Privy Council Appeal No. 44 of 1999
Justis Raham SmithAppellant v. The Queen Respondent
THE COURT OF APPEAL OF BERMUDA
---------------JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Delivered the 28th February 2000 ------------------
Present at the hearing:-Lord Steyn
Lord Hope of Craighead
Lord Millett[Delivered by Lord Steyn] ------------------
1. 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 judges 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
2. 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.
3. 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.
4. 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 Crowns petition for leave to appeal.
5. 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. Mundys semen had been found in the victim. The circumstantial evidence that Mundy was involved in the murder was strong. The Crowns 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.
6. 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 defendants committal, and only relevant evidence which could support a charge of premeditated murder, that is, Mundys 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."
7. 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 [ 1 W.L.R. 1039, 1042B-E], I apply that rule. There is no case no case to answer."
The appeal by the Attorney-General
"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; ...
(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."
"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 Judgment of the Court of Appeal
12. 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 judges 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 issues on appeal to the Privy Council
(1) Did the Attorney-General have a right of appeal from the judges 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 judges 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 judges 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 Appeal proceed fairly in ordering a retrial without hearing counsel upon her request?
Abuse of process
15. The argument before their Lordships took a somewhat different course from the way in which the case was presented to the Court of Appeal. It was pointed out in oral argument that the judge, while he found an abuse of process established, did not grant a stay of the proceedings. If he made such an order he would have been functus officio and he would have been unable to deal with the no case submission. No doubt that is why he refrained from granting any relief on the abuse of process argument and dealt with the merits of the no case submission. An appeal can be brought only in respect of an order made by a court and not against the views of a judge. There was no order on abuse of process which could be appealed against. While their Lordships are in agreement with the Court of Appeal that on the facts there was no abuse of process - a view that was foreshadowed in oral argument by questions put by their Lordships to counsel for the appellant - there seemed no basis upon which the Privy Council could entertain an appeal on the jurisdictional issue whether the Attorney-General had a right of appeal in respect of an order which was never made. Counsel for the appellant accepted the correctness of this analysis. Counsel for the Crown said that he would have preferred a ruling on all aspects of abuse of process, the reason being that if the Court of Appeals decision on the second issue was upheld it would be wasteful to have to go back to a trial judge on abuse of process. But the jurisdictional issue regarding abuse of process was barely touched on in oral argument and certainly insufficiently explored for their Lordships to rule on it. In these circumstances their Lordships turn to the reasons for their decision on the second issue which, as will be seen, is determinative of this appeal.
No case submission: The Attorney-Generals right of appeal
16. The question to be decided is one of statutory construction of the words in section 17(2) which allow an appeal by the Attorney-General against a judges decision discharging a defendant in respect of "a question of law alone". This provision must be read with section 17(1)(a), which allows an appeal by the accused as of right on any ground involving "a question of law alone". Section 17(1)(b) provides for an appeal by the accused with leave on any ground of appeal involving "a question of fact alone" or "a question of mixed law and fact". (Their Lordships will throughout use the legislative expression "a question of mixed law and fact" rather than the more accurate expression "a mixed question of law and fact".) There is no reason to think that the phrase "a question of law alone" means different things in the two subsections. It follows that "a question of law alone" in section 17(2) excludes questions of fact and questions of mixed law and fact.
17. The issue is whether the grounds of appeal directed against the ruling of the judge on the no case submission are to be categorised as involving questions of law alone. Counsel for the appellant and counsel for the Crown argued for rather extreme positions. Counsel for the appellant submitted that any submission that there is no case to answer fails to satisfy the statutory requirement. He referred their Lordships to the well known passage in Galbraith  1 W.L.R. 1039. Lord Lane C.J. observed (at page 1042B-E):-
"How then should the judge approach a submission of no case? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesss reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred."
19. Counsel for the Crown had a general and a particular submission. Concentrating on his first way of putting the case, he argued that any decision by a judge on the issue whether there is a case to answer under either limb of Galbraith is always a question of law. He relied strongly on the decision in 1976 of the House of Lords in Attorney-General for Northern Ireland's Reference (No. 1 of 1975)  A.C. 105. This case involved a reference under statute by the Attorney-General to the Court of Appeal of a point of law. Lord Diplock observed at pages 132-133:-
"I know of no other satisfactory definition of a point of law arising in a criminal case than that it is a question that under this mode of trial would fall to be decided by the judge, not by the jury. Apart from questions of admissibility of evidence, it is a function of the judge to decide what are the constituent elements both physical (actus reus) and mental (mens rea) of an offence with which the accused is charged and to instruct the jury accordingly. It is the function of the jury to decide whether each one of those elements has been proved to have been present in the conduct or mind of the accused. This is because the definition of a crime is always a question of law; so where there has been trial by jury it should not be difficult to isolate and identify as a point of law arising in the case a question as to the correctness of the definition of the constituent elements of the offence given by the judge in his summing up to the jury. It has also long been recognised that the question whether upon a trial by jury there is any evidence upon which the jury could convict the accused is a question for the judge and thus one of law. This can be rationalised as a direction by the judge that if every fact unfavourable to the accused of which there is some admissible evidence, however slight, were treated as established, those facts would not satisfy the definition of the offence."
20. It is important, however, to note immediately three differences between the issue of interpretation before the House in the decision of 1976 and that presently before the Privy Council. Absent in the earlier case were the words "a question of law alone" as well as the express reference to "a question of mixed law and fact". And it is right to say that Lord Diplocks observations do not deal directly with questions of mixed law and fact. Moreover, in the earlier case there was no element of double jeopardy: the Attorney-Generals Reference was to clarify the law and had no effect on the accuseds acquittal. Counsel for the Crown rightly emphasised not only the view of the Court of Appeal in the present case but also the fact that the Court of Appeal of Bermuda had made similar rulings in the past: see Reg. v. Raynor (unreported), 27th April 1979; Court of Appeal of Bermuda (Criminal Appeal No. 20 of 1979). These are important considerations.
