State of Trinidad and Tobago v Boyce

JurisdictionUK Non-devolved
JudgeLord Hoffmann
Judgment Date11 January 2006
Neutral Citation[2006] UKPC 1
CourtPrivy Council
Docket NumberAppeal No. 51 of 2004
Date11 January 2006
The State
Appellant
and
Brad Boyce
Respondent

[2006] UKPC 1

Present at the hearing:-

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hutton

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

Appeal No. 51 of 2004

Privy Council

[Delivered by Lord Hoffmann]

1

In the early hours of 1 September 1996 there was an altercation outside a nightclub in St James, in the course of which Brad Boyce struck Jason Johnson a hard blow to the head. Johnson fell to the ground and was taken unconscious to San Fernando General Hospital, where he underwent an emergency craniotomy later in the day. On 9 September he developed aspiration pneumonia and was put on a ventilator, where he remained in a coma until he died on 16 September.

2

Boyce was charged with manslaughter and tried before Volney J and a jury in July 1998. He put forward two defences. The first was that he had acted in self-defence. The second was that the blow had not been a cause of Johnson's death, which was attributable instead to two incidents which had occurred in hospital: the insertion of a feeding tube into the lung instead of the stomach and the temporary failure of the ventilator.

3

This appeal is not concerned with the first line of defence, on which various eye-witnesses gave evidence. On the question of causation, the State called two medical witnesses. Both were young and relatively inexperienced. Dr des Etages was a recently qualified houseman who had observed the craniotomy (his first) and afterwards took notes of Johnson's treatment in the neurosurgery recovery unit and, after the onset of his respiratory failure, in the intensive care unit. Dr des Vignes was the pathologist who had conducted the autopsy. He had been employed by the Trinidad and Tobago Forensic Science Centre since the previous November.

4

Dr des Vignes was firm in his view that Johnson had died of the complications of the concussive injuries to the brain which he had received and not because of any mishaps which had or might have occurred in the hospital. At the end of the prosecution case there was a submission of no case to answer which the judge rejected. The accused then gave evidence in support of his claim to have acted in self-defence and the defence called Dr Daisley, a medical expert. His opinion was that Johnson's treatment in hospital had caused his death.

5

Events then took an unusual course. After Dr Daisley had been cross-examined, but before re-examination, the judge of his own motion recalled Dr des Vignes to ask him about his qualifications in forensic pathology. It appeared that he was not registered as such with the Trinidad and Tobago Medical Board and that his fellowship in Alberta was more in the nature of an apprenticeship than a formal course leading to a certificate or diploma. Instead, the Chief Medical Examiner, under whose general supervision he had performed some 270 autopsies, had simply written a letter recommending Dr des Vignes as competent to act as a forensic pathologist and he had been so employed by the Forensic Science Centre.

6

The judge then, still acting of his own accord, called Professor Chandulal, the Chief Forensic Pathologist, to ask him about the qualifications required for civil service appointment as a forensic pathologist. He said that one needed a medical degree followed by a postgraduate degree in forensic pathology which would be accepted as registrable by the Medical Board of Trinidad and Tobago. Professor Chandulal said that he was registered as a forensic pathologist but that Dr des Vignes was not.

7

After hearing this evidence and submissions from counsel, the judge decided that Dr des Vignes was not qualified as an expert for the purpose of giving an opinion on the cause of death and that his evidence was inadmissible and should be withdrawn from the jury. He then ruled that the evidence of Dr des Etanges did not provide a sufficient basis for a finding by the jury that Boyce had caused Johnson's death and directed the jury to acquit.

8

Under the ancient rules of common law, that would have been an end of the matter. The prosecution had no right to appeal against a jury's verdict of not guilty on a trial by indictment. On 29 October 1996, however, the Administration of Justice (Miscellaneous Provisions) Act 1996 had come into force. It added a new section 65E to the Supreme Court of Judicature Act:

"(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."

9

Pursuant to this section, the Director appealed on the grounds, inter alia, that the judge had erred in law in holding the evidence of Dr des Vignes inadmissible and, consequently, in ruling that there was no evidence to go to the jury on the issue of causation. In the Court of Appeal the defence, as well as contesting the appeal on the merits, challenged the court's jurisdiction on a number of grounds. The first and most important was that section 65E was unconstitutional because inconsistent with the fundamental human right not to be deprived of liberty except by due process of law and the right to the protection of the law, both of which are declared and enacted by section 4 of the Constitution:

"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;…"

10

The Court of Appeal (Sharma, Jones and Nelson JJA) accepted this submission. In a judgment given by Jones JA on 30 November 2001, they referred to the analysis of sections 4 and 5 (as they now are) by Lord Diplock in Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 and Thornhill v Attorney-General of Trinidad and Tobago [1981] AC 61 and in particular to his statement in Thornhill (at pp. 69-70) that section 4 declared that the rights and freedoms described in the section already existed in Trinidad and Tobago and enacted that they should continue to exist. Lord Diplock went on (at p. 70) to say:

"The lack of all specificity in the descriptions of the rights and freedoms protected contained in section [4] (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 …"

11

Jones JA proceeded to examine the law as it was at the commencement of the Constitution and found that it included an absolute right not to be tried for the same offence after a verdict of acquittal by a jury:

"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 his full freedom and could not be placed in further jeopardy. That was 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 …"

12

In essence, the reasoning of the Court of Appeal was that under the common law rule as it existed at the time of the Constitution, a second trial of an accused who had been acquitted by a jury would have...

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