Berry v Director of Public Prosecutions et Al
| Jurisdiction | Jamaica |
| Judge | Theobalds, J.,Harrison, J.,Langrin, J. |
| Judgment Date | 23 April 1993 |
| Court | Supreme Court (Jamaica) |
| Docket Number | No. 92 of 1992 |
| Date | 23 April 1993 |
Supreme Court
Theobalds, J.; Langrin, J.; Harrison, J.
No. 92 of 1992
Mr. Lloyd Barnett & Richard Small instructed by Gayle A.V. Nelson for the applicant.
Mr. Lloyd Hibbert Deputy Director of Public Prosecution, for 1st respondent.
Mr. Lennox Campbell Snr. Assistant Attorney General and Mr. A. Irvine instructed by Director of State Proceedings for 2nd respondent.
Constitutional law - Fundamental rights and freedoms — Unfairly prejudiced by conduct of trial judge — New trial ordered — Constitution of Jamaica, ss. 13, 20(i), 25(i), (ii) — Judicial (Constitutional Redress) Rules 1963, 3 (i), (ii) — Judicature (Appellate Jurisdiction) Act, s. 14(2) — Fair hearing — Fair trial — Motion dismissed for applicant to be acquitted — There was no bias nor any reasonable likelihood of bias in the fact that the same two appellate judges sat on both panels of the court — Consequently no contravention of sec. 20(1) of the Jamaica Constitution with regards to the complaint that the applicant's fundamental right to a fair hearing infringed.
I have read the draft judgments of my learned brethren. I agree with the reasoning and findings expressed therein and only wish to make certain comments on the presentation of the submissions made on the applicant's behalf. The record will indicate that from the very outset I enquired whether or not the submissions on the question of bias or likelihood of bias had been raised at the rehearing of the issue as to whether or not a new trial should be ordered. The reply was that the applicant was not present in person and in any event one could not waive one's constitutional rights. All the cases cited before this court indicate that where actions have been granted there has been same personal interest or cause to serve in a member of the adjudicating tribunal. There is not one case in which strong views expressed on the subjects of the alleged offence have been sufficient to constitute a ground for inferring the likelihood of bias. At the hearing the accused was competently represented. Represented indeed by attorneys who had the handling of his defence from the inception. It is my view that it was at the second hearing, if at all, that concern over the membership of the court should have been expressed if indeed there was any genuine concern. Judicial time ought not to be consumed by the making of applications other than at the appropriate time. You ought not to submit to the jurisdiction and then turn around and try to properly and effectively urge that there was at most bias or at least the likelihood of bias on the part of the adjudicating tribunal. This last statement must not be construed as meaning that if we found any likelihood of bias this tribunal would shrink from its constitutional duty to grant the motion.
The issues which the second hearing was to decide upon were completely different from those dealt with previously. Indeed if one may be permitted the use of unforensic language after a ‘“rap on the knuckles” by the Privy Council one must look carefully at the second judgment to see if there is the slightest suggestion that any likelihood of bias could be inferred. A very balanced and temperate judgment was delivered at the rehearing, The relevant case law Reid v. Regina (1978) 27 W.I.R.254 was discussed and the reasons and reasoning of the judgment have been clearly and concisely set out in this judgment. It is these reasons which must now be the subject of scrutiny. Whatever errors were unearthed at the hearing cannot per se be indicative of bias or the likelihood thereof at a second hearing where the issues are separate and distinct.
Finally it cannot be accepted that statements in the first judgment are likely to influence potential jurors. The order of the Privy Council did envisage the possibility of a retrial order. That retrial would have had to take place within this jurisdiction. The presiding judge at such a retrial would in his summing up to a jury no doubt deal with this aspect under the category of extraneous considerations.
The unanimous decision of this court is that the motion be dismissed. Costs to be taxed if not agreed are awarded to the respondents and are to be paid by the unsuccessful applicant.
The delay in handing down this judgment is regretted but all three judges on this panel have been separately assigned to country circuits on a continuing basis from the date the submissions were concluded. This situation continues to this day.
This is an application by motion under rule 3(i) of the Constitutional Redress Rules, 1963 pursuant to section 25 of the Jamaica Constitution. The applicant seeks redress in that his constitutional rights provided by sections 13 and 20 of the said Constitution have been and are being infringed.