21. Their Lordships have, however, come to the conclusion that they ought not to accept either submission in its entirety. It is of supreme importance to approach the problem correctly. In law when somebody asks whether some issue involves a point of law, the response must always be: in what precise context and for what precise purpose? The question whether there is evidence to support a finding is often treated as involving a point of law for the purpose of statutory rights of appeal from tribunals. It has been said that in this context the courts "ought to guard against any artificial narrowing of the right of appeal on a point of law, which is clearly intended to be a wide and beneficial remedy": see Wade and Forsyth, Administrative Law, 7th ed. 1994 at 951, and generally at 945-953. It is also accepted practice in criminal courts to describe any ruling by a judge on a no case submission, or indeed any other ruling by the judge, as one on a question of law. Salmond on Jurisprudence, 12th ed., 1966, at 68 explained in regard to a no case submission:-
"... it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is withdrawn from the jury altogether; yet this is mere matter of fact, undetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the proper sense a pure question of fact. It is called a question of law because it is committed to and answered by the authority which normally answers questions of law only."
23. It does not follow at all that in section 17(2) the critical words are to be so construed. On the contrary, the language and contextual setting give a meaningfully different colour to the words. After all, the legislature has expressly confined an appeal by the Attorney-General to a ground of appeal involving a question of law alone. The narrow scope of section 17(2) is further underlined by the provision that in section 17(2) a question of mixed law and fact is excluded from the scope of the words "a question of law alone". To these indications must be added the provision in the same Act which spells out the powers of the Court of Appeal. Section 21(1) provides:-
"... the Court of Appeal shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Supreme Court should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal ..." [Emphasis supplied.]
24. The contrast between a verdict which "cannot be supported having regard to the evidence" and "a wrong decision on any question of law" tends to suggest that the legislature did not regard a point in the former category as qualifying as a "a question of law alone". In combination these factors point to the conclusion that the better interpretation is that section 17(2) permits an appeal on a pure question of law only.
25. This view is further reinforced by the consideration that section 17(2), - unlike the provision in the Attorney-Generals Reference - makes an inroad on the cardinal principle of double jeopardy. In Green v. United States of America (1957) 355 U.S. 184, 2 L. ed. 2nd, 199, Black J. in the Supreme Court of the United States stated the principle as follows (at p. 204):-
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense ..."
26. The present case is not one in which the prosecution are seeking on a retrial to bolster its case against the appellant. But their Lordships have to consider the spectrum of cases which may arise if the Crowns submissions are adopted. And such a construction would permit a prosecution, bent on presenting a better case at a second trial in order to secure a conviction, to appeal successfully against a discharge of a defendant on a no case submission under section 17(2). In any event, it is a settled principle of English law that an acquittal recorded by a court of competent jurisdiction, although erroneous in point of fact, cannot generally be questioned before any other court. An acquittal is final. The legislature may abolish or qualify this principle. In order to be effective such a legislative inroad on the principle requires clear and specific language. As authority for these elementary propositions their Lordships need only cite the decision of the House of Lords in Benson v. Northern Ireland Road Transport Board  A.C. 520, at 526, and the decision of the Australian High Court in Davern v. Messel 155 C.L.R. 21. As was observed in Davern v. Messel (1984), at page 32, this is "a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation". This is a further factor ruling out an extensive construction of section 17(2). For all these reasons their Lordships are of the opinion that the operative words of section 17(2) cover only a pure question of law.
27. It is now possible to apply this view to the type of situations which may arise on a no case submission. Counsel for a defendant may invite a ruling on a no case submission that a statutory offence contains an ingredient of mens rea and that there is no evidence of mens rea. The prosecution may dispute the legal question. That would be a pure question of law which may be appealed under section 17(2) by the Attorney-General. On the other hand, most no case submissions will simply involve an assessment of the strength of the evidence led by the prosecution. A certain amount of weighing of evidence is unavoidable at this stage because the trial judge has to form a view whether the evidence could potentially produce conviction beyond reasonable doubt: Zuckerman, The Principles of Criminal Evidence, 1989, at 54. The present case is in this category. It is clear that the judge accepted an argument that the circumstantial evidence was an insufficient basis for a jury to convict the appellant. It was no doubt a surprising view for the judge to have taken but it was nevertheless a view as to the quality of the evidence against the appellant. It was a decision arrived at on matters of fact and degree, namely the inferences which could be drawn from the evidence before the jury. The argument, the decision of the judge and the ground of appeal did not involve a question of law alone.
28. Counsel for the Crown also submitted in the alternative that, even if section 17(2) is restricted to pure questions of law, the judges reasoning was vitiated by an unsound legal approach which gives rise to a ground of appeal on a question of law alone. On a fair reading of the judges reasons he found the circumstantial evidence "inconclusive": it was not in his view strong enough to leave the case to the jury. That the judges decision was perhaps an astonishing one cannot alter the fact that it was simply the result of his view that the circumstantial evidence was too weak to warrant consideration by the jury. In any event, the highest that the Crowns argument can realistically be put is to say that the judges decision was one on a question of mixed law and fact: see Williams v. The Queen (1986) 161 C.L.R. 278. The Attorney-General has no right of appeal on such a question. Their Lordships must reject the alternative submission of the Crown.
The remaining questions
The disposal of the appeal