Baptiste et Al v Thomas; Hilaire v Baptiste et Al

• Jurisdiction: Trinidad & Tobago
• Judge: de la Bastide, C.J.,Sharma, J.A.
• Judgment Date: 04 August 1998
• Neutral Citation: TT 1998 CA 35
• Docket Number: Nos. 1373, 177, 1494 and 178 of 1998
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 04 August 1998

Court of Appeal

de la Bastide, C.J., Sharma and Hamel-Smith, JJ.A.

Nos. 1373, 177, 1494 and 178 of 1998

Baptiste et al

and

Thomas

Hilaire

and

Baptiste et al

Appearances:

Mr. M. Daly S.C., and Mr. R. Martineau, S.C., Ms. M. Dean-Armourer,

Mr. G. Armorer, Mr. D. Sirjusingh, Ms. N. Aimes and Mr. Jonathan Walter

for the appellants

Mr. C. Hamel-Smith and Mr. G. Delzin for the respondent

Mr. C. Hamel-Smith and Mr. G. Delzin for the appellants

Ms. Haynes and Mr. Sheppard for the respondent

Constitutional law - Whether it was constitutional to carry out the death sentence due to the inhumane conditions that existed in prison — Court held that the reading of death sentence was unconstitutional.

de la Bastide, C.J.

1 We heard these appeals one immediately after the other as apart from three features which counsel for Hilaire said distinguished his case from that of Thomas, the same issues fell to be decided in both appeals. These were substantially argued in Thomas' appeal which was the first to be heard. I will address these common issues and then with the features in Hilaire's case which were said to distinguish from Thomas.

2 Both appeals are from judgments given in constitutional motions brought by persons under sentence of death to whom death warrants had been read. Both applicants claimed that would be a breach of their constitutional rights to carry out the death sentence on them. In the case of Thomas, the application was successful and Jamadar J. ordered that the sentence of death passed on him be vacated and he be held at a State prison or in other place of incarceration at the President's pleasure. In Hilaire's case, Kangaloo J. dismissed the motion and upheld the constitutionality of the carrying out of the sentence.

3 It is unfortunate that there is no procedure, or at least none has ever been resorted to so far, for determining whether there is any constitutional bar to the carrying out of a death sentence without and prior to the reading of the death warrant to the person affected. The result is that tremendous pressure is put on the attorneys on both sides and on the judges to deal with the matter with great expedition. Such expedition seems to be necessary because the mental anguish suffered as a result of delay in the carrying out of a death sentence must surely be greatly increased once the warrant for a person's execution has actually been read to him. Moreover, if the matter were raised in this way, the doctrine of “res judicata” would more certainly preclude the possibility of successive motions by the same person on different grounds.

4 In the case of Thomas, Jamadar J. announced his decision on July 21, 1998 and handed down a careful and detailed judgment. In the case of Hilaire, Kangaloo J. gave a much shorter oral judgment more or less at the conclusion of the hearing on July23, 1998. We heard these appeals from July 29 to 31, 1998 and are delivering this judgment four days later. For reasons that are unnecessary to set out here, the only practical alternative to this schedule would have been to hear the appeals after the re-opening of term in mid-September. We are grateful to counsel on both sides for the assistance they provided both in their written arguments and orally within the time constraints which we were compelled to impose. As a result these constraints have not left us at any disadvantage in receiving and considering the arguments on both sides on all relevant issues and in coming to a decision on them. The only disadvantage we have suffered will be reflected in the imperfections in the expression of my reasons in this somewhat hastily composed judgment.

5 It would be convenient here to set out certain pivotal dates in tabular form.

	Thomas	Hilaire
Date of conviction	Nov. 15, 1995	May 20, 1995
Dismissal of appeal	June 6, 1997	Nov. 7, 1996
Dismissal of petition to PC	March 11 1998	Nov. 6, 1997
Proof of filing IACHR	April 1, 1998	Oct. 7, 1997
Mercy committee meeting	June 12, 1998	July 6, 1998
Warrant read	June 25, 1998	July 9, 1998
Proposed date of execution	June 30, 1998	July 14, 1998

6 The applicants, in addition to relying on what has been called “raw” delay in the carrying out of the death sentences pursuant to the decision of the Privy Council in Pratt & anor v. A-G of Jamaica [1994] 2 AC 1, have raised two other matters on the relevance and effect of which the Privy Council has not yet pronounced. They are, firstly, the conditions and the treatment which they have endured in prison since their conviction and secondly, the denial to them of the opportunity of having their petitions to the Inter-American Commission on Human Rights (“IACHR”) considered by that body and obtaining its recommendations.

