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JUDGEMENT
OF THE PRESIDENT THE RIGHT HONOURABLE MR JUSTICE MICHAEL DE LA BASTIDE, PCCJ,
MR JUSTICE NELSON, JCCJ, MR JUSTICE SAUNDERS, JCCJ, MME JUSTICE BERNARD,
JCCJ, MR JUSTICE WIT, JCCJ, MR JUSTICE HAYTON, JCCJ, DELIVERED BY THE
PRESIDENT
[1] On the 4th December, 2006, at the conclusion of arguments on a
preliminary issue we dismissed this appeal. We promised to give the reasons
for our decision in writing, and we now do so.
THE HISTORY OF THE PROCEEDINGS
[2] The respondent in this case, Mitchell Lewis ('Lewis'), was on the 16th
February, 2005, sentenced to death after being convicted by a jury of the
murder of a man who was fatally shot on the 8th June, 2000. For present
purposes the facts of the case are not important. Lewis appealed his
conviction to the Court of Appeal of Barbados and on the 5th January, 2006,
that Court delivered its judgment in which it quashed the conviction and
sentence of death and ordered a new trial. The Court's judgment was based on
a finding that certain things said by counsel on both sides in the presence
and hearing of persons who subsequently became jurors in the case, were so
prejudicial to Lewis that his trial was rendered unfair. The prejudicial
material was introduced in the course of an application made in open court
by defence counsel for the trial judge to recuse himself because of certain
remarks which he had allegedly made when the case came before him on two
previous occasions, and which in Lewis' opinion showed that the Judge was
biased against him.
[3] The Crown applied to the Court of Appeal for leave to appeal on the
premise that the case involved a question of interpretation of the
Constitution and that the Crown was therefore entitled to appeal to this
Court as of right pursuant to Section 6 (c) of the Caribbean Court of
Justice Act ('the CCJ Act'). An application to the Court of Appeal for leave
is required in such cases by Rule 10.2(a) of the Caribbean Court of Justice
(Appellate Jurisdiction) Rules, 2005. There being no objection by Lewis'
counsel to the application, the Court of Appeal granted conditional leave to
appeal on the 2nd March, 2006, and final leave on the 4th April, 2006.
THE PRELIMINARY ISSUE
[4] This Court, however, had a concern whether the premise on which the
Court of Appeal granted leave i.e. that the Crown was in this case entitled
to appeal as of right, was correct. Accordingly at a case management
conference held on the 4th October, 2006, Mr. Justice Saunders and I made an
order with the consent of the parties for the determination as a preliminary
issue of the following two questions:
(1) whether by virtue of Section 6 (c) of the Caribbean Court of Justice
Act, the Crown has an appeal as of right to this Court in this case, and
(2) whether, if such a right of appeal exists, the Crown can as part of any
relief it obtains, secure the restoration of the conviction of the
respondent.
[5] For the reasons which we now give, the Court answered the first of those
questions in the negative. In other words, we held that the Crown was not
entitled to appeal as of right from the decision of the Court of Appeal in
this case. In light of that answer, the second question does not really
arise, and for that reason and others which I shall give later, it has not
been answered.
[6] The first question concerns the applicability of section 6 (c) of the
CCJ Act to the instant case. This question has two parts which I shall
identify as Question 1(a) and Question 1(b) respectively. Question 1(a) is
whether the right of appeal which this section confers, is in criminal cases
conferred only on a convicted person or whether the prosecution too can take
the benefit of it and challenge by appeal a decision of the Court of Appeal
to quash a conviction. Question 1(b) is whether, assuming that the right of
appeal under this section does extend to the prosecution, this case involves
a question as to the interpretation of the Constitution.
QUESTION 1(A): DOES SECTION 6 (C) APPLY TO THE PROSECUTION?
[7] Section 6 (c) of the CCJ Act provides as follows:
"An appeal shall lie to the Court from decisions of the Court of Appeal as
of right in the following cases.
(c) in any civil or criminal proceedings which
involve a question as to the interpretation of the Constitution;
In construing this provision it is important to take into account the
definition of certain words in section 2 of the CCJ Act. Section 2 provides:
" In this Act, unless the context otherwise requires,
…
"appeal" means an appeal to the Court;
"appellant" means the party appealing from a judgment;
…
"Court" means the Caribbean Court of Justice established by the Agreement;
"party" means any party to proceedings before the Court;
…
[8] Looking at the CCJ Act in isolation, not only is there nothing in
section 6 (c) to suggest an intention to exclude the prosecution from its
ambit, but the way in which the words "appeal", "appellant" and "party" are
defined in section 2, seems to emphasise that no distinction is to be made
between different parties to the same proceedings when construing and
applying provisions in the Act relating to appeals. On the face of it,
therefore, there would seem to be no justification for limiting the right of
appeal established by section 6 (c), in the case of criminal proceedings, to
the convicted person.
[9] Two main arguments, however, have been advanced on behalf of Lewis in
order to displace this prima facie conclusion. The first of these arguments
is rooted in the principle that no one should be tried twice for the same
offence and the finality which as a consequence is accorded to an acquittal.
There is a long line of cases which establish that as a corollary of this
basic rule of the common law, when a statute creates in general terms a
right of appeal in criminal proceedings from the decision of a trial court,
the statutory provision will not be construed as giving the prosecution a
right of appeal in the absence of an express statement of that legislative
intent. See in this connection Benson v. Northern Ireland Road Transport
Board[FN1], R. (Kane) v. Chairman and Justices of County Tyrone[FN2], Reg.
v. Middlesex Quarter Sessions, ex parte DPP[FN3] and more recently Smith (Justis)
v. R.[FN5]. I accept without reservation this rule of construction in
relation to statutory provisions which give a right of appeal from the
decisions of a trial court.
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[FN1] [1942] A.C 520
[FN2] (1905) 40 Ir LT 181
[FN3] [1952] 2 Q.B. 758
[FN4] (2000) 56 WIR 145
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[10] One may, however, note in passing that the Judicial Committee of the
Privy Council in The State of Trinidad and Tobago v. Brad Boyce[FN6] held
that a statutory provision which expressly gave the prosecution a right of
appeal in certain circumstances from an acquittal by a jury, did not offend
against any fundamental right or freedom as the common law's bias against
appeals by the prosecution from an acquittal, did not form part of due
process 'in its narrower sense'. Accordingly, the Judicial Committee
concluded that an Act of Parliament which gave the prosecution a right of
appeal from an acquittal in certain circumstances, did not collide with the
constitutionally protected fundamental rights and freedoms, and so did not
have to be passed by a special majority.
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[FN5] (2006) 68 WIR 437
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[11] Whatever view one takes of the decision in Brad Boyce, it is
interesting to note that the Judicial Committee excluded the common law
principle that an acquittal by a Judge and jury is final from those
principles that are 'necessary for a fair system of justice'. But the
decision leaves untouched the presumption that a right of appeal from the
decision of a trial court does not extend to the prosecution unless there is
some express statement to that effect.
[12] The real issue for our decision was whether that principle of
construction applies to a statutory provision which gives a right of appeal
from an intermediate court to a final court of appeal. Must the prosecution
be expressly mentioned in such a provision if it is to take advantage of it
to challenge a decision by the Court of Appeal to quash a conviction? We
were referred to only one case, a case from Northern Ireland, in which a
statutory provision providing for an appeal in criminal proceedings from a
second to a third tier court, was held in the absence of express reference
to the prosecution, not to apply to it.
[13] The case was The People v. Richard Kennedy[FN6] and the statutory
provision was section 29 of the Court of Justice Act, 1924 which provided
for an appeal from the Court of Criminal Appeal to the Supreme Court upon
the certificate of the Court of Criminal Appeal or the Attorney-General. The
Supreme Court held by a majority of 4 to 1 that that section did not give
the prosecution the right to appeal against a decision of the Court of
Criminal Appeal quashing a conviction. None of the majority judgments
addressed the question whether there is a significant difference between an
acquittal by a trial court and the quashing of a conviction by a court of
appeal, which would justify a different approach in determining whether a
statutory right of appeal extends to the prosecution. Geoghegan J quoted
from the judgment of Lord Simon in Benson v. Northern Ireland Transport
Board (supra) in support of the proposition that clear language was required
to give the prosecution a right of appeal. He did not advert, however, to
the fact that in Benson the court was concerned with a right of appeal from
the dismissal of a charge by the trial court, whereas in Kennedy the right
of appeal which the prosecution sought to exercise, was from an appellate
court. In fact, the only judge in Kennedy who adverted to this difference
was the dissenter, Maguire J., who said:
"The reversal of a conviction by the Court of Criminal Appeal is not
equivalent to a verdict of acquittal from a jury. It is subject to the
provisions of the statutory code invoked to bring it about, namely, the
provisions of the Court of Justice Acts and, therefore, conditional on, and
subject to, the final decision of the Supreme Court in the event of an
appeal to that Court."
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[FN6] [1945] 1R 517
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[14] It must be said in fairness to them that three of the majority judges,
Geoghegan, O'Byrne and Black JJ, relied in whole or in part, on inferences
as to the legislature's intention drawn from a related Act which was
required to be "construed as one" with the 1924 Act. One Judge (Black J)
held that since the word "appeal" was used in some places in the operative
section in the restricted sense of an appeal by a convicted person only, it
must be given that same meaning whenever it appeared elsewhere in the same
section.
[15] It may well be that Kennedy was rightly decided having regard to the
statutory provisions which the Court was in that case construing. I would
not regard Kennedy, however, as persuasive authority for the general
proposition that statutory provisions which give a right of appeal in
criminal cases from the decision of an appellate court, do not apply to the
prosecution unless the intention that it should do so is expressly stated.
