Rodriguez Jean Pierre v The King
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones,Lord Hamblen |
| Judgment Date | 11 May 2023 |
| Neutral Citation | [2023] UKPC 15 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0105 of 2021 |
[2023] UKPC 15
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Lady Rose
Lord Richards
Privy Council Appeal No 0105 of 2021
Privy Council
Easter Term
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Desiree AA Artesi
Natasha Jackson
Marianne Cadet
(Instructed by Sheridans (London))
Respondent
Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 14 February 2023
Lord Lloyd-Jones AND
This appeal concerns the correct approach under Bahamian law to the grant of an extension of time for the bringing of an appeal in criminal proceedings. An extension of time is required in any case in which the appeal is not brought within 21 days of conviction.
The appellant contends that the correct approach is that set out in the Court of Appeal decision in Alexander Williams v The Queen (SCCrApp No 155 of 2016) (“ Williams”) and that this requires an extension of time to be given notwithstanding the period of delay or the reasons for it, if the prospects of success of the intended appeal are good.
It is submitted that in refusing the appellant an extension of time in the present case the Court of Appeal erred in failing to follow this approach and/or in failing to give proper consideration to the merits of the appeal.
On 24 March 2012 in Abaco, The Bahamas, Wendell Miller (popularly known as “Schemer”) was killed as a result of a stab wound to his neck. The appellant was arrested and charged with murder the same day. It was the prosecution evidence that the appellant admitted stabbing Wendell Miller both to the arresting officer, Sergeant Cash, and in a statement made under caution to the investigating officer, Travon Gibson. The making of the latter statement was supported in evidence by another police officer and by the interpreter. The appellant was also said to have taken a police officer to a bushy area in the vicinity of his residence where the knife was found. During his evidence at trial the appellant said that he had not stabbed the deceased, he had not told the police that he had stabbed him and he did not have a knife. He also relied on self-defence and the trial judge, Hartman Longley J, further directed the jury to consider the partial defence of provocation.
On 26 February 2013 the appellant was convicted of the murder of Wendell Miller. On 3 May 2013 he was sentenced to 35 years' imprisonment.
On 30 May 2019 the appellant filed an appeal against conviction and sentence after obtaining assistance from the Office of the Public Defender. He also sought an extension of the 21 day time limit for the bringing of an appeal.
The only explanation advanced for the delay was a statement made by the appellant in his supporting affidavit that it was due to circumstances beyond his control as he “did not have counsel, nor the means to obtain one”.
After various adjournments the application was heard by the Court of Appeal (Sir Michael Barnett P, Jones and Evans JJA) on 3 and 8 September 2020 in a hearing which took over 5 hours. On 24 September 2020 the Court of Appeal gave judgment refusing the appellant an extension of time.
On 6 January 2021 the Court of Appeal granted the appellant conditional leave to appeal to the Judicial Committee of the Privy Council against the decision to refuse an extension of time on the ground that the judgment of the Court of Appeal is potentially inconsistent with the earlier decision of the Court of Appeal in Williams. Final leave to appeal was granted on 31 May 2021.
Section 17 of the Court of Appeal Act (Ch 52) provides:
“17. Time for appealing.
(1) Where a person convicted desires to appeal to the court or to obtain the leave of the court to appeal under the provisions of this Part of this Act, he shall give notice of appeal or of his application for leave to appeal in such manner as may be prescribed by rules of court within twenty-one days of the conviction.
(2) The time within which notice of appeal or of application for leave to appeal may be given, may be extended at any time by the court.
(3) For the purposes of this section the date of conviction shall, where the Supreme Court has adjourned the trial of an information after conviction, be deemed to be the date on which such court has sentenced or otherwise dealt with the appellant.”
The Court of Appeal Rules 2005 provide:
“9. Extension of Time
(1) The court may, on such terms as it thinks just, by order —
(a) extend the time prescribed by these Rules for the doing of anything to which these Rules apply;
(b) extend the period specified in any judgment, order or direction of the court, or of the court below, for the doing of anything to which the judgment, order or direction relates; or
(c) direct a departure from these Rules in any other way where this is required in the interests of justice.
