|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Jamaica |
] [Hide Context] [2020] JMCA App 41
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT CRIMINAL APPEAL NOS 29-32/ 2014 MOTION NOS COA2020MT00006-9
BEFORE: THE HON MR JUSTICE BROOKS JA
THE HON MRS JUSTICE MCDONALD-BISHOP JA THE HON MISS JUSTICE STRAW JA
SHAWN CAMPBELL ADIDJA PALMER
KAHIRA JONES v R
ANDRE ST JOHN
Bert Samuels, Miss Bianca Samuels and Isat Buchanan instructed by Knight Junor Samuels for the applicant Shawn Campbell
Isat Buchanan and Ms Alessandra LaBeach for the applicant Adidja Palmer John Clarke for the applicants Kahira Jones and Andre St John
Jeremy Taylor QC, Orrett Brown and Miss Syleen O'Gilvie for the Crown
29, 30 June, 1, 2 July and 25 September 2020
BROOKSJA
[1] The applicants, Messrs Shawn Campbell, Adidja Palmer, Kahira Jones and Andre St John, on 13 March 2014, were convicted for the murder of Mr Clive Williams. They were each sentenced to imprisonment for life, with various periods to be served before being entitled to be considered for parole. They were sentenced on 3 April 2014.
[2] In April 2020, their respective appeals to this court from those convictions were dismissed, but the sentences were each reduced to account for time spent on pre sentence remand. All four have filed motions applying for this court's leave to appeal to Her Majesty in Council (the Privy Council or the Board or their Lordships). A prominent theme in questions, which the applicants wish to have posed to the Privy Council, is the issue of whether they had a fair trial. The Crown has opposed the applications. It contends that only one of the issues raised by the applicants meets the requirements of the Constitution and the relevant legislation, regarding the grant of leave to appeal to the Privy Council in criminal cases.
[3] The applications have been made pursuant to section 110 of the Constitution.
They will be considered in the context of the relevant portions of that section. Hereafter, all references to sections, unless otherwise stated, will be to sections in the Constitution.
The questions posed by the applicants
[4] The number of questions filed by the applicants is unusually large when the relevant principles governing such applications are considered. The questions contained in the respective applications have been set out in full in the appendix to this judgment.
[SJ It is apparent from their formulation of the majority of the numerous questions, that the applicants have not taken account of the requirements of section ll0(l)(c). As a result, only the issues which satisfy section ll0(l)(c) will be discussed in the next section of this judgment. The applicants have helpfully identified the issues which they wish referred pursuant to section 110(2)(b) and its expansion by section 35 of the
Judicature (Appellate Jurisdiction) Act (JAJA). Those will be discussed after the consideration of the section ll0(l)(c) issues.
[6] Learned counsel who advanced arguments before the court, on behalf of the applicants, all adopted each other's submissions. Accordingly, the oral submissions of Miss Samuels, Mr Buchanan and Mr Clarke will not be individually identified, but will be addressed collectively. They have identified that the questions broadly raise the following issues:
Mr Taylor QC, addressed the court on behalf of the Crown. The court is grateful to all counsel for their assistance.
The principles governing an application for leave to appeal to the Privy Council in criminal cases pursuant to section 110(1)(c) of the Constitution
[7] Leave to appeal to the Privy Council, as of right, is governed by section 110(1).
The relevant section for this case is section ll0(l)(c). Section 110(1) states, in part: "(l) An appeal shall lie from decision of the Court ofAppeal to Her Majesty in Council as of right in the following cases-
(c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution;
ff
[8] The requirements of paragraph (c), for these purposes, are that the decision from which appeal is sought must be:
All three requirements must be satisfied.
[9] It has been established that even for cases where the appeal is as of right under section 110(1), it is for this court to ensure that the appropriate conditions have been met. This principle was confirmed in Alleyne-Forte (Learie) v Attorney-General of Trinidad and Tobago and Another [1997] UKPC 49; (1997) 52 WIR 480, where their Lordships said in their concluding paragraph:
"An appeal as of right, by definition, means that the Court of Appeal has no discretion to exercise. All that is required, but this is required, is that the proposed appeal raises a genuinely disputable issue in the prescribed category of case..."
[10] Their Lordships of the Privy Council have asked that appellate courts, such as this, be vigilant in protecting the process of appeals to the Board from being debased by frivolous applications for leave to appeal. They did so in Eric Frater v R [1981] UKPC
35; (1981) 18 JLR 381, which arose from a decision of this court. After stressing that the question before this court, in that case, was not about an interpretation of the Constitution, their Lordships, concluded the point by saying:"In Harnkissoon v. Attorney-General of Trimdad and Tobago [1979] UKPC 3; [1980] A.C. 265 this Board had occasion to point out the danger of allowing the value of the right to apply to the High Court for redress for contravention of his fundamental rights and freedoms which is conferred upon the individual by...the Constitution...to become debased by lack of vigilance on the part of the courts to dispose summarily of applications that are plainly frivolous or vexatious or are otherwise an abuse of process of the court. In their Lordships' view similar vigilance should be observed to see that claims made by appellants to be entitled to appeal as of right under section ll0(l)(c) are not granted unless they do involve a genuinely disputable question of inte,pretation 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."
That guidance was reinforced by their Lordships in Joseph v The State of Dominica
[1988] UKPC 20; (1988) 36 WIR 216 and Meyer v Baynes [2019] UKPC 3.
[11] The Caribbean Court of Justice (CCJ) has also accepted, as being applicable to appeals to its jurisdiction, their Lordships' stance on the assessment of cases for referral to the final court. The CCJ did so in the context of considering the assessment, for referral, of cases in which the issue of the constitutional right to a fair trial has been raised. That court considers appeals from jurisdictions, which have similar constitutional provisions to section 110, and therefore its judgments are of persuasive value.
[12] In R v Mitchell Lewis [2007] CCJ 3 (AJ); (2007) 70 WIR 75, all the judges in the seven-member panel of the CCJ concurred on the decision of whether the issue of a fair trial, had been properly raised for its consideration. de la Bastide PCCJ delivered a
judgment, with which five other judges agreed. In considering legislation with similar import to section llO(l)(c), de la Bastide PCCJ said, in part, at paragraph [42] of his judgment (all extracts are taken from the judgment as published on the CCJ's website):"We would respectfully adopt the remarks of Lord Diplock [in Eric Frater v R] and Lord Keith [in Joseph v The State of Dominica [1988] UKPC 20; (1988) 36 W.I.R. 216] 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."
[13] Pollard JCCJ said that he utilised a different route from the other six judges, in arriving at the same result. It is necessary to point out, however, that both de la Bastide PCCJ and Pollard JCCJ disagreed, somewhat, with an element of the Privy Council's decision in Joseph v The State of Dominica, which was delivered by Lord Keith. de la Bastide PCCJ, departing from a broader restriction that the Privy Council had promulgated, held that there were some instances when the issue of whether an accused had had a fair trial, could involve an interpretation of the Constitution. An example of those instances, de la Bastide PCCJ said, would be when some novel element or feature arose. The deciding criterion, de la Bastide PCCJ determined, is when the complaint is whether the appellate court misinterpreted, rather than misapplied, a constitutional provision. The learned President said, in part, at paragraph [43] of his judgment:
"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 whatwill 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....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 [the equivalent of section llO(l)(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." (Emphasis supplied)
[14] In his judgment, Pollard JCCJ opined that the question of whether a party had had a fair hearing, "unavoidably engages an interpretation of the Constitution" (paragraph [89]). Those words, taken literally, would undoubtedly mean that every aggrieved party who alleges that he did not have a fair trial, would be entitled, as of right, to appeal to the final court. Pollard JCCJ, however, blanched such an understanding by stating that it is for the court to determine whether there has already been a judicial interpretation of the issue before that court. He said at paragraph [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 forthe 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."
