The Queen v Lewis

• Jurisdiction: Caribbean States
• Judge: de la Bastide, J.,Pollard, J.
• Judgment Date: 19 January 2007
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No. CR. 1 of 2006
• Date: 19 January 2007

CCJ

de la Bastide, J.; Nelson, J.; Pollard, J.; Saunders, J.; Bernard, J.; Wit, J.; Hayton, J.

CCJ Appeal No. CR. 1 of 2006

The Queen

and

Lewis

Appearances:

Mr. Charles Leacock QC and Mr. Elwood Watts for the appellant.

Mr. Erskine L Hinds and Mr. Olson De C Alleyne for the respondent.

Statute - Interpretation — S. 6 of the Caribbean Court of Justice Act — Right of appeal — Whether the Crown had an appeal as of right to the Caribbean Court of Justice — Whether the right of appeal conferred applied only to the convicted person — Crown's appeal was invalid — Appeal dismissed.

de la Bastide, J.

1 On the 4th December, 2006, at the conclusion of arguments on a preliminary issue we dismissed this appeal. We promised to give the reasons for our decision in writing, and we now do so.

The History of the Proceedings

2 The respondent in this case, Mitchell Lewis (‘ Lewis’), was on the 16th February, 2005, sentenced to death after being convicted by a jury of the murder of a man who was fatally shot on the 8th June, 2000. For present purposes the facts of the case are not important. Lewis appealed his conviction to the Court of Appeal of Barbados and on the 5th January, 2006, that Court delivered its judgment in which it quashed the conviction and sentence of death and ordered a new trial. The Court's judgment was based on a finding that certain things said by counsel on both sides in the presence and hearing of persons who subsequently became jurors in the case, were so prejudicial to Lewis that his trial was rendered unfair. The prejudicial material was introduced in the course of an application made in open Court by defence counsel for the trial judge to recuse himself because of certain remarks which he had allegedly made when the case came before him on two previous occasions, and which in Lewis’ opinion showed that the judge was biased against him.

3 The Crown applied to the Court of Appeal for leave to appeal on the premise that the case involved a question of interpretation of the Constitution and that the Crown was therefore entitled to appeal to this Court as of right pursuant to Section 6(c) of the Caribbean Court of Justice Act (‘the CCJ Act’). An application to the Court of Appeal for leave is required in such cases by Rule 10.2(a) of the Caribbean Court of Justice (Appellate Jurisdiction) Rules, 2005. There being no objection by Lewis’ counsel to the application, the Court of Appeal granted conditional leave to appeal on the 2nd March, 2006, and final leave on the 4th April, 2006.

The Preliminary Issue

4 This Court, however, had a concern whether the premise on which the Court of Appeal granted leave i.e. that the Crown was in this case entitled to appeal as of right, was correct. Accordingly at a case management conference held on the 4th October, 2006, Mr. Justice Saunders and I made an order with the consent of the parties for the determination as a preliminary issue of the following two questions:

• (1) whether by virtue of Section 6(c) of the Caribbean Court of Justice Act, the Crown has an appeal as of right to this Court in this case, and

• (2) whether, if such a right of appeal exists, the Crown can as part of any relief it obtains, secure the restoration of the conviction of the respondent.

5 For the reasons which we now give, the Court answered the first of those questions in the negative. In other words, we held that the Crown was not entitled to appeal as of right from the decision of the Court of Appeal in this case. In light of that answer, the second question does not really arise, and for that reason and others which I shall give later, it has not been answered.

6 The first question concerns the applicability of section 6(c) of the CCJ Act to the instant case. This question has two parts which I shall identify as Question 1(a) and Question 1(b) respectively. Question 1(a) is whether the right of appeal which this section confers, is in criminal cases conferred only on a convicted person or whether the prosecution too can take the benefit of it and challenge by appeal a decision of the Court of Appeal to quash a conviction. Question 1(b) is whether, assuming that the right of appeal under this section does extend to the prosecution, this case involves a question as to the interpretation of the Constitution.

Question 1(a): Does Section 6(c) Apply To The Prosecution?

