The State v Boyce (Trinidad and Tobago) [2006] UKPC 1 (11 January 2006)

ADVANCE COPY

	Privy Council Appeal No. 51 of 2004

The State	Appellant
	v.
Brad Boyce 	Respondent

	FROM

	THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 11th January 2006
	------------------

	Present at the hearing:-
			Lord Bingham of Cornhill
Lord Hoffmann
Lord Hutton
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
		       [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 been a denial of due process of law.  It follows that immunity from the possibility of such a trial formed part of the right to due process which was entrenched by section 4 of the Constitution.

13.	This proposition was skilfully and persuasively deployed before the Board by Mr Hudson-Phillips QC but their Lordships think that it is wrong and that it derives plausibility only from an ambiguity in the term “due process”.  In one sense, to say that an accused person is entitled to due process of law means that he is entitled to be tried according to law. In this sense, the concept of due process incorporates observance of all the mandatory requirements of criminal procedure, whatever they may be.  If unanimity is required for a verdict of a jury, a conviction by a majority would not be in accordance with due process of law.  If the accused is entitled to raise a defence of alibi without any prior notice, a conviction after the judge directed the jury to ignore such a defence because it had not been mentioned until the accused made a statement from the dock would not be in accordance with due process of law.

14.	But “due process of law” also has a narrower constitutional meaning, namely those fundamental principles which are necessary for a fair system of justice.  Thus it is a fundamental principle that the accused should be heard in his own defence and be entitled to call witnesses.  But that does not mean that he should necessarily be entitled to raise an alibi defence or call alibi witnesses without having given prior notice to the prosecution.  A change in the law which requires him to give such notice is a change in what would count as due process of law in the broader sense. It does not however mean that he has been deprived of his constitutional right to due process of law in the narrower sense. Lord Millett made this point in Thomas v Baptiste [2000] 2 AC 1, 22-24, when he said that the term “due process” in the Constitution –
“does not refer to any particular laws and is not a synonym for common law or statute. Rather it invokes the concept of the rule of law itself and the universally accepted standards of justice observed by civilised nations which observe the rule of law … It does not guarantee the particular forms of legal procedure existing when the constitution came into force; the content of the clause is not immutably fixed at that date.”

15.	It is therefore not sufficient that the law at the time of the Constitution gave one a right to be immune from further proceedings after an acquittal by a jury.  Section 4 entrenched only “fundamental human rights and freedoms” and the question is therefore whether the old common law rule which prevented the prosecution from appealing against an acquittal formed part of due process in its narrower sense as a fundamental right or freedom.  Their Lordships do not think that it did.  They would accept that the broad principle that a person who has been finally convicted or acquitted in proceedings which have run their course should not be liable to be tried again for the same offence is a fundamental principle of fairness.  It is recognised as such in many constitutions (see, for example, section 20(8) of the Constitution of Jamaica) and in international human rights instruments: see for example article 14.7 of the UN International Covenant on Civil and Political Rights and article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. But they do not think that the principle is entirely without exceptions (see, for example, article 4.2 of Protocol No 7) and they certainly do not think that it is infringed by the prosecution having the right to appeal against an acquittal.  The possibility of such an appeal is accommodated in the qualification of the principle (“save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal”) in all the Caribbean constitutions to which their Lordships were referred (Jamaica, Barbados, The Bahamas, Grenada, Dominica, Saint Lucia, Saint Vincent and the Grenadines, Guyana, Antigua and Barbuda, Belize,  Anguilla, St Christopher and Nevis, Turks and Caicos Islands, Monserrat) as well as the international instruments which their Lordships have mentioned.  

16.	Although their Lordships would accept that the contents of human rights are not necessarily the same in every country, their Lordships see no reason why Trinidad and Tobago should regard the common law rule as more fundamentally entrenched than it is by neighbouring states which share its common law heritage. There is nothing particularly unfair or unjust about a statutory rule which enables an appellate court to correct an error of law by which an accused person was wrongly discharged or acquitted and order that the question of his guilt or innocence be properly determined according to law. Such a rule exists in many countries.  It is true that in Davern v Messel (1984) 155 CLR 21 the High Court of Australia said that the common law rule was so ancient and well settled that a statute giving a right of appeal in general terms against the decisions of a court would not be construed as allowing the prosecution to appeal against a decision in favour of an accused person. Express language was needed. But the court did not suggest that the absence of a right of appeal formed part of fundamental due process and in the present case the language of section 65E is clear enough.

17.	Mr Hudson-Phillips drew an analogy with section 6(1)(a) of the Constitution, which says that nothing in sections 4 and 5 “shall invalidate … an existing law”.  That meant that the entire corpus of law as it existed at the time of independence was immunised from invalidation. Likewise, he said it was generally assumed in Trinidad and Tobago that all rights and freedoms which existed at independence, legally or de facto, became constitutional rights immunised from legislative change except by the special procedures provided in sections 13 and 54 of the Constitution by which Parliament may pass laws which derogate from the fundamental rights declared by sections 4 and 5 or amend those provisions:
“13(1)	An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justified in a society that has a proper respect for the rights and freedoms of the individual.

	  (2)	An Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House.

54(1)	Subject to the provisions of this section, Parliament may alter any of the provisions of this Constitution …

    (2)	Insofar as it alters … sections 4 to 14 … a Bill for an Act under this section shall not be passed by Parliament unless at the final vote thereon in each House it is supported by the votes of not less than two-thirds of all the members of each House.”

18.	Mr Hudson-Phillips drew attention to a number of laws passed since the Constitution came into force which did not at first glance appear to be concerned with fundamental rights but for which the procedure for derogation under section 13 had been adopted.