[15] The relevant principles, for these purposes, that may be extracted from the judgments in R v Mitchell Lewis are:
[16] The learned judges of the CCJ accepted, however, that the Constitution is designed to be broadly interpreted so that it can adapt to changing times. Accordingly, they conceived that there will be occasions that the consideration of a challenge to the
fairness of a hearing will require a fresh look at interpreting the constitutional provision, which stipulates a "fair hearing", rather than the usual approach of an application of the established principles.
[17] If that understanding is correct, then no violence has been done to the view of the Privy Council in Joseph v The State of Dominica. From the CCJ's decision, it may be held that, in cases where there is an assertion that the constitutional right to a fair hearing has been infringed, it is for the court to decide on the facts of each case, the approach that is to be adopted. A case of genuine interpretation will give rise to an appeal as of right, whilst a case of application of the established principles, will not.
[18] Although the learned judges of the CCJ did not give any examples of the well- established principles that would coalesce to constitute a "fair hearing", it may be said, without any hint of being exhaustive, that they would include the requirement to:
Some of these principles will be mentioned below in the consideration of the questions that the applicants have asserted that they are entitled as of right, or should be allowed, to ask the Privy Council to consider.
Do any of the issues qualify for referral under section 110(1)(c)?
[19] The questions, which an applicant may propose for referral to the Privy Council, pursuant to section llO(l)(c), must be "on a question as to the interpretation of the Constitution". These applicants have sought to have numerous issues referred to the Privy Council by including, in the majority of their proposed questions, a reference to the constitutional right to a fair trial. These issues, include:
The applicants included jury management issues as part of their submissions in connection with the right to a fair trial. The notice of motion, however, did not include it. These issues will be dealt with under the section dealing with section 110(2)(b) matters.
[20] The applicants have sought to justify their approach by relying on the extracts, cited above from the judgments of de la Bastide PCCJ and Pollard JCCJ in R v Mitchell Lewis. What the applicants have not done, however, is to show that in considering the issue of a fair hearing or trial, this court, in its judgment, considered elements that are so unique or novel that they are not well-established principles that help to comprise a fair hearing. Indeed, it is noted that, despite their comments, on which the applicants rely, the judges of the CCJ found that Mr Lewis' appeal did not satisfy the requirement in the legislation that is the equivalent of section llO(l)(c). To be plain, therefore, the inclusion of the term "fair hearing" in a proposed question does not automatically qualify it for referral to their Lordships' Board.
[21] That is not to say that this court, in its judgment, did not specifically consider the constitutional requirement of a fair trial. It did. The judgment specifically considered that concept in two contexts, namely:
[22] The judgment dealt with the issue of prosecutorial misconduct as a discrete issue (see paragraphs [242] - [267]). The alleged misconduct, the applicants assert, is the Director of Public Prosecutions' (the Director) failure, in the face of allegations of attempted jury tampering, to halt the trial and, more egregiously, to encourage the learned trial judge to continue the trial with only a warning to the jurors to be true to their oaths.
[23] The court, at paragraph [242] outlined the ground of appeal that raised the issue.
The ground stated:
"The assistance sought from and rendered by the Learned Director of Public Prosecutions to the LTJ [learned trial judge], which was ultimately adopted by him, amounted to prosecutorial misconduct and led the Court into error, in that it was so gross and prejudicial a departure from good practice, as to render the trial unfair."
[24] At paragraph [244], the judgment provided the context for the ground of appeal.
The paragraph stated:
"As would have been seen from the ground itself, the challenge to the conviction under this ground relates to the DPP's contribution to a discussion in chambers when the judge consulted with counsel on both sides. The DPP herself
was not one of the two attorneys-at-law conducting the trial on behalf of the Crown, but attended the discussion in chambers along with counsel. The DPP's contribution to the deliberations was to urge the judge to continue the trial, but to remind the jury members of the oath that they had each taken."
[25] This court, in its judgment, considered submissions that included arguments based on section 16(1) dealing with the right to a fair trial. The section states:
"16-(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law." (Emphasis supplied)
[26] The applicants complain about the conduct of the learned Director. The judgment also considered it as an issue. It was, therefore, the application of the established principles surrounding prosecutorial misconduct, with which the court was concerned; not an interpretation of the constitutional provision. The court decided the issue based on whether there had been prosecutorial misconduct. It said at paragraphs [261] -
[262] of its judgment:
"[261] Again, whether the advice was right or wrong, the giving of the advice, it is important to note, was not an action the consequence of which was final. The advice given was considered by the judge (who had requested it in the first place) who was not bound by it and under no compulsion to accept it. The judge sought the assistance of counsel on both sides, received contrasting submissions, and made his independent decision at the end.
[262] We are unable to conclude (as counsel for the appellants submitted) that the suggestion made by the DPP resulted in an abridging of the appellants' constitutional rights and/or that it occasioned a breach of any of the cannons of
the legal profession. We also find that the conduct of the DPP in, at the judge's invitation, making a suggestion as to a valid course to be adopted in the circumstances, cannot possibly approach being an instance of misfeasance in a public office, as outlined in the Three Rivers case [Three Rivers District Council and others v Bank of England [2000] UKHL 33; [2000] 3 All ER 1]. Any attempt to get guidance from this case would be stymied by the lack of any evidence of the third limb of the tort, as outlined by Lord Steyn as follows:
'(3) The third requirement concerns the state of mind of the defendant
The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."' (Emphasis as in original)
[27] Based on that analysis, the court's discussion of the complaint concerning prosecutorial misconduct does not satisfy the requirement of section ll0(l)(c). The applicants, however, contended that this issue also falls under the purview of the provisions dealing with public importance. It will be again considered in that context.
b. lhe publicity issue
[28] The applicants' complaint in respect of the issue of publicity also fails to demonstrate that there was an interpretation, as opposed to an application, of the constitutional provision requiring a fair trial. Again, however, the applicants contend that
this issue may also be placed before their Lordships as one, which satisfies the requirements of section 110(2)(b), as expanded by section 35 of the JAJA. The essence of the complaint at the core of this issue is that given:
the applicants did not receive a fair trial and cannot receive a fair trial in Jamaica.
[29] This court, in its judgment, outlined the principles involved in this issue. It considered the relevant authorities against the backdrop of section 16(1) (see paragraph [462] of the judgment). It then summarised its understanding of the principles, as distilled from the decided cases. It said, at paragraph [ 484] of the judgment:
"In any event, as the authorities make clear, courts are generally loath to prevent trials from continuing on the ground of adverse publicity, preferring instead, as Lord Phillips CJ put it in R v Hamza [[2006] EWCA Crim 2918], the view that 'directions from the judge coupled with the effect of the trial process itself will result in the jury disregarding such publicity..."'
[30] Thereafter the court applied those principles to the complaints concerning the publicity surrounding the case, as well as certain occurrences during the trial. It
assessed the manner in which the occurrences were brought to the attention of the learned trial judge and how he dealt with them, both in the absence of the jury and in his directions to them during his summation. Its concluding paragraph on the issue, is manifestly an application of the principles concerning the issue of publicity and the trial process, rather than an interpretation of meaning of the term "fair hearing", as used in section 16(1). The court said, at paragraph [499]:"In these circumstances, the actual language and format chosen by the judge to deal with the problem posed by the adverse publicity in this case were matters entirely for him. Rather than overloading the summing-up with references to the very material which he wished the jury to ignore, the judge chose to be as pointed and direct as he possibly could in telling the jury to have regard solely to the evidence given at the trial and not to anything reported in the press; nor to any product of speculation or conjecture; nor to any notion of morality or concern for the state of crime in the country. In our view, the judge's directions on the matter of adverse publicity were entirely appropriate in the circumstances and would have adequately conveyed to the jury that they were to decide the case purely on the basis of the evidence."
