REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL Cr.A. No. 89 of 1998

BETWEEN The State Appellant

vs Brad Boyce Respondent CORAM: Sharma, J.A.

Jones, J.A.

Nelson, J.A.

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. DATED: 30th November 2001.

JUDGMENT JONES J.A.

Brad Boyce (the respondent) was on the 19th of September 1996 charged

for the murder of one Jason Johnson, (the deceased) who on the 1st of

September 1996, sustained injuries at the hand of the respondent. Committal

proceedings commenced on the 10th of October 1996 and on the 13th of

November 1996, the respondent was committed to stand his trial for the lesser

offence of manslaughter. In the meanwhile on the 29th 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 17th of

February 1998 the DPP indicted the respondent for the said offence of

manslaughter.

The trial commenced on the 1st of July 1998 and on the 27th 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. 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.

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:

The deceased, his younger brother Stephen Van Luke Johnson and a

friend called Cookie, on the 31st 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.

At about 3.45 a.m. on the 1st 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.

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.

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 16th 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:

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.

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.

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.

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.

The Submissions:

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.

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 29th 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 19th 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 equality before the law and the protection of the law contained in section 4(b) of the Constitution.

(4) Alternatively, no point of law was involved or entailed in the

withdrawal of the case from the jury by the learned trial judge nor is it competent for the State to argue other than points of law on this appeal. None of the grounds of appeal involves a question of law.

(5) In the further alternative and without derogating from the arguments

under Grounds 1, 2, 3 and 4, the respondent will maintain that in any event the relevant rulings of the learned trial judge were correct and that, in the circumstances of the case, no substantial miscarriage of justice has actually occurred. Further, that the court should not exercise its power to order a re-trial because it would be unsafe so to do given the facts of the case and the public prejudice which exists against the respondent.

Alternatively, the respondent will maintain, in the event that the arguments advanced above do not find favour with the court of Appeal, that the case is not a fit and proper one for the exercise of the discretion of the Court to order a retrial because it would be unsafe so to do given the facts and the public prejudice against the respondent.

Before proceeding to consider the matters listed above, there is one

matter which we think we ought to mention. In the instant case no constitutional

question could naturally arise at the hearing in the Court below. However, in this

Court the constitutionality of the new provisions has been challenged, since the

DPP now seeks a reversal of the decision of the trial judge and to have the Court

of Appeal order a retrial. There is no doubt in our view that this Court has

jurisdiction to entertain constitutional arguments which are raised for the first time

before us. In fact in the case of Shem Rarua v The Electoral Commission of the

Republic of Vanuatu, a decision of the Court of Appeal of the Republic of

Vanuatu in the South Pacific, Von Doussa J. giving the decision of the Court had

this to say:

“where a constitutional issue arises for the first time in the Court of Appeal, before a Bench comprised of Supreme Court judges, we consider that the Court of Appeal has jurisdiction to address the issue. It would be an unnecessary, complex and futile exercise to delay this appeal whilst the issue was sent off for determination by a single judge before this Court could enter upon the same question either in this Appeal when the hearing resumed or by way of a separate appeal against whatever decision was made on the Constitutional petition”. We certainly agree with this statement but hasten to add that this will only

be permissible when the facts are not in dispute. Now to the questions raised by

the respondent.

(1) Is the case of the respondent caught by the provisions of the

Administration of Justice (Miscellaneous Provisions) Act No. 28 of 1996 which came into force on the 29th of October 1996?

Attorney for the respondent has forcefully argued that the relevant date in

determining whether the new provisions apply to the respondent, is the date on

which the indictable information was laid. That date he submits predates the

coming into force of the provisions which give the DPP the right of appeal.

Those provisions he submits have made a substantive change in the law relating

to criminal proceedings and as such do not apply retrospectively. The

proceedings against the respondent commenced prior to the effective date of the

new provisions and accordingly cannot apply to the respondent.

Our attention was drawn to several authorities, all of which re-establish the

well-known principle that criminal enactments do not operate retrospectively

except by express enactment or by necessary intendment. We need only refer to

two of the cases cited to us by attorney for the respondent.

Waddington v Miah (1974) 2 All.E.R. 377 was a case in which certain

provisions of the Immigration Act 1971 came into force on the 1st of January

1973. The respondents were charged and convicted of offences which were first

created by the provisions of January 1973. Those offences were alleged to have

been committed between October 1970 and September 1972. The Court of

Appeal allowed the appeal of the respondents against their convictions and the

appellant, the acting Chief Superintendent of the Lincolnshire Constabulary,

appealed to the House of Lords. In dismissing the appeal, Lord Reid, giving the

judgment of the Court said at p. 380:

“I can see nothing retrospective in s.34(1). I use retrospective in the sense of authorizing people being punished for what they did before the Act came into force. But there is nothing to prevent Parliament from authorizing, discrimination in the future between various classes of people and one ground of discrimination could be that if certain people have done a certain thing in the past or had a certain ancestry they shall be treated differently in future from those who have not done that thing or had a different ancestry. Whether that is good policy is a matter of opinion. But in my opinion that is what Parliament has done by this Act. Section 34(1)(a) makes the 1971 Act apply to all ‘entrants’ and ‘entrant’ is defined in s. 33 as ‘a person entering or seeking to enter the United Kingdom’. His entry need not have been unlawful and it may have taken place a long time ago. Some entrants are given a right of abode here. Some are given indefinite leave to enter and remain here. The position of others is more precarious. I cannot see how s.34(1)(a) can be construed as having any reference to what any entrant may have done in this country before the Act came into force. All that it does is to subject to the provisions of the Act for the future anyone who entered in the past”.

