The Queen v Calaney Flowers

JurisdictionCaribbean States
JudgeMr Justice Saunders,Wit,Anderson,Barrow,Burgess,Mr Justice Anderson,Mr Justice Wit,Mr Justice Anderson, JCCJ,Mr Justice Saunders, PCCJ,Mr Justice Wit, JCCJ
Judgment Date29 September 2020
CourtCaribbean Court of Justice
Docket NumberCCJ Appeal No BZCR2019/002
Date29 September 2020

[2020] CCJ 16 (AJ) BZ S




The Honourables Mr Justice A Saunders, PCCJ

Mr Justice J Wit, JCCJ

Mr Justice W Anderson, JCCJ

Mr Justice D Barrow, JCCJ

Mr Justice A Burgess, JCCJ

CCJ Appeal No BZCR2019/002

BZ Criminal Appeal No 2 of 2017

The Queen
Calaney Flowers

Mrs Cheryl-Lynn Vidal SC for the Appellant

Mr Anthony Sylvestre for the Respondent

Cases referred to

Chefette Restaurants Ltd v Harris [2020] CCJ 6 (AJ) (BB)

Chung v AIC Battery and Automotive Services Co Ltd [2013] CCJ 2 (AJ), (2013) 82 WIR 357

DPP v Anglin (Cayman Islands CA, 6 November 2014)

Davern v Messel (1984) 155 CLR 21

DPP v Fabian Bain (Belize CA, 8 March 2007)

Exp Copeland (1852) 2 De GM & G 914

Hyles v DPP [2018] CCJ 12 (AJ), (2019) 93 WIR 353

International Environments Ltd v Commissioner of Income Tax [2019] CCJ 18 (AJ)

R v Dorking Justices, ex p Harrington [1984] 3 WLR 142

Kepner v United States 195 US 100 (1904)

Kodagali (Dead) v The State of Karnataka (India CA, 12 October 2018)

Law Officers v Guest (No 2) (Guernsey CA, 9 January 2003)

Luximon v Minister for Justice and Equality [2018] IESC 24, [2018] 2 IR 542

M v R (1994) HCA 35, 181 CLR 487

Masper v Brown (1875) 1 CPD 97

Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145

Mullen R (on the application of) Secretary of State for the Home Department, [2004] UKHL 18

Persuad v Nizamudin [2020] CCJ 4 (AJ) (GY)

Pinner v Everet [1969] 3 All ER 257

Popular Democratic Movement v Electoral Commission [2012] 5 LRC 109

Pryor v The City Offices Company (1883) 10 QBD 504

R v Bentham [2005] UKHL 18, [2005] 2 All ER 65

R v George 2017 SCC 38, [2017] 1 S C R

R. v Graveline 2006 SCC 16, [2006] 1 SCR 609

R v Haddy (1944) 29 Cr App R 182

R v Hussain exp DPP (1965) 8 WIR 65

R v Lewis [2007] CCJ 3 (AJ), (2007) 70 WIR 75

R v Palmer (1784) 2 East PC 898

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Whitehorn v R [1983] HCA 42, 152 CLR 657

Legislation referred to

Antigua and Barbuda

Criminal Procedure (Amendment) Act 2004


Code of Criminal Procedure 1898, s 417


Criminal Appeal Act, Rev Ed 1971, Cap 113A


Belize Constitution, Rev Ed 2011, Cap 4, si00

Court of Appeal Act, Rev Ed 2011, Cap 90, ss 3, 49 (1) and (2)(b)

Indictable Procedure Act, Rev Ed 2011, Cap 96, s 65C


Court of Appeal Act 1972, s 12(1)


Canadian Charter of Rights and Freedoms

Criminal Code of Canada, R S C 1985, c C-46, ss 676, 686 (4)(b)(ii)

Cayman Islands

Criminal Procedure Code (2011 Revision), s 129


Eastern Caribbean Supreme Court (Dominica) Act, Rev Ed 2009, Chap 4:02


West Indies Associated States Supreme Court (Grenada) (Amendment) Act 2012


Court of Appeal Act, Rev Ed 2010, Cap 3:01


Code of Criminal Procedure 1973, ss 372, 377, 378


Gun Court Act 1974

Child Care and Protection (Amendment) Act 2018

Trafficking in Persons (Prevention, Suppression and Punishment) (Amendment) Act 2018


Criminal Procedure Code Cap 75, s 379(5)


Courts of Judicature Act 1964, s 50(2)


Criminal Procedure Act 1977, s 316A 1(a)


Court of Appeal Act Chap 75, s 20(1)


Code of Criminal Procedure 1898, s 417

New Guinea

District Courts Act Chap 40 (Papua New Guinea), s 219(3)


Criminal Procedure Code, Rev Ed 2012, Chap 68, s 374(3)

St Kitts & Nevis

Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act, Rev Ed 2002, Cap 3.11

St Vincent and the Grenadines

Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act, Rev Ed 2009, Cap 24

South Africa

Criminal Procedure Act 1977, ss 310(1), (2)

