Smith v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn |
| Judgment Date | 28 February 2000 |
| Judgment citation (vLex) | [2000] UKPC J0228-1 |
| Docket Number | Appeal No. 44 of 1999 |
| Court | Privy Council |
| Date | 28 February 2000 |
[2000] UKPC J0228-1
Privy Council
Present at the hearing:-
Lord Steyn
Lord Hope of Craighead
Lord Clyde
Lord Hutton
Lord Millett
[Delivered by Lord Steyn]
The principal issue on this appeal is whether under section 17(2) of the Court of Appeal Act 1964 of Bermuda the Attorney-General had a right of appeal against a trial judge's decision to direct an acquittal on the ground that the defendant had no case to answer. It turns on the question whether within the meaning of section 17(2) there was a ground of appeal which involved "a question of law alone".
The crime and the charges
At about 3.30 a.m. on 3rd July 1996 Rebecca Middleton, a seventeen year old Canadian visitor, was found lying on a public road at Ferry Reach. She had been stabbed several times and had sustained other severe injuries. She died shortly afterwards.
The appellant and Kirk Orlando Mundy were arrested. On 13th July the appellant was charged with premeditated murder and Mundy was charged with being an accessory after the fact. On 16th October 1996 Mundy pleaded guilty to being an accessory after the fact and he was sentenced to a term of imprisonment. On 21st October 1996 the appellant was committed for trial in the Supreme Court.
On 9th January 1998, before the trial of the appellant, there was a new development. A charge of murdering the deceased was made against Mundy and the appellant jointly. The reason for the joint charge was forensic evidence which showed that the murder had been carried out by more than one person, and that more than one person had carried the victim from the spot where the fatal wounds were inflicted to the middle of the road. Relying on the fact that he had pleaded guilty and was sentenced as an accessory after the fact Mundy applied for an order quashing the new charge. On 6th February 1998 a judge dismissed the application. On 26th March 1998 the Court of Appeal allowed an appeal and granted an order prohibiting the Attorney-General from proceeding with the charge of murder against Mundy. The Court of Appeal took the view that a conviction of murder would be inconsistent with a conviction as an accessory after the fact. On 6th July 1998 the Privy Council dismissed the Crown's petition for leave to appeal.
That left the charge of murder against the appellant in respect of which he had been committed on 21st October 1996. The trial against the appellant alone began on the 23rd November 1998. The Crown case was that two persons were involved in the murder. Mundy's semen had been found in the victim. The circumstantial evidence that Mundy was involved in the murder was strong. The Crown's case against the appellant was equally based on strong circumstantial evidence. There was evidence from which the jury could have inferred that the victim was in the presence of the appellant and Mundy shortly before the attack on the victim and that the appellant was still with Mundy shortly afterwards. The Crown had a statement from Mundy implicating the appellant in the murder but declined to call him on the ground that he was not a witness of truth. The defence could have invited the judge to request the prosecution to tender Mundy as a witness for cross-examination but did not do so. As counsel for the appellant frankly observed the defence did not want to be put in a position of having to cross-examine Mundy.
Against this background counsel for the appellant made two submissions at the close of the case for the Crown, namely (1) that the judge should stop the case because it was an abuse of the process of the court and (2) that there was no case for the appellant to answer. Dealing with the first submission the judge observed:-
"The Crown has come to this Court using the same evidence which was used to support a charge of simple murder against the defendant. That evidence formed no part in the defendant's committal, and only relevant evidence which could support a charge of premeditated murder, that is, Mundy's evidence, has not been produced by the Crown. Here an essential prosecution witness has failed to give evidence and in consequence has failed to come up to proof.
I think that the circumstances antecedent to this trial has produced a situation where the process of the Court has been abused. In my view, the prosecution has misused the process of the Court so as to deprive the defendant of a protection provided by the law."
The judge did not order a stay of the proceedings consequent upon his finding of an abuse of process. Instead the judge proceeded to consider the submission that there was no case to answer. Surprisingly, the judge took the view that the circumstantial evidence was "inconclusive to connect the defendant with the commission of the crime". The judge summed up this conclusion as follows:-
"I rule that the quality of the evidence is poor and the inferences which the prosecution are asking this Court to draw from the circumstantial evidence are inferences which in my view no reasonable jury could properly draw.
