Balson v. The State (Dominica)  UKPC 2 (02 February 2005)
Privy Council Appeal No. 26 of 2004
Bally Sheng Balson Appellant
The State Respondent
THE COURT OF APPEAL OF DOMINICA
REASONS FOR DECISION OF THE LORDS OF THE
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE
6th December 2004, Delivered the 2nd February 2005
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
[Delivered by Lord Hope of Craighead]
The appeal against conviction: the facts
The prosecution's evidence
The police interview
"Question No. one: Did you have any quarrel or fight with Deirdre during the night of Thursday, 12th December 1996?
Answer: No we had no quarrel nor fight.
Question No. two: What time did Deirdre go to bed that Thursday night?
Answer: She went to bed about 9.30 pm.
Question No. three: Did you sleep in the same room with Deirdre last night?
Answer: No I slept in the drawing room, its a thing I normally do.
Question No. four: When was the last time you saw Deirdre last night?
Answer: About 9.30 pm last night.
Question No. five: Who else slept in the house with you all?
Answer: Marshall and Menthe slept in the house.
Question No. six: When you saw Deirdre how was she?
Answer: She was upset with me.
Question No. seven: Did you beat or punch Deirdre last night?
Answer: No, I have never beat Deirdre, I have never put my hands on Deirdre.
Question No. eight: What time did you leave home this morning?
Answer: About 5.30 this morning.
Question No. nine: did you check on Deirdre before you left this morning?
Answer: No, I don't normally do that because I knew she was alright.
Question No. ten: Did you lock the entrance door before you left this morning?
Answer: When I left home this morning about 5.30 I locked the front door, all the doors were locked.
Question No. eleven: Did you kill Deirdre Raphael?
Answer: I would do no such thing."
The appellant's evidence
The appeal against conviction
"It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."
The appeal against sentence
"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."
Section 2 of the Offences Against the Person Act (ch 10.31) provides:
"Any person who is convicted of murder shall suffer the penalty of death."
The effect of section 2 of that Act is that the sentence of death is mandatory for a conviction of murder. Sentence of death was passed on the appellant on the assumption that it was indeed mandatory.
"This Constitution is the supreme law of Dominica and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
Schedule 2 of the Commonwealth of Dominica Constitution Order, which contains transitional provisions, provides:
"2(1) The existing laws shall, as from, the commencement of the Constitution, be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and the Supreme Court Order.
11. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 of the Constitution to the extent that the law in question authorises the infliction of punishment before 1 March 1967 (being the date on which Dominica became an Associated State.)"