Timothy Hunte v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Margaret Y Mohammed |
| Judgment Date | 27 July 2023 |
| Neutral Citation | TT 2023 HC 220 |
| Docket Number | CV 2023-02082 |
| Court | High Court (Trinidad and Tobago) |
In the Matter of the Constitution of the Republic of Trinidad and Tobago Chap. 1:01
and
In the Matter of the Legality of the Continued Detention of Timothy Hunte on Death Row Under a Sentence of Death at the Condemn Section of the Port-of-Spain Prison
and
In the Matter of An Application of Timothy Hunte for Redress Under Section 14 of the Constitution of the Republic of Trinidad and Tobago Alleging that Certain Provisions of the Said Constitution have been Contravened in Relation to Him by the State of Trinidad and Tobago its Servants and or Agents
and
In the Matter of Section 4 (a), (b) and 5 (2) (b) and 5 (2) (h) of the Constitution of the Republic of Trinidad and Tobago
the Honourable Madame Justice Margaret Y Mohammed
CV 2023-02082
IN THE HIGH COURT OF JUSTICE
Mr Gerald Ramdeen and Mr Wayne Sturge instructed by Ms Dayadai Harripaul and Ms Nerisa Bala Attorneys at law for the Claimant
Mr Gregory Delzin and Mr Stefan Jaikaran instructed by Ms Michelle Benjamin Attorneys at law for the Defendant
The Claimant is 40 years old and he was sentenced to death on 31 March 2008 upon being convicted of murder. Following his conviction he was placed on death row in prison where he has remained to date. On 9 June 2023, the Claimant filed a constitutial motion where he is seeking the following orders:
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(i) A declaration that the continued detention of the Claimant in the condemn cells of the Port-of-Spain Prison under a sentence of death subsequent to a period of incarceration on death row for fifteen (15) years, two (2) months, seven (7) days, which detention is continuing, is illegal, unconstitutional, unlawful and in breach of the Claimant's constitutional rights under Sections 4 (a) and (b) and 5 (2) (b) of the Constitution of the Republic of Trinidad and Tobago 1 (“the Constitution”).
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(ii) An interim declaration that the carrying out or any attempt to carry out the sentence of death imposed upon the Claimant on 31 March, 2008 by the Defendant its servants and or agents, will constitute a contravention of the Claimant's right guaranteed under Sections 4 (a), (b) and 5 (2) (b) of the Constitution.
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(iii) An interim declaration that the continued detention of the Claimant, by the Defendant its servants and or agents, on death row awaiting execution
under a sentence of death subsequent to 31 March, 2013 constitutes a breach of his fundamental rights protected and guaranteed by Sections 4 (a), (b) and 5 (2) (b) of the Constitution. -
(iv) A mandatory interim order that the sentence of death imposed upon the Claimant on 31 March, 2008 be and is hereby forthwith vacated.
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(v) A declaration that the continued detention of the Claimant, by the Defendant its servants and or agents, on death row awaiting execution under a sentence of death subsequent to 31 March, 2013 constitutes a breach of his fundamental rights protected and guaranteed by Sections 4 (a), (b) and 5 (2) (b) of the Constitution.
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(vi) An interim mandatory order that the Defendant its servants and or agents do take all steps and actions and make all arrangements to forthwith remove the Claimant from death row to an appropriate place to await sentencing by this Court.
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(vii) An Order that the High Court exercising jurisdiction under Section 14 of the Constitution do undertake a resentencing of the Claimant taking all relevant circumstances of the Claimant's case into consideration for the purposes of imposing upon the Claimant such substitute sentence as may be appropriate, fair and proportionate.
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(viii) An Order that the Defendant do pay to the Claimant monetary compensation including vindicatory damages for the breaches of the Claimant's constitutional rights as declared by this Court.
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(ix) An Order that the High Court exercising jurisdiction under Section 14 of the Constitution do make such Orders and give such directions for the purposes of resentencing the Claimant including but not limited to ordering that the Defendant do forthwith produce to this Court the following material:-
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(a) The notes of evidence of the trial of the Claimant.