[16] The view that in this context a distinction has to be made between the
quashing of a conviction by a Court of Appeal and an acquittal by a trial
court, was supported by Lord Goddard (albeit obiter) in giving the opinion
of the Board in The Attorney-General for Ceylon v. Perera[FN7]. In that case
the respondent had been convicted of murder by a jury and sentenced to
death. The Court of Criminal Appeal of Ceylon quashed the conviction and
sentence on the ground of misdirection by the trial judge, and ordered a new
trial. The Attorney General appealed by special leave to the Privy Council.
The Privy Council held that there had in fact been no misdirection by the
trial Judge and restored the original conviction for murder as well as the
sentence of death. Before the Judicial Committee counsel for the respondent
took the preliminary point that the Board had no jurisdiction to entertain
an appeal by the Crown in a criminal case. Lord Goddard said (at page 203)
with respect to the preliminary point:
"The order of the Court of Criminal Appeal in this case does not amount to
an acquittal. It merely sets aside the verdict and sentence and orders a new
trial, though no doubt the effect of the order is to restore the prisoner to
the position of one who has not yet been tried."(emphasis added).
Lord Goddard went on to state that it was not on that ground that the Board
decided they had jurisdiction, but rather because of a series of cases which
had decided:
"that Her Majesty in Council has power to entertain an appeal from any
Dominion or Dependency of the Crown in any matter, whether civil or
criminal, by whichever party to the proceedings the appeal is brought,
unless that right has been expressly renounced." (at page 203)
The cases cited by Lord Goddard included Reg. v. Bertrand[FN8], Reg. v.
Murphy[FN9]and Reg. v. Coote[FN10], in all of which the Privy Council
entertained an appeal by the Crown from the decision of an appellate court
quashing a conviction.
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[FN7] [1953] AC 200
[FN8] (1867) LR 1 PC 520
[FN9] (1868) LR 2 PC 35
[FN10] (1873) LR 4 PC 509
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[17] Counsel for Lewis correctly pointed out that the basis for all these
decisions was the prerogative right of the Sovereign to receive and respond
to petitions for justice from the Crown's overseas possessions subject to
the procedure established by the Judicial Committee Acts of 1833 and 1834,
and that the Caribbean Court of Justice does not enjoy any such prerogative
right. It does seem to me, however, that if the 'fundamental rule' of the
common law against permitting appeals by the prosecution from acquittals,
applied to appeals from decisions by an appellate court quashing a
conviction, then the Judicial Committee would in the cases on which Lord
Goddard relied, have refrained in the exercise of its discretion from giving
the prosecution special leave to appeal from the decision of a local court
of appeal, even though it had the power to do so.
[18] The question whether there is a meaningful difference between an
acquittal and the quashing of a conviction, was explored in depth by the
High Court of Australia in Davern v. Messel[FN11]. In that case it was held
by a majority of 5 to 2 that the Crown was entitled to appeal to the Federal
Court a decision given by the Supreme Court of a Territory quashing a
conviction, pursuant to a statutory provision which gave the Federal Court
in general terms jurisdiction to hear and determine appeals from judgments
of the Supreme Court of a Territory. Gibbs CJ explained the rationale for
treating an acquittal as final. He said (at page 30):
"The purpose of the rule [against double jeopardy] is of course to ensure
fairness to the accused. It would obviously be oppressive and unfair if a
prosecutor, disappointed with an acquittal, could secure a retrial of the
accused person on the same evidence, perhaps, before what the prosecutor
"considered to be a more perspicacious jury or tougher judge": Reg. v.
Humphrys [1977] AC at p. 47. It might not be quite so obvious that it would
be unfair to put an accused upon his trial again if fresh evidence, cogent
and conclusive of his guilt, came to light after his earlier acquittal, but
in such a case the fact that an unscrupulous prosecutor might manufacture
evidence to fill the gaps disclosed at the first trial, and the burden that
would in any case be placed on an accused who was called upon repeatedly to
defend himself, provide good reasons for what is undoubtedly the law, that
in such a case also the acquittal is final: cf. Reg. v. Miles (1890) 24 Q.B.
D. at p. 433."
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[FN11] (1984) 155 CLR 21
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[19] The learned Judge then went on (at page 33) to explain why the same
finality was not accorded to the quashing of a conviction by an appellate
court. He said:
"As I have shown, the House of Lords in Benson v. Northern Island Road
Transport Board applied the well known principle that a statutory provision
will not be construed as overthrowing a fundamental rule of the common law
unless it expresses a clear intention to do so. The question then is whether
the rule against double jeopardy has any application when the accused has
been convicted and has himself invoked the appellate procedure. The rule
against double jeopardy is not a mere fetish, an empty formula to be applied
blindly in all circumstances. It exists as I have said, to ensure fairness
and prevent oppression. It seems to me neither unfair nor oppressive to
restore a conviction that was set aside on erroneous legal grounds."
[20] I respectfully agree with the view of the High Court of Australia in
Davern v. Messel and of Lord Goddard in Perera and of Maguire J in Kennedy,
that there is no justification for according to a decision of an appellate
court quashing a conviction the same presumption of finality as attaches to
an acquittal by a jury or the dismissal of a charge by a magistrate or other
judicial officer. In my view, there is no rule that the prosecution cannot
avail itself of a right granted in general terms by a statute, to appeal in
criminal proceedings a decision of an appeal court to a final court. Subject
therefore to the impact which it was argued other statutory provisions have
on the interpretation of this section, section 6 (c) of the CCJ Act is
effective in my view to give the prosecution a right to appeal from a
decision of the Court of Appeal whenever the case involves a question of
interpretation of the Constitution.
[21] As already indicated, this conclusion is reinforced by the
interpretation section (s.2) of the CCJ Act. It is also consistent with the
obvious policy underlying section 6 (c), and its precursors i.e. to vest in
the court of last resort the responsibility for correcting any errors made
by lower courts in interpreting the Constitution. That policy would be to
some extent frustrated if errors of interpretation made by the Court of
Appeal in criminal proceedings could not be corrected when they resulted in
the quashing of a conviction.
[22] I turn now to the question: what impact, if any, does section 37 of the
Criminal Appeal Act have on the interpretation of section 6 (c) of the CCJ
Act? It has been correctly pointed out that section 6 (c) was not an
entirely new provision in the law of Barbados. There were earlier provisions
which created a similar right of appeal, although in those provisions the
appeal was to the Privy Council, not to the Caribbean Court of Justice. It
was suggested that the matrix in which this right of appeal was shaped, was
section 37 of the Criminal Appeal Act, an Act passed in 1983. The argument
is that since the Crown was by the definition of 'appeal' contained in
section 2 (1) of that Act, excluded from the right of appeal given by
section 37, there was by implication a similar restriction of the right of
appeal granted by section 6 (c) of the CCJ Act. In my view, this argument is
unsound for several reasons, the principal one being that it is founded on a
false premise i.e. that the Crown is excluded from the right of appeal given
by section 37 of the Criminal Appeal Act.
[23] Section 37 reads as follows:
"Subject to sections 38 and 39, an appeal lies to Her Majesty in Council
(a) as of right
(i) from a final decision of the Court in any criminal or other proceedings
that involves a question as to the interpretation of the Constitution;
(ii) from any decision of the Court on an appeal on a final decision of the
High Court involving a criminal cause or matter given in exercise of its
jurisdiction under section 24 of the Constitution;
(iii) from any final decision of the Court on an appeal in any criminal
proceedings on a ground that involves a question of law alone;
(b) with leave of the Court,
(i) from any decisions of the Court in any criminal or other proceedings,
where in the opinion of the Court the question involved in the appeal is one
that, by reason of its general or public importance, or otherwise, ought to
be submitted to Her Majesty in Council for consideration;
(ii) from any decision of the Court on an appeal on a final decision of the
High Court involving a question of mixed law and fact."
[24] The faulty premise to which I have referred, is that the appeal as of
right provided by section 37 (a) (i) is not available to the Crown in
criminal proceedings. This assumption is in turn based on the way in which
the word 'appeal' is defined in section 2 (1) of the Criminal Appeal Act.
Section 2(1) provides:
"In this Act
"appeal" means an appeal by a person convicted upon indictment".
If that definition of "appeal" governs section 37, then clearly the whole of
that section is limited to appeals by convicted persons.
[25] The Criminal Appeal Act comprises 41 sections. 34 of these i.e.
sections 3 to 36, both inclusive, comprise Part I of the Act. This Part is
headed "Criminal Appeals from High Court". The first section in Part I,
section 3(1), reads:
"3.(1) A person convicted of an offence on indictment may appeal to the
Court against his conviction".
The subsequent sections in Part I contain numerous references to an
"appeal". There is no doubt that the definition of "appeal" in section 2(1)
can be appropriately applied wherever that word appears in Part I of the
Act. It is entirely consistent with what has been described as a
"fundamental rule" of the common law that the prosecution should not be
permitted to appeal from an acquittal by a jury of a person charged on
indictment.
[26] The question is does this definition of appeal apply in Part II of the
Act? Part II comprises only three sections of which section 37 is the first,
and is headed "Appeals to Privy Council". The definitions contained in
section 2(1) are expressly made applicable "in this Act". Therefore, prima
facie they apply wherever in the Act the terms defined appear. The
interpretation section, however, must be read subject to section 33 (2) of
the Interpretation Act Cap.1 which provides:
"An interpretation section or provision contained in an enactment shall be
read and construed as being applicable only if a contrary intention does not
appear in the enactment".
In fact this is a rule of construction which exists independently of
statute. That rule is formulated in Bennion on Statutory Interpretation (6th
ed.) at page 479 in these terms:
"Whether it is so stated or not, a definition does not apply if the contrary
intention appears from the Act in which the defined term is used".
If one treats the noun 'appeal' whenever it is used in Part II of the Act,
as being limited to an appeal by a convicted person, this would have the
absurd result of nullifying a good deal of what is provided in sections 37,
38 and 39. This is sufficient to indicate quite clearly that it could not
have been the intention of the legislature that the exclusionary definition
of "appeal" contained in section 2(1) should apply to these sections in Part
II of the Act.