Sri Lanka

Code of Criminal Procedure Act 1979, s 337 (1)

Trinidad and Tobago

Court of Appeal Rules

Miscellaneous Provisions (Trial by Judge Alone) Act 2017

Offences Against the Person Act, Rev Ed 2015, Chap 11:08

Summary Courts Act, Rev Ed 2015, Chap 4:20

Supreme Court of Judicature Act, Rev Ed 2015, Chap 4:01, s 65E

Turks and Caicos Islands

Criminal Procedure Ordinance, Rev Ed 2009, Ch 3.03, ss 57–63


Criminal Procedure Code Act Chap 116, s 45

United Kingdom

Criminal Justice Act 2003, ss 48 and 58


Court of Appeal Act 2016, s 13(3)

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Archbold J F, Pleading, Evidence and Practice in Criminal Cases (36 th edn, Sweet & Maxwell 1966)

Bailey D, Bennion on Statutory Interpretation: a code (7 th edn, LexisNexis 2017)

Belize, Hansard, Senate, 20 June 2011, p 10 (Godwin Hulse)

Belize, Hansard, 10 September 2010

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Bohlander M, ‘Prosecution Appeals against Acquittals in Bench trials The Criminal Justice Act 2003 and the Government's Fear of the Dark (2005) 69 J Crim L 326, 329

Bray S L, ‘Not Proven: Introducing a Third Verdict’ (2005) 72 U Chi L Rev 1299

Devlin P, Trial by Jury (Stevens & Sons Limited 1956) 165

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

Garner B, Black's Law Dictionary, (7 th edn, West Publishing Co, 1999)

Greer S, ‘Miscarriages of Criminal Justice Reconsidered’ (1994) 57 Mod L Rev 58

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Magna Carta 1215

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Roberts S, Preventing Miscarriages of Justice, paper presented at Institute of Law Jersey Conference — Does Jersey need a Criminal Code? 2 November 2015

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Court of Appeal Act Chapter 90 — Indictable Procedure Act Chapter 96 — Act No. 5 of2011 — non-textual amendments — trial by judge alone — acquittals — finality of acquittals — prosecution appeals — statutory interpretation — statutes in pari materia — plain meaning rule — double jeopardy — directed verdicts — miscarriage of justice — retrials


Ms Flowers was tried in May 2016 before the Honourable Justice Troadio Gonzalez, as he then was, sitting without a jury, on an indictment charging her with one count of murder and one count of attempt to murder. Counsel for Ms Flowers, Mr Sylvestre, made a no case submission which was not upheld by the trial judge and subsequently, Mr Sylvestre presented the case for the defence. On 24 March 2017, the trial judge delivered a verdict of not guilty and Ms Flowers was acquitted.


Pursuant to section 65C (3) of the Indictable Procedure Act Chapter 96, the Director of Public Prosecutions (the DPP) applied to the Court of Appeal for leave to appeal against the acquittal and that court dismissed the application for want of jurisdiction. The court reasoned that section 65C (3) was circumscribed by section 49(1)(a) of the Court of Appeal Act Chapter 90, insofar that, the prosecution's right of appeal was limited to instances where the trial judge directed the acquittal of the accused at the close of the prosecution's case.


The DPP sought and obtained special leave from the CCJ to plead the single ground of appeal that the Court of Appeal erred in law in its interpretation of section 65C of the Indictable Procedure Act. The appeal was heard by this Court on 10 July 2020 and 14 July 2020 and it was ordered that the appeal be allowed with reasons to follow.


The Honourable Justice Anderson delivered the main judgment of the Court and the Honourable Justice Saunders, President and the Honourable Justice Wit delivered concurring judgments. All these judgments arrived at the conclusion that the appeal be allowed and the decision of the Court of Appeal set aside with the effect that the application by the DPP to the Court of Appeal for permission to appeal against the verdict of the trial judge must now be heard by that court.


The DPP's argument before this Court was that section 65C (3) gave a clear and unambiguous right of appeal to the prosecution against acquittals in a judge alone trial and the procedure for exercising that right was set out in sections 49(2) and (5) of the Court of Appeal Act. Mr Slyvestre contended that it could not have been the intention of the Legislature to amplify the prosecution's right of appeal to circumstances other than those set out in section 49(1)(a) of the Court of Appeal Act as this interpretation would lead to an incongruous system for prosecution appeals and would expose the accused to double jeopardy.


Justice Anderson identified the main issue of determination as whether section 65C of the Indictable Procedure Act recognised the right of the prosecution to appeal only in the three circumstances set out in section 49(1)(a) of the Court of Appeal or whether section 65C created an independent and additional right of appeal.


Justice Anderson addressed the issue of double jeopardy using the case of Queen v. Lewis 1 where this Court said that the traditional finality accorded to acquittals was rooted in the principle that no one should be tried twice for the same offence. Nonetheless, Justice Anderson explained using James Anthony Hyles and Mark Roy den Williams v. the DPP, 2 that the principle of double jeopardy was not absolute. It only acted as a safeguard to...

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