Criminal Appeal 19 of 2019 - The Queen v Errington Webster – Transcript of Oral Judgment - Final
IN THE CAYMAN ISLANDS COURT OF APPEAL
CRIMINAL APPEAL 19/2019
IND. 96/2016
SC#04427/2016
BETWEEN:
Her Majesty the Queen
Applicant
- and –
ERRINGTON ALBERT WEBSTER
Respondent
BEFORE:
The Rt. Hon Sir John Goldring, President
The Hon John Martin QC, Justice of Appeal
The Hon. Sir Richard Field, Justice of Appeal
Date of Hearing:
23rd April 2021
Appearances:
Mr. Jack Taylor, Office of the DPP for Appellant
Mr. Jonathan Hughes of Samson Law for the Respondent
JUDGMENT
Transcript of oral judgment dated 23rd April 2021 and Approved for Release 20th May 2021
Goldring J, President:
1.
In this unusual application, Mr Taylor, on behalf of the Director of Public Prosecutions, submits
that the failure of the sentencing judge in this case to make an order for costs against the Respondent
constitutes an unduly lenient sentence in accordance with Section 30 of the Court of Appeal Act
(2011 Revision), requiring the court to make such an order.
The factual background
2.
On the 20th of June 2017, following a trial before Mr Justice Quin and a jury, the Respondent was
convicted of a series of serious offences of Indecency against a 13 year old girl. It is, for present
purposes, not necessary to go into their detail. The evidence against him was overwhelming. The
Criminal Appeal 19 of 2019 - The Queen v Errington Webster – Transcript of Oral Judgment - Final
victim had recorded the events on her mobile phone. The defence was far-fetched. It was the
Respondent's case that he committed the acts of indecency when suffering from automatism as a
result of the consumption of a preparation to treat his fat condition allied with blood pressure. He
called expert evidence to support this account. The Crown was driven, in the circumstances, to
instruct its own expert to provide evidence to rebut that of the Respondent. The costs in doing so
amounted to some US $24,147. In addition, there were the normal prosecution costs of $2,700 for
a trial which lasted longer than six days.
3.
On 6th of March 2018, Mr Justice Quin sentenced the Respondent to a total of six years'
imprisonment. The question of costs was adjourned. Unfortunately, before the learned judge could
deal with costs, he died. So it was that on the 23rd of August 2019, in what the transcript suggests
was a lengthy hearing in respect of what in essence was a straightforward matter, Mr Justice
McMillan found that it would be wrong in principle to order the Respondent to pay any costs. On
7th January 2020, the judge set out a written ruling containing his reasons.
4.
We should add this. At the time of trial, the Respondent was funding his defence privately. His
defence counsel ceased to act when the Respondent could no longer pay him. Mr Hughes now
represents the Respondent on Legal Aid.
The statutory background
The Penal Code
5.
Part II of the Penal Code [2019 Revision] is entitled "punishments". Section 21 sets out "Different
kinds of punishments". Specifically mentioned are imprisonment, fine, compensation, the finding
of security to keep the peace, liability to probation, forfeiture and attendance orders. Sub paragraph
(h) states:
"… any other punishment provided by this or any other law".
6.
Section 34 of the Penal Code states:
"Subject to limitations imposed by any law, a court may order any person convicted
of an offence to pay the costs of and incidental to the prosecution or any part
thereof".
Criminal Appeal 19 of 2019 - The Queen v Errington Webster – Transcript of Oral Judgment - Final
The Court of Appeal Act
7.
By section 30 of the Court of Appeal Act:
"(1) If it appears to the Director of Public Prosecutions —
(a) that the sentencing of a person in a proceeding in the Grand Court
has been unduly lenient or wrong in law; and
(b) that the case is a case in which sentence is passed on a person for an
offence triable on indictment,
he may, with the leave of the Court, refer the case to it to review the sentencing
of that person; and on such a reference the Court may —
(c) quash any sentence passed on the person in the proceeding; and
(d) in place of it, pass such sentence as they think appropriate for the
case and that the court below had power to pass when dealing with
the accused."
8.
Section 2 of the Court of Appeal Act defines "sentence" broadly. It "includes any order of any
court … consequent upon or in connection with a conviction which is subject to the jurisdiction of
the Court".
9.
Mr Hughes, in his written submissions, submitted that sentence was passed on 6th March 2018
when the Respondent was sentenced to a total of six years' imprisonment. The question of costs,
submitted Mr Hughes, was not part of the sentence. Section 30 of the Court of Appeal Act cannot
therefore apply. The Applicant's appeal, he submitted, fails at the first hurdle.
10.
Although we see the force of Mr Hughes' submissions, we cannot agree. Firstly, an order for the
defendant to pay some or all of the costs of the prosecution is set out in that part of the Penal Code
which is plainly intended to apply to punishments. Moreover, it is, in everyday language, part of
the sentence passed. Secondly, the definition of "sentence" in the Court of Appeal Act is very wide.
An order for costs plainly falls within that definition. That is not surprising. For there can be no
argument that a defendant against whom a costs order is made may appeal in respect of it.
Criminal Appeal 19 of 2019 - The Queen v Errington Webster – Transcript of Oral Judgment - Final
11.
In our judgment, therefore, this case does fall within section 30(1)(a) and (b) of the Court of Appeal
Act. The Director of Public Prosecutions may seek leave to appeal it. The court may quash the
sentence imposed and substitute what it considers to be an appropriate sentence.
Mr Justice McMillan's ruling
12.