19.	Their Lordships consider that the analogy with the “existing laws” clause is inexact.  An existing law was either consistent with sections 4 and 5 or it was not.  If it was consistent, then there was nothing to make it invalid.  If it was inconsistent, it was protected by section 6.  In either case it was valid and, as Mr Hudson-Phillips rightly says, there was no need to decide whether it would have infringed sections 4 or 5 or not. On the other hand, section 4 gives constitutional status only to fundamental rights and freedoms which existed at independence and it is therefore essential to decide whether an existing law formed part of a fundamental right or freedom.  Their Lordships derive no help from the various laws which were passed by the special procedures since they are not in a position to say whether those procedures were actually necessary or not.

20.	Their Lordships therefore respectfully think that the Court of Appeal were wrong in holding section 65E to be unconstitutional. 

21.	The next question is whether section 65E applied to these proceedings. As their Lordships have said, it came into force on 29 October 1996.  Jason Johnson had died some six weeks earlier and an indictable information had been laid on 19 September. Committal proceedings followed, as a result of which the accused was committed for trial on 13 November 1996.  The actual indictment was not filed until 17 February 1998.

22.	The Court of Appeal held that section 65E applied to any indictment filed after it came into force.  Their Lordships agree. The section gives a right of appeal “against a judgment or verdict of acquittal of a trial court in proceedings by indictment” and therefore, as a matter of construction, it applies to proceedings by indictment commenced after it came into force.  Proceedings by indictment are commenced by the filing of the indictment.  The indictable information may be a necessary preliminary to proceedings by indictment but it does not necessarily lead to such proceedings and does not form part of them.
23.	Mr Hudson-Phillips next submitted that the matters of which the prosecution complained did not make the judge’s decision “erroneous in point of law”.  The decision to exclude Dr des Vignes’s evidence involved mixed law and fact.  The judge applied what he considered to be the standard of expertise required by the law to the facts of Dr des Vignes’s qualifications as a forensic pathologist.  Likewise the decision to direct the jury to acquit was the application of a legal standard (“evidence upon which a reasonable jury could convict”) to the judge’s factual assessment of the evidence.  “Erroneous in point of law”, said Mr Hudson-Phillips, meant an error of pure law which did not involve any factual assessment.  He referred to Smith v The Queen [2000] 1 WLR 1644 in which the Board, in advice delivered by Lord Steyn, had construed the words “question of law alone” in the Bermuda Court of Appeal Act 1964 as excluding questions of mixed law and fact, such as the question of whether there is a case to answer.

24.	In that case, however, the Bermuda statute used the terms “question of law alone” and “question of mixed law and fact” in such a way as to suggest that they had different meanings.  In the Trinidad and Tobago statute, the words are “erroneous in point of law”. Their Lordships consider that this expression, used in connection with proceedings before a jury, refers to the distinction between questions of law which are for the judge and questions of fact which are matters for the jury.  It follows that any ruling which may properly be made by the judge (such as whether evidence is admissible or whether there is a case to go to the jury) is a ruling on a point of law and can be challenged as erroneous by appeal under section 65E.  Their Lordships agree with the view of the Court of Appeal that “the expression ‘erroneous in point of law’ connotes a situation where the trial judge falls into error in any aspect of the case before him which calls for his determination”.

25.	The Court of Appeal said that, if it had considered section 65E to be constitutional, it would have held that the judge’s exclusion of the evidence of Dr des Vignes was erroneous in point of law.  He had concentrated entirely on whether the doctor had a paper qualification and ignored the possibility that he might, by reason of his knowledge and experience, be able to assist the jury in determining the cause of death. It was true that his experience was still relatively limited but the jury had seen him give evidence both in chief and in cross-examination and would no doubt take both his qualifications and experience into account in estimating the weight of his evidence.  The court also considered that it was wrong of the judge to call Professor Chandulal solely for the purpose of giving his opinion on the expertise of another witness.

26.	On both of these points their Lordships agree.  It follows that the judge’s rulings were erroneous in point of law. Section 65G provides that 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”.  There was some discussion about whether, if the appeal was allowed, the Court of Appeal was also obliged to set aside the verdict and order a new trial, or whether it had a discretion to refuse to do so.  Their Lordships do not think that Parliament could have intended that in every case in which the accused had been acquitted as a result of an error of law by the judge, the Court of Appeal would be bound to allow the appeal and order a new trial.  There would be cases in which such a course would be most unjust; for example, where an important defence witness had died. On the other hand, it would be unsatisfactory to allow the appeal and set aside the acquittal, leaving the guilt or innocence of the accused hanging in the air, without ordering a new trial. The position is different when an appeal against a conviction is allowed and no new trial ordered. There the conviction is simply quashed. In their Lordships’ view, if the Court of Appeal considers that there was an error of law but that there should not be a new trial, it should correct the error but then simply dismiss the appeal and leave the acquittal standing.

27.	In the present case it is now nine years since the incident occurred. The issues turn upon eye-witness evidence of some fast-moving events outside a nightclub in the early morning, much of which was understandably confused and contradictory, and some complicated medical evidence. The decision as to whether to order a new trial must take into account that, unlike the convicted appellant, the acquitted respondent has believed himself absolved from guilt.  Their Lordships consider that in ordering a new trial after an acquittal, an appellate court should be satisfied that it will be fair in the sense that there is not (by reason, for example, of fading memory or missing witnesses) a materially greater risk of an inaccurate verdict than there would have been if the case had been properly left to the jury at the first trial.  In this case, they do not think that it would be fair for the accused to be tried again after such a lapse of time.  They will therefore dismiss the appeal.
1.