[31] The complaints by the applicants as to the court's approach, and their disagreement with the court's analysis of the learned trial judge's treatment of the issue of publicity, do not raise the issue of an interpretation of section 16(1), so as to warrant a referral to their Lordships as of right.
7he privacy of communication issue
[32] The judgment of this court also considered another constitutional issue, namely, the constitutional right to privacy of communication (section 13(3)(j)(iii)), which forms
part of the 2011 Charter of Fundamental Rights and Freedoms (the Charter). The relevant portion of section 13 states:"(2) Subject to sections 18 and 49, and to subsections (9) and (12) of this section, and save only as may be demonstrably justified in a free and democratic society-
(a) this Chapter guarantees the rights and freedoms set out in subsections (3) and (6) of this section and in sections 14, 15, 16 and 17; and
(b) Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.
(3) The rights and freedoms referred to in subsection (2) are as follows-
(J) the right of everyone to-
(iii) protection of privacy of other property and of communication .
(None of the provisions mentioned in subsection (2) affect this issue, and so they need not be quoted.)
[33] The court considered section 13(3)(j)(iii), while dealing with the admissibility into evidence of a compact disk (CD), dubbed "JS2". The admission was made pursuant to common law principles, where the acquisition of the CD contravened the right to privacy, and had not been done in conformity with the provisions of the Interception of Communications Act (ICA).
[34] The court considered the issue in the context of a ground of appeal, and said, in part, at paragraph [136]:
"The appellants' complaints in respect of exhibit JS2 are twofold. The first complaint, without any admission of the authorship of the communication, is that the data provided by Digicel, which are on JS2, were obtained in breach of the ICA and of the constitutional right to privacy. The second issue is that there were doubts about the provenance of JS2 and that it ought not to have been admitted into evidence."
[35] In its consideration, the court dealt with the basis for statutory derogation from the constitutional right to privacy as well as a trial court's authority to admit evidence in breach of that constitutional right. This court not only compared section 13(3)(j)(iii) with the previous section 22, which formed part of the repealed Chapter III of the Constitution, but it also compared section 13(3)(j)(iii) with the relevant provisions of the Constitutions of both Canada and the United States of America.
[36] In that analysis, the court said at paragraphs [142] and [143]:
"[142] The provisions of the Charter, in this context, are similar to the aim expressed in the repealed section 22. Section 13(3)(j)(iii) addresses the issue of the privacy of communication. It guarantees to all persons in Jamaica, the right to 'protection of privacy of other property and of communication'.
[143] There is no gainsaying the importance of the right to privacy. It is said to be 'a basic prerequisite to the flourishing of a free and healthy democracy' (paragraph [38] of the judgment of Cote J in R v Jones 2017 SCC 60, [2017] 2 SCR
696). The right is, however, not absolute. It is guaranteed by the Charter, only to the extent that it does 'not prejudice the rights and freedoms of others' (section 13(1) of the Charter). The right may also be curtailed 'only as may be demonstrably
justified in a free and democratic society' (section 13(2)). Two observations may be made about the relevant provisions of the Charter:
a. there seems to be a reversal of the onus of proof as regards constitutionality, in that the Charter places the onus on the party seeking to assert justification of the curtailment; and
[37] The applicants contend that, those analyses inherently involve an interpretation of section 13(3)(j)(iii), and therefore this issue falls within the ambit of section llO(l)(c). They rely, in part, on the reasoning in Mitchell Lewis v R, which has been cited above, as support for that assertion.
[38] Although the court did consider the importance of the right to privacy it cannot properly be said that there was any attempt at interpreting section 13(3)(j)(iii). The court's statement at paragraph [143] of its judgment was not an interpretation of the meaning of that section of the Charter as a distinct issue arising in the appeal. It was, rather, an emphasising of the importance of the right to privacy and an examination of its application in a free and democratic society.
[39] In the circumstances, no questions connected to the privacy of communication issue may properly be referred pursuant to section llO(l)(c). That is not, however, the
end of the discussion of this issue as the applicants have asserted that it may also be referred pursuant to section 110(2)(b). That aspect will be analysed below.
Sentencing and other issues
[40] The applicants raised the issues of sentencing and delay among the many matters that they wished to refer to the Privy Council pursuant to section ll0(l)(c), but these, like so many of the others, did not satisfy the requirements of the subsection. There is no aspect of the decision of the court that involves a genuine dispute regarding the interpretation of any provisions of the Constitution in respect of those several issues. The issues of sentencing and delay will be addressed in considering the aspect of the application that concerns section 110(2)(b). No further consideration will be made of any of the other matters.
Conclusion on the section 110(1)(c) points
[41] Based on the reasoning above, it is concluded that there has been, in this case, no interpretation by this court of any provision of the Constitution that warrants a referral, as of right, to the Privy Council.
The principles governing an application for leave to appeal to the Privy Council in criminal cases pursuant to section 110(2)(b)
[42] Section 110(2) deals with applications, not as of right, as in subsection (1), but with the permission of this court. Paragraph (a) of subsection (2) gives greater latitude to this court, in civil cases, to grant leave to appeal to Her Majesty in Council. The provision allows the court to exercise a discretion to grant leave, when it is of the view that the issue in those civil cases involves a matter of "great general or public
importance or otherwise". Paragraph (a) of the subsection does not apply to criminal cases (see R v George Green (1969) 11 JLR 305). Paragraph (b) confers on Parliament the authority to specify other categories of cases, in which appeals to Her Majesty in Council may be allowed. Subsection (2) states, in part, as follows:"(2) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases-
(a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; and
(b) such other cases as may be prescribed by Parliament.
[43] Parliament, by section 35 of the JAJA, has prescribed, pursuant to section 110(2)(b), the types of criminal cases that may be sent on appeal to the Privy Council. Section 35 mirrors, in some ways, the standard prescribed, in respect of civil cases, by section 110(2)(a). Section 35 provides:
"The Director of Public Prosecutions, the prosecutor or the defendant may, with the leave of the Court appeal to Her Majesty in Council from any decision of the Court given by virtue of the provisions of Part IV, V or VI, where in the opinion of the Court, the decision involves a point of law of exceptional public importance and it is desirable in the public interest that a further appeal should be brought." (Emphasis supplied)
[44] The civil standard, it will be noticed, is "great general or public importance or otherwise", while the criminal standard is "exceptional public importance" and the public's interest that there be a further appeal. The difference in terminology suggests a higher standard in criminal cases. That difference may stem from the traditional attitude of the Privy Council that it is only in exceptional cases that it grants leave to appeal in criminal cases. In Edith May Hallowell Carew v The Queen [1897] UKPC 32, the Board, at page 2, stated the principle as follows:
"...it is only necessary to say that, save in very exceptional cases, leave to appeal in respect of criminal investigation is not granted by this Board. The rule is accurately stated as follows, in the case to which their Lordships referred in the course of argument, re Abraham Mallory D1l!ett ((1887) 12 App. Ca. 459): 'Her Majesty will not review or interfere with the course of criminal proceedings unless it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done'." (Emphasis supplied) (Italics as in original)
[45] Another case from the Privy Council is Nirmal son of Chandar Bali v The Queen [1971] UKPC 39. In that case, the Privy Council dealt with the standard for allowing appeals in criminal cases. It quoted with approval from Lord Sumner's judgment in Ibrahim v R [1914] AC 599. The Board said, in part at pages 5-6:
"...In lbrahim v. R. Lord Sumner said at pp. 614 615 '...Their Lordships' practice has been repeatedly defined. Leave to appeal is not granted 'except where some clear departure from the requirements of justice' exists: Reid v Reg. (1885) 10 App. Cas 675; nor unless 'by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done': D11lets case. It is true that these are cases of applications for special leave to appeal, but the Board hasrepeatedly treated applications for leave to appeal and the hearing of criminal appeals as being on the same footing: ReJ/s case. Ex parte Deeming [1892] UKLawRpAC 22; [1892] A.C. 422. The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself: and, conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even irregularity as such, will not suffice: Ex parte Macrea [1893] UKLawRpAC 19; [1893] A.C. 346. There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in the future: Reg
v. Bertrand."' (Emphasis supplied) (Italics as in original)
[46] Although that guidance assists greatly, the reference to section 110(2)(a) is also pertinent because this court has previously provided careful guidance as to the approach to considering the issue of public importance. That guidance is also of significant help in determining the approach to considering the cases that meet the standard set by section 35 of the JAJA. In the civil case of The General Legal Council v Janice Causewell [2017] JMCA App 16, McDonald-Bishop JA, with whom the rest of the panel agreed, considered several previously decided cases on this court's approach to applications under section 110(2)(a). The learned judge of appeal, at paragraph [27] of her judgment, set out a clear synopsis of the relevant principles:
"The principles distilled from the relevant authorities may be summarised thus:
ii.