The other case is Sakeena Bibi and others v C. Stephens (1926), I.L.R. 4

Ran 221. In that case the question arose whether legislation which created a

right of appeal which did not previously exist affects suits which were already

instituted before the legislation came into force. The Court held that the right of

appeal did not apply to suits pending at the time the new provisions came into

force. In giving its judgment the Burmese Court placed reliance on the decision

of the Privy Council in the case of Colonial Sugar Refinery Company v Irving

(1905) A.C. 369 (a case also referred to us by attorney for the respondent). In

delivering the judgment of their Lordships, Lord Macnaghten observed:

“As regards the general principles applicable to the case there is no controversy. On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities, extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that

the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested”.

We accept without question that a right of appeal is a matter of

substantive law. What requires closer examination, however, is the more

pertinent question whether the respondent who claims that he is adversely

affected by the new provisions, is correct in so asserting. He will succeed only if

it is demonstrated that he has been deprived of a right which was formerly vested

in him. If he has an accrued right then the legislation cannot affect that right

which remains for his benefit. On the other hand, if he could point to no such

right, then there is no ground upon which any challenge can be mounted.

The first point to be made is that the new provisions are not directed at the

commission of the offence, in the sense that they have made punishable what

was not previously punishable. What they purport to do is to make provision for

the DPP to lodge an appeal against the acquittal of a person, when a trial is

“prematurely” terminated. The real question therefore is whether an accused

person could lay claim to any right which could arise should he be acquitted at

his trial, as being vested at the stage when the indictable information is laid

against him. It is plain that at the point of the laying of the indictable information

there is no certainty that a trial will follow. The information is merely an allegation

of criminal misconduct. The preliminary enquiry is held to determine whether

there is sufficient evidence for a person accused of criminal conduct to face a

trial. It is clear to us that the stage at which vested rights may accrue to an

accused against whom an indictable information is laid is at the time he is

indicted by the DPP. The respondent was indicted on the 17th of February 1998

and the new provisions which give the DPP a right of appeal took effect on the

19th of October 1996, some sixteen months previously. We hold accordingly that

the new provisions apply to the decision of the trial judge at the trial of the

respondent.

The Constitutional Question:

The second question raised by the respondent is in our view more

fundamental. It attacks the constitutional validity of the new provisions. While

the focus is on section 65G(b), to view the matter in perspective we quote the

other relevant sub sections of section 65E up to 65G.

“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;

(b) with leave of the Court of Appeal or a judge thereof,

against the sentence passed by a trial Court in proceedings by indictment, unless that sentence is one fixed by 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.

65F (1) Where the Director of Public Prosecutions proposes to appeal to the Court of Appeal or to obtain the leave of that Court to appeal he shall give notice of appeal or notice of his application for leave to appeal, in such manner as may be prescribed by Rules of Court within fourteen days of the date of the verdict of acquittal or sentence passed.

(2) The Court of Appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.

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”.

We set out in some detail the contention of counsel for the respondent.

He argued as follows: The common law principles of “autrefois acquit” and

“convict” remained as part of the law of Trinidad and Tobago after the enactment

of the Constitution in 1962 being part of the existing law. By section 1 of the

1962 Constitution and section 4 of that Constitution, the plea of autrefois acquit

was protected as a right which was enforceable previously under section 6 of the

1962 Constitution and now under section 14 of the 1976 Constitution. The plea

he contended was thereby elevated to the status of a right, the abrogation of

which would be an infringement of the right to substantive due process and the

protection of the law. The new provisions, he submitted, seek to deprive a

person acquitted on indictment of the conclusiveness of the plea of autrefois

acquit which is in effect a deprivation of “due process” and the “protection of the

law” under sections 4(a) and 4(b) of the Constitution. He concluded that any law

altering the principle of autrefois in relation to trials on indictments by curtailing its

application is an infringement of the due process and protection of the law

provisions and requires an Act passed by a special majority (three fifths or two

thirds) of both Houses of Parliament. The new provisions having been enacted

by a simple majority, are therefore unconstitutional and void and not competent

to give the DPP a right of appeal. Furthermore, since the legislation does not

contain the statement required by sections 13(1) and 54(5) of the Constitution, it

cannot be construed so as to effect an alteration of the provisions of due process

and the protection of the law under sections 4(a) and (b) of the Constitution.

In essence, the argument was that before the passage of the new

provisions, an accused person who was acquitted at his trial, before a competent

court was entitled “to walk away free” without being called upon to face a second

trial for the same offence or indeed for any offence of which he could have been

convicted at his first trial. The law against double jeopardy was on his side and

should he be called upon to face a fresh trial he could raise the plea of autrefois

acquit. This was a right he enjoyed before the enactment of the new provisions.

While it was not being contended that Parliament could not enact such

legislation, the contention was that if it wished to do so effectively, the law must

be passed by a special majority and not the simple majority by which it was

passed.

Attorney for the appellant, on the other hand, submitted that the new

provisions had not deprived an accused of the plea of autrefois acquit. What

they did was to modify what constituted a final acquittal in accordance with the

law, by introducing a new possibility of appeal, so that where there had been a

final acquittal in accordance with the law and penal procedure of the State, a

second trial is still prohibited. Reference was made to the case of Connelly v

DPP (1964) AC 1254 wherein is an authoritative definition of the principle of

autrefois acquit. The case recites the classic statement of the principle found in

Hawkins’ Pleas of the Crown , 8th Ed., Book II at p. 515:

“The plea of autrefois acquit is grounded on this maxim, that a man shall not be

brought into danger of his life for one and the same offence, more than once. From whence it is generally taken, by all the books, as an undoubted consequence, that where a man is once found “not guilty” on an indictment or appeal free from error and well commenced before any court which hath jurisdiction of the cause, he may, by the common law, in all cases whatsoever plead such acquittal in bar of any subsequent indictment or appeal for the same crime”.