7 Section 6(c) of the CCJ Act provides as follows:

“An appeal shall lie to the Court from decisions of the Court of Appeal as of right in the following cases:

…

(c) in any civil or criminal proceedings which involve a question as to the interpretation of the Constitution;

In construing this provision it is important to take into account the definition of certain words in section 2 of the CCJ Act. Section 2 provides:

“In this Act, unless the context otherwise requires,

…

“appeal” means an appeal to the Court;

“appellant” means the party appealing from a judgment;

…

“Court” means the Caribbean Court of Justice established by the Agreement;

“party” means any party to proceedings before the Court;

…”

8 Looking at the CCJ Act in isolation, not only is there nothing in section 6(c) to suggest an intention to exclude the prosecution from its ambit, but the way in which the words “appeal”, “appellant” and “party” are defined in section 2, seems to emphasise that no distinction is to be made between different parties to the same proceedings when construing and applying provisions in the Act relating to appeals. On the face of it, therefore, there would seem to be no justification for limiting the right of appeal established by section 6(c), in the case of criminal proceedings, to the convicted person.

9 Two main arguments, however, have been advanced on behalf of Lewis in order to displace this prima facie conclusion. The first of these arguments is rooted in the principle that no one should be tried twice for the same offence and the finality which as a consequence is accorded to an acquittal. There is a long line of cases which establish that as a corollary of this basic rule of the common law, when a statute creates in general terms a right of appeal in criminal proceedings from the decision of a trial Court, the statutory provision will not be construed as giving the prosecution a right of appeal in the absence of an express statement of that legislative intent. See in this connection Benson v. Northern Ireland Road Transport Board [1942] A.C 520], R. (Kane) Chairman and Justices of County Tyrone [(1905) 40 Ir LT 181], Reg v. Middlesex Quarter Sessions, ex parte DPP [1952] 2 Q.B. 758] and more recently Smith (Justis) v. R. [(2000) 56 W.I.R. 145]. I accept without reservation this rule of construction in relation to statutory provisions which give a right of appeal from the decisions of a trial Court.

10 One may, however, note in passing that the Judicial Committee of the Privy Council in The State of Trinidad and Tobago v. Brad Boyce [(2006) 68 W.I.R. 437] held that a statutory provision which expressly gave the prosecution a right of appeal in certain circumstances from an acquittal by a jury, did not offend against any fundamental right or freedom as the common law's bias against appeals by the prosecution from an acquittal, did not form part of due process in its narrower sense'. Accordingly, the Judicial Committee concluded that an Act of Parliament which gave the prosecution a right of appeal from an acquittal in certain circumstances, did not collide with the constitutionally protected fundamental rights and freedoms, and so did not have to be passed by a special majority.

11 Whatever view one takes of the decision in Brad Boyce, it is interesting to note that the Judicial Committee excluded the common law principle that an acquittal by a judge and jury is final from those principles that are ‘necessary for a fair system of justice’. But the decision leaves untouched the presumption that a right of appeal from the decision of a trial Court does not extend to the prosecution unless there is some express statement to that effect.

12 The real issue for our decision was whether that principle of construction applies to a statutory provision which gives a right of appeal from an intermediate Court to a final Court of appeal. Must the prosecution be expressly mentioned in such a provision if it is to take advantage of it to challenge a decision by the Court of Appeal to quash a conviction? We were referred to only one case, a case from Northern Ireland, in which a statutory provision providing for an appeal in criminal proceedings from a second to a third tier Court, was held in the absence of express reference to the prosecution, not to apply to it.

13 The case was The People v. Richard Kennedy [1945] 1R 517] and the statutory provision was section 29 of the Court of Justice Act, 1924 which provided for an appeal from the Court of Criminal Appeal to the Supreme Court upon the certificate of the Court of Criminal Appeal or the Attorney-General. The Supreme Court held by a majority of 4 to 1 that that section did not give the prosecution the right to appeal against a decision of the Court of Criminal Appeal quashing a conviction. None of the majority judgments addressed the question whether there is a significant difference between an acquittal by a trial Court and the quashing of a conviction by a Court of appeal, which would justify a different approach in determining whether a statutory right of appeal extends to the prosecution. Geoghegan, J., quoted from the judgment of Lord Simon in Benson v. Northern Ireland Transport Board (supra) in support of the proposition that clear language was required to give the prosecution a right of appeal. He did not advert, however, to the fact that in Benson the Court was concerned with a right of appeal from the dismissal of a charge by the trial Court, whereas in Kennedy the right of appeal which the...