The Queen v Henry

• Jurisdiction: Caribbean States
• Judge: Anderson, J.
• Judgment Date: 10 July 2018
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No. BZCR2017/004; BZ Criminal Appeal No. 15 of 2012
• Date: 10 July 2018

Caribbean Court of Justice

Saunders, J.CCJ; Wit, J.CCJ; Hayton, J.CCJ; Anderson, J.CCJ; Rajnauth-Lee, J.CCJ

CCJ Appeal No. BZCR2017/004; BZ Criminal Appeal No. 15 of 2012

The Queen

and

Henry

Appearances:

Ms. Cheryl-Lynn Vidal, SC and Mrs. Shanice Lovell for the appellant.

Mr. Kevin L. Arthurs for the respondent.

Criminal practice and procedure - Judgment — Oral decision reversed by later written decision — Power to revisit decision before order perfected — Delay — Right to trial within reasonable time — Whether court of appeal erred in delivering written judgment which overturned its earlier oral judgment — Whether court of appeal erred in finding that there was non-compliance with Juries Act — Whether court of appeal erred in so far as it held that a breach of constitutional right to fair trial within reasonable time resulted in quashing underlying conviction — Appeal allowed — Juries Act, s. 21 — Criminal Code Act, s. 82 — Court of Appeal Rules, r. 23.

JUDGMENT SUMMARY

1 In 2008, Mr Gilbert Henry was charged with attempted murder after he stabbed Mr Ellis Taibo. Mr Henry's trial began almost four years later in 2012. [There was a suggestion that this almost four years delay may have been due Mr Henry's efforts to obtain legal representation after the death of his original lawyer; he subsequently represented himself.] After the trial judge's summation, the jury deliberated for two hours and twenty-six minutes before asking for further directions. The transcript did not disclose what those directions were nor was there any record of the summation. The jury then retired again and deliberated for a further eight minutes before returning with a verdict of not guilty of attempted murder but guilty of Causing Dangerous Harm contrary to section 82 of the Criminal Code Act. Mr Henry was sentenced to five years imprisonment on 9 July 2012.

2 Mr Henry challenged his conviction and sentence by way of appeal to the Court of Appeal. He argued inter alia that substantial delays in the trial and appellate processes breached his right to a fair trial within a reasonable time and that the absence of a complete transcript in circumstances where self-defence was raised, particularly the absence of the summation to the jury, and the absence of proper procedures to rebuild the record, further denied the right to a fair trial.

3 On 22 March 2017, the Court of Appeal indicated orally that the appeal was dismissed. The presiding judge affirmed Mr Henry's conviction and sentence, noting that “the reasons and decisions and orders shall be given on a date to be notified by the Registrar.” On 16 June 2017 the court delivered a written judgment which made no mention of the earlier oral orders. In the written judgment Mr Henry's appeal was allowed. The trial was declared a nullity on the basis that the jury had failed to deliberate for a statutorily required time of two hours as mandated by Section 21(2) of the Juries Act. The Court of Appeal found that the jury had only retired for eight minutes after the case was finally left to them on their second retirement. Additionally, the Court of Appeal opined, obiter, that the provisions of section 6(2) of the Constitution were violated due to the delay and other irregularities amounting to a denial of a fair hearing within a reasonable time. The court quashed Mr Henry's conviction and set aside his sentence, though by that time, Mr. Henry had served his sentence.

4 The Director of Public Prosecution appealed to the CCJ. The Director submitted that the Court of Appeal became functus officio when it delivered its oral judgment on 22 March 2017 so that it had no jurisdiction to reverse itself in the written judgment delivered on 16 June 2017. [The oral decision was immediately binding: Edmund et al v. The State TT 2007 CA 39; Rambarran et al v. The Queen BB 2015 CA 5; and Re Barrell Enterprises and others [1972] 3 All ER 631.] However, Mr Arthurs, counsel for Mr. Henry, submitted that a judge who recognized that his or her decision was affected by a serious error had inherent jurisdiction to reopen the judgment or order prior to it being recorded or perfected and to correct such error.