It was further submitted that for the purposes of autrefois acquit, what was

significant, in a case which had gone to appeal, was not the original verdict but

the judgment on appeal. That is the stage at which the case can be considered

as finally determined. The quashing of a conviction by an appellate court leaves

the accused person in the same position for all purposes as if he had actually

been acquitted. Although it was not specifically expressed we gather Counsel to

be saying that an acquittal remains an acquittal until a new trial produces a

different result. In the premises the new provisions do not breach any of the

provisions of sections 4 and 5 of the Constitution and therefore did not require a

special majority to be effective. They merely postpone the time at which the plea

could be raised.

The issue for our determination therefore is whether there is an

infringement of the due process clause of the Constitution by a law which seeks

to give the D.P.P. a right of appeal after an acquittal and more particularly

empowers the Court of Appeal to order a retrial.

The first observation we wish to make is that there are a number of

particulars which are descriptive of the rights set out at section 4 of the

Constitution which would constitute examples of what are to be considered as

“due process” and “the protection of the law”.

It is clear that the double jeopardy rule is not expressly set out at section 4

or 5 of the Constitution. The question for our consideration is whether

notwithstanding its absence, the respondent is entitled to avail himself of the

principle of double jeopardy as being part of due process and the protection of

the law.

A good starting point is to look first at sections 32 and 33 of the Criminal

Procedure Act Chap. 12:02. Sections 32 and 33 of the Criminal Procedure Act

Chap. 12:02 read as follows:

“32. The accused on being arraigned on any indictment may plead the general issue ore tenus, or he may in writing demur or plead any matter of law or fact which he would be permitted to plead according to the law in force in England on the 30th August 1962, upon which demurrer or plea in writing the Registrar, on behalf of the State may instanter join demurrer, or demur, or reply.

33. In any plea of autrefois convict or autrefois acquit it shall be sufficient for

any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the offence charged in the indictment”.

These sections merely spell out the procedure for raising the pleas in bar of

‘autrefois acquit’ and ‘autrefois convict’. They do not assist in determining the

question whether double jeopardy is part of the due process and protection of the

law.

The nature of double jeopardy:

In Pearce v. R [2000] 1 LRC 338, the High Court of Australia said of

double jeopardy at p. 346:

“[9] The expression ‘double jeopardy’ is not always used with a single

meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be ‘punished again for the same matter’ (see Wemyss v Hopkins (1875) LR 10 QB 378 at 381 per Blackburn J.). Further, ‘double jeopardy’ is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

[10] If there is a single rationale for the rule or rules that are described as the

rule against double jeopardy, it is that described by Black J. in Green v US (1957) 355 US 184 at 187-188:

‘The underlying idea, one that is deeply ingrained in at least the Anglo-

American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty’.

That underlying idea can be seen behind the pleas in bar of autrefois acquit and

autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy”.

The rule has often been associated with habeas corpus and both have

been described as vital to the protection of personal freedom. In Cox v Hakes

[1890] 15 App. Cas. 506, the question was whether the Court of Appeal had

jurisdiction to entertain an appeal where a person had been discharged from

custody by an order of the High Court on a habeas corpus application. Lord

Halsbury L.C. in holding that the Court of Appeal had no such jurisdiction said at

p. 522: “But your Lordships are here determining a question which goes very far indeed

beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last Court of Appeal”.

Lord Dunedin on the same question in Secretary of State for Home Affairs

v 0’Brien [1923] AC 603 at 621 said:

“My Lords, on the best consideration I have been able to give on a question

admittedly important, I have come to the conclusion that the case of Cox v Hakes depended on a broader ground: to wit, that it is a cardinal principle of the law of England, ever jealous for personal liberty, that when once a person has been held entitled to liberty by a competent Court there shall be no further question”.

In Thompson v Mastertouch TV (1978) 19 ALR 547 (which dealt with the

right of appeal from an acquittal at first instance) Deane J said at p.552: “...the principle that no appeal should lie from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits was by the end of the 19th century entrenched as a “well-settled” and “elementary” (per Palles CB in R v

Tyrone County JJ) principle of the common law and as a fact on the administration of criminal justice in England and Ireland. ... It is, in essence, the statement of a common law right, namely, the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal.”

R v Tyrone County JJ (1906) 40 Irish L.J. 181 concerned quashing by

certiorari a conviction at quarter sessions on an appeal from justices who had

dismissed the charge.

Palles CB said at p.182:

“The first principle is an elementary one – viz. that as a rule an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court. It is also perfectly well settled that certiorari cannot be taken away except by express words, while, on the other hand, an appeal cannot be given except by express words, and, when we come to consider an Act which is alleged to give an appeal in a criminal matter I can imagine no stronger case in which we should require clear express words ...”

In Davern v Messel (1984) 53 ALR 1, 19 Mason and Brennan JJ said that

the origins of the existence of the rule were obscure because “the right of appeal

from a decision of a court was unknown to the common law (Pollock and

Maitland: The History of English Law ...)”

Also in Davern v Messel Mason and Brennan JJ said at p.26:

“Indeed the introduction of legislative provisions in many States authorizing Crown appeals on questions of law on the footing that the decision of the Court of Criminal Appeal will leave the acquittal undisturbed makes it impossible now for us to say that the rule against double jeopardy does not extend to an appeal."

Gibbs CJ at p.6 said:

“The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal since the rule requires that an acquittal be treated as final.”

In Thompson v Mastertouch TV (supra at p. 560) Deane J. said:

“An appeal, as of right from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the

administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law.”