He complains that two of the three judges of appeal who comprised the panel of the court at the hearing to determine the question of re-trial from the 27th day of July to the 30 th day of July 1992, had sat on the panel of judges of appeal that heard his original appeal against conviction on the 10th day of her 1989; that the said panel at the original appeal had adjudicated upon the relative weight of the cases of the prosecution and defence, ruled that there was no merit in the applicant's complaint that he had been unfairly prejudiced by the conduct of the trial judge and the prosecution at his trial, and dismissed his appeal against his conviction; that the latter decision was reversed by the Judicial Committee of the Privy Council which returned the case to the Court of Appeal for the exercise of its discretion as to whether there should be an acquittal or a re-trial; that the Court of Appeal, comprising the said two judges in giving its reasons for ordering the re-trial, made certain pronouncements which revealed that it was re-affirming its decision at the original appeal and in all the circumstances a reasonable and fair-minded person would suspect the Court of Appeal in making the order for re-trial did not grant to the applicant a fair hearing.
The applicant sought a declaration that certain pronouncements in the reasons for judgement of the Court of Appeal for ordering the re-trial were widely disseminated and therefore the applicant will be deprived of a fair trial in contravention of his right under section 20(ii) of the said Constitution and as a consequence this court should order that the applicant be acquitted.
Dr. Barnett, for the applicant referring to the affidavit of Gayle Nelson dated 9 th November 1992, argued that because the Court of Appeal hearing the original appeal had held that the trial judge's failure to assist the jury when it returned and the misdirection as to character evidence were not in the appellant's favour and had described the appellant's case as being without merit), the said two judges should not have sat on the panel to consider the question of re-trial, and in so doing they acted erroneously. The way in which the Court of Appeal expressed itself in its ruling of the re-trial and reported in the Gleaner newspaper article of the 27th day of September 1992 using terms “no question of identification” and … brutal crime… is an expression of the guilt of the applicant, that it adhered to its original decision and reveals that the said Court of Appeal was not impartial but biased. He referred to the principles that guide the court in determining the question of a re-trial enunciated in Reid vs. Reg (1978) 27 W.I.R.254, adding that other relevant factors are, the errors of the trial court which resulted in the appeal being allowed and the misconduct of the prosecution. He continued, that, the firm views that the said two judges had in relation to these factors would make it difficult for a reasonable bystander to see them as un-biased, seeing that the test of bias is not the state of mind but the appearance of fairness.
He argued further that a person cannot waive his constitutional rights, that the applicant did not acquiesce; that applying the appropriate test of bias - whether a real likelihood of bias or a reasonable suspicion of bias - the applicant should succeed, because where an adjudicator expresses a prior adverse opinion on certain issues he is disqualified from adjudicating subsequently on a matter involving the same issues. He relied inter alia on Allison v. General Medical Council [1891 - 94] All ER 768, R v. Camborne Justice, Ex parte Pearce [1954] 2 All E.R.850, R v. Gordon [1971] 3 All E.R.20, Metropolitan Properties Co. vs. Lannon [1968] 3 All E.R.304, Liversey vs. N.S.W. Bar Association [1985] L.R.C.1107, Pittiman et al vs. Benjamin et al [1986] L.R.C.(Const.) 580, and Burridge vs. Tyler [1992] 1 All E.R.437. Arguing for an acquittal, Dr. Barnett based this on the bias and error of the Court of Appeal, the errors of the trial judge, and the misconduct of the prosecution, which had extended the time that the applicant had in pursuing his legal processes.
Mr. Hibbert for the first respondent submitted that the Judicial Committee of the Privy Council found that the Court cf Appeal was in error and allowed the appeal, because of the conduct of the prosecution in its use of the statement of one of the prosecution witnesses, the trial judge's manner of assistance to the jury and the direction character evidence describing the prosecution's case as a strong one) and the defence as “tenuous”. He referred to the guidelines in the Reid case, and said that the hearing to determine the re-trial dealt matters dealt previously at the original appeal, except for the (strength of the prosecution' s case). Though the of (strength the prosecution's case), was an issue, the Court of Appeal was not using the previous decision at the appeal. There was no likelihood of or suspicion of bias, the issues were...
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