iii.
iv.
V.
vi.
vii.
viii.
There must first be the identification of the question involved. The question identified must arise from the decision of the Court of Appeal, and must be a question, the answer to which is determinative of the appeal.Secondly, it must be demonstrated that the identified question is one of which it can be properly said, raises an issue, which requires debate before Her Majesty in Council. If the question involved cannot be regarded as subject to serious debate, it cannot be considered one of great general or public importance.
Thirdly, it is for the applicant to persuade the court that the question identified is of great general or public importance or otherwise.
It is not enough for the question to give rise to a difficult question of law; it must be an important question of law or involve a serious issue of law.
The question must be one which goes beyond the rights of the particular litigants and is apt to guide and bind others in their commercial, domestic and other relations.
The question should be one of general importance to some aspect of the practice, procedure or administration of the law and the public interest.
Leave ought not [to] be granted merely for a matter to be taken to the Privy Council to see if it is going to agree with the court.
ix. ff
[47] Two more principles should be added to those eight. The first of which, was recognised by the Court of Appeal of the Commonwealth of the Bahamas in Nyahuma Bastian v The Government of the USA and others (unreported), Court of Appeal,
Bahamas, SCCrApp & CAIS No 199 of 2017, judgment delivered 23 January 2020 (see paragraph 20). It is that the court should not refer a question to the Privy Council if the Board has previously given its opinion on that question. This principle expands on principle iii. above, for if the issue has been previously decided by the Board, in respect of materially similar circumstances, then it cannot be regarded as being open to serious debate. This is similar to the point made by Pollard J at paragraph [89] of Mitchell Lewis v R, cited above.
[48] The second additional principle is one pointed out by Mr Taylor. That principle was stressed by their Lordships in Michael Gayle v The Queen [1996] UKPC 18; (1996) 48 WIR 287. Lord Griffiths, in delivering the judgment of the Board, said, in part, at page 289 of the report of the case:
"Furthermore, it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal."That case was, however, an appeal by way of special leave from their Lordships. It is debatable if the principle is relevant to applications made pursuant to section 110 of the Constitution or section 35 of the JAJA. Both provisions use the term "appeal" in reference to the referral of cases to the Privy Council. Section 110 states that "[a]n appeal shall lie from decisions of [this court]". Section 35 states that the parties, there listed, "may...appeal" to Her Majesty in Council". That terminology suggests a different connotation than that indicated by Lord Griffiths and advocated for by Mr Taylor.
[49] Having identified the relevant principles, the questions proposed by the applicants may now be considered.
Do any of the issues qualify for referral under section 35 of the JAJA?
[50] Section 110(2)(b) allows for the consideration of issues in the context of section 35 of the JAJA. There is no dispute about the need to satisfy the basic requirements of section 35, namely that the issues in this case arise from a final decision in a criminal case on appeal from the Supreme Court. The dispute between the applicants and the Crown is whether the issue "involves a point of law of exceptional public importance and it is desirable in the public interest that a further appeal should be brought".
[51] The applicants, in their written submissions, have argued that there are four issues which meet the requirements of section 35, namely:
[52] In their joint speaking notes, they sought to add additional matters, including:
a. Jury management
[53] This issue mainly arose from two incidents, involving the jury, during the trial.
Both were investigated by the learned judge in his chambers with counsel on both sides present. The investigation was recorded by the court reporters. The applicants and the jury, as a body, were, however, absent. The learned trial judge's treatment of those issues and his reaction to them are the matters raised by the applicants.
[54] In the first investigation, one of the jurors told the learned trial judge that she had gone to see her son at a correctional institution and discovered that at least one of the applicants was being remanded at that institution, on the same block as her son. She expressed fear for her son's safety in the circumstances. The learned judge, after discussing the matter with counsel, discharged the juror.
[55] In the second investigation, the foreman of the jury informed the learned judge, in the latter stages of his summation, that one of the jurors had offered bribes to other members of the jury, with a view to affecting the outcome of the case. The learned judge, after hearing the foreman and consultation with counsel, decided not to discharge the jury, but to complete his summation that afternoon and leave the case to the jury for the deliberation of its verdict.
[56] This court, prior to hearing the appeal, allowed fresh evidence to be adduced concerning the second investigation. The relevant fresh evidence adduced before this court concerned the accounts of two of the jurors as to the events leading to the second
investigation. Despite mentioning that the evidence had been adduced, the court failed to assess the issues raised by the evidence.
[57] The applicants assert that at least four issues are raised in this context:
They contend that these issues are matters of great importance, which not only affect them but also affect the conduct of trials in the future. In addition, the applicants assert, the manner in which this court resolved these issues in its judgment differed from the guidance that it has given in other decisions, which it has previously made.
[58] They point to the fact that this court has, not only in its judgment in this appeal, but in other cases such as Delroy Laing v R [2016] JMCA Crim 11, pointed out that there is no established procedure, statutory provision, rule of court or practice direction in respect of handling issues such as these. Learned counsel for the applicants also contended that the court's judgment in this case conflicted with the guidance that it gave in Delroy Laing v R. Learned counsel for the applicants submitted that the appropriate procedure, as recommended in Delroy Laing v R, was to have questioned, on oath, in open court, the various persons involved in each incident. In the
circumstances, the applicants assert, it is necessary to obtain guidance from the Privy Council on these issues.
[59] Counsel for the Crown contended that there is no basis for referring this issue to the Privy Council. Firstly, learned counsel stated, there is no conflict between the decision in the appeal in this case and that in Delroy Laing v R. Learned counsel also asserted that the Privy Council has already given guidance on this issue and that to again refer this issue to their Lordships is contrary to the guiding principles concerning referring matters to the Board. Learned counsel relied on Bonnett Taylor v The Queen [2013] UKPC 8 in support of the latter submission.