In R v Weaver (1931 45 CLR 321 at p. 356 Evatt J said:

“The jury’s verdict of not guilty has a special constitutional finality and sanctity which are always regarded as an essential feature of British criminal jurisprudence.

These authorities serve to demonstrate how jealously the Courts have

guarded the personal freedom of the individual and show that the rule against

double jeopardy was a fundamental part of the criminal justice process as it

existed at the commencement of the Constitution.

Due Process

Phillips J.A. in Lasalle v A.G. 18 WIR. 379 defined due process in these

terms. He said:

“The concept of “due process of law” is the antithesis of arbitrary infringement of the individual’s right to personal liberty; it asserts his “right to a fair trial, to a pure and unbought measure of justice”.

“While it is not desirable and, indeed, may not be possible to formulate an exhaustive definition of the expression, it seems to me that, as applied to the criminal law (in which category I include offences against military law), it connotes adherence, inter alia, to the following fundamental principles: (i) reasonableness and certainty in the definition of criminal offences;

(ii) trial by an independent and impartial tribunal;

(iii) observance of the rules of natural justice.”

Phillips J.A. further stated at page 395 I: “The effect of the due process clause is to entrench, not the particular form of

legal procedure existing at the date of commencement of the Constitution for adjudication of the rights of the individual, but rather his fundamental right to such adjudication by a fair, independent and impartial tribunal in accordance with legal principles that have come to be well understood in our democratic society – in a word, his right to justice as we know it: See per Wooding, C.J., in Collymore & anor v The Attorney General (1967) 12 W.I.R. at p. 17”.

At this stage it might be convenient to set out the clear but concise

exposition of the relationship between sections 4 and 5 of our Constitution which is to be

found in Thornhill v Attorney General (1976) 31 WIR 498 per Lord Diplock at p.511 and

512. Lord Diplock was there considering the provisions of the 1962 Constitution which

were identical to section 4 and 5 of the present Constitution. He said:

“Sections 1 to 3 of the Constitution proceed on the presumption that the human

rights and fundamental freedoms that are referred to in sections 1 and 2 were already enjoyed by the people of Trinidad and Tobago under the law in force there at the commencement of the 1962 Constitution. The enacting words of section 1 are that the then existing rights and freedoms that are described in paragraphs (a) to (k) “shall continue to exist”. In those paragraphs the rights and freedoms that are declared to have existed on 31st August 1962, and are to continue to exist, are not described with the particularity that would be appropriate to an ordinary Act of Parliament; nor are they expressed in words that bear precise meanings as terms of legal art.

The lack of all specificity in the descriptions of the rights and freedoms protected

contained in section 1(a) to (k) may make it necessary sometimes to resort to an examination of the law as it was at the commencement of the Constitution in order to determine what limits upon freedoms that are expressed in absolute and unlimited terms were nevertheless intended to be preserved in the interests of the people as a whole and the orderly development of the nation; for the declaration that the rights and freedoms protected by that section already existed at that date may make the existing law as it was then administered in practice a relevant aid to the ascertainment of what kind of executive or judicial act was intended to be prohibited by the wide and vague words used in those paragraphs (Ramesh Lawrence Maharaj v Attorney-General (No. 2) (1978) 30 WIR at page 317). But this external aid to construction is neither necessary nor permissible where the treatment complained of is of any of the kinds specifically described in section 2(a) to (h).

Section 2.is directed primarily to curtailing the exercise of the legislative powers

of the newly-constituted Parliament of Trinidad and Tobago. Save in the exceptional circumstances referred to in section 4 or by the exceptional procedure provided for in section 5, the Parliament may not pass any law that purports to abrogate, abridge or infringe any of the rights or freedoms recognised and declared in section 1 or to authorise any such abrogation, abridgment or infringement. But section 2 also goes on to give, as particular examples of treatment of an individual by the executive or the judiciary which would have the effect of infringing those rights, the various kinds of conduct described in paragraphs (a) to (h) of that section. These paragraphs spell out in greater detail (although not necessarily exhaustively) what is included in the expression “due process of law” to which Thornhill was entitled under section 1(a) as a condition of his continued detention and “the protection of the law” to which he was entitled under section 1(b)“. Prior to the enactment of the new provisions an accused person who had

been acquitted of a charge against him was in a position to regard his liberty as

inviolable in respect of the same matter. Indeed he had regained full freedom

and could not be placed in further jeopardy. That was the “due process” which

he enjoyed and although not specifically set out at paras (a) to (h), this was part

of the due process which he enjoyed and which also constituted protection of the

law. That was the legal principle that had come to be well understood in our

society. Any law, the effect of which is likely to place the citizen in further

jeopardy is a law which offends the due process clause of the Constitution. It

deprives the individual of the procedural provisions which were available to him

and to be effective it must conform with the provisions of section 13 i.e. it must

expressly declare that it shall have effect even though inconsistent with sections

4 and 5 and be passed by the vote of three-fifths of all the members of the

Parliament.

The legislation creating a right of appeal and providing for a new trial must

be read against this background in order to determine whether there is a

Constitutional infringement of the right to liberty. Once it is shown in our view

that the right to personal liberty has been affected, a special majority is

necessary to give such law efficacy.

Parenthetically, we might add we cannot deny the desirability of legislation

which is plainly intended to enhance the administration of justice in seeking to

correct miscarriages of justice which have taken place in the Court below. This,

however, must be weighed against the obligation to comply strictly with the

provisions of the Constitution which is the supreme law.

Before we conclude, we feel obliged to note that Parliament prior to the

new provisions had no doubt recognised the inviolable right of the individual to

his liberty when in enacting section 63 of the Supreme Court of Judicature Act

which gave the D.P.P. power to refer to the Court of Appeal for its opinion any

point of law that had arisen in the case of a person tried on indictment, it was

specifically provided that a reference under the section shall not affect the trial in

relation to which reference is made or any acquittal in that trial.