In conclusion, I take the law as I find it. After weighing the balance of the public interest as regards the abuse of process, I rule that there is no case to answer.
And as regards the no case submission limb 1 of Galbraith [ [1981] 1 W.L.R. 1039, 1042B-E], I apply that rule. There is no case no case to answer."
[Reference supplied.]
Upon the judge's direction the jury returned a verdict of not guilty.
The appeal by the Attorney-General
The Attorney-General lodged an appeal under section 17(2) of the Court of Appeal Act 1964. Section 17, so far as it is material, provides as follows:-
" Right of appeal
17 (1) A person convicted on indictment, or a person convicted by a court of summary jurisdiction and whose appeal to the Supreme Court under the Criminal Appeal Act 1952 … has not been allowed, may appeal to the Court of Appeal –
(a) against his conviction in the Supreme Court, or in any other case, against the decision of the Supreme Court, upon any ground of appeal involving a question of law alone; and
(b) with the leave of the Court of Appeal or upon the certificate of the Supreme Court that it is a fit case for appeal against conviction, upon any ground of appeal which involves a question of fact alone, or a question of mixed law and fact or on any ground which appears to the Court to be a sufficient ground of appeal; …
(2) Where –
(a) an accused person tried on indictment is discharged or acquitted or is convicted of an offence other than the one with which he was charged; or
(b) an accused person tried before a court of summary jurisdiction is acquitted and an appeal to the Supreme Court by the informant has not been allowed; or
(c) an accused person whose appeal to the Supreme Court against conviction by a court of summary jurisdiction has been allowed,
the Attorney-General or the informant, as the case may be, may appeal to the Court of Appeal against the judgment of the Supreme Court on any ground of appeal which involves a question of law alone."
The Grounds of Appeal in support of the proposed appeal included the following:-
"1. The Learned Justice erred in directing a verdict of not guilty on the basis that there was no case for the Defence to answer.
2. The Learned Justice erred in failing to consider relevant circumstantial evidence, in failing to attach appropriate weight to circumstantial evidence as he did consider, and in attaching weight to irrelevant evidence, and accordingly erred in ruling that there was no case for the Defence to answer.
3.-5. …
6. The Learned Justice erred in ruling that the conduct of the Crown amounted to an abuse of process which warranted withdrawing the case from the jury and directing a verdict of acquittal."
The argument before the Court of Appeal covered both jurisdiction to entertain the appeal as well as the merits of the grounds of appeal.
The Judgment of the Court of Appeal
Dealing first with abuse of process the Court of Appeal observed that the only change from the committal proceedings was that the prosecution alleged at the trial of the appellant that two men jointly killed the deceased. The Court of Appeal stated that the appellant knew from the opening of the case how the prosecution said the murder was committed. The court concluded that he was "not prejudiced in the preparation of the defence, nor was he treated unfairly". The Court of Appeal held that it had jurisdiction to entertain an appeal on an abuse of process ruling by a trial judge and that there had been no abuse of process. The Court of Appeal ruled that as a matter of jurisdiction it was also entitled to entertain an appeal against the judge's decision that there was no case to answer. The Court of Appeal concluded that the judge should have left the case to the jury since the jury "could properly have come to the conclusion that the respondent was at the scene of the murder of Rebecca, and participated in it as the principal killer …".
The Court of Appeal ordered a retrial.
The issues on appeal to the Privy Council
Initially, the issues calling for decision appeared to be as follows:-
(1) Did the Attorney-General have a right of appeal from the judge's decision that the conduct of the prosecution constituted an abuse of process with the remedy of an implied stay?
(2) Did the Attorney-General have a right of appeal from the judge's decision to order discharge of the appellant on the ground that he had no case to answer?
(3) If the answer was yes to either ( 1) or (2) above (or to both) did the Court of Appeal err in reversing the trial judge's ruling –
(i) that the conduct of the prosecution amounted to an abuse of process,
(ii) that the appellant had no case to answer.
(4) Did the Court of...
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