[60] The two previously decided cases, which have been cited in the submissions, require some analysis. Firstly, in its judgment in this case, the court examined Delroy Laing v R and accepted a principle, stated therein, as to the authority to be left to a trial judge in dealing with jury-management issues that arise during a trial. The court, in its judgment in this case, said at paragraph [228]:
"The best starting point in the discussion of these issues is to recognise, as this court stated in Delroy Laing v R, that there is, in Jamaica, no set procedure, statutory provision, rule of court or practice direction governing how an enquiry as to jury misconduct or alleged tampering is to be conducted. The only guideline that can be definitively stated is that the judge must conduct a proper investigation into the matter. The realization or acceptance that, in this jurisdiction, there is no set format or procedure for such an enquiry, immediately undermines the way in which ground 8(a) for the appellant, Campbell, is framed, as contending that the judge failed: '...to invoke the proper procedure...', as there is no set procedure. It further undermines, in our view, every positive assertion made in challenge to the manner in which the enquiries were conducted, such as, for example, thecontention that: (i) the hearings should have been conducted on oath; (ii) each juror should have been questioned on the second occasion and (iii) the judge ought to have made enquiries of juror number 11 herself, as to whether she has discussed the matter with any other juror (and ought not to have relied only on the word of the registrar). " (Underlining as in original)
[61] Both the judgment in this case and that in Delroy Laing v R considered a number of authorities concerning the correct course that should have been adopted at the respective trials. In Delroy Laing v R, more stress was placed on a thorough enquiry, including circumstances in which it may be desirable for making enquiries on oath. In the end, the court found that the trial judge in that case failed to do enough to ensure that justice was seen to be done. The court said, at paragraph [98]:
"We believed that in failing to conduct a more thorough investigation into the circumstances of this case, the learned trial judge may have failed to take into account all relevant considerations before coming to his findings that the appellant was not prejudiced or that there was no danger of him being prejudiced or the trial undermined. We have recognised that each case will turn on its own peculiar facts but the ultimate goal must always be the attainment of justice. As is often said, 'justice should not only be done, but should manifestly and undoubtedly be seen to be done'. In the circumstances as obtained in this case, we found ourselves unable to say that no injustice was caused simply because the investigation carried out by the learned trial judge was not sufficiently thorough."In the present case, the court found that the learned judge had conducted a sufficient enquiry to see that justice was done. It said, at paragraph [238]:
"It seems to us that the judge had before him enough
information on which to base his discretion to continue with the trial with warnings or directions to the jury, which he ultimately did. There was nothing that could have been gained (at best a denial by the accused juror), and a great
deal that would have been lost (the possibility of having to discharge the jury), by questioning the accused juror. We can see no basis to interfere with the exercise of that discretion. It should also be observed in relation to this enquiry as well that what transpired in chambers was also recorded by a court reporter, again in keeping with the guidance in Nash Lawson v R [[2014] JMCA Crim 29]."
It must be said, however, that the facts involved in this case are unique in terms of jury management. Among the unique aspects is the fact that the last jury misconduct issue came during the latter part of the summation of what is perhaps the longest criminal trial that has ever been conducted in this jurisdiction.
[62] Secondly, it is to be noted that the Privy Council has previously given guidance on the issue of managing jury impropriety. Bonnett Taylor v The Queen is a decision of the Privy Council on an appeal from this jurisdiction. It is therefore binding on this court. In that case, it was brought to the trial judge's attention, in the presence of the entire jury, that one of the jurors had indicated a, more than passing, prior acquaintance with the accused. The judge had no prior notice of the issue and dealt with it, immediately, by making enquiries of the juror, in the presence of the other jurors. Upon hearing her enquiries, the judge discharged the juror. In addressing the jury on the issue, the judge warned the remaining jurors to decide the case on the evidence and to disregard anything extraneous that may have been communicated to them by any of their members, then, or previously sitting among them.
[63] The Board, albeit by a majority, decided that the judge had done sufficient to avoid a miscarriage of justice. Their Lordships referred to a number of authorities on the point and provided guidance, which they intended for the courts in this jurisdiction.
[64] Their Lordships, in the majority, gave close guidance on the point at paragraphs 22-28 of their judgment. It is unnecessary for these purposes to repeat them here. It will be sufficient to observe that the guidance exists. Importantly, however, their Lordships concluded their discussion on the issue with the view that it is for the judiciary of this country to decide, for itself, the matters of practice, involved in this issue. They said at paragraph 29:
"These are matters of practice that are, of course, best left to the judiciary in Jamaica to decide upon for themselves. But it is possible that, if those steps [set out in their Lordships' guidance] had been taken in this case, the juror would have made her position known at the outset and that, if this had been done, there would have been time for another juror to be selected to take her place."
[65] Although, in addition to their Lordships' guidance, there now exists the guidance in in this area in the Supreme Court of Judicature of Jamaica Criminal Bench Book (the Criminal Bench Book), the latter was not available at the time of this trial. Their Lordships were also not unanimous in their decision in Bonnett Taylor v The Queen. It will be of assistance to have their further consideration of the issue and to determine whether the learned trial judge had done sufficient to avoid a miscarriage of justice.
[66] Neither Bonnett Taylor v The Queen nor the Criminal Bench Book deal with the aspect of the presence of the accused for enquiries into jury-management issues. There is, however, a general requirement, at pages 25-28, of the Criminal Bench Book for the accused to be present at his trial. That issue of an accused's right to be present at every stage of a trial, was dealt with in the judgment in this case with a reference to
Nash Lawson v R [2014] JMCA Crim 29, in which it was said that there are occasions which justify the absence of that accused from an aspect of the proceedings.
[67] Nash Lawson v R was a judge-alone trial and therefore it is not on all fours with this case. In its judgment in that case, the court, at paragraph [17], referred to the guidance in R v Lee Kun [1914-15] All ER Rep 603; [1916] 11 Cr App R 293:
"R v Lee Kun may be described as an exceptional case [it dealt with an accused who did not understand English, which was the language in which the trial was being conducted]; however, the principle holds true in all instances, that an accused is not to be excluded from any portion of his trial unless there are very good reasons. There may be circumstances during a trial when a judge and counsel for the defence and the prosecution need to confer in chambers in the absence of the accused. On such occasions, it is important that a court reporter be present to record what transpires." (Emphasis supplied)In R v Lee Kun, Lord Reading CJ said, in part, at page 604 of the former report:
"No trial for felony can [be] had except in the presence of the accused, unless [he] creates a disturbance preventing a continuance of the trial: R v Berry[(189;J 104 LT Jo 110; 14 Digest (Repl) 293, 2710] per WILLS, J. Even in a charge of misdemeanour there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may bear the case made against him and have the opportunity of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings. The prisoner may be unable, through insanity or deafness or dumbness, or the combination of both conditions, to understand the proceedings or to hear them, either directly or by reading a record of them, or to answer them either by speech or writing." (Italics as in original)
[68] There are other instances which justify the exclusion of an accused, such as disruptive behaviour (as mentioned by Lord Reading CJ), but, again, that is not the situation in this case. It will, therefore, be of assistance to obtain their Lordships' guidance on the principles governing the absence of accused persons during the course of jury-management enquiries.
[69] The final aspect of the issue of jury-management, is that concerning the time at which the jury in this case were sent to deliberate.
[70] The applicants assert that it was unreasonable, given the length and complexity of the case, for the learned judge to have sent the jury, after 3:00 pm, to deliberate on its decision, with the end of the court day being 4:00 pm. The Crown contends that, given the unusual situation with the allegations as to jury-tampering that had been brought to the learned judge's attention that afternoon, it was not unreasonable for him to have sent the jury to deliberate at that time.
[71] In its judgment, this court referred to the decisions of the Board in Shoukatallie v R (1961) 4 WIR 111 and Holder v The State (1996) 49 WIR 450, as well as to the Criminal Bench Book. It took the view that there was no definitive time beyond which it was unreasonable for the jury to be asked to retire to deliberate on its verdict. It held that, in the circumstances, it was not unreasonable for the learned trial judge to have asked the jury to retire at the time that he did.