Although it makes no material difference, the argument before Mr Justice McMillan proceeded on
the erroneous basis that the relevant provision was section 24(5) of Judicature Act (2007 Revision)
which provides, among other things, that costs may be awarded to the Crown. Before Mr Justice
McMillan, the Crown's submissions were substantially advanced on the basis that counsel then
representing the Respondent, and the defence expert, Dr Lockhart, were substantially to blame for
advancing this hopeless defence. Their egregious conduct was an element to be taken into account,
argued the Crown, when awarding costs. Those submissions in part led the judge to lose sight of
the real issues in this application. Having said he was not in a position to assess the allegedly
egregious conduct, the judge said (paragraph 31 of his written reasons):
"In my view this [that is to say, the submissions made by the Crown] is an entirely
erroneous and misguided approach to the matter. The jurisdiction of the court in
awarding costs should only be exercised where it is clearly appropriate to do so
with regard to the position of the defendant's own conduct and not simply in regard
to matters over which the defendant may ultimately have no control at all, in the
terms of the expertise provided by Dr Lockhart and in terms of the way in which
counsel may or may not have conducted matters on his behalf. The defendant is
no more a lawyer than he is a doctor."
13.
The judge finally, in paragraph 36:
"It would … be entirely wrong to utilise these powers [to award costs] in a manner
which no matter how unintentionally could inhibit or defer any defendant from
exercising his or her right to a fair trial under section 7 of the Constitution of the
Cayman Islands. There are occasions when the court must protect the guilty as
well as the innocent. That is why Justice is said to be blind."
14.
In short, the judge exercised his discretion not to award the prosecution any costs, because, firstly,
he could not conclude that the egregious conduct alleged took place, or, if it did, the Applicant had
Criminal Appeal 19 of 2019 - The Queen v Errington Webster – Transcript of Oral Judgment - Final
any responsibility for it; and secondly, to make a costs order could inhibit a defendant from
exercising his right to a fair trial.
How the case is now put by the Applicant
15.
The Director is not now seeking to advance his submission on the basis that either counsel or Dr
Lockhart were to blame for the way the defence below was conducted. The submission is that it
was the Respondent himself who sought to rebut the prosecution case in a wholly unreasonable and
far-fetched way, which necessarily involved the Crown, that is to say the public, in incurring
significant costs to meet it. In such circumstances, no judge could reasonably conclude that the
Respondent should not pay or make a contribution to those costs, provided he has the means to do
so.
Our analysis
16.
There is no dispute but that in deciding whether or not to make an order for costs, the judge is
exercising a discretion. There is no Cayman guidance regarding this exercise. In England and
Wales, section 18 of the Prosecution of Offences Act 1985 concerns the making of costs orders by
a defendant to the prosecution. While that Act plainly does not apply in the Cayman Islands, it
states that a court:
"may make such an order as to the costs to the paid by the accused … as it considers
just and reasonable". (Our emphasis)
17.
That, as it seems to us, is a sensible and fair approach for the court to take in this jurisdiction when
deciding whether or not costs should be awarded in any given case. It inevitably leads to the court
considering all aspects of the case before it, including the means of the defendant.
18.
Moreover, we have no doubt the conduct of the defence is capable of having a bearing on whether
it is just and reasonable to award costs against the defendant. The matter is set out in the current
edition of Archbold at paragraph 6. 42, where it states:
"In Mountain … Lawton LJ referred to the principle that an order to pay the costs
of the prosecution should not be imposed merely because a defendant has elected
trial on indictment. He said that one relevant consideration was the conduct of
the defence. Where that was of the type which involved allegations that everyone
Criminal Appeal 19 of 2019 - The Queen v Errington Webster – Transcript of Oral Judgment - Final
except the defendant was telling lies and the case against him was fabricated, an
order for costs might well be appropriate.
It is not the case of every defendant who is convicted after a plea of not guilty
should be ordered to pay the costs of the prosecution, but there is a discretion
which the judge can exercise if he takes into account such matters as the fact that
the defendant had chosen to contest a strong case against him or the fact that the
defendant must have known the real truth of the matter. If the defendant, knowing
his guilt, has elected trial by jury, it is permissible, if the trial judge decides on all
the facts that the costs ought to be paid, to refer to the waste of time and money
when passing sentence …."
19.
In the present case, as Mr Taylor has submitted, it was the Applicant himself who chose to plead
not guilty to this overwhelming case, and to seek to hoodwink the jury by advancing the most
spurious of defences. In the final analysis, it was not Dr Lockhart or counsel who were responsible,
but the Respondent. It was his case they were seeking to advance. He is responsible for it. The
Crown necessarily incurred expense in meeting that case.
20.
In our judgment, on these facts it was unarguably just and reasonable for the Respondent to pay
some or all those expenses, his means permitting. We cannot accept, as the judge said, that to make
such an order would inhibit or deter a defendant from exercising his right to a fair trial. The judge,
in the circumstances erred in principle in the exercise of his discretion in finding to the contrary.
The position now
21.
As Mr Hughes points out, several years have now passed since Mr Justice Quin imposed the
sentence of imprisonment. The Respondent has been serving that sentence. He has not been
earning a living. He is due before long to be considered for release. There is some dispute about
his current means. It seems to us that too long has now passed for us to consider making an order
for costs.
22.
In the circumstances, we think it right to grant the Director of Public Prosecutions leave under
section 30 of the Court of Appeal Act; however, we do not think it appropriate to interfere with the
sentence which was imposed having regard to the length of time which has now elapsed.