[27] If one focuses on section 37, this grants a right of appeal not only in
criminal proceedings, but also in 'other proceedings', which would include
civil and constitutional proceedings. In these 'other proceedings' there
would be no question of any party having been 'convicted on indictment', so
the provision insofar as it relates to 'other proceedings' would be rendered
nugatory by applying the definition. The reference to appeals in 'other
proceedings' is to be found in section 37 (a) (i) and (b) (i).
[28] Section 37 (a) (ii) provides for an appeal as of right from a decision
of the High Court in a criminal cause or matter given in exercise of its
jurisdiction under section 24 of the Constitution. Section 24 of the
Constitution is the section which enables a person to apply to the High
Court for redress for infringement of the fundamental rights and freedoms
set out in sections 12 to 23 of the Constitution. The right to appeal a
decision of the Court of Appeal to Her Majesty in Council in such matters
had previously been given in 1966 by section 87 (2) of the Constitution.
There was nothing in that section of the Constitution to limit the right of
appeal in criminal cases to persons convicted on indictment. It could hardly
have been the intention, therefore, of the legislature when it enacted the
Criminal Appeal Act, to deprive the Crown of a right of appeal to the Privy
Council which it had previously enjoyed under section 87 (2) of the
Constitution, more so in the absence of any express amendment or repeal of
that section.
[29] Either the definition of 'appeal' contained in section 2 (1) applies to
sections 37 to 39 of the Criminal Appeal Act or it does not. It would not be
permissible to concoct a new definition to read: "'appeal' means in the case
of criminal proceedings only, an appeal by a person convicted on
indictment", and to apply that concocted definition to 'appeal' in Part 2 of
the Act. One must either apply the statutory definition as it stands or give
the word 'appeal' its usual meaning without any artificial limitation.
[30] It is manifest that the definition of 'appeal' in section 2 (1) was not
intended by the legislature to apply in Part 2 of the Act and therefore, any
argument based on the premise that it does, must be rejected.
[31] But in any event, I also reject the argument that if the right of
appeal granted by section 37 of the Criminal Appeal Act were restricted to
convicted persons, this restriction must be imported into the right of
appeal to the Caribbean Court of Justice given by section 6 (c) of the CCJ
Act. The CCJ Act did not repeal and replace section 37 of the Criminal
Appeal Act. In fact that section has never been expressly repealed. The link
with the CCJ Act is made via section 64 of the Supreme Court of Judicature
Act (the 'SCJ Act'). Section 64 provides in part as follows:
"64(1) An appeal lies from decisions of the Court of Appeal to Her Majesty
in Council
(a) as of right,
…
(ii) from final decisions in any civil, criminal or other proceedings that
involve a question concerning the interpretation of the Constitution
…
There is no definition of 'appeal' in the SCJ Act. Indeed, "appeal" is a
simple English word and does not require a definition unless it is being
used in some artificial or restricted sense. Admittedly there is a rule that
when a term which is defined in an Act is used in a later Act "within the
same field" but is not defined in the later Act, it is assumed that the
definition in the earlier Act continues to apply, but this is always subject
to a contrary intention appearing (Bennion op cit. at p. 485). The contrary
intention in this case is manifest since the 'appeal' which is provided for
in section 64 (1) of the SCJ Act, cannot sensibly be limited to appeals by
convicted persons. In section 64 (1) (a) (ii) for instance, an appeal is
made available as of right "in any civil, criminal or other proceedings".
Even if one felt impelled to read section 37 of the Criminal Appeal Act in
the restrictive way suggested, I can see no reason why the same restrictive
interpretation leading to an absurd result, should be applied to the word
"appeal" in section 64 of the SCJ Act. After all, the legislature did
expressly confine the artificially restrictive definition of 'appeal' in the
Criminal Appeal Act to that Act.
[32] One notes that section 54 (1) (a) of the SCJ Act limits appeals to the
Court of Appeal from the High Court in criminal proceedings to such appeals
as are provided by the Criminal Appeal Act, but there is no equivalent
restriction on appeals in criminal matters from the Court of Appeal to the
Privy Council.
[33] Section 64 of the SCJ Act was repealed by section 25 A of the CCJ Act.
S. 25A was one of the provisions introduced by an amending Act in 2005. I
have explained why in my view the Crown was entitled under both s. 64 of the
SCJ Act and s. 37 of the Criminal Appeal Act to appeal to the Privy Council
as of right in a case, whether criminal or civil, which involved a question
of interpretation of the Constitution. But there is in any event no
justification for treating either of these earlier provisions as relevant
for the purpose of construing section 6 (c) of the CCJ Act. The purpose of
the CCJ Act was to implement an international agreement i.e. the Agreement
Establishing the Caribbean Court of Justice ('the Agreement') so that its
matrix is to be found in the Agreement, and not in any previous enactment.
Section 3 of the CCJ Act gives the Agreement the force of law. Section 6 (c)
of the Act substantially reproduces paragraph 2 (c) of Article XXV of the
Agreement. It would make no sense to resort to the domestic legislation of
any of the States Parties to the Agreement for the purpose of construing
either Article XXV paragraph 2(c) or section 6(c). Apart from the fact that
two of the States Parties (Guyana and Suriname) did not have any link with
the Privy Council, the others did not have an identical code of provisions
governing appeals to the Privy Council. There is no question therefore of
resorting to earlier legislation in Barbados for the purpose of negating the
clear intention of the CCJ Act that any right of appeal created by that Act
should be available to all parties to the relevant proceedings.
[34] For all these reasons, therefore, I hold that the right of appeal
created by section 6 (c) of the CCJ Act is available to the Crown provided
that the case involves a question concerning the interpretation of the
Constitution. I turn therefore to a consideration of the second part of the
first question.
QUESTION 1 (B): DOES THE APPEAL INVOLVE A QUESTION OF INTERPRETATION OF THE
CONSTITUTION?
[35] Does the case which the Crown wished to argue before this Court involve
a question of the interpretation of the Constitution? The provision in the
Constitution which the Crown argued required to be interpreted, is section
18(1) which reads as follows:
"18(1) If any person is charged with a criminal offence then, unless the
charge is withdrawn, the case shall be afforded a fair hearing within a
reasonable time by an independent and impartial court established by law".
It was submitted that the Court of Appeal's conclusion that Lewis had not
received a fair trial, was based on a wrong interpretation of what was meant
by the phrase 'a fair hearing' in section 18(1). It is to be noted that the
requirement that the trial be fair is a requirement of the common law which
existed independently of, and prior to, the Constitution. In delivering the
opinion of the Board in Franklyn and Vincent v. R.[FN12] Lord Woolf said of
the provisions in the Jamaican
Constitution which are replicated in section 18 of the Barbados
Constitution:
"These provisions ... do no more than codify in writing the requirements of
the common law which ensure that an accused person receives a fair trial.
They would therefore be part of the law of Jamaica even in the absence of
the Constitution."
The question still remains, however, whether what the Court of Appeal was
about in this case, was interpreting the expression 'a fair hearing' as
opposed to applying it to the particular facts of the case.
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[FN12] (1993) 42 WIR 262 at 268
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[36] The answer to this question becomes a lot clearer if we focus on the
issue on which the Court of Appeal's decision turned. The objection which
had been taken at the trial to the trial Judge sitting was not pursued in
the Court of Appeal, so that the Court of Appeal did not have to consider
the issue of bias. The Court of Appeal allowed the appeal substantially
because they upheld the complaint made in the first ground of appeal that
the application for the recusal of the Judge should not have been made in
the presence of persons who subsequently became jurors in the case, and held
that as a result the appellant had not received a fair trial. The reason the
Court of Appeal held that the trial was unfair, was because the jury had
been prejudiced against the accused by what had been said by counsel on both
sides in their presence before their selection as jurors. The Court of
Appeal at paragraph [15] of their judgment quoted the following passage from
counsel for Lewis' skeleton argument:
"The question for consideration is whether there was a real danger that the
nature of the submission and the comments attributed to the Judge might have
created a bias in the minds of the jurors, thus prejudicing the fair trial
of the appellant."
At paragraph [16] the Court of Appeal recorded that counsel for the Crown
had orally submitted inter alia that:
"In any event, the appellant suffered no prejudice as a result of the
submissions being made in the presence of the panel of jurors."
On this vital issue of prejudice, the findings of the Court of Appeal were
encapsulated in the following passage at paragraph [19]:
"The jurors may have formed an unfavourable impression of the appellant;
namely, that he was trying to avoid his trial because he was guilty.
Moreover, from the response of Mr. Leacock, the jurors may have concluded
that the appellant, as a defendant receiving legal aid should be regarded
less favourably than a defendant who had paid for his own legal
representation. The members of the jury would have been conscious throughout
the trial of these matters and may not have approached the case with the
same openness of mind as if they had not heard the appellant's application.
We do not know, and it would be speculating to surmise how the jury would
have been affected by what they heard".
[37] If we had held that the Crown had a right of appeal in this case, we
would have had to consider whether what was said by counsel in the presence
of the jurors,
was reasonably capable of conveying to the jurors the impressions which the
Court of Appeal found they might have conveyed. Basically, what the Court of
Appeal had to do was to assess the risk of the jurors (or some of them)
being prejudiced against the accused as a result of what had transpired in
their presence. Having concluded, as they appear to have done, that there
was a real risk of such prejudice, they had no option but to quash the
conviction. If one took a different view of the matter, it would not be
because one had a different concept of what was meant by a 'fair hearing',
but because one made a different assessment of the likely impact of what was
said by counsel in the presence of the jurors. No one would disagree with
the proposition that a trial would be unfair if before it began, the jury
was biased against the accused by prejudicial things said in their presence.
The question was whether what was said was apt to create that bias and did
not involve an 'interpretation' of section 18 (1).