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(b) A full report on the Claimant from the Superintendent of Prisons addressing the conduct of the Claimant during detention; his responses to punishment and any counselling and/or rehabilitative programmes sponsored by the prison authorities; his attitude to the crime, for example, genuine sorrow and remorse; any recommendations by the Superintendent for the guidance of the Court;
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(c) A report from the Chaplain of the Prisons detailing the Claimant's response to any moral and/or religious teaching;
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(d) An up-to-date medical report from a medical practitioner assigned to the Prisons on the state of health of the Claimant,
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(e) The report of the Trial Judge done in accordance with section 89 (i) of the Constitution.
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(f) The Claimant's prison inmates file in the possession and under the control of the Commissioner of Prisons.
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(g) Such other information derived from the record of the case or otherwise as the Court may require.
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(x) An Order that the Defendant do pay to the Claimant the costs of this Application which costs are to be assessed by a Registrar of the Supreme Court in default of agreement certified fit for two Counsel and two Instructing Attorneys.
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(xi) Such further or other relief as this Honourable Court may deem fit in the circumstances of the case of the enforcement and vindication of the Claimant's constitutional rights and the advancement of the overriding objective.
At the time of filing of the claim, the Claimant also filed an application for interim relief (“the Application”). The orders the Claimant has sought in the Application are:
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i. That the Application be deemed fit and requiring the urgent and immediate attention of the Court.
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ii. An interim declaration that the carrying out or any attempt to carry out the sentence of death imposed upon the Claimant on 31 March, 2008 by the Defendant, its servants and or agents, will constitute a contravention of the Claimant's right guaranteed under sections 4(a), (b) and 5(2) of the Constitution.
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iii. An interim declaration that the continued detention of the Claimant on death row awaiting execution under a sentence of death subsequent to 31 March, 2013 constitutes a breach of his fundamental rights protected by Sections 4 (a),(b) and 5 (2) (b) of the Constitution such as may be compensated in damages.
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iv. A mandatory interim order that the sentence of death imposed upon the Claimant on 31March, 2008 be and is hereby forthwith vacated.
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v. An interim mandatory order that the Defendant, its servants and or agents do take all steps and actions and make all arrangements to forthwith remove the Claimant from death row to an appropriate place to await sentencing by this court.
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vi. Such further or other relief, Writs, Orders and give such directions for the enforcement of the Claimant's rights in accordance with the overriding objective.
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vii. That the Defendant do pay the costs of the Application certified fit for two (2) Advocate Attorneys.
The Application was first listed for hearing on 15 June 2023 which in effect has dispensed with the order sought at relief (i).
The Defendant has opposed the granting of the other orders sought in the Application but did not file any affidavits in opposition.
The facts are not in dispute. On 31 March 2008 the Claimant was convicted and the death sentence was imposed upon him. Upon being convicted he was moved into and detained at the condemn cells at the Port of Spain Prison where he has spent fifteen (15) years, two (2) months, seven (7) days awaiting execution and continuing.
The Claimant challenged his conviction by way of appeal to the Court of Appeal and on 26 February, 2010 the appeal against his conviction was dismissed and his conviction and sentence were affirmed. The Claimant remained on death row during the time between his conviction and the dismissal of the appeal. The period of time from the date of the Claimant's conviction on 31 March 2008 to the date of the determination of the appeal by the Court of Appeal on 26 February, 2010 was twenty two (22) months and three (3) weeks. The Claimant did not contribute to the delay in the determination of the appeal based on the records of the Court Office in the possession of the Office of the Director of Public Prosecutions.
After the dismissal of the appeal by the Court of Appeal the Claimant challenged his conviction by way of appeal to the Judicial Committee of the Privy Council (“the Privy Council”). On 16 July, 2015 the Privy Council dismissed the Claimant's appeal. The Claimant has never been notified that his case has been considered by the Advisory Committee (“the Advisory Committee”) on the Power of Pardon. The Claimant instructed his present Attorney at Law to write to the Minister of National Security requesting information on whether his case has been considered by the Advisory Committee and if it has been considered, to provide him with the decision of the Advisory Committee and the materials. On 17 March 2023, the Claimant caused his Attorney at Law to issue a pre-action protocol letter which was hand delivered to the office of the Solicitor General. To date there was no reply.
The first issue to be determined is whether the orders sought in the Application can be granted at this stage of the proceedings. In the action, the Claimant contends that his continued incarceration on death row is in breach of his constitutional right under sections 4 (a), (b) and 5 (2) (b) of the Constitution. His position is that unless the Court intervenes he will remain on death row suffering cruel and unusual punishment and treatment. He also asserts that the actions by the...
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