For these reasons we agree with attorney for the respondent that sections

65E1(a) and 2 and 65G which are inextricably bound up, are unconstitutional and

ineffective to give the D.P.P. a right of appeal after an acquittal and more

particularly to empower the Court of Appeal to order a new trial.

We now proceed to consider the other substantive matters raised on this

appeal having regard to their importance.

The Remaining Issues:

The next submission by the respondent was that the new provisions give

to the DPP a more ample right of appeal than a person convicted on indictment

has or give the Court of Appeal lesser power to dismiss such an appeal by the

DPP and therefore the respondent’s right to equality before the law and the

protection of the law is infringed.

The thrust of the respondent’s submission on this ground was to make a

comparison of the grounds upon which a convicted person may appeal to the

Court of Appeal and those upon which the DPP can appeal by virtue of the new

provisions. Section 43 of the Supreme Court of Judicature Act Chap. 4:01

provides as follows:

“that a person convicted on indictment may appeal to the Court of Appeal –

against his conviction on any ground of appeal which involves a question of law alone; and with the leave of the Court of Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law”.

The new provisions give the DPP a right to appeal 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.

This submission was the forerunner of an argument to which we will come

later which was to the effect that the ground upon which the DPP can appeal

must be narrowly construed as being on a point of law alone.

The submission here proceeded on the basis that should the amending

section be construed as to involve questions of law and mixed facts and law; this

would give the DPP a wider right of appeal than a person convicted on

indictment. Accordingly there would result inequality of treatment before the law

and breach of the protection of the law as guaranteed by section 4(b) of the

Constitution. Furthermore, says the respondent, the inability of the Court of

Appeal to dismiss an appeal by the DPP notwithstanding that it might be of the

opinion that the point raised in the appeal might be decided in favour of the DPP,

if it considers that no substantial miscarriage of justice has actually occurred, is

also an infringement of the right of the respondent to equality before the law and

the protection of the law. In other words the Court of Appeal has no power as

that given under section 44 of the Supreme Court of Judicature Act (the proviso)

when dealing with an appeal by the DPP.

The circumstances in which the Court of Appeal might apply the proviso to

section 44 of the Supreme Court of Judicature Act are to a great extent well

settled. The Court must consider whether or not there has been a substantial

miscarriage of justice. This must depend upon the particular facts and

circumstances of the case. To deal with this submission we proceed on the

premise that the DPP’s appeal and the power given to the Court of Appeal is

permissible only on questions of law. Where an appeal can only be maintained

on a question of law, we fail to see the rationale of a Court making a finding that

no substantial miscarriage of justice had actually occurred: such a finding could

only result from a consideration of all the evidence in the case where there had

been a “full blown” trial. There is therefore in our view no scope for the

application of the proviso in circumstances such as in the instant case.

The provision in section 4(b) of the Constitution which deals with the

concept of equality before the law and the protection of the law has been

considered by this Court on numerous occasions. What is required before a

finding in favour of a breach of 4(b) is that the parties must be similarly

circumstanced and there must be an uneven hand in the application of the same

law. It is difficult if not impossible to apply such principles to the provisions under

consideration. It is obvious that the position of the DPP in his conduct of criminal

proceedings is dissimilar to that of accused persons and in that regard his

perspective must necessarily be different from an accused person. Furthermore

a law is not unconstitutional if it relates to one set of persons and not others once

the distinction is based on reasonable grounds.

The alternative position taken by the respondent was that no point of law

was involved or entailed in the withdrawal of the case from the jury by the

learned trial judge nor is it competent for the State to argue other than points of

law on the appeal.

The submissions on this ground entailed an examination and

interpretation of the new provisions. Counsel took us through the provisions of

the Supreme Court of Judicature Act prior to the enactment now under

consideration. Our attention was drawn to the following provisions:

Section 43 reads as follows:

“43. A person convicted on indictment may appeal under this Act to the Court of Appeal –

against his conviction on any ground of appeal which involves a question of law alone; and with the leave of the Court of Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law”.

Section 44 reads: “44. (1) The Court of Appeal on any such appeal against conviction shall

allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss

the appeal if they consider that no substantial miscarriage of justice has actually occurred”.

Section 60(1) reads: “60. (1) Where any person is convicted on indictment, the trial Judge

may state a case or reserve a question of law for the consideration of the Court of Appeal and the Court of Appeal shall consider and determine such case stated or question of law reserved and may either –

confirm the judgment given upon the indictment;

order that the judgment be set aside and quash the conviction and direct a judgment and verdict of acquittal to be entered; order that the judgment be set aside, and give instead thereof the judgment which ought to have been given at the trial;

require the Judge by whom such case has been stated or question has been reserved to amend such statement or question when specially entered on the record; or make such other order as justice requires”.

Section 63(1) reads thus: “63. (1) Where a person tried on indictment has been acquitted (whether

in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the Court, and the Court shall, in accordance with this section, consider the point and give their opinion on it”.

Against this background, it was submitted that the phrase “decision of the

trial judge is erroneous in point of law” as it appears in the new provisions, is

referable to a decision by a trial judge on a “question of law alone” as a result of

which a no case submission was upheld or the case withdrawn from the jury.

The proper construction to be placed on the phrase therefore is that it does not

refer to decisions by the trial judge on questions of fact or questions of mixed fact

and law or of mixed questions of fact and law leading to that consequence.