5 The CCJ considered a host of persuasive cases [ Re Risca Coal & Iron Co., Ex parte Hookey (1862) 4 De G. F. & J. 456, Rambarran et al v. The Queen BB 2015 CA 5, Edmund v. The State TT 2007 CA 39, Re Barrell Enterprises and others [1972] 3 All ER 631, Kho Jabing v. Public Prosecutor [2016] SGCA 21, Re L v. B (children) (care proceedings: power to revise judgment) [2013] 2 All ER 294, R v. Yasain [2015] 3 WLR 1571 and Taylor v. Lawrence [2002] 2 All ER 353] before crafting the following principles:

• (a) An oral decision or order made by a judge is normally binding from the moment it is delivered. It has legal force and parties are entitled to rely upon it. It therefore goes without saying that the judicial officer must be entirely certain before making the oral order. If there is any uncertainty or doubt as to the decision, the judge should reserve judgment;

• (b) The court retains a residual jurisdiction to vary its earlier decision until the order of the court is recorded or otherwise perfected. That jurisdiction is exercisable on narrowly defined principles. There must be exceptional circumstances warranting its exercise. A relevant factor in deciding whether the jurisdiction should be exercised is whether any party has acted upon it to his or her detriment, especially in a case where it is expected that he or she may do so before the order is formally drawn up. The court should normally invite submissions (which may be written submissions) from the parties affected by the earlier decision and should in its subsequent decision, refer to the earlier decision and explain its reasons for varying or overturning it; and

• (c) The court is functus officio once the order has been recorded or otherwise perfected. Thereafter remedy for errors in the judicial process lies in the appellate process.

6 The Court said that in the present case, the orders were not recorded or perfected at the time the oral judgment was delivered on 22 March 2017 and therefore the Court of Appeal retained a residual jurisdiction, exercisable on narrow grounds, to vary or overturn that decision. The Court of Appeal, however, should have explained the reason for its volte face in the subsequent written decision. Regrettably, also, there was no indication that consideration was given to inviting submissions from the parties. These were significant procedural lapses by the court. Notwithstanding these procedural lapses, the subsequent written judgment, given as it was before the perfection of the earlier oral order, must be treated as having displaced that order.

7 The CCJ thereafter examined the soundness of the substantive ground given by the Court of Appeal for its written decision, namely, that non-compliance with section 21 of the Juries Act rendered the trial a nullity. The Court said that section 21 plainly provides that in criminal trials for an offence not punishable by death, “the jury shall consist of nine persons and that the jury may, on or after the expiration of two hours” return a majority verdict. There was no requirement that deliberation must or even should last for two hours where the verdict was unanimous. Additionally, the CCJ found that there was a substantial body of evidence to support the contention that the verdict was in fact unanimous. The Court of Appeal's use of its residual jurisdiction to reverse its oral judgment for noncompliance with section 21 of the Juries Act was therefore plainly wrong in this case.

8 As to the issue of delay, the CCJ agreed with the Director that the Court of Appeal erred in rendering an opinion on the issue of delay when it expressly told the parties that no oral submissions on that issue were necessary. The Court noted that parties should be given an opportunity to address the court on issues which would be the subject of a decision or comment by the court.

9 The CCJ did, however, note that the delay in hearing the appeal was unsatisfactory especially given that Mr. Henry served his entire sentence before his appeal was heard and decided. In the Court's view, this rendered the right of appeal more an illusion than a right and constituted an infringement of the constitutional right to a fair trial within a reasonable time. However, the Court disagreed with the Court of Appeal that such an infringement must result in the allowing of the appeal and the setting aside of the conviction. The Court reemphasized its earlier decisions that not all infringements of the constitutional right to a fair trial within a reasonable time must necessarily result in the remedy of nullification of conviction, adding that the appropriate remedy is dependent on the circumstances of the case. [Citing its earlier decisions in Frank Errol Gibson v. The Attorney General [2010] 3 CCJ (AJ) and Vishnu Bridgelall v. Hardat Harisprashad [2017] 8 CCJ (AJ).] In the instant matter, there was overwhelming evidence against Mr. Henry. The procedural defects at trial and on appeal could in no way detract from his actions, and his guilt as found by the jury. It would be inappropriate to quash his conviction on this ground.

10 For the foregoing reasons, the CCJ allowed the appeal, restored the oral judgment of 22 March 2017 delivered by the Court of Appeal and reinstated Mr Henry's conviction for the indictable offence of Causing Dangerous Harm and his sentence of five years imprisonment. Mr Henry, having served this sentence, was not amenable to further incarceration or other sanction in respect of this offence. There was no order as to costs.

Anderson, J.

INTRODUCTION

1 Mr Gilbert Henry was convicted in the Supreme Court of Belize in July 2012 of the indictable offence of Causing Dangerous Harm and sentenced to five years imprisonment. His...