[38] The true nature of the exercise conducted by the Court of Appeal is not
altered by the fact that the Court spoke of it in two places in its judgment
as if it involved a process of interpretation. Firstly, in identifying the
fact that this was a capital case as one of two factors which disposed the
Court of Appeal towards allowing the appeal, the Court in its judgment at
paragraph [22] said:
"In such a case, there is no room for error; looked at objectively, the
defendant must receive a fair hearing interpreted in its widest sense,
taking into account the defendant's particular circumstances."
It cannot be that the term 'a fair hearing' bears a different meaning in a
capital case. What the Court of Appeal were in fact saying was that in
applying the test of fairness the bar is raised somewhat higher in a capital
case, so that for instance, a risk of prejudice which might be discounted as
minimal in a non-capital case, might be considered unacceptable in the
context of a capital case. The nature of the case was treated by the Court
of Appeal as one of the facts of which account had to be taken in applying
the test of fairness. In any case, the Crown did not seek to challenge the
significance attached by the Court of Appeal to the capital nature of the
case, so that no question was being raised in the proposed appeal concerning
it.
[39] Then at paragraph [29] of the judgment the Court of Appeal states:
"We conclude that the cumulative effect of the matters raised in the appeal
taken together as a whole was to deprive the appellant of a fair hearing,
interpreted in accordance with the Constitution, such as to render the
verdict unsafe or unsatisfactory".
On analysis, it would appear that the reference to the Constitution is
simply intended to make the point that the requirement of a fair hearing is
enshrined in the Constitution as there is nothing in the reasoning of the
Court to suggest that the conclusion it reached depended in any way on an
interpretation of section 18 (1). In fact in the preceding paragraph,
paragraph [28], the Court's conclusion is stated without any reference to
the Constitution:
"We conclude that there was a material irregularity in the course of the
trial process which rendered the trial unfair and therefore the conviction
unsafe."
[40] We, therefore, reject the submission made by Mr. Leacock that we should
take the Court of Appeal at its word and treat its judgment as raising a
genuine question of interpretation of section 18 (1).
[41] The view I have expressed that this appeal does not involve a question
of interpretation of the Constitution, is supported by two decisions of the
Judicial Committee of the Privy Council in Frater v. R[FN13] and Joseph v.
The State of Dominica. [FN14] In Frater an attorney in Jamaica was found
guilty of contempt in the face of the court and was fined. He appealed his
conviction unsuccessfully to the Court of Appeal and attempted to appeal as
of right to the Judicial Committee on the ground that he had not been
provided with sufficient particulars of the
offence with which he was charged. He relied on the provision in the
Constitution of Jamaica which required that every person who is charged with
a criminal offence "shall be informed as soon as reasonably practicable . of
the nature of the offence charged". Lord Diplock in delivering the opinion
of the Board said (at page 1469):
"... it cannot plausibly be suggested that any question of interpretation of
the plain and simple words "informed . of the nature of the offence charged"
. arose in the instant case. The question that did arise . was the
application of these plain and simple words to the particular facts of Mr.
Frater's case".
Lord Diplock referred to the Board's judgment in Harrikissoon v. The
Attorney- General of Trinidad and Tobago[FN15], in which the Board had urged
that vigilance be exercised to prevent abuse of the right of access to the
High Court for the enforcement of fundamental human rights and freedoms, and
recommended that similar care be taken to ensure that cases in which an
appeal as of right is claimed under the local equivalent of section 6 (c) of
the CCJ Act, "do involve a genuinely disputable question of interpretation
of the Constitution and not one which has merely been contrived for the
purpose of obtaining leave to appeal to Her Majesty in Council as of right."
(at page 1470)
----------------------------------------------------------------------------------------------------------------
[FN13] [1981] 1 WLR 1468
[FN14] (1988) 36 W.I.R. 216
[FN15] [1980] A.C. 265
----------------------------------------------------------------------------------------------------------------
[42] In Joseph v. The State of Dominica (supra) there was a claim by a
convicted person to appeal as of right to the Privy Council against the
dismissal of his appeal by the Court of Appeal of Dominica, on the ground
that the case involved a question of interpretation of a provision of the
Dominican Constitution. The provision in question was section 8 (1) which is
in the same terms as section 18 (1) of the Barbados Constitution. In
dismissing the appeal, Lord Keith of Kinkel who delivered the opinion of the
Board (at page 219) said:
"The question whether a case has received "a fair hearing" within the
meaning of section 8 (1) of the Constitution is not a question of
interpretation of that enactment. It is a question of the application of
these words to the facts of the particular case. Various mistakes may arise
in the course of a criminal trial. Evidence may be wrongly admitted or
rejected or there may be a misdirection in law on a matter of some
importance ... The fact that some such mistake has occurred does not,
however, mean that the case has not received a fair hearing."
Lord Keith went on to repeat the warning which Lord Diplock had given in
Frater about permitting abuse of the provision for an appeal as of right on
questions of constitutional interpretation. He said (at page 220 ):
"The circumstances under which the instant appeal has been presented provide
an opportunity for reiterating and emphasising the need for vigilance on the
part of Courts of Appeal in dealing with claims to be entitled under similar
constitutional provisions to appeal as of right to this Board or to Her
Majesty in Council."
We would respectfully adopt the remarks of Lord Diplock and Lord Keith with
regard to the need for vigilance by the Court of Appeal when dealing with
claims to appeal as of right on the ground that the case involves a question
of interpretation of the Constitution.
[43] We do not, however, accept what appears to have been the view of Lord
Keith that the question whether a case has received "a fair hearing" within
the meaning of the relevant constitutional provision, can never be a
question of interpretation of that provision. More often than not what will
be involved in the answering of this question, is the application of some
well established rule as to what does or does not constitute a fair hearing,
to the facts of the particular case. In the instant case, that rule was that
the hearing must be before an unbiased jury. There may be cases, however, in
which the fairness of the hearing is challenged by the inclusion of some
novel element or feature in the concept of what constitutes a fair hearing.
An example is provided by a recent decision of the High Court of Malawi
which held that the mandatory death sentence for murder infringed the right
of a person accused of murder to a fair trial on the ground that that right
entitled the accused person to be heard not only on the issue of guilt but
also on the question of sentence (Kafantayeni & Ors. v. The
Attorney-General)[FN16]. It might well be argued that an appeal from that
decision would involve a question of interpretation of the constitutional
provision requiring a fair trial. It is a truism that a court of appeal must
first of all understand what a fair hearing connotes before it can apply
that concept to what transpired before the trial court. For the purpose of
applying a provision like section 6(c), however, it is crucial to consider
whether the party seeking to appeal to the final court is complaining that
the Court of Appeal either (i) applied a rule or standard not necessary for
a fair hearing or conversely failed to apply a rule or standard that is
necessary for a fair hearing, or (ii) simply misapplied an accepted rule or
standard to the facts of the case. It is quite clear that in the instant
case the Crown's complaint was in essence of a misapplication, and not of a
misinterpretation, of the constitutional provision.
----------------------------------------------------------------------------------------------------------------
[FN16] Constitutional Case No. 12 of 2005
----------------------------------------------------------------------------------------------------------------
QUESTION 2: CAN A CONVICTION AND SENTENCE ONCE QUASHED BE RESTORED?
[44] With regard to the second question, an answer was not required for
disposing of the case as we held that there was no valid appeal before us.
Neither side argued the point. In the cases to which we were referred in
which the prosecution appealed successfully against the decision of an
appellate court to quash a conviction e.g. Attorney-General for Ceylon v.
Perera (supra) and D.P.P. v. Smith[FN17], the reversal of the appellate
court's decision was followed by the restoration of both the conviction and
the sentence imposed by the trial court. The existing authorities therefore
suggest an affirmative answer to this question but none of these cases is
very recent and there have been fundamental changes in judges' approach to
interpreting and applying human rights provisions since they were decided.
In the circumstances, we refrain from answering this question and leave the
issue it raises open for possible argument in some future case.
----------------------------------------------------------------------------------------------------------------
[FN17] [1961] AC 290
----------------------------------------------------------------------------------------------------------------
SUMMARY OF FINDINGS
[45] To recapitulate, our findings therefore are as follows:
A The right of appeal to this Court conferred by section 6(c) of the CCJ Act
is available in criminal cases to the prosecution when a conviction has been
quashed by the Court of Appeal just as it is to a person whose conviction
has been upheld by that court;
B The question whether in this case Lewis received a "fair hearing" is a
question not of interpretation of section 18 (1) of the Constitution, but of
the application of it to the facts; and accordingly
C The Crown is not entitled in this case to appeal as of right to this Court
against the decision of the Court of Appeal and leave to appeal was wrongly
given by the Court of Appeal.
On the basis of these findings the appeal had to be dismissed since the
foundation on which it stood had collapsed.
NO APPLICATION FOR SPECIAL LEAVE
[46] Towards the end of Mr. Leacock's submissions, we asked him whether he
proposed to make an application for special leave to appeal under section 8
of the CCJ Act. This question was prompted by the penultimate paragraph of
Mr. Leacock's written submissions in which he suggested that if the Court
found that the Crown was not entitled to appeal as of right, it "should
treat this matter as an application for leave to appeal pursuant to section
8". Section 8 provides:
"Subject to section 7, an appeal shall lie to the Court with the special
leave of the Court from any decision of the Court of Appeal in any civil or
criminal matter".
For the reasons that we have already given, section 8, like section 6 (c),
applies to the prosecution in criminal proceedings and so an application for
special leave by the Crown in the present case would not, if made in time,
have been barred 'in limine'. In this respect, the law of Barbados remains
the same as it was before the 2005 amendment of the Constitution and the
enactment of the CCJ Act, except of course for the replacement of the Privy
Council as the final court of appeal for Barbados. Be that as it may, in
answer to the question put to him, Mr. Leacock indicated that he did not
propose to make any application for special leave to appeal. We were
therefore relieved of the need to consider whether there were any aspects of
the instant case which would have justified our extending the time for
applying for, and granting, special leave to the Crown.
