R v Dorlisa Piercy
| Jurisdiction | Cayman Islands |
| Judge | Anthony Smellie |
| Judgment Date | 06 May 2014 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | IND: NO. 17 OF 2012 |
THE HON. Anthony Smellie, CHIEF JUSTICE
IND: NO. 17 OF 2012
IN THE GRAND COURT OF THE CAYMAN ISLANDS
IN THE CRIMINAL DIVISION
Ms. Lucy Organ for the Applicant
Mrs. Dawn Lobban-Jackson for the Crown
The defendant was convicted and sentenced on 21 st February 2014 to a term of five years imprisonment for the offence of cause the death of Karen Edwards by dangerous driving.
Karen Edwards was a passenger in the car driven by the defendant and was thrown from the car when it got out of control and flipped over and over. She succumbed to her injuries and was pronounced dead at the scene of the accident. Two other passengers, along with the defendant herself, sustained serious injuries.
The defendant has filed an appeal against her conviction and sentence and now applies for bail pending her appeal which will not be heard until the November 2014 session of the Court of Appeal.
As the learned trial judge recorded at paragraph 140 of her judgment, the prosecution's case was that excessive speed of the vehicle in the particular circumstances amounted to dangerous driving causing the death of Karen Edwards.
There are five grounds of appeal against conviction but I am satisfied that I should be concerned with only the 4 th and 5 th of these at this stage; the others, I am satisfied could not meet the test for the grant of bail pending appeal. The principles governing bail pending appeal, as Mrs. Lobban-Jackson submits and Ms. Organ agrees, are fairly settled. They are recognized in Nicoletta v R (1998) CILR 166 following R v Walton (1978) 68 Cr. App. R. 293 in these terms, dealing with an appeal against sentence:
“The guiding principles are those settled in R v Watton, namely, that bail should not be granted pending an appeal unless the sentence is at least prima facie, shown to be manifestly excessive or likely to have been substantially served before the appeal can be heard.”
Where the appeal is one also against the conviction as it is the case here, the Court of Appeal in R v Watton also explained that “bail is granted only where it appears prima facie that the appeal is likely to be successful.”
I accept that to be a correct statement of principle as well.
However, it was emphasized by Mrs. Lobban-Jackson that there is a further requirement of exceptional circumstances before bail pending appeal may be granted, according to the dicta from R v Watton. This, she says, appears from the following passage from the judgment of Lord Justice Geoffrey Lane (as he then was) given on behalf of the Court of Appeal:
“…the true question is, are there exceptional circumstances, which would drive the court to the conclusion that justice can only be done by the granting of bail. The law has not altered. The law is as it was. Exceptional circumstances are the test….”
Just what kind of circumstances, beyond the prima facie showing of a ground that the appeal is likely to be successful, wold be required to meet the “exceptional circumstances” test, was not explained by the Court of Appeal. Further than regarding it as one simply laying emphasis upon the need for a clear prima facie showing of a ground of appeal which is likely to be successful, I do not see how far the exceptional circumstances test can go. That therefore, is how I will seek to apply it here.
The first question therefore becomes; has the defendant shown such clear prima facie grounds of appeal against conviction which are likely to succeed such as to establish that bail should be granted pending the hearing of her appeal?
I consider that in respect of her grounds 4 and 5 she has done so. I will briefly explain my reasons for that decision, difficult though the issues appear to be.
Grounds 4 and 5 are respectively that:
“4. The learned trial judge erred when she found that the vehicle was travelling at a speed greater than 65 miles per hour (at p 22 paragraph 39–43 of her judgment) and
5. that she therefore also erred when she found that the driving in the case was dangerous, citing D.P.P. v Millon, Hondle v O'Connor and McQuinn v Buchanan which are all to the effect that speed alone is not sufficient to amount to dangerous driving — a principle recognized and accepted by the trial judge herself at paragraph 158 (p44) of her judgment.”
The learned trial judge did indeed recognize that speed alone is not sufficient to amount to dangerous driving. Having recorded (at paragraph 151 of her judgment) that the only reliable expert evidence of speed given in the case came from the defence expert Mr. White who estimated the speed at a maximum of about 65 mph, the learned judge went on to consider the evidence of speed in the overall context of the case.
She made the following findings (at paragraph 152–159):
“152. However, I bear in mind and accept as true the evidence of Ms. Tamara Smith that when she looked at the gauge, the speed was such as to cause her to ask the driver to slow down. I also accept her evidence as true that Ms. Karen Edwards was also very much alert to the speed and joined in the request to slow down. It is no surprise that with the music of Kartel being turned up in the car, Ms. Tamara is not sure if their pleas were heard.
Additional evidence of speed
153. When I consider the expert's evidence of a maximum speed of 65 miles per hour, with the...
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