(2) The power of the court, under the provisions of paragraph (1), to extend any period so prescribed or specified, is exercisable notwithstanding the expiration of the period so prescribed or specified.”
The leading judgment in the Court of Appeal was given by Sir Michael Barnett P with whose judgment the other Justices agreed.
In relation to the reasons for the delay the court set out the appellant's one sentence explanation in his affidavit and held as follows at para 6:
“It is to be noted that in his affidavit explaining the delay, he gives no evidence as to when he first formed an intention to appeal. No evidence as to what steps he took during the six years to obtain counsel. No explanation as to why he did not write to the Court indicating that he wished to appeal his conviction and ask the Court's assistance in obtaining counsel. It is to be noted that in the trial below he was represented by counsel, appointed by the court, pursuant to a Crown Brief. He did not have the means to pay back in 2013 but was able to obtain the court's assistance in representation. On the evidence, it was not until six years after his conviction did he manifest any intention to appeal his conviction.”
As to the proper approach to the grant of an extension of time the court cited from Williams and placed particular emphasis on a passage (at para 15) in which the Court of Appeal had stated that inexorably, notwithstanding the length of the delay, and the absence of good or sufficient reasons for the delay, if the prospects of success of the intended appeal were good, the court would nevertheless grant an extension of time and hear the appeal, provided that there was no prejudice to the other side (see para 24 below).
The court observed as follows:
“8. In that case this Court appears to be of the view that notwithstanding a lengthy delay and the absence of good and sufficient reasons for that delay if the prospects of a successful appeal on its merits ‘are good’ then ‘inexorably’ the court would extend the period of time.
9. Notwithstanding the language used in Alexander Williams, it appears to me that that case must be considered in the context of the explanation for the delay.
10. I do not think the court intended that no matter how long the delay in appealing and notwithstanding the absence of any reasonable excuse, a Court will grant an extension of time if the prospects of success on its merits are good. That would be inconsistent with the purpose of the time limit imposed by Parliament.”
The court then cited various authorities concerning extensions of time, namely R v Lesser (1940) 27 Cr App R 69 and R v King [2000] Crim LR 835; [2000] 2 Cr App R 391 (Court of Appeal of England and Wales); Sahadath Ali v R (1969) 15 WIR 399 (Court of Appeal of Trinidad and Tobago) and Liburd v The Queen HCRAP 2008/003 (Court of Appeal of The Eastern Caribbean on appeal from Anguilla).
At para 16 the court stated as follows:
“In Liburd Barrow JA acknowledged that it did not follow that because an applicant has given no reason for a delay an application for an extension of time must be automatically dismissed. Even though there has been inordinate and inexcusable delay the court may still grant an extension of time ‘where for example significant injustice would result if the proposed appeal were not heard’.”
The court then turned to consider the grounds of appeal which it had earlier set out in the judgment. It observed that the grounds involve no important questions of law or of jurisdiction. It noted that submissions had been heard on the prospects of appeal. It briefly addressed and dismissed grounds 1 and 4 and then addressed in some detail ground 9 which it described as “the only issue raised by this appeal that had any prospect [of] success”. Ground 9 concerned the judge's directions in relation to the issue of intent but the Court concluded that the complaint was not arguably made out. The Court did not specifically address grounds 3 and 5 to 8.
The Court then set out its conclusions at paras 26 and 27 as follows:
“26. Where the delay in applying for an extension of time is in excess of six years and no good or sufficient reason is given for that delay, unless the appeal involves a question of jurisdiction or is of high constitutional importance, or there exists exceptional circumstances like perhaps a subsequent decision of the Court after the conviction modifying the interpretation of the law then in my judgment an application for an extension of time must be dismissed even if the appeal is not wholly specious. Unless it can be demonstrated that ‘significant injustice’ would occur unless the extension is granted then the Court should dismiss the application. It is not sufficient that an appeal may have some prospect of success where the intended appellant simply...
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