“Raw” delay:

7 The period between Thomas’ conviction and the reading of the warrant to him was two years and seven months. The judge held that this delay of itself was not sufficient to render the carrying out of the death sentence cruel and unusual. It appears from the judgment of the Privy Council in Henfield v. AG of Bahamas and Farrington v. Minister of Public Safety and Immigration [1996] 3 W.L.R. 1079, that when there is no access by the convicted person to any international body, the presumption of unconstitutionality will not arise unless three years and six months have elapsed since conviction.

8 In this case, Trinidad and Tobago is a signatory to and has ratified the IACHR Convention. Thomas did file petition with the IACHR on March 31, 1998 and proof of filing of it was provided to the State on April 1, 1998. In accordance with the Instructions relating to applications of persons under sentence of death which were issued by the Government of Trinidad and Tobago and gazetted on October 13, 1997, (to which fuller reference will be made later in this judgment) the time allowed for the request for the IACHR to communicate to the State party a request for a response and a stay of execution, was one month from notification of proof of filing the petition. This therefore would have expired on May 1, 1998. No such request was received until June 26, 1998.

9 In the meantime, Thomas’ case was considered by the Mercy Committee on June 12 and the death warrant read to him on June 25, 1998. In these circumstances, it does seem that the State could legitimately claim to have added to the three-year and six month period which has the relevance mentioned above in cases where there is no access to international bodies, the period of approximately seven weeks between the date of the dismissal of the petition for special leave to appeal to the Privy Council and May 1, 1998 which can be properly treated as the period allowed to Thomas for purposes of access to the IACHR. This brings the two years and seven months that expired in this case even further away from what may be described as the outer limit.

10 The submission for Thomas was that the target of 2 years for domestic appeals having been exceeded in his case albeit only by some four months, there an onus on the State to explain why the target had not been achieved and no such explanation had been forthcoming. The presumption therefore was that the exceeding of the target was something avoidable for which the State should be held accountable. I do not agree that such a presumption would be reasonable on the basis of facts that are so notorious that we are entitled, in my view, to take judicial notice of them. Fact number one is that at the time when Guerra was decided, or at least at the time when his when his appeal against conviction was determined by the Court of Appeal, delays of the order experienced in that case, i.e. 4 years, between conviction and the hearing and determination of the appeal by the Court of Appeal, were the norm rather than the exception. Fact number two is that these delays were due in large measure to the inadequacies of the system or recording and transcribing evidence and summations in capital cases.

11 These shortcomings could not be corrected overnight. Obviously it was an exercise which took time and has produced a progressively improving performance to the extent that current appeals in capital cases in the Court of Appeal are usually determined well within the target period of one year. In those circumstances I do not accept the submission that in the absence of an explanation by the State, the time taken for the domestic appeals in this case bespeaks some culpable lack of application or efficiency on the part of some agency or arm of the State which renders the delay unconscionable. Accordingly, the judge was right to reject the argument based on raw delay.

Conditions and treatment in prison:

12 Before dealing with the facts here, I will address the more fundamental issue of whether this is a factor that is capable of rendering the carrying out of a death sentence unconstitutional, and if so, in what circumstances. I would begin by expressly stating that I am directing myself by certain well-established and often repeated principles. One is that constitutional rights must be interpreted in a broad and generous manner and, in construing them, one must avoid the austerity of tabulated legalism. It is also a principle that is not perhaps too obvious to state, that a person who has been convicted of murder and sentenced to death does not forfeit any of his constitutional rights and freedoms save and except to the extent necessary for the due and proper carrying out of the sentence of death. A third principle is that if the breach by the State of a person's constitutional rights is established a plea of lack of resources will not excuse the breach or save the State from the consequences of it, or persuade the court to withhold the appropriate remedy. On the other hand, I think it important to issue to myself the following direction. Section 4 of the ...