The State v Boyce

• Jurisdiction: Trinidad & Tobago
• Judge: Jones, J.A.
• Judgment Date: 30 November 2001
• Neutral Citation: TT 2001 CA 67
• Court: Court of Appeal (Trinidad and Tobago)
• Docket Number: Criminal Appeal No. 89 of 1998
• Date: 30 November 2001

Court of Appeal

Sharma, J.A.; Jones, J.A.; Nelson, J.A.

Criminal Appeal No. 89 of 1998

The State

and

Boyce

Appearances:

Ms. C. Brown-Antoine, Ms. M. Wilson, Messrs. R. Gaspard and G. Henderson for the appellant.

Mr. K. Hudson-Phillips, Q.C., and Mr. G. Busby for the respondent.

Constitutional law - Constitutionality of statute — Respondent indicted for offence of manslaughter but was acquitted — DPP appealed pursuant to Supreme Court of Judicature Act — Respondent contended that provisions relied on by DPP were unconstitutional — Whether Court had jurisdiction to entertain constitutional arguments — Whether law giving DPP right of appeal after acquittal and empowering Court of Appeal to order retrial infringed due process clause of Constitution — Whether Court of Appeal exceeded jurisdiction in overturning appellants’ acquittals and ordering new trial — Declaration that relevant sections of Supreme Court of Judicature Act unconstitutional and void — Appeal dismissed.

Jones, J.A.

1 Brad Boyce (the respondent) was on the 19 ^th of September 1996 charged for the murder of one Jason Johnson, (the deceased) who on the 1 ^st of September 1996, sustained injuries at the hand of the respondent. Committal proceedings commenced on the 10 ^th of October 1996 and on the 13 ^th of November 1996, the respondent was committed to stand his trial for the lesser offence of manslaughter. In the meanwhile on the 29 ^th of October 1996, section 65E to G of the Supreme Court of Judicature Act (the new provisions) which for the first time gave the Director of Public Prosecutions (DPP) a right of appeal in circumstances which will shortly be set out, came into force. On the 17 ^th of February 1998 the DPP indicted the respondent for the said offence of manslaughter.

2 The trial commenced on the 1 ^st of July 1998 and on the 27 ^th of July 1998 the trial judge withdrew the case from the jury and directed a verdict of acquittal. The DPP pursuant to the new provisions lodged an appeal against the decision of the trial judge. We set out below the relevant provisions:

• “65E.(1) Section 63 notwithstanding, the Director of Public Prosecutions may appeal to the Court of Appeal –

  • (a) against a judgment or verdict of acquittal of a trial Court in proceedings by indictment when the judgment or verdict is the result of a decision by the trial judge to uphold a no case submission or withdraw the case from the jury on any ground of appeal that the decision of the trial judge is erroneous in point of law;

• (2) For the purposes of this section a judgment or verdict of acquittal includes an acquittal in respect of an offence specifically charged notwithstanding that the accused has on the trial thereof been convicted of another offence.

3 65G. On an appeal from an acquittal the Court of Appeal may –

• (a) dismiss the appeal; or

• (b) allow the appeal, set aside the verdict, and order a new trial.

4 While the main thrust of the respondent's case was that the new provisions were unconstitutional, as an alternative argument it was contended that if the new provisions were found to be valid, they only allowed for questions of law to be raised. In light of this, we find it necessary to recite the facts surrounding this matter since some of the issues raised by both the appellant and the respondent would require a consideration of those facts.

The Facts:

5 The deceased, his younger brother Stephen Van Luke Johnson and a friend called Cookie, on the 31 ^st of August 1996 attended a party at the Edge Discotheque at the Long Circular Mall, a popular shopping centre. Curiously, before leaving home Van Luke armed himself with a Chinese chopper. He claimed to have been involved in an incident at the same venue some weeks before and needed the chopper for his protection. The weapon was however not taken into the discotheque but was left below a staircase outside.

6 At about 3.45 a.m. on the 1 ^st of September 1996 the deceased, his brother and friend left the party on their way home. After retrieving the chopper, they walked towards the car park where they observed an altercation taking place involving a friend of Cookie. Cookie became involved in the affray and with the chopper in hand warned off the attackers. The ‘bouncer’ at the discotheque came to the scene and spoke to the men.