Furthermore, it was submitted that the phrase does not refer to rulings during the

course of a trial, which do not directly result in the upholding of a no case

submission or a withdrawal of the case from the jury. In any event, it was

submitted, the learned trial judge withdrew the case from the jury after a careful

assessment and analysis of the facts and in the circumstances there was no

basis on which the DPP could exercise his right of appeal.

The expression “erroneous in point of law” appeared for the first time in

the new provisions. It is not new by any means. We are inclined to the view that

the expression “erroneous in point of law” connotes a situation where a trial judge

falls into error in any aspect of the case before him, which falls for his

determination.

We have no hesitation in holding that the conclusion a trial judge arrives at

when a submission of no case is made, is one of pure law, not fact and a wrong

conclusion is a conclusion erroneous in point of law.

The determination of the facts is for the jury. A trial judge, once the facts

are undisputed, must bear those facts in mind in making a legal determination on

the consideration of such a submission. In other words, once there is no dispute

as to the facts, any conclusions by the trial judge based on those facts is one of

law. Indeed if it could be shown that a judge has decided a case on the basis of

his own assessment of the facts, then that itself would be a ground of appeal,

since he would have crossed the boundaries and performed the function of a

jury. That in itself would be an error in law.

We have considered the decision of the Privy Council in Justis Raham

Smith v R (2000) 1 W.L.R. 1644. In construing the Bermudan legislation which

gave the Attorney General a right of appeal on a ground of appeal involving a

question of law alone, Lord Steyn drew a disti nction between the phrase “a

question of law alone” as there used and the interpretation normally placed on

what constitutes a question of law in regard to a no case submission. He

referred to Salmond on Jurisprudence, 12th ed. (1966) p. 68 where the learned

author said:

“it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is withdrawn from the jury altogether; yet this is mere matter of fact, undetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the proper sense a pure question of fact. It is called a question of law because it is committed to and answered by the authority which normally answers questions of law only.”

While accepting that “in context that was a convenient and appropriate

use of language”, he, however, opined that the Bermudan legislation must be

differently construed in view of the language and contextual setting. He pointed

to provisions quite similar to those of the Supreme Court of Judicature Act to

which we have earlier referred, and concluded that the Bermudan legislature did

not regard a verdict against the weight of the evidence as qualifying as “a

question of law alone”. He placed this narrow construction on the legislation

since he saw it as an “inroad on the cardinal principle of double jeopardy”.

We feel, however, that the expression “erroneous in point of law” used in

the Trinidad and Tobago legislation must be given a less restrictive meaning than

that given to “law alone” by Lord Steyn in Justis Raham Smith. For this we turn

to the Canadian authorities.

In the Canadian case of GB, CS, HH, SS and AB v Her Majesty The

Queen 1990) 2 S.C.R. 57, the appellants, who were elementary school students,

were acquitted at trial of sexually assaulting a fellow student. The trial judge had

a reasonable doubt as to their involvement in the alleged assault. He also found

that the date of the offence was an essential element and that it had not been

proved.

The complainant was eight years old at the time of the alleged offence and

nine at the time of the trial. The Crown’s other key witness, Z, a co-accused and

accomplice who had pleaded guilty to the same charge, was fourteen at the time

of trial. Both were sworn. The complainant’s evidence, however, was found to

be unreliable. Z’s evidence was not accepted either.

The Court of Appeal allowed the appeal and ordered a new trial. The

appeal had been lodged under s. 605(1)(a) of the Criminal Code, which provides

for a Crown appeal on a question of law alone. The court justified its intervention

in that the trial judge had erred in considering the evidence of the complainant

and of Z in isolation from each other instead of considering the potential for

corroboration. It also found that the father’s testimony corroborated that of the

complainant.

At issue there was whether the Court of Appeal exceeded its jurisdiction

when it overturned the appellants’ acquittals and ordered a new trial.

Wilson J. in delivering the judgment of the Supreme Court had this to say

at page 64: “It is my opinion, therefore, that this line of authority, while correctly stating the law, does not support the appellant’s argument that the Court of Appeal exceeded its jurisdiction in this case. Indeed, both the Crown and the Court of Appeal acknowledge that it is not open to an appellate court to overturn an acquittal on the ground that it was unreasonable. There are, however, other questions of law arising in a case which will confer jurisdiction on an appellate tribunal. Aside from clearly established questions of law such as the admissibility of evidence, the interpretation of a statute, or whether evidence is capable of being corroborative, this Court has recognized appellate jurisdiction where the question of law originates from the trial judge’s conclusion that he or she is not convinced of the guilt of the accused beyond a reasonable doubt because of an erroneous approach to, or treatment of, the evidence adduced at trial. The Wild case is an example of this. A question of law was raised in that case because the trial judge’s “reasonable” doubt was based on pure conjecture. An acquittal based on an erroneous conclusion of reasonable doubt constitutes a question of law where the trial judge has erred as to the legal effect of undisputed or found facts rather than the inferences to be drawn from such facts. Authority for this proposition is to be found in Belyea v The King, [1932] S.C.R. 279, the first appeal to come before this Court following the introduction of s. 605 into the Code. The accused had been acquitted of conspiracy charges at trial. Anglin C.J., for the Court, holding that the error of the trial judge raised a question of law, affirmed the judgment of the Ontario Court of Appeal which reversed the acquittal on the basis that the trial judge misdirected himself in finding that the Crown had not proved that the accused took part in the overt acts. Anglin C.J. noted that it was not essential to a finding of guilt of conspiracy to establish that the accused actually participated in the overt acts. He stated at p. 296:

The right of appeal by the Attorney-General, conferred by s. [605(1)(a)], Cr. C. . . . is, no doubt, confined to “questions of law”. That implies, if it means anything at all, that there can be no attack by him in the Appellate Divisional Court on the correctness of any of the findings of fact. But we cannot regard that provision as excluding the right of the Appellate Divisional Court, where a conclusion of mixed law and fact, such as is the guilt or innocence of the accused, depends, as it does here, upon the legal effect of certain findings of fact made by the judge or the jury, as the case may be, to enquire into the soundness of that conclusion, since we cannot regard it as anything else but a question of law, - - especially where, as here, it is a clear result of misdirection of himself in law by the learned trial judge. [Emphasis added.]

