evidence may be given on such an application only with the leave of the judge or by his order; and the judge shall give leave or make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so.
(5) If the judge gives leave permitting, or makes an order requiring, a person to give oral evidence, but that person does not do so, the judge may disregard any document indicating the evidence that he might have given.
(6) If the charge, or any of the charges, against the applicant is dismissed—
(a) no further proceedings may be brought on the dismissed charge or charges except by means of the preferment of a voluntary bill of indictment; and
(b) unless the applicant is in custody otherwise than on the dismissed charge or charges, he shall be discharged.
(7) Rules may be made under section 540 of the Criminal Code Act 1907 (“the Criminal Code”) which make provision for the purposes of this section and, without prejudice to the generality of the forgoing, may make provision—
(c) as to the time or stage in the proceedings at which anything required to be done is to be done (unless the court grants leave to do it at some other time or stage);
(d) as to the contents and form of notices or other documents;
(e) as to the manner in which evidence is to be submitted; and
(f) as to persons to be served with notices or other material.”
The judge decided that there was insufficient evidence for a jury properly directed to convict the Respondent of the four counts in the indictment and dismissed the charges. On the assumption that the judge had jurisdiction to entertain the application, the effect of her decision was therefore that the Respondent was discharged and no further proceedings could be brought on the dismissed charges save by the preferment of a voluntary bill.
There are in this appeal two jurisdictional questions. The first is whether the judge had jurisdiction to do what she did. The second is whether we have jurisdiction to entertain the Crown's appeal.
In our view, the language of section 31 is clear. An application under this section can only be made before arraignment. These words mean what they say. In the present case the application was made a considerable time after arraignment. We do not regard this express statutory provision that an application may be made after one specific event and before another specific event...
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