[72] Guidance is given at page 346 of the Criminal Bench Book:
"The jury should not be placed under any pressure to arrive at a verdict. It is for that reason that the summation should not be concluded close to the end of the court day; the jurors should not have any anxiety, for example, about getting home etc, affecting their deliberations. For that reason a 3:00p.m. benchmark has been adopted. Only in the simplest of cases would it be not unreasonable to send the jury to deliberate after that time. But the time is not an inflexible one. In more complex cases, it may well be unreasonable to conclude the summation during the afternoon session. In such cases, it is best to delay concluding the summation until early the following day in order to give the jury adequate time to consider all the issues before it."
[73] It is to be noted that the jury is not permitted to separate once it has been asked to deliberate on its verdict. Undoubtedly, the Criminal Bench Book will be sufficient in all but the rarest of cases. For the less usual cases, such as this, it will be of assistance to secure their Lordships' guidance as to this aspect of jury management. Undoubtedly, there will be no two cases that are exactly alike but their Lordships may be asked to state the principles, which govern the time at which a jury may be asked to retire to consider its verdict.
b. Prosecutorial misconduct
There is absolutely no merit in the issue as advanced by the applicants. The learned Director gave her opinion to the learned judge, as did defence counsel. As the court held in its judgment, it was for the learned judge to make a decision and he did so. The constitutional aspect of the issue has already been discussed above. The fact that she was not the prosecutor in charge of the case, the prosecutor was, nonetheless, her representative. Her input cannot be said to be improper.
[74] The technology evidence has two main aspects to it. The first is an offshoot of the analysis of the effect of the admission of the CD, JS2, on the right to privacy. The second is the admissibility of a cellular telephone that is said to have been taken from Mr Palmer during the course of the investigation of Mr Williams' death.
[75] On the issue of the admissibility of JS2, although the analysis conducted above has concluded that the issue does not qualify for reference under section ll0(l)(c), it does appear that it gave the court some concern, given the departure by the police, for at least a second time, from the provisions of the ICA. The court also considered the importance of the application of the constitutional right to privacy. Accordingly, it does seem that the issue warrants referral to their Lordships by virtue of section 35 of the JAJA. Mr Taylor conceded that this was an area of exceptional public importance.
[76] The applicants formulated the proposed questions in different ways. Mr Campbell formulated them thus:
"v. What is the correct test to be applied to the admissibility of evidence which is obtained in breach of section 13 (3) j (iii) of the Charter of Fundamental Rights and Freedoms?
vi Whether the Court, being an organ of the state pursuant to s.13(2)(b) of the Charter of Fundamental Rights and Freedoms, has a duty to exclude material obtained in breach [of] an Appellant's Constitutional rights, in light of the new landscape of the Charter of Fundamental Rights and Freedoms, 2011."
Messrs Palmer, Jones and St John used a common formulation: "7) Whether Jamaican trial court judges:
13 (2) (b) of the Jamaican Constitution) or a common law duty or some other duty to exclude evidence which was obtained in a manner that infringes or denies rights or freedoms guaranteed by the Jamaican Constitution on the basis that the admission of it in the proceedings would bring the administration of justice into disrepute?
[77] In light of Mr Taylor's concession on the point, he was invited to submit, in writing, a suggested wording of an appropriate question. He formulated his questions thus:
"[1] Whether or not in the absence of an express provision in the Charter of Fundamental Rights and Freedoms 2011 that a court shall exclude evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, Jamaican trial courts are entitled to exercise its discretion as to whether or not to admit into evidence material that may have been obtained in breach of a Charter Right?[1.a] Did the fact that the information which was provided by the communication's provider DIGICEL to the police about the use of exhibit 14C (a BLACKBERRY cellular telephone) on the communications provider's network in circumstances where there was not strict compliance with the procedure laid down provIsIons of the Interception of Communications Act give rise to a breach of the Charter of Fundamental Rights and Freedoms 2011?
[1.b] And if the answer to [1.a] is yes what is the effect of that breach on the admissibility of the evidence?
[2] Whether the Learned Trial Judge erred in admitting exhibit 14C into evidence and accordingly this meant a failure to discharge his duty to ensure the overall fairness of the proceedings in accordance with section 13(2) (b) of the Charter of Fundamental Rights and Freedoms 2011 owing to the issues surrounding the chain of custody of exhibit 14C from the time it was taken from Mr Palmer by the police such as:-
[2.a] its integrity because of the unexplained use of exhibit 14C while it was in the custody of the police;
[2.b] the discrepancies in the evidence concerning the presence of an SD card in the exhibit 14c at the time that it was handed over to the police, where it was examined;
[2.c] the admissibility and integrity of a video clip said to have been found on the internal memory of exhibit[.]"
[78] Each formulation has its merits, but none fully reflects this court's consideration in its judgment, of the issue, or the juridical basis for the referral. Accordingly, the
following are the questions on this issue, that are certified for consideration by their Lordships:
[79] On the issue of the admissibility of the cellular telephone, which is a crucial part of the prosecution's case, the applicants assert that the use and handling of the instrument is plagued with uncertainties that should have prevented its admission into evidence. According to the applicants, the uncertainties surrounding the instrument and its contents are such that, not only was the learned judge wrong to have admitted it into evidence, but this court erred in principle in holding that the mere possibility of tampering is insufficient to prevent admission into evidence. The applicants argue that this court's approach reduces the standard of proof that the prosecution bears. The applicants extend that reasoning to the admission of JS2, which also suffered from the uncertainty that it may be different from the master, or control copy of the CD, JSl, which had gone missing.
[80] Although Mr Taylor submitted questions in respect of exhibit 14C, the applicants are not on good ground in this regard. The handling of the chain of custody, and the question of fact which it entails, are matters, which have been well traversed. The fact that the principles had to be applied to the, previously unchartered, area of telecommunication does not require adjustment of the principles. This court, in its judgment in the appeal, reasoned that the issues of fact were properly placed before the jury for its consideration. It is not an issue that is of exceptional public importance and desirable in the public interest that a further appeal should be brought.
d. lhe publicity surrounaing the case
[81] The applicants contend that, apart from the issue of their constitutional right to a fair trial, there is need for guidance to trial judges for handling situations where incidents occur during the trial which may prejudice the trial process. They contend that this court, in its judgment in this case, failed to give that guidance. They argue that it is necessary for the matter to be referred to their Lordships for their guidance.
[82] Learned counsel for the Crown opposed this aspect of the application on
the basis that it had already had the attention of this
court in R v Porter
and Williams (1965) 9 WIR 1, and their Lordships' Board, in Desmond Grant
and Others v The Director of Public Prosecutions and Another [
1981] UKPC 20;
[1982] AC 190.
[83] The publicity issue has already been considered in this judgment in the context of being a constitutional issue. This court also considered it in R v Porter and Williams, when the assertions on appeal were that occurrences during the trial would have
affected the jury and prejudiced the appellants' case. The court also considered steps taken by the learned trial judge to prevent a recurrence of the unfortunate events and his directions to the jury concerning the matter. It dealt with the issue by saying, in part, at page 9 of the report:"What this court has to determine is whether it can draw the inference that the jury must have concentrated upon the disorderly behaviour of the crowd and its evident hostility to the applicants rather than upon the evidence in the case, or that they probably were intimidated by such behaviour and thus biased against the applicants for the purpose of the trial. Having carefully considered the evidence and the relevant portions of the transcript we find ourselves quite unable to draw either of these inferences."
[84] In similar manner, this court in its judgment in this case, considered the previously decided cases and the actions of the learned judge and held that no prejudice had been shown. The court's assessment, at paragraph [ 484] of its judgment, has already been quoted above.