THE JUDGMENT OF THE COURT OF APPEAL
[47] That is not quite the end of the matter, however, as there are two
matters with which we must deal. The first is the suggestion by the Director
of Public Prosecutions that we ought to correct alleged errors in the
judgment of the Court of Appeal notwithstanding the dismissal of the appeal,
in order to prevent the creation of a bad precedent that would be followed
by judges in Barbados. The second matter is the attempted challenge by the
respondent of the Court of Appeal's order for a re-trial.
[48] With regard to Mr. Leacock's request that we correct some perceived
errors in the judgment of the Court of Appeal, since there was no valid
appeal before us, we will refrain from expressing any view as to the
correctness of the conclusion which formed the basis of the Court of
Appeal's decision i.e. that what transpired in the presence of the jurors
prior to the start of the case, would have prejudiced them against Lewis.
There are, however, three matters emerging from the judgment on which we
consider it appropriate to comment.
[49] The first is the question whether in criminal trials an application to
the judge to recuse himself should be made in open court or in chambers. We
recommend the adoption in such circumstances of the following procedure.
Counsel for the party wishing to object to the Judge sitting should ask to
see the Judge together with counsel on the other side in the Judge's
chambers before the court sits. He should there indicate his objection to
the Judge and explain the reasons for it. If the Judge is then persuaded
that he should recuse himself, the case is called in open court and either
adjourned or transferred to another court. The Judge should indicate in open
court, at least in general terms, the reason for the adjournment or
transferral. If, however, the Judge is not then so persuaded, then the
application for his recusal should be made in open court. Before the
objection is heard, however, the court should be cleared of all jurors in
waiting and if anything is said in the course of the objection which is
prejudicial to the accused, the Judge should warn any members of the media
present not to report the prejudicial matter before the conclusion of the
trial or risk being charged with contempt of court. The Judge's ruling on
the objection and a brief statement of his reasons should be given by him in
open court. In recommending this procedure we have in mind the importance of
conducting judicial proceedings, particularly those which involve a person's
liberty (or life), in public.
[50] The second aspect of the Court of Appeal's judgment on which we would
comment, is the failure of the Court of Appeal to indicate how, and to what
extent, its decision was based on the "other grounds of appeal", that is to
say, those grounds apart from the first ground under which the issue of
prejudice was raised. If we had had to deal with this appeal on its merits,
it may have been necessary for us either to refer the matter back to the
Court of Appeal for clarification or hear argument on all the other grounds
of appeal filed in the Court of Appeal. Either course would have meant a
loss of time and efficiency in the disposition of this case.
[51] Thirdly, we refer to the unfavourable view which the Court of Appeal
took of the Judge stopping counsel, Mr. Bolden, from reading a newspaper
article in the course of his submissions. It was clear that given the
purpose for which it was being read i.e. to prove what the Judge had
previously said to or about Lewis, the newspaper report was hearsay evidence
and therefore inadmissible. The Judge was therefore right to stop counsel
from reading the article, more especially as it was in his view inaccurate.
The fact that the article was in the public domain, was irrelevant to the
issue of bias with which the Judge was dealing. Before the Court of Appeal
counsel for Lewis did not complain of the Judge's refusal to recuse himself,
so it is difficult to see how criticisms of the way in which the Judge dealt
with the objection to his sitting, could have affected the outcome of the
appeal.
THE ORDER FOR RE-TRIAL
[52] I turn now to the attempt by Lewis to challenge the order for re-trial.
This challenge was originally mounted by way of a cross-appeal for which
leave was granted by the Court of Appeal. The appeal itself having
collapsed, it seemed at best doubtful whether the cross-appeal could stand
on its own. Counsel for Lewis therefore, at our suggestion, applied for an
extension of time for applying for special leave to appeal. This was
granted. He then applied orally for special leave to appeal against the
order for re-trial pursuant to section 8 of the CCJ Act. The order for
re-trial was challenged on two grounds. The first (which was the only one
pleaded in the notice of cross-appeal) was that the Court of Appeal had
failed to take into consideration or to apply a number of relevant
principles or guidelines that should have governed the exercise of its
discretion. These principles and guidelines were set out in the notice of
cross-appeal and in a proposed amendment of it. In its judgment the Court of
Appeal referred to the need to strike a balance between the interest of the
accused and the interest of the community at large, and went on to say:
"The interest of justice requires that we order a re-trial. We have taken
into account the principles to be applied in deciding whether to order a new
trial, including the date of the alleged commission of the offence. ... In
the instant case the paramount consideration must be the public interest in
having a fair trial of a serious crime".
[53] We do not think it was necessary for the Court of Appeal to list all
the factors which have to be taken into account in determining whether or
not to order a re¬trial. There is nothing to suggest that they failed to
take into account anything which they should have or took into account
anything which they should not have. We ourselves have no doubt that the
conviction in this case having been quashed, the interest of justice was
served by an order for re-trial. Accordingly, we found that so far as the
ground pleaded was concerned, there was no justification for granting
special leave to appeal against the order for re-trial.
[54] The other ground of challenge was a procedural one, raised in argument
before us. The complaint was that the Court of Appeal did not invite counsel
for Lewis to address it on whether or not the Court should order a re-trial.
We were informed by counsel on both sides that it is not the practice in
Barbados for the Court of Appeal when it quashes a conviction, to invite
fresh submissions on the issue whether a re-trial should be ordered. While
we consider that the better practice is for the Court of Appeal, if it is
minded to order a re-trial, to give the appellant's counsel an opportunity
to persuade it not to do so, we do not consider that the failure of the
Court of Appeal to invite submissions on that issue in this case, was fatal.
Counsel who appeared for Lewis in the Court of Appeal was, as he himself
emphasised, a very experienced member of the criminal bar, and therefore
would have been well aware of the practice not to invite submissions on the
issue of a re¬trial. Accordingly, he would have been alive to the need to
address that issue before concluding his oral argument or alternatively to
request to be heard on it when the Court announced its decision to quash the
conviction. As a result we do not think it would be accurate to say that
Lewis' counsel was denied the opportunity of addressing the Court of Appeal
on the question of a re-trial. We do not consider that in the circumstances
the ordering of a re-trial involved any miscarriage of justice.
[55] For these reasons, we refused Lewis' request for special leave to
appeal against the order for re-trial.
[56] In the result, we dismissed both the appeal and the cross-appeal and
left intact the decision of the Court of Appeal to quash the conviction and
to order a re-trial.
JUDGMENT OF THE HONOURABLE MR. JUSTICE POLLARD, JCCJ:
INTRODUCTION
[57] This is an appeal by the Director of Public Prosecutions from the
decision of the Barbadian Court of Appeal delivered on 05th January, 2006
quashing the conviction, setting aside the sentence of the Respondent and
ordering a new trial. Although the Appellant filed seven grounds of appeal
the determinative issue in the judgment of the Court of Appeal was "whether
he was afforded a fair hearing of his case in accordance with his
constitutional rights." The Court of Appeal in its determination concluded
"that the cumulative effect of the matters raised in the appeal taken as a
whole was to deprive the appellant of a fair hearing interpreted in
accordance with the Constitution such as to render the verdict unsafe or
unsatisfactory." In the determination of the Court of Appeal the conviction
of the Respondent could only be upheld as safe or satisfactory if it
resulted from a trial in compliance with the rules of good practice and the
high professional standards established for criminal trials.
[58] In this appeal the gravamen of the Respondent's contention in the court
below was that the verdict of the jury at the trial was heavily influenced
by the discussion of prejudicial matters by counsel of both parties in open
court relating to an application for the recusal of the trial judge in the
hearing of potential jurors and by the omission of the trial judge to direct
the jury to disregard in their deliberations such prejudicial matters which
they heard prior to being empanelled as a jury. Furthermore, the trial judge
did not allow counsel for the defence to make his application for the
recusal of the trial judge in chambers, nor to complete his submissions in
open court on the same application. The trial judge also declined to give
reasons for refusing to recuse himself.
[60] The Court of Appeal determined, further, that since this was a capital
case the term "fair hearing" must be interpreted in its widest sense. In the
result, the appeal was allowed, the conviction quashed, the sentence set
aside and a retrial ordered. The Appellant is now appealing as of right
within the meaning of Section 6(c) of the Caribbean Court of Justice (CCJ)
Act Cap. 117 (2003) from the decision of the Court of Appeal to this Court,
or in the alternative, with special leave of this Court. Counsel for the
Appellant later withdrew the application for special leave. The Respondent's
counsel also cross-appealed against the order for retrial.
[61] The two preliminary points which counsel for the litigants agreed at
the case management conference that the CCJ should consider and determine
are as follows:
(a) whether by virtue of Section 6(c) of the Caribbean Court of Justice Act
Cap. 117 of Barbados, the Crown has an appeal as of right to the Caribbean
Court of Justice in this case;
(b) whether, if such a right of appeal exists, the Crown can, as part of any
relief it obtains, secure the reinstatement of the conviction of the
Respondent.
ENTITLEMENT OF THE PROSECUTION TO AN APPEAL AS OF RIGHT
[61] Of the two agreed preliminary points identified in the immediately
foregoing paragraph the first addressed the substantive issue relating to
the legal incidence of section 6 of the Caribbean Court of Justice Act Cap.
117 (CCJ Act) which provides:
"6. An appeal shall lie to the Court from decisions of the Court of Appeal
as of right
(a) ...
(b) ...
(c) in any civil or criminal proceedings which involve a question as to the
interpretation of the Constitution"
[62] On an ordinary reading of the terms "appeal", "Appellant" and "party"
of Section 2 of the aforementioned Act, it does appear, ex facie, that the
Crown, as a party to proceedings before the Court of Appeal, does have an
appeal as of right within the meaning of Section 6(c) of the CCJ Act, Cap.
