Smith appeal

I do not intend to comment on the Rebecca Middleton murder, this has been documented sufficiently in newspapers and on the web.

The investigation and handling of the case is a sad indictment on the island and an example on what many believe to be incompetence. Playing 'police officers' at the expense of others is a distasteful game.

The trial was a farce, so much so that the judge directed an acquittal of the defendant; Smith.

What may be less well known is that the appeal to the UK Court by the Bermuda Attorney General's department was unsuccessful...

BERMUDA - Crime - Practice - Right of appeal - Submission of no case to answer upheld - Defendant acquitted on judge's direction - Appeal against judge's decision - Whether involving question of law alone - Whether Court of Appeal having jurisdiction to entertain appeal - Court of Appeal Act 1964 (Laws of Bermuda, 1989 rev), s 17(2)

PC: Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton and Lord Millett: 28 February 2000

The Attorney-General of Bermuda had no right of appeal under s 17(2) of the Court of Appeal Act 1964 against the trial judge's decision to direct an acquittal on the ground that the defendant had no case to answer, since the ground of appeal did not involve a question of law alone.

The Judicial Committee of the Privy Council so held in allowing the appeal of the defendant from the judgment of the Court of Appeal of Bermuda allowing an appeal by the Attorney-General of Bermuda from the decision of Meerabux J in the Supreme Court of Bermuda (Criminal Jurisdiction) upholding the defence submission that the defendant had no case to answer and directing the jury to acquit him. The judge's decision was restored.

The defendant was charged with premeditated murder and tried on indictment. At the end of the prosecution case, which was based on circumstantial evidence, the defence submitted that there was no case to answer. The judge accepted that the circumstantial evidence was an insufficient basis for the jury to convict the defendant and upheld the submission. On the judge's direction the jury acquitted the defendant. The Attorney-General of Bermuda appealed to the Court of Appeal under s 17(2) of the Court of Appeal Act 1964, whereby when an accused person tried on indictment was acquitted the Attorney-General had a right of appeal against any judgment of the Supreme Court on any ground of appeal which involved a question of law alone. A ground of appeal was that the judge had erred in ruling that there was no case to answer. The Court of Appeal held that it had jurisdiction to entertain the appeal on that ground, reversed the judge's ruling and ordered a retrial.

LORD STEYN, delivering the judgment of the Board, said that s 17(2) had to be read with s 17(1), and so "a question of law alone" in s 17(2) excluded questions of fact and questions of mixed law and fact. Since s 17(2) made an inroad on the cardinal principle of double jeopardy, a narrow construction had to be given to s 17(2) and the operative words covered only a pure question of law. The judge's decision as to the quality of the evidence against the defendant was reached on matters of fact and degree, namely the inferences which could be drawn from the evidence before the jury. The argument, the judge's decision and the ground of appeal did not involve a question of law alone. The Attorney-General was not entitled to appeal under s 17(2) and the Court of Appeal had erred in concluding that it had jurisdiction to entertain the appeal.

Appearances: John Perry QC and Elizabeth Christopher (of the Bermuda Bar) (Simons Muirhead & Burton) for the defendant; Sir Godfray Le Quesne QC and William Pearce QC, Acting Director of Public Prosecutions, Bermuda (Charles Russell) for the Crown.