[85] Desmond Grant v DPP was concerned more with pre-trial publicity and is therefore not on all fours with the present case. Nevertheless, Counsel for the Crown is correct in the submission that this is not a matter to be referred to their Lordships.
[86] The issues as, as outlined in the joint speaking notes will now be discussed.
a. 7he de/ay issue
[87] Apart from the constitutional issues that arose in the judgment, the applicants have complained that the delay in having a decision on their respective appeals
constituted a breach of their right to a fair hearing in a reasonable time, as set out in section 16(1) of the Constitution. The applicants point, in particular, to this court's delay in delivering its judgment. They assert that the delay also manifested itself, to their prejudice, when this court failed to consider some statements that it had admitted, at their request, as fresh evidence. The statements, the applicants contend, concern the issue of a trial by an impartial tribunal, as guaranteed by section 16(1). They also contend that this is an issue that satisfies section 35 of the JAJA.
[88] The complaints concern the facts that:
[89] The applicants rely on the fact that this court has, fairly recently, recognised that the issue of delay is worthy of the consideration of the Privy Council. It did so, they contend, when it referred the issue to the Privy Council, in the case of Lescene Edwards v R [2018] JMCA App 48.
[90] There are two basic flaws with this aspect of the applications. The first, is that the issue raised by the applicants does not involve an interpretation of section 16(1). In Melanie Tapper v Director of Public Prosecutions [2012] UKPC 26, the Privy
Council held that the question of delay was more an issue of the application rather than the interpretation of section 20(1). Section 20(1) has, since that judgment, been replaced by section 16(1), but they are in identical terms.
[91] Their Lordships said, at paragraph 9 of their judgment:
"Leave was granted under section ll0(l)(c) of the Constitution, which gives a right of appeal in respect of final decisions 'on questions as to the interpretation of this Constitution'. Although no point was taken by the Crown, the Board doubts respectfully whether either point justified leave to appeal under that sub-section. The first issue did not arise, since the Court of Appeal accepted, and there is no dispute, that section 20 extends to post-conviction delay. On the second issue, it is not now contended that, in the event of a breach arising from such delay, section 20 'requires' a conviction to be quashed. The submission is that the Court erred in the exercise of its discretion. On this basis, the issue seems properly characterised as one of appJication of the constitutional provision, rather than interpretation." (Emphasis supplied) (Italics as in original)
[92] The second flaw in the applicants' position on this point is that their Lordships have previously pronounced on the issue of delay. They have determined that it is for this court to determine, by virtue of its knowledge of local conditions, whether or not the delay has been so inordinate as to amount to a breach of the right guaranteed by section 16(1). Their Lordships said, at paragraph 19 of Melanie Tapper v DPP:
" ...On their exercise of discretion it would require something exceptional to justify the Board substituting its opinion for that of the domestic court. In particular, the domestic court is much better placed to judge the significance of delay having regard to local conditions and pressures on the courts (see Bell v Director of Public Prosecutions [1985] AC 937, 953EG). In the circumstances, the Board finds no grounds to
question either their decision to reduce the sentence, rather than to adopt some other remedy, or the amount of the reduction." (Italics as in original)
[93] It is recognised that the issue of delay, by itself, is different from the issue of any prejudice that that delay may cause. In this case, it cannot be said that the delay in delivering the judgment caused any prejudice to the applicants. Their Lordships in Melanie Tapper v DPP said, in part, at paragraph 28 of their judgment:
"...even extreme delay between conviction and appeal, in itself, will not justify the quashing of a conviction which is otherwise sound. Such a remedy should only be considered in a case where the delay might cause substantive prejudice, for example in an appeal involving fresh evidence whose probative value might be affected by the passage of time."
Although there was fresh evidence adduced in the instant case, this court did not seem to consider it important to the outcome of the appeal. It cannot be said, as the applicants contend, that the delay caused the court to forget about the submissions concerning the fresh evidence, because it did mention the fact that it was adduced.
[94] It must also be stated that Lescene Edwards v R does not assist the applicants.
The complaint in that case involved a 10-year delay before Mr Edwards' trial commenced. He asserted that his defence was prejudiced as a result. That is a very different set of circumstances from the applicants' case. In addition, at paragraph [16] of the judgment in Lescene Edwards v R, this court recognised the fact that Mr Edwards' case was, despite those factors, a borderline one:
"As a consequence, it appears to us, that the circumstances of this case may fall for consideration under section llO(l)(c) and (2) of the Constitution. In whichever case (for it may be
that with regard to section ll0(l)(c), this matter is a borderline one, it not being a specific interpretation of the Constitutional provision), such delay in the conduct of the matter, during which period several other events have taken place, may have been to the detriment of the applicant in the conduct of his case."
[95] For those reasons, there is no basis to refer this issue for the consideration of their Lordships, either as an issue falling under the purview of section ll0(l)(c) or under section 35 of the JAJA.
b. lhe faJ/ure to leave the alternative veraict of manslaughter
[96] The applicants criticised this court's handling of the ground of appeal dealing with the learned trial judge's failure to leave the alternative offence of manslaughter for the jury's consideration.
[97] The court identified the issue at paragraphs [412]-[413] of its judgment: "[412] And, on ground 16, with specific reference to Messrs
St John and Jones, Mr Senior-Smith submitted that the judgeought to have directed the jury that the limited involvement which [the eyewitness] Mr Chow attributed to them was an insufficient basis upon which to find them guilty of murder.
[413] Mr Senior-Smith relied heavily on the already very well known joint decision of the United Kingdom Supreme Court and the Privy Council in R v Jogee and Ruddock v The Queen ('Jogee & Ruddock') [2016] UKSC 8, [2016] UKPC 7, which we will consider in a moment."
[98] It resolved the issue partly by stating that the applicants had not provided any basis for the learned judge to have left the alternative offence to the jury. The court said at paragraph [421]:
" ...As Mr Taylor [for the Crown] pointed out, the appellants were indicted jointly for murder. The case for the prosecution was that they acted together and in concert in murdering the deceased. Their defences were a denial that they committed the offence. There was therefore nothing in the evidence to ground a suggestion that any of them may have had an intention other than the intention to kill or to cause grievous bodily harm. In these circumstances, in our view, the question of manslaughter did not arise and the judge was entirely correct to remove it from the jury's consideration." (Emphasis supplied)
[99] It must be said that the applicants are not on good ground on this issue. The case of Jogee and Ruddock has already explained their Lordships' stance in respect of the issue of "parasitic accessory liability". There is therefore no extraordinary public importance, in the sense that the issue needs clarification, or in the sense that there has been "a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice" (Abraham Mallory Dillett v R). There is no basis for referring the issue to their Lordships under the purview of section 35 of the JAJA.
[100] There is a plethora of cases dealing with the treatment of unsworn statements by accused persons. Nothing new arises in this case in respect of that issue. It does not qualify under section 35 of the JAJA.
[101] The applicants have complained about a number of other issues. These are set out in their questions in the appendix. Included in these issues are matters such as:
[102] The issues raised in these complaints do not give rise to questions of exceptional importance. An extract from Michael Gayle v The Queen is relevant to this point. Lord Griffiths, said, in part, at pages 289-290 of the report of the case:
"Matters such as the weight properly to be given to evidence, and inferences that may or may not legitimately be drawn from evidence and whether a presumptive or final burden of proof has been discharged, are to be determined by the Court of Appeal in the local jurisdiction, and save in exceptional circumstances the Judicial Committee will not enter upon a rehearing of such issues (see Muhammad Nawaz v king-Emperor (1941) LR 68 Ind App 126, Badry v Director of Public Prosecutions [1983] 2 AC 297 at pages 302, 303, and Sattar BLJXOO v R [1988] 1 WLR 820 at page822)." (Italics as in original)
[103] Similarly, the treatment of good character evidence has already been the subject of several definitive decisions from their Lordships' Board, including Teeluck (Mark) and John (Jason) v The State [2005] UKPC 14; (2005) 66 WIR 319, France and Vassell v The Queen [2012] UKPC 28 and Lawrence v The Queen [2014] UKPC 2.