117 (2003) like the defendant. Section 2 of the Act defines "appeal" as an
"appeal to the Court", which is a reference to "the Caribbean Court of
Justice established by the Agreement." Section 2 also defines the cognate
expression "Appellant" as "the party appealing from a judgment" and goes on
to define a party "as any party to proceedings before the Court."
[63] In light of the foregoing, it is extremely difficult to avoid the
inference that the Crown, like the defendant, has been accorded an appeal as
of right in criminal proceedings. In my view, however, this inference is
sustainable only if it can be established, in limine, that the Crown is
entitled, to an appeal in criminal proceedings and, provided further, that
such an appeal relates to "any . criminal proceedings which involve a
question as to the interpretation of the Constitution." In his written
submissions Counsel for the Appellant contended, inter alia, that the
Caribbean Court of Justice Act, Cap. 117 (2003) cannot be so narrowly
construed as to restrict an appeal as of right in criminal proceedings to a
convicted person. He submitted, further, that "(t)he Crown has always
enjoyed an appeal as of right from decisions of the Court of Appeal on
matters relating to interpretation of the Constitution. The fact that this
has been seldom or never exercised is no basis for saying that it does not
exist." This submission must be presumed to incorporate a reference to
criminal proceedings. He submitted that Section 6(c) of the Caribbean Court
of Justice Act "merely repealed and replaced the jurisdiction of the
Judicial Committee of the Privy Council making the Caribbean Court of
Justice the final Court of Barbados. Accordingly, it is imperative that the
Crown should continue to enjoy the same right and jurisdiction that it was
always accorded in the Supreme Court of Judicature Act Cap. 117 as is
intended."
[64] The learned President in his judgment has adduced compelling and
persuasive reasons to support the view that the term "appeal" as employed in
related antecedent legislation, namely, section 37 of the Criminal Appeal
Act, Cap. 113A and section 64 of the Supreme Court of Judicature Act, Cap.
117A is not restricted to a person convicted on indictment. Further, he
maintained that the CCJ Act 117 (2003) which superseded the Supreme Court of
Judicature Act, Cap. 117A defined appeal in a manner which clearly
contemplated according the prosecution an appeal as of right within the
meaning of section 6(c).
[65] I agree with the learned President that section 6(c) of the Caribbean
Court of Justice Act, Cap. 117 (2003) accorded the prosecution an appeal as
of right in criminal proceedings which involved a question as to the
interpretation of the Constitution. I also agree with the learned President,
but for different reasons set out below, that the Court of Appeal in
reaching its determination was not engaged in the interpretation of the
Constitution.
IMPORTANCE OF A FAIR HEARING GUARANTEED BY THE CONSTITUTION
[66] In paragraph 2 of its judgment the Court of Appeal maintained that
although the Appellant had filed seven grounds of appeal, "the important
issue for us to decide is whether he was afforded a fair hearing of his case
in accordance with his constitutional rights". I am inclined to concur in
the opinion of the Court of Appeal that the determinative issue falling to
be decided was whether the Respondent was accorded a fair hearing
consistently with his constitutional rights. Consequently, I propose to
examine various relevant judicial determinations on the interpretation and
application of the term "fair hearing" given its seminal importance for
human rights generally[FN18] and, in particular, for the liberty and life of
the individual, especially in the retentionist jurisdiction of Barbados.
----------------------------------------------------------------------------------------------------------------
[FN18] See, for example, Morel v France - 34130/96 [2000] ECHR 218 (6 June
2000)
----------------------------------------------------------------------------------------------------------------
[67] Section 18(1) of the Constitution of Barbados provides as follows:
"If any person is charged with a criminal offence, then unless the charge is
withdrawn, the case shall be afforded a fair hearing within a reasonable
time by an independent and impartial court established by law."
The Respondent's main ground of appeal in the court below was that he did
not enjoy the benefit of a fair hearing within the meaning of Section 18(1)
of the Constitution. The Court of Appeal in allowing the appeal of the
Respondent determined, inter alia:
"A great deal of prejudicial matter was raised in the hearing of potential
jurors; the objections (of the accused) struck at the fairness and
impartiality of the trial judge . We conclude that there was a material
irregularity in the course of the trial process, which rendered the trial
unfair and therefore the conviction unsafe . We conclude that the cumulative
effect of the matters raised in the appeal taken together as a whole was to
deprive the appellant of a fair hearing, interpreted in accordance with the
Constitution, such as to render the verdict unsafe or unsatisfactory."
[68] In effect, as indicated above, the gravamen of the issue to be
determined here is whether the accused was granted a fair hearing in
accordance with his constitutional rights. This brings me to the second
aspect of the first preliminary issue, namely, whether the appeal accorded
the Appellant by the Caribbean Court of Justice Act, Cap. 117 (2003) was an
appeal as of right in a criminal proceeding involving "a question as to the
interpretation of the Constitution". The Court of Appeal had no hesitation
in determining that the Appellant was deprived of a "fair hearing,
interpreted in accordance with the Constitution." And it is common ground
that the right to a fair trial is absolute! In the opinion of Lord Bingham:
"If the trial as a whole is judged to be unfair, a conviction cannot stand.
What a fair trial requires cannot, however, be the subject of a single
unvarying rule. It is proper to take account of the facts and circumstances
of particular cases, as the European Court has consistently done."[FN19]
----------------------------------------------------------------------------------------------------------------
[FN19] Glyne Hamilton Cumberbatch v The Queen, (2004) 67 WIR 48 at p. 53;
also Brown v Stott [2001] 2 WLR 817 at 693; Wilberforce Bernard v The State
[2007] UK PC 34 at p. 12
----------------------------------------------------------------------------------------------------------------
In determining whether a party was accorded a fair hearing in accordance
with Article 6 (1) of the European Convention on Human Rights and
Fundamental Freedoms, the European Court of Human Rights has developed a
body of interpretative principles for employment as the facts determined in
any given case may prescribe. In extending support to the dictum of Lord
Bingham mentioned above, Lord Steyn in the same case asserted:
"Once it has been determined that the guarantee of a fair trial has been
breached, it is never possible to justify such breach by reference to the
public interest or any other ground. This is to be contrasted with cases
where a trial has been affected by irregularities not amounting to denial of
a fair trial."[FN20]
----------------------------------------------------------------------------------------------------------------
[FN20] Idem at 708
----------------------------------------------------------------------------------------------------------------
[70] In light of its determination on this issue, the Court of Appeal was
right to quash the conviction and sentence and order a retrial, especially
since the trial judge omitted to warn the jury to disregard in their
deliberations the prejudicial information which was disclosed in their
presence and hearing prior to being empanelled. In this connexion it is
important to bear in mind that:
"(i)n a criminal trial, it is the court acting collectively that has the
shared responsibility of ensuring a fair trial. The judge and the jury are,
by the system employed, given distinct functions to perform which will
collectively protect the rights of the person standing trial. In fulfilling
their distinct functions, both the judge and the jury must recognize the
need to ensure that the accused receives a fair trial but that does not
require the jury to take upon themselves functions that the law properly
entrusts to the judge. Provided each fulfils its role the accused will
receive a fair trial."[FN21]
----------------------------------------------------------------------------------------------------------------
[FN21] Per Lord Hutton in Regina v Mushtag [2005] UKHL25; also per Bingham
CJ in Randall v R (2002) 60 WIR 103 at 120
----------------------------------------------------------------------------------------------------------------
[71] Since the right to a fair hearing or fair trial is absolute, the
overall fairness of a criminal trial cannot be compromised.[FN22] "The
rights specified in paragraphs (a) to (f) of Section 18(2) are guaranteed by
the Constitution as practical and effective rights. In the European
Convention for the Protection of Human Rights and Fundamental Freedoms (4
November 1950) the rights similar to those listed in Section 18(2) of the
Constitution are described as "minimum rights" - see Article 6. They are not
and are not meant to be theoretical or illusory. They are of value in a
democracy governed by the rule of law. If it can be established that a
hearing has not been fair, a conviction will be quashed."[FN23]
----------------------------------------------------------------------------------------------------------------
[FN22] Brown v Stott [2001] 2 All ER 97; See also the dictum of Lord Bingham
CJ in Randall v R (2002) 60 WIR at 120
[FN23] Per Sir David Simmons, CJ in Glyne Hamilton Cumberbatch v The Queen
(2004) 67 WIR 48 pp. 53-54
----------------------------------------------------------------------------------------------------------------
IS THE CONCEPT "FAIR HEARING" AMENABLE TO JUDICIAL INTERPRETATION?
[72] Despite the seminal importance of a fair hearing in retentionist
jurisdictions to the safety of a conviction and the necessity to ensure in
every case judicial respect for this constitutional right, the Judicial
Committee of the Privy Council (JCPC) in Joseph v State of Dominica
determined that "(t)he question whether the case has received a "fair
hearing" within the meaning of Section 8(1) of the constitution is not a
question of interpretation of that enactment. It is a question of the
application of these words to the facts of the particular case."[FN24]
----------------------------------------------------------------------------------------------------------------
[FN24] Joseph v State of Dominica (1988) 36 WIR 216 at p. 218
----------------------------------------------------------------------------------------------------------------
[73] In my respectful opinion this dictum betrays symptoms of a juridical
oxymoron and evokes disconcerting queries about its legitimacy. Compare this
dictum with the opinion of President Aharon Barak of the Supreme Court of
Israel who pertinently observed:
"The judge has an important role in the legislative project: The judge
interprets statutes. Statutes cannot be applied unless they are interpreted.