7 They were walking away when they heard someone cursing. That someone was the respondent who was the Promotions Manager of the discotheque. He indicated to the deceased and his friends that they would no longer be welcomed at the club. The deceased and Cookie approached him as the latter claimed, with a view to reasoning with him, and an argument ensued. The deceased was gesticulating with his hands while the respondent had his right hand in his pocket. The deceased used a slang expression “Rock so nah white boy”, a reference to the respondent who is a Caucasian. Thereupon, the respondent took a step backwards and with a semi folded right fist struck the deceased on the left side of his head. The deceased fell to the ground and bled through his eyes, nose and mouth and also began to suffer a bout of fit.

8 He was taken firstly to the Port of Spain General Hospital, then to the San Fernando General Hospital where he remained for some sixteen (16) days before he died on the 16 ^th of September 1996. The post mortem was conducted by Dr. Hugh Von Des Vignes about whom much controversy arose at the trial and which led eventually to the acquittal of the respondent. Dr. Des Vignes opined that the cause of death was complications of blunt cranio cerebral trauma.

The Trial:

9 At the close of the prosecution's case, the trial judge rejected a no case submission made on behalf of the respondent and called upon him for his defence.

10 The respondent testified and called an expert, a medical witness who voiced his disagreement that the deceased died as a result of sequelae of blunt cranio cerebral trauma. In his opinion three major events had occurred during the hospitalization of the deceased which could have contributed significantly to his death. These were the development of aspiration pneumonia which led the deceased to develop disseminated intravascular coagulation and the malfunctioning of a ventilator at the hospital, which caused the deceased to go into cardiac arrest.

11 At the end of the examination in chief of this witness and before he was cross-examined by attorney for the State, the learned trial judge in the absence of the jury indicated to attorneys that he intended to call the Chief Forensic Pathologist, Dr. Chandulal, to get his assistance and at the same time requesting that Dr. Chandulal be provided with copies of certain documents. No indication was then given as to the nature of the assistance which this witness was to provide.

12 Attorney for the State in opening her cross-examination questioned the defence expert at length about his forensic qualifications and had him agree that Dr. Des Vignes had qualifications in forensic pathology. Before counsel for the respondent could re-examine this witness, the learned trial judge recalled Dr. Des Vignes to the witness stand and himself questioned him on his qualifications and the evidence he had given in chief of his training and experience. When Dr. Chandulal, a Government Forensic Pathologist was called, the learned trial judge also questioned him about his qualifications and sought his views on what qualifications a forensic pathologist must possess. At the conclusion of the testimony the trial judge was asked by attorney for the respondent to exercise his discretion and withdraw entirely from the consideration of the jury the evidence of Dr. Des Vignes. The learned trial judge found favour with the submissions of attorney for the respondent and reversed his original ruling that Dr. Des Vignes was qualified to give expert evidence on the cause of death and withdrew his evidence from the jury. He ruled also, contrary to submissions by the prosecution, that there was no other evidence in the case as to the cause of death of the deceased and as a matter of law withdrew the case from the jury's deliberations and ordered a verdict of acquittal.

13 The Submissions:

14 Having regard to the written submissions of attorney for the respondent, we found it more appropriate, and with the consent of the appellant's counsel, to permit attorney for the respondent to address us first. We set out here the matters raised by him and will hereafter deal with each separately.

15 Grounds 1 – 5 are listed hereunder:

• (1) The respondent will contend that the provisions of the Administration of Justice (Miscellaneous Provisions) Act No. 28 of 1996 (“the amending Act”) which came into force on the 29 ^th October 1996 do not apply to the proceedings against the respondent which were commenced by indictable information No. 19864/96 taken and sworn to on the 19 ^th September 1996.

• (2) The respondent will contend that section 65E of the Supreme Court of Judicature Act Chap. 4:01 (“the Act”) is unconstitutional, null and void and of no effect being part of an act passed by a simple majority but which was required by section 13 and or section 54 of the constitution of the Republic of Trinidad and Tobago (the Constitution) to be passed at its final vote by a special majority and further required by section 13(i) and or section 54(5) to contain an express statement that it shall have effect notwithstanding sections 4 and 5 of the Constitution or that it shall be construed as altering a provision of the Constitution.

• (3) Further, to the extent that the Act as amended by the amending Act gives the Director of Public prosecutions a more ample right of appeal than a person convicted on indictment has or gives the Court of Appeal lesser powers to dismiss such an appeal by the Director of Public Prosecutions, the Act infringes the fundamental right of the Respondent to...