Noel Campbell v The Queen (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | LORD MANCE |
| Judgment Date | 03 November 2010 |
| Neutral Citation | [2010] UKPC 26 |
| Date | 03 November 2010 |
| Docket Number | Appeal No 0077 of 2009 |
| Court | Privy Council |
[2010] UKPC 26
Lord Rodger
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Privy Council
Appellant
Julian B Knowles
Helen Law
(Instructed by Dorsey & Whitney (Europe) LLP
Respondent
Howard Stevens
(Instructed by Charles Russell LLP)
Introduction
On 21 July the Board heard submissions on an application for special leave to appeal to the Board and, after the Board had indicated that special leave would be granted, on an appeal by the appellant against his conviction on 10 April 2002 of the murder of Mr Leroy Burnett. Following conviction, the appellant was sentenced to life imprisonment, without eligibility for parole until he had served 40 years' hard labour.
Mr Burnett, a police officer, was killed in the Coral Reef Bar, Portmore at about 7.30 a.m. on 12 September 1999 by multiple gunshots, four to the head and one to the back of his right shoulder. Mr Clifford Anglin who was sitting with Mr Burnett was shot in the face but survived. Mr Anglin was the prosecution's sole witness to the shooting. He knew the appellant, he said that he had seen him that morning in and outside the Coral Reef Bar with another man (Mr Man), that at a moment when his back was turned to the appellant and Mr Man, he heard three shots, that he turned round to see the appellant who then shot him in the face, and that there were then two further shots as a result of which Mr Burnett fell off his stool. The appellant's response to Mr Anglin's account was and is alibi; Mr Anglin was either deliberately framing the appellant (a suggested motive being that he resented the appellant's suggested making of Mr Anglin's underage grand-daughter pregnant) or mistaken (it being suggested in this connection that he was always drunk).
The appellant was first tried in January 2001, when the jury was unable to reach a verdict and a retrial was ordered. The retrial before Pitter J and a jury occupied six working days from 3 to 10 April 2002, leading to the appellant's conviction on 10 April 2002. On 18 August 2003 a single judge of the Court of Appeal of Jamaica refused as without merit the Appellant's application for leave to appeal to the Court of Appeal against his conviction and sentence. On 21 October 2003 the Court of Appeal of Jamaica (Panton and Smith JJA and Cooke JA Ag) refused the Appellant's renewed application for leave to appeal. The Appellant was not represented at that hearing. Counsel for the Crown indicated to the Court that she had perused the transcript and had not seen anything which would provide a possible ground of appeal. In an oral judgment, Panton JA noted that the single judge was of the view that the application was without merit and stated that the Court had itself examined the record and was of the view that the trial judge had dealt adequately with the issues and that there was no ground on which the jury's verdict could be faulted.
The papers were in March 2006 reviewed by a pupil barrister, who provided a note to local solicitors. From April 2007 the appellant had the benefit pro bono of English solicitors and from mid-2007 the services also of senior counsel. Together they sought to investigate the matter and obtain certain further evidence. On 14 September 2009 the appellant applied to the Board for special leave as a financially assisted person. The Board invited submissions as to both its jurisdiction to grant, and the appropriateness of granting, special leave in the light of the Court of Appeal's refusal of leave to appeal to it.
Jurisdiction to grant special leave
As to jurisdiction, counsel for the appellant and for the respondent provided the Board with full and helpful submissions, both in the event concluding that there was jurisdiction to grant special leave in the present circumstances. Since the point is one of jurisdiction, the Board must consider it further. Perhaps because the requirement of leave to appeal to domestic courts of appeal was less common in the past, there appears to be no direct authority on the point. The present application provides an opportunity to clarify the position on the grant of special leave in such cases.
The royal prerogative power to grant special leave was regulated and restated by the provisions of s.3 of the Judicial Committee Act 1833 and s.1 of the Judicial Committee Act 1844. S.3 provides:
"All appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute, or custom, may be brought before his Majesty or his Majesty in Council from or in respect of the determination, sentence, rule, or order of any court, judge, or judicial officer, and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by his Majesty to the said Judicial Committee of his Privy Council, and such appeals, causes, and matters shall be heard by the said Judicial Committee, and a report or recommendation thereon shall be made to his Majesty in Council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by his Majesty to the whole of his Privy Council or a committee thereof (the nature of such report or recommendation being always stated in open court)."
S.1 of the 1844 Act states further that "it shall be competent" for the Board:
"to provide for the admission of any appeal or appeals to her Majesty in Council from any judgments, sentences, decrees of orders of any court of justice within any British colony or possession abroad, although such court shall not be a court of errors or a court of appeal within such colony or possession … Provided also, that any such order as aforesaid may be either general and extending to all appeals to be brought from any such court of justice as aforesaid, or special and extending only to any appeal to be brought in any particular case…"
Prior to the 1844 Act, the position appears to have been that, where there was an available domestic court of appeal or error, no appeal could be brought direct from a first instance court to the Board: see e.g. William Macpherson's The Practice of the Judicial Committee of the Privy Council (2 nd ed. 1873), p.31.
Section 110 of the Constitution of Jamaica states:
" 110 Appeals from Court of Appeal to Her Majesty in Council
(1) An appeal shall lie from decisions of the Court of Appeal of Appeal to Her Majesty in Council as of right in the following cases–
(a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings;
(b) final decisions in proceedings for dissolution or nullity of marriage;
(c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution; and
(d) such other cases as may be prescribed by Parliament.
(2) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases–
(a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; and
(b) such other cases as may be prescribed by Parliament.
(3) Nothing in this section shall affect any right of Her Majesty to grant special leave to appeal from decisions of the Court of Appeal to Her Majesty in Council in any civil or criminal matter.
(4) The provisions of this section shall be subject to the provisions of subsection (1) of section 44 of this Constitution.
(5) A decision of the Court of Appeal such as is referred to in this section means a decision of that Court on appeal from a court of Jamaica."
The position regarding the grant of special leave in the light of s.110(3) has been considered in two previous decisions of the Board cited in counsel's submissions. In Williams (Kervin) v The Queen [1997] AC 624, the Board was concerned with a review procedure which had been introduced, by the Offences against the Person (Amendment) Act 1992, s.7, to classify previously passed sentences of death into two categories, capital and non-capital. The review was in the first instance to be undertaken by a single judge of the Court, without hearing representations or conducting any form of hearing, but there was under s.7(4) a right to have the single judge's classification reviewed by three judges of the Court of Appeal, before whom the defendant was entitled to appear or be represented and to make representations but whose determination was provided by s.7(5) to be "final". The defendants submitted that the three judges of the Court of Appeal making such determinations in their cases constituted a "court" and relied upon s.3 of the Judicial Committee Act 1833 and s.1 of the Judicial Committee Act 1844 as well as s.110 of the Constitution (p.630A-D).
The Crown disputed the Board's jurisdiction to hear an appeal in respect of such determinations, submitting that "The Constitution of Jamaica provides for the continuation of appeals to the Judicial Committee, but only under the terms of section 110 of the Constitution which supersedes the royal prerogative" (p. 630E-F). The Board did not find it necessary to decide whether the three judges constituted a "court". It took the view that "The jurisdiction of this Board to hear appeals from Jamaica now arises under section 110 of the Constitution of Jamaica" (p. 650D), and it held that s.110 did not apply for two reasons: first, assuming that the three judges were a court, the...
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