A question of law may also arise, it seems to me, when the trial judge misdirects himself or herself with respect to the relevant evidence. Indeed, the Court of Appeal in this case reversed the acquittals after concluding that an error of law had arisen due to the trial judge’s failure to properly direct himself to all the evidence bearing on the relevant issues. In its oral argument to this Court the Crown conceded that, if the trial judge’s error was not the result of misdirection, then the Court of Appeal was without jurisdiction.

In support of its position the Crown relies on Harper v. The Queen, Supra, as did the Court of Appeal. The accused in that case, a police officer, had been charged with assault but contended that all the complainant’s injuries were sustained when he resisted arrest. The complainant and one witness testified that the accused had punched the victim in the face but the defence called four witnesses who testified that they had not seen the accused hit the complainant. In his reasons for judgment the trial judge stated that only the complainant and the other Crown witness had observed the events. The evidence of the defence witnesses was expressly not taken into account by the trial judge because he concluded they were not present at the crucial time but no finding was made as to their credibility. The accused was convicted at trial and his appeal to the British Columbia Court of Appeal was dismissed.

On appeal to this Court the issue was whether the trial judge’s failure to consider the defence evidence constituted an error of law. Estey J., for the majority (Ritchie J. dissenting) concluded that rejecting the evidence of the defence witnesses was an error of law and a new trial was ordered. With respect to the jurisdiction of an appellate court generally Estey J. stated the following at p. 14: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. This problem was before this Court in MacDonald v. The Queen, [1977] 2 S.C.R. 665, when Laskin C.J. stated, at p.673: It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed. [Emphasis added.]

There is a distinction between reassessment by an appeal court of evidence for the purpose of weighing its credibility to determine culpability on the one hand and, on the other, reviewing the record to ascertain if there has been an absence of appreciation of relevant evidence. The former requires addressing questions of fact and is placed outside the purview of an appellate tribunal s. 605(1)(a) of the Code. The latter inquiry is one of law because if the proceedings indicate a lack of appreciation of relevant evidence, it becomes a reviewable question of law as to whether this lack precluded the trial judge from effectively interpreting and applying the law”.

We respectfully adopt the analysis by the Canadian Supreme Court and

hold that the views expressed are equally relevant to the matter at hand.

Attorney for the respondent submitted next that the rulings of the learned

trial judge were in any event correct and in the circumstances of the case, no

substantial miscarriage of justice had actually occurred. Furthermore, this Court

should not exercise its powers to order a retrial because it would be unsafe so to

do given the facts of the case and the public prejudice which exists against the

respondent. Counsel enumerated the various rulings made by the learned trial

judge. These were:

“(a). The cause of death was a live issue in the trial and that expert evidence was required for the purpose of assisting the jury in understanding the medico-legal significance of the complex issues involved.

(b) That he was unable to find Dr. Hughvon Des Vignes to be a forensic pathologist for the purpose of giving a medico-legal opinion as to the cause of death of Jason Johnson.

© That the opinion of Dr. Des Vignes would have to be withdrawn and

not allowed to stand in evidence for consideration by the jury. (d) That the remaining evidence of Dr. Des Vignes be entirely

expunged from the record of evidence.

(e) That the case be withdrawn from the jury ‘on account of the quality of the evidence tendered in proof of the cause of death

The submission was that these rulings of the learned trial judge were all

on questions of fact or mixed fact and law and so were unappealable. Counsel

had before us meticulously set out the background against which the learned trial

judge had made these rulings. We do not propose to rehearse the details,

although we are grateful to Counsel for so doing. We feel, however, that the

main issue here was whether the learned trial judge was correct in rejecting the

evidence of Dr. Des Vignes, the pathologist, who performed the post mortem and

who gave an opinion as to the cause of death. The circumstances under which

the evidence of Dr. Des Vignes was withdrawn from the case were these.

The prosecution called Dr. Des Vignes to testify as to the cause of death.

This doctor had performed the post mortem and gave his opinion. In his

evidence in chief the doctor testified with regard to his qualifications in these

terms:

“I am a pathologist attached to the Trinidad & Tobago Forensic Science Centre. I am a registered member of the Medical Board of Trinidad and Tobago. My qualifications are a Bachelor of Science degree in Chemistry (analytical), Bachelor of Medicine and Surgery degrees and doctorate in pathology from the University of the West Indies. Also done a fellowship in Forensic Pathology at the Chief Medical Examiner’s Office, Alberta. Canada. I have been a Forensic Pathologist since November 1995. I have given evidence as an expert in the field of Forensic Pathology”.