The judge may give a statute a new meaning, a dynamic meaning, that seeks to
bridge the gap between law and life's changing reality without changing the
statute itself. The statute remains as it was, but its meaning changes
because the court has given it a new meaning that suits new social
needs."[FN25]
----------------------------------------------------------------------------------------------------------------
[FN25] Aharon Barak, The Judge in a Democracy (Princeton University Press
2006) at pp. 4-5
----------------------------------------------------------------------------------------------------------------
[74] The foregoing statement of the role of the judge applies, a fortiori,
in relation to the constitution of Barbados which is an instrument of a
peculiar and superior class constituting as it does the supreme law of the
State. Since this instrument is seen to be a living instrument and always
speaking the words contained therein must be viewed as eminently susceptible
to interpretation in order to accommodate ever-changing social realities. In
light of evolving international human rights standards what might have
constituted a fair hearing in 1988 may not be seen to satisfy required
conditions in 2006. In the characterization of Sir David Simmons CJ "...the
Constitution must be interpreted as a living instrument adapting itself to
take account of the contemporary standards and values of a democratic
society."[FN26] This judicial insight must be considered as lying at the
heart of a determination concerning the constitutional right to a fair
trial.[FN27]
----------------------------------------------------------------------------------------------------------------
[FN26] Clyde Grazette v Attorney General and Director of Public Prosecutions
No 16 of 2006
[FN27] Brown v Stott op. cit. at p. 106
----------------------------------------------------------------------------------------------------------------
[75] There can be no doubt in my view that the provisions of the Barbados
Constitution, like those of any other legal instrument, cannot be
meaningfully applied unless they are interpreted, if only for the very
simple reason that written words in such an instrument are mere visible
symbols expressive of human intentions or motivations continuously
vulnerable to change, consistently with the dynamism of their operational
environment. The sociological significance of such symbols is necessarily a
function of determination and evaluation in the light of contemporary social
realities. Sometimes the language of commitment employed in a legislative
enactment or constitution is self-explanatory as in Frater v R,[FN28] such
that the court of competent jurisdiction adopts the interpretation which is
self-evident. But what may be self-evident in one generation may not be so
regarded in the next! Semantically, it does appear from relevant case law
that the term "fair hearing" does not fall into this unique class of
eternally self-explanatory verities. As Lord Bingham pertinently observed:
"The requirements of fairness in any given case are not however an abstract
or absolute standard. They depend on the context and all the facts."[FN29]
----------------------------------------------------------------------------------------------------------------
[FN28] Frater v R (1981) 1 WIR 1468
[FN29] R v Criminal Cases Review Commission ex parte Pearson [2000] IG App R
141 p.171
----------------------------------------------------------------------------------------------------------------
[76] Understandably, the JCPC in its relevant determinations were apparently
anxious to avoid opening the flood gates for appeals on constitutional
grounds. However, the courts appear to be very well placed to preempt such
an eventuality by defining and delimiting the juridical parameters of a
"fair hearing" on the basis of judicially determined and agreed principles
and by adjudging in every case whether the constitutionally guaranteed right
to a fair hearing genuinely addressing the interpretation of the
constitution is engaged;[FN30] or whether, in the final analysis, a litigant
is indulging a frivolous or vexatious suit or is otherwise abusing the
process of the court.
----------------------------------------------------------------------------------------------------------------
[FN30] Harrikissoon v Attorney General for Trinidad and Tobago (1980) AC 265
----------------------------------------------------------------------------------------------------------------
[77] Relevant judicial determinations have so far confirmed that the concept
"fair hearing" eludes definitional specificity and exhaustiveness. However,
this circumstance must not be considered as precluding an
inclusive/exemplary interpretation of it. The requirement of legal
certainty, especially in matters relating to human rights and, more
particularly, to matters affecting the life and liberty of the subject,
demands that the term "fair hearing" must not remain untrammelled by
judicially agreed juridical parameters, leaving the concept completely at
large and vulnerable to the whims and fancies of subjectivist judicial
activism.
[78] In my opinion, the important issue falling to be determined by our
Court is whether the Court of Appeal in reaching its judgment, did in effect
interpret the term "fair hearing" set out in Article 18(1) of the
Constitution before concluding that the conviction was unsafe or
unsatisfactory, or whether the Court of Appeal merely applied to the facts
found judicially predetermined principles encapsulated in the term "fair
hearing". If the latter, then the expression "interpreted in accordance with
the Constitution" employed by the Court of Appeal in its final determination
must be regarded as otiose and lacking in juridical significance for the
outcome of the appeal. I have no doubt that the latter was the case.
[79] In support of his position, reliance was placed by counsel for the
Respondent on the decision of the JCPC in Joseph v The State of
Dominica.[FN31] Section 8(1) of the Constitution of Dominica which
guaranteed the constitutional right to a "fair hearing" was expressed in
terms similar to Section 18(1) of the Barbados Constitution. This decision
of the Board, however, must be distinguished from a similar determination by
their Lordships in Frater v R where an appeal, purporting to be made as of
right under Section 110(1) of the Constitution of Jamaica, was dismissed on
the ground that while the application of the particular constitutional
provision might have been in issue no question of its interpretation
properly arose. The relevant language of commitment, which is clear,
unambiguous and invokes no intractable problems of interpretation was as
follows:
"(6) Every person who is charged with a criminal offence –
(a) shall be informed as soon as reasonably practicable, in a language which
he understands, of the nature of the offence charged."
----------------------------------------------------------------------------------------------------------------
[FN31] (1988) 36 WIR 216
----------------------------------------------------------------------------------------------------------------
[80] The relevant determinations of their Lordships mentioned above were
undoubtedly informed by considerations of legal policy and, in particular,
"the need for vigilance on the part of the Courts of Appeal in dealing with
claims to be entitled under similar constitutional provisions to appeals as
of right to this Board or to Her Majesty in Council"[FN32]. Lack of
vigilance in this regard by judges competent to make a determination could
trigger such a rash of appeals on constitutional grounds as to inundate,
prejudicially, the criminal justice system in Barbados.
----------------------------------------------------------------------------------------------------------------
[FN32] Joseph v The State of Dominica op. cit. at p. 219
----------------------------------------------------------------------------------------------------------------
[81] Granting the generally acknowledged difficulty of arriving at a precise
and exhaustive definition of the term "fair hearing", the anxiety of the
Board to preempt frivolous or vexatious constitutional appeals as of right,
thereby overburdening the administration of criminal justice and devaluing
the important constitutional right to a fair hearing, is to be commended and
endorsed. Judiciously, the European Court of Human Rights has determined
that the concept of a "fair hearing" defies precise and exhaustive
definition.[FN33] There is no definition of the term "fairness" for the
purposes of the Convention (on which the provisions on fundamental rights
and freedoms of many Caricom States are based). It has been judicially
characterized not as a term of art and does not have to be given any strict
or technical meaning.[FN34]
----------------------------------------------------------------------------------------------------------------
[FN33] CG v The United Kingdom (2001) ECHR 870 at p. 28
[FN34] See Judge Bratza, CG v united Kingdom [2001] ECHR 43373/98, p. 13
----------------------------------------------------------------------------------------------------------------
[82] The foregoing notwithstanding, strict compliance with the rule of law
in modern democracies does appear to prescribe the need for a more
compelling and persuasive basis than definitional intractability as a ground
for disentitling an accused person convicted on indictment to an appeal as
of right in proceedings before a court of last resort, especially in capital
cases. More importantly, as pointed out by the European Court of Human
Rights, the "right to a fair trial holds so prominent a place in a
democratic society that there can be no justification for interpreting
Article 6(1) of the Convention restrictively."[FN35] Article 6(1) of the
Convention speaks, inter alia, of a "fair hearing".
----------------------------------------------------------------------------------------------------------------
[FN35] Per Judge Bratza, CG v United Kingdom[2001] ECJR 43373/98, p. 14
----------------------------------------------------------------------------------------------------------------
[83] It does appear to be the subject of a reasonable inference from
relevant case law, however, that although the European Court of Human Rights
has had to come to terms with the reality that the Convention omitted to
define the term "fair", this did not preclude an "interpretation" of the
term "fair hearing". Thus, the European Court of Human Rights recognized
that "principles of fair trial also require that in appropriate cases the
interests of the defence are balanced against those of witnesses or victims
called upon to testify"[FN36]. It is clear from this dictum that the term
"fair trial" from the perspective of the European Court of Human Rights, is
amenable to the elaboration and extrapolation of interpretative principles
for application in appropriate circumstances. In my view the definitional
and interpretative processes are closely allied being both concerned with
discerning meaning from verbal expressions of human intentions. Whereas the
interpretative function is concerned with the ascertainment of the meaning
to be assigned to written words or other verbal manifestations of human
intention, the definitional function is essentially concerned with an
enhanced awareness of the meaning of words for the purpose of sharpening the
perception of phenomena[FN37].
----------------------------------------------------------------------------------------------------------------
[FN36] Dourson v The Netherlands (1996) 22 EHRR, 330, 358 para. 70
[FN37] See HLA Hart, The Concept of Law, (2nd ed) 1994, p. 14
----------------------------------------------------------------------------------------------------------------
[84] In effect, in defining a legal concept set out in a constitution or
enactment the legislative draftsperson is not merely concerned with the
correct choice of words to communicate meaning but, even more importantly,
with the sociological phenomena which words are employed to portray. In
short, legal language which critically determines the cut and thrust of
social interaction must be concerned with identifying and clarifying the
sociological phenomena which verbal expressions are employed to signify. In
light of the foregoing, I apprehend that every term or concept employed in
legal discourse must be seen as amenable to interpretation if not precise
definition, including the intractable concepts "fair trial" or "fair
hearing" or "due process" and such like.