[104] The applicants accept that this court only disturbs a sentence where it is found to be manifestly excessive or out of the usual range of sentencing. They submit, however, that that approach is too limited, as the court is empowered, by section 14(3) of JAJA to review a sentence, even if it is not manifestly excessive as the sentence could be wrong procedurally or based on an incorrect principle of law. Section 14(3) of the JAJA states:
"On an appeal against sentence the Court shall, if they think that a different sentence ought to have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal."
[105] The applicants also contend that the court should have obtained a social enquiry report to determine a fair sentence. They further argue that some of the cases on sentencing, to which the Crown referred in the appeal, included cases that involved social enquiry reports. Accordingly, the use of those cases is unfair.
[106] Additionally, it was argued that Messrs Jones and St John were young at the time of the incident, yet the youngest applicant received the second highest sentence.
[107] The applicants are not on good ground with these submissions. The ground of appeal complained that the sentence was manifestly excessive. This court will disturb a trial judge's sentencing if it is founded upon a wrong principle of law. In Matthew Hull v R [2013] JMCA Crim 21, this court set out the guiding principle at paragraph [9]:
"[9] An appellate court does not alter a sentence merely because the members of the court might have passed a different sentence. A sentence is only altered when there...appears to have been an error in principle. If a sentence is manifestly excessive, that is an indication of a failure to apply the right principles - see R v Ball 35 Cr App Rep 164."
[108] In the present case, the court considered the authorities and found that the sentences were not manifestly excessive, and that the learned judge had not erred in principle, save that he did not consider the time the applicants had spent on remand.
[109] The court relied on Sylburn Lewis v R [2016] JMCA Crim 30, and held that a social enquiry report is not mandatory (see paragraph [527] of the judgment). The court also relied on Michael Evans v R [2015] JMCA Crim 33 for the point that it would need to consider whether the social enquiry report would benefit the applicants.
[110] In relation to Messrs St John and Jones, the court acknowledged that the learned judge, in his sentencing remarks, considered each applicant separately. Section 35 of the JAJA has not been satisfied.
Conclusion
[111] Although the applicants proposed almost 40 questions for referral to the Privy Council, the vast majority do not fall for consideration under either section ll0(l)(c) or section 110(2)(b) (as extended by section 35 of the JAJA). There are, however, three issues which fall for consideration by their Lordships, pursuant to section 110(2)(b), as being of exceptional importance and desirable in the public interest that a further appeal
should be brought, not only for the result of this case, but also for the guidance of the judiciary for future cases.
[112] The issues concern:
[113] As a consequence, the following orders are made:
acquired in breach of the right to privacy of communication and the Interception of Communications Act?
(i) the trial judge's management of the issue of jury impropriety that occurred during the course of the trial, in particular, the procedure that was adopted and the extent of the enquiry that was conducted;(ii) the trial judge's refusal to discharge the jury (or any juror) following his enquiry into the issue of jury impropriety;
(iii) any inadequacy in the trial judge's directions to the jury following the enquiry into the issue of jury impropriety; and
(iv) the failure of the Court of Appeal to expressly demonstrate its findings and conclusions in respect of the fresh evidence that was adduced
concerning the issue of jury impropriety at the trial.
(a) that the applicants shall each pay the sum of $1,000.00 within 30 days of the date hereof for the due prosecution of the appeal; and
(b) that within 90 days of the date hereof the applicants should take the necessary steps for the purposes of procuring the preparation of the record and its dispatch thereof to England.
3. The costs of and incidental to this application shall be costs in the appeal to Her Majesty in Council.
APPENDIX
THE APPLICANTS' QUESTIONS
[1] Mr Campbell's questions are as follows:
"i. Whether the learned trial judge's failure to:
breached the Applicant's Constitutional right to a fair trial pursuant to section 16 of the Constitution, resulting in a substantial miscarriage of justice.In the alternative, whether testimony from a witness, whose evidence does not rise to the level of being evidence of a confession but is nonetheless tainted by an improper motive, triggers the need for a direction from the judge to be cautious before accepting and acting upon that evidence.
In the alternative, whether in all cases in which clear directions on the standard of proof have been given to a jury, it will be unnecessary for the judge to further direct the jury that they must rule out all inferences consistent with
innocence before they can find that an inference of guilt had been established, in light of the decision of Ian McKay v R [2014] JMCA Crim 30.
In the alternative, whether, in a joint trial, good character directions can be fairly given without tailoring said directions in respect of each accused person separately.
keeping with the Applicant's right to a fair hearing pursuant to section 16(1) of the Constitution?
In the alternative, whether in a difficult case with multiple Appellants, a Court of Appeal's reliance on antecedent reports in the absence of social enquiry reports is sufficient in determining whether the sentences imposed are appropriate, even if the Court is satisfied that the sentences are within range.
In the alternative, whether the procedure adopted by the Learned Trial Judge in relation to the allegations of jury misconduct and/or impropriety was sufficient to ensure the Applicant's right to a fair hearing pursuant to section 16 of the Constitution.
[2] The questions which Mr Campbell wishes to pose to the Privy Council are also raised by some of the questions which the other applicants wish to pose.
[3] Mr Palmer's questions are as follows:
"l) Did the conduct of the trial breach the Applicant's constitutional or common law rights (including the Applicant's right to a fair trial)?
13 (2) (b) of the Jamaican Constitution) or a common law duty or some other duty to exclude evidence which was obtained in a manner that infringes or denies rights or freedoms guaranteed by the Jamaican Constitution on the basis that the admission of it in the proceedings would bring the administration of justice into disrepute?
obtained in a manner that infringes or denies rights or freedoms guaranteed by the Jamaican Constitution that takes account of matters such as the importan[ce] of upholding that constitution?
[4] Questions 1-9 and 11-13 of the respective list of questions proposed by Messrs Jones and St John are identical to each other and to their equivalent numbers in the questions proposed by Mr Palmer. Questions 1-13 and 15, by Messrs Jones and St John are identical. Those questions will not be repeated here. Question 10 is one of those common to both Messrs Jones and St John:
"10) Was the Court of Appeal correct to find that a direction on the verdict of manslaughter was not appropriate on the facts of this case?"[Context
[SJ Question 14, for both Messrs Jones and St John, is of the same effect, although there is a slight variation between them. Question 15 is identically worded, but follows from question 14. Mr Jones' questions 14 and 15 are:
"14) Whether the applicant (who was 22 years at time of incident received a fair sentencing hearing, pursuant to section 16 of the Constitution, in light of the Court of Appeal's finding that the trial judge did not get a desirable social enquiry report which would have assisted the court to determine whether the sentences imposed were appropriate for the applicant?
15) If the answer to the above question is no, can a mere reference to the sentencing guideline range be sufficient to fulfill [sic] a fair sentencing hearing when the possibility exists that an individualized social enquiry report could result in the appellant receiving a shorter period to be eligible to apply for probation (of
up to 5/10 years) in light of his own factual circumstances and the relevant sentencing objectives?"
Mr St John's question 14 is:
14) Whether the Appellant's [sic] received a fair sentencing hearing, pursuant to section 16 of the Constitution, in light of the Court of Appeal's finding that the trial judge did not get a desirable social enquiry report which would have assisted the court in determining whether the sentences imposed were appropriate for the particular applicant?
] [Hide Context]
CommonLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.commonlii.org/jm/cases/JMCA/2020/111.html