Upon this evidence the learned trial judge allowed Dr. Des Vignes to

testify as an expert. He was duly cross-examined by counsel for the accused

who is the same counsel who appeared before us. At the close of the

prosecution’s case, the respondent was called upon and elected to give evidence

on his own behalf and call witnesses. One witness called by the respondent was

a Dr. Daisley. He, in his testimony disputed Dr. Des Vignes’ findings on several

questions material to the cause of death. In fact his evidence suggested the

distinct possibility of the existences of a ‘novus actus interveniens”. It appears

from the record that the qualifications of this doctor were challenged by Attorney

for the State. In what we consider an unusual turn of events, the learned trial

judge on his own motion recalled Dr. Des Vignes and himself cross-examined

him in great detail about his qualifications. Furthermore, the learned trial judge

again on his own motion called one Dr. Chandulal, a Forensic Pathologist who

had given evidence as to the cause of death in several cases. His call, however,

had nothing to do with the medical evidence given by Dr. Des Vignes but the trial

judge sought his opinion on whether or not Dr. Des Vignes was a qualified

forensic pathologist. Dr. Chandulal testified that Dr. Des Vignes was not qualified

to be registered as a Forensic Pathologist. It turned out from the cross

examination of Dr. Des Vignes that he was not registered with the Medical Board

of Trinidad and Tobago as possessing any qualifications as a forensic

pathologist. Although he testified as having performed between 200 and 300

post mortems, the learned trial judge was not convinced that Dr. Des Vignes had

the necessary qualifications and experience to adequately deal with the

complexities that the case presented. He therefore withdrew Dr. Des Vignes’

evidence from the consideration of the jury.

Counsel for the respondent submitted quite rightly in our view, that the

decision on the required qualifications for treating a particular witness as an

expert in any case, is one for the discretion of the trial judge. This, he submitted,

was a decision on a question of fact and could not be the subject of appeal by

the DPP.

In the first place we hold that any decision of a trial judge on whether an

expert is required in any given case and whether or not a witness is qualified to

testify as an expert, is a question of law. Although the judge must take account

of the evidence before him, his decision is one of law and can be questioned.

We agree with the point made by counsel for the DPP that the learned trial

judge appeared to have been “preoccupied and sidetracked” by the issue

whether Dr. Des Vignes had received a degree, diploma or certificate in forensic

pathology and whether the qualifications he obtained on completion of his

fellowship in Alberta, Canada, enabled him to register as a Specialist Forensic

Pathologist with the Medical Board of Trinidad and Tobago. Furthermore, he

relied on the evidence of Dr. Chandulal to determine whether Dr. Des Vignes

was sufficiently qualified for registration by the Medical Board. We think the

learned trial judge failed to distinguish between a person who is qualified for

registration and one who through experience in the field had acquired enough

expertise to be able to testify as an expert in that field. The learned trial judge,

therefore, applied the wrong test and failed to give due consideration to the

relevant evidence. He therefore fell into error and was wrong in law in rejecting

the evidence of Dr. Des Vignes.

Furthermore, although there resides in a trial judge a power to himself call

witnesses, that power was to be used sparingly and then only to achieve the

ends of justice and fairness. The exercise of that power by the trial judge in this

case was clearly wrong. It was not competent for Dr. Chandulal, who himself is

required to satisfy the Court of his own expertise, to be called to pronounce on

the expertise of another medical witness.

Another challenged ruling of the learned trial judge was his ruling that the

evidence of Dr. des Etages required corroboration.

Dr. des Etages was the surgeon under whose care the deceased was

when he died. The question whether proper procedures were employed in the

care of the deceased arose as an issue at the trial. It was in these

circumstances that the learned trial judge concluded that Dr. des Etages was a

witness with an interest to serve and that his evidence required corroboration.

The circumstances in which there could be established a novus actus

interveniens are rare indeed. The novus actus must be something so

independent of the act of the accused as to amount to a new and separate cause

of the deceased’s death. So much so that the act of the accused pales into

insignificance. The learned trial judge came to the conclusion that the evidence

of a forensic pathologist was a necessity in rebutting an issue of criminal

negligence and when therefore he excluded the evidence of Dr. Des Vignes, he

concluded that no evidence of cause of death remained. Dr. des Etages’

evidence, he concluded could not stand uncorroborated.

The propriety of this ruling of the learned trial judge is reviewable as an

error on a point of law.

It was on the basis of these rulings that the learned trial judge took the

decision to withdraw the case from the jury. We conclude he was wrong in so

doing.

We were finally asked to refuse the application for a new trial in light of the

fact that there exists considerable hostility to the respondent as a result of

persistent newspaper reports that are prejudicial in an all pervasive manner.

Furthermore, it was pointed out that no steps have been taken to prevent matters

likely to lead members of the public to identify the respondent after his acquittal

from being published in written publications available to the public or from being

broadcast or televised.

Several newspaper clippings were submitted in support of this complaint.

We have made no findings one way or the other on the matters contained in

them. All we wish to say is that adverse publicity against an accused in whatever

form has always raised questions of the fairness of any trial he faces. In

Nankissoon Boodram v A.G. (1996) 47 WIR 485, the Judicial Committee of the

Privy Council considered a case where the appellant had claimed that his right to

the protection of the law and to receive a fair trial was likely to be infringed should

he face a trial against a background of sustained and widespread pre-trial

publicity by the media. Lord Mustill in delivering the advice of the Board said at

p. 494: “Properly analysed, the real gist of the appellant’s complaint is that the adverse publicity will prejudice, not the existence of the right, but the exercise of it. Whether this complaint is well founded is a matter for decision and, if necessary, remedy by the ordinary and well-established methods and principles of criminal procedure which exist independently of the Constitution, and which the newspapers and broadcasts could not even purport to abrogate. Provided that the safeguards remain in place, and are made available to the appellant in the trial court, and if necessary on appeal, he has the benefit of the fair trial process to which he is entitled”.

We think the complaint falls squarely within the purview of a trial court to

apply whatever measures it deems appropriate in ensuring that an accused

person receives a fair trial.

We declare that sections 65E1(a) and 2 and 65G of the Supreme Court of

Judicature Act are unconstitutional and void and for that reason alone, we

dismiss this appeal.

S. Sharma, Justice of Appeal.

L Jones, Justice of Appeal.

R. Nelson, Justice of Appeal.