[85] In point of fact the Human Rights Committee of the United Nations has
interpreted the term "fair hearing" despite the general awareness that "fair
trial" and "fair hearing" are semantically elusive concepts "characterized
by considerable vagueness"[FN38] tending to an open-ended residual quality
not unlike the concepts of "proportionality", "due process of law" and
"safety of a conviction".[FN39] Consider in this context the dictum of Lord
Bingham CJ:
"The expression unsafe in Section 2(i)(a) Criminal Appeal Act (1968) does
not lend itself to precise definition. In some cases unsafety will be
obvious, as (for example) where it appears that someone other than the
appellant committed the crime and the appellant did not, or where the
appellant has been convicted of an act that was not in law a crime, or where
a conviction is shown to be vitiated by serious unfairness in the conduct of
the trial or significant legal misdirection, . Cases, however, arise in
which unsafety is much less obvious: Cases in which the Court, although by
no means persuaded of an appellant's innocence, is subject to some lurking
doubt or uneasiness whether an injustice has been done . If on consideration
of all facts and circumstances of the case before it, the Court entertains
real doubts whether the appellant was guilty of the offence of which he has
been convicted, the Court will consider the conviction unsafe. In these less
obvious cases the ultimate decision of the Court of Appeal will very much
depend on its assessment of all the facts and circumstances.[FN40]
----------------------------------------------------------------------------------------------------------------
[FN38] See Stefan Trechsal, Human Rights in Criminal Proceedings, Oxford
University Press (2005) p. 54
[FN39] R v Michael George Davis et al [2001] 1 Cr App R 8 at p. 131
[FN40] R v Criminal Cases Review Commission, ex p. Pearson [2000] 1 Cr Appl
R 141 at pp. 146-7
----------------------------------------------------------------------------------------------------------------
[86] In the characterization of Lord Clyde:
"But while there can be no doubt that the right to a fair trial is an
absolute right, precisely what is comprised in the concept of fairness may
be open to a varied analysis. It is not to be supposed that the content of
the right is necessarily composed of rigid rules which provide an absolute
protection for an accused person under every circumstance.[FN41]
----------------------------------------------------------------------------------------------------------------
[FN41] Brown v Stott, op. cit. at 727
----------------------------------------------------------------------------------------------------------------
[87] In Morael v France, the United Nations Human Rights Committee
determined that "(a)lthough Article 14 (of the International Covenant of
Civil and Political Rights (ICCPR)) does not explain what is meant by a
"fair hearing" in a suit at law (unlike paragraph 3 of the same article
dealing with the determination of criminal charges), the concept of a fair
hearing in the context of Article 14(1) should be interpreted as requiring a
number of conditions, such as equality of arms, respect for the principle of
adversary proceedings, preclusion of ex officio reformatio in pejus, and
expeditious procedure.[FN42] The facts of the case should accordingly be
tested against those criteria."[FN43] It is also common ground that the
right to a reasoned decision is an indispensable attribute of a fair
trial[FN44].
----------------------------------------------------------------------------------------------------------------
[FN42] See Herbert Bell v Director of Public Prosecutions and Another [1985]
3 WLR 73
[FN43] CCPR/C/36/D/207/1986 [1989] UNHRC 16 (28 July 1989).
[FN44] Clyde Hamilton Cumberbatch v The Queen, op. cit.
----------------------------------------------------------------------------------------------------------------
[88] In a similar vein the European Court of Human Rights perceptively
determined:
"It is a fundamental aspect of the right to a fair trial that criminal
proceedings, including the elements of such proceedings which relate to
procedure, should be adversarial and that there should be equality of arms
between the prosecution and the defence. The right to an adversarial trial
means, in a criminal case, that both prosecution and defence must be given
the opportunity to have knowledge of and comment on the observations filed
and the evidence adduced by the other party..."[FN45]
----------------------------------------------------------------------------------------------------------------
[FN45] Per Lord Bingham of Cornhill in Brown v Stott [2000] 2 WLR 817 at p.
695
----------------------------------------------------------------------------------------------------------------
DID THE COURT OF APPEAL INTERPRET THE CONSTITUTION?
[89] In my opinion, a judicial determination whether, on the basis of the
facts established in any given case, the constitutional right of an accused
to a fair trial guaranteed by Section 18(1) has been breached, unavoidably
engages an interpretation of the Constitution. Nevertheless, in any
particular case it is for the courts to determine if, on the facts found, a
judicial interpretation of a fair trial in accordance with the Constitution
has already been made by a court of competent jurisdiction and all that
remains to be done is to apply the relevant principles to the instant case.
[90] In some cases, however, it may very well be determined that the
language of commitment is self-explanatory, that is to say, it is so clear
and devoid of doubt or ambiguity that the relevant provisions of an
enactment may be applied without the need for discerning its meaning which
is self-evident:
"Where the language is plain and admits of but one meaning, the task of
interpretation can hardly be said to arise. 'The decision on this case',
said Lord Morris of Borth-y-Gest in a revenue case 'calls for a full and
fair application of particular statutory language to particular facts as
found. The desirability or the undesirability of one conclusion as compared
with another cannot furnish and guide in reaching a decision.' Where, by the
use of clear and unequivocal language capable of only one meaning anything
is enacted in the legislature, it must be enforced however harsh or absurd
or contrary to common sense the result may be."[FN46]
But although in this situation the burden of interpretation falling on the
judge is considerably reduced, it is not entirely dispensed with. This
appears to have been the case in Frater v R[FN47] mentioned above where the
language of commitment was self-explanatory. Given, however, that the
concept "fair" invokes the aphorism quot hominess tot sententiae (open to as
many interpretations as there are judges competent to make a determination)
and is liable to be defined by the many different circumstances establishing
the context of its interpretation, I would hesitate to presume that it may
be applied in the absence of interpretation.
----------------------------------------------------------------------------------------------------------------
[FN46] Maxwell on the Interpretation of Statutes (12 ed) by P St J Langan
(Butterworths, 2006) at p. 29
[FN47] Supra, Note 11
----------------------------------------------------------------------------------------------------------------
[91] Where, however, a prior judicial determination on the same or similar
facts has not been made and the language of commitment is not
self-explanatory, an examination of relevant agreed principles by a court of
competent jurisdiction is required in order to establish whether an accused
was accorded a fair trial to which he was constitutionally entitled thereby
engaging an interpretation of the constitution. Contrary to authoritative
dicta on the issue, and consistently with the insightful observations of
Aharon Barak mentioned above, it is my respectful opinion that it would not
normally be possible to apply the provisions of any legal enactment, be it a
constitution or other legal instrument, in the absence of interpreting them
or discerning their meaning.
[92] It has been pertinently observed that every word in a legislative text
must be given its own meaning. This was expressed to follow from the
assumption that the legislature avoids tautology and that every word of
legislation has a sensible reason for being there. The legislature does not
make mistakes or waste words.[FN49] In R v Kelly Cory J, in support of this
position, said, "(i)t is a trite rule of statutory interpretation that every
word in a statute must be given a meaning."[FN49]
----------------------------------------------------------------------------------------------------------------
[FN48] Ruth Sullivan, Statutory Interpretation, Irwin Law (1997)
[FN49] [1992]25 CR 170 at p. 31
----------------------------------------------------------------------------------------------------------------
[93] Section 18(1) of the Constitution of Barbados guarantees the individual
charged with a criminal offence the right to a "fair hearing". This right,
as mentioned above, has been determined by the weight of judicial authority
to be absolute.[FN50] Like habeas corpus the right to a fair hearing is a
peremptory attribute of a democracy based on the rule of law from which no
derogation is to be entertained. Given the fundamental importance of this
right, as expressed in the language of the Constitution, I find it difficult
to accept that the term "fair hearing" is not susceptible to interpretation,
since in the absence of attributing meaning to the term in light of
contemporary social realities, its correct application to the facts
established in any given case would, to my mind, be infeasible. On a careful
examination of cases involving the right to a fair hearing it appears to me
that the courts of competent jurisdiction in making a determination, apply,
either consciously or unconsciously, but more often than not,
inarticulately, judicially predetermined principles to the facts found.
----------------------------------------------------------------------------------------------------------------
[FN50] Fitt v United Kingdom (2000) 30 EHRR 450, 510; Brown v Stott [2001] 2
All ER 99; Glyne Hamilton Cumberbatch v The Queen - Criminal appeal No 52 of
2002 (Barbados) p. 9; A Mohammed & R Harripersad v The State (2000) 58 WIR
391 at 408; R v A (No 2) [2000] 2 WLR 1546; Ramdatt v R (2002) 60 WIR 103 at
28; Clyde Grazette v Attorney General and Director of Public Prosecutions No
2016 of 2006 at p. 15; R v Michael George Davis et al [2001] 1 Cr App R 8;
Wilberforce v Bernard op.cit.
----------------------------------------------------------------------------------------------------------------
[94] Indeed, the instant appeal appears to be an excellent case in point of
this practice. For example, the Court of Appeal must be seen to have applied
the generally accepted right to adversarial proceedings based on the
principle of equality of arms at paragraphs 14, 15 and 24 of its judgment
and the equally important right to a reasoned decision at paragraph 12 of
its determination, even though no explicit reference was made to these
principles. In Clyde Grazette v Attorney General and Director of Public
Prosecutions[FN51], however, the Court of Appeal expressly made reference to
the right to adversarial proceedings based on the principle of equality of
arms.
----------------------------------------------------------------------------------------------------------------
[FN51] No 2016 of 2006 at pp. 6 ff
----------------------------------------------------------------------------------------------------------------
[95] In conclusion, I am of the view that Section 6(c) of the Caribbean
Court of Justice Act, Cap. 117 (2003) accorded the prosecution an appeal as
of right in criminal proceedings involving a question as to the
interpretation of the Constitution. The Court of Appeal held that the
Respondent was deprived of a fair hearing to which he was constitutionally
entitled such as to render the verdict of the trial judge unsafe or
unsatisfactory. However, although the term "fair hearing" must be seen to be
normally susceptible to judicial interpretation, an interpretation of the
Constitution by the Court of Appeal does not appear to have been engaged in
this case. The Court of Appeal must be seen, on an examination of the
reasoning employed, to have simply applied judicially predetermined
principles of a fair hearing to the facts found. Consequently, the
determinative ground of appeal adduced by the Appellant must fail.
[96] I concurred in the decision of my learned brothers and sister to
dismiss this appeal. I also concurred in the dismissal of the cross-appeal
for the reasons adduced by the learned President. |
|
