DPP of Jamaica v Mollison

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , BINGHAM, J.A.: , WALKER, J.A.( Dissenting) , DOWNER, J.A.:
• Judgment Date: 29 May 2000
• Neutral Citation: JM 2000 CA 5
• Judgment citation (vLex): [2000] 5 JJC 2901
• Court: Court of Appeal (Jamaica)
• Date: 29 May 2000

R.

v.

KURT MOLLISON(No.2)

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM,J.A THE HON. MR. JUSTICE WALKER, J.A

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - Capital - Constitutionality of sentence imposed

Deborah Martin for the appellant

Lloyd Hibbert, Q.C., Senior Deputy Director of Public Prosecutions and Janice Gaynor-Brown Crown Counsel for the Crown

DOWNER, J.A.

1 At the conclusion of the hearing of the application for leave to appeal against conviction this Court (Downer, Gordon Patterson JJA), invited Counsel at the resumed hearing to make submissions on the constitutionality of the sentence imposed by Langrin, J. (as he then was) pursuant to section 29(1) of the Juveniles Act (the "Act").

2 Mollison was born on 16 ^th September, 1977 and so was under the age of 17 years at the time of commission of the offence on 16 ^th March 1994. He was found guilty of capital murder on 25 ^th April, 1997 when he was over 19 years of age. [See R. v. Kurt Mollison, judgment delivered February 16, 2000]. The victim was Mrs. Leila Brown the widow of the late G. Arthur Brown a distinguished former Governor of the Bank of Jamaica.

3 Section 29(1) of the Act reads:

"29.-(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years, but in place thereof the court shall sentence him to be detained during Her Majesty's pleasure , and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place (including, save in the case of a child, an adult correctional centre ) and under such conditions as the Minister may direct, and while so detained shall be deemed to be in legal custody." [Emphasis supplied]

4 This was an existing law when the Constitution was brought into force in 1962 and was adapted and modified, in 1964 by Order proclaimed by the Governor-General to substitute Minister for Governor; (See Proclamations Rules and Regulations Gazette Supplement 1964, The Constitution (Variation of Existing Instruments) Order 1964); then amended by Parliament in 1975 following the decision of Baker v The Queen (1975) 13 JLR 169 and in 1985 to substitute correctional centre for prison. It must now be adapted and modified by the judiciary as regards sentence so as to be brought into conformity with the Constitution. All these changes are provided for in Section 4 of the Jamaica (Constitution) Order in Council 1962. Implicit in Section 4 which has five sub-sections are the powers accorded to the Legislature to amend or repeal existing laws; the power of the Executive to legislate by Order published in the Gazette to adapt and modify existing laws within two years of the commencement of the Constitution. Also of special relevance to this case is the judicial power to construe existing laws with the necessary adaptations and modifications so that they conform to the provisions of the Constitution, when cases are brought up for adjudication. The emphasis on declaring the law when deciding cases is in marked contrast to the legislative power to make general laws for "peace, order or good governance" and the specific rule making powers of the executive to promulgate delegated legislation on specific subjects. So in the introductory section of the Constitution the concept of the separation of powers is highlighted.

5 No ground of appeal was filed on this aspect of the case at the initial hearing but this was not necessary although Sec. 13(1) of the Judicature [Appellate Jurisdiction] Act states:

"13-(1) A person convicted on indictment in the Supreme Court may appeal under this Act to the Court -

• (a) against the conviction on any ground of appeal which involves a question of law alone; and

• (b) with leave of the Court of Appeal or upon the certificate of the Judge of the Supreme Court before whom he was tried that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court or Judge aforesaid to be a sufficient ground of appeal; and

• (c) with the leave of the Court of Appeal the sentence passed on his conviction unless the sentence is one fixed by law." [Emphasis supplied]

6 The necessary inference to be drawn from Section 2 of the Constitution which is the supremacy clause is that Courts must take judicial notice of the fundamental law of the land. That section reads:

"2. Subject to the provisions of sections 49 and 50 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."

7 Judges must also take judicial notice of statute law [see Section 21 of the Interpretation Act], or jurisdictional points and illegal contracts and in some circumstances statutory instruments [See Snell v. Unity Finance Co. Ltd [1963] 3 W.L.R. 559 at 574 per Diplock L.J. and at 566 per Wilmer L.J.] as well as some aspects of common law as the admission of inadmissible evidence in the court below. See Jacker v. The International Cable Company (Limited) The Times Law Report Vol.5 [1888] p. 13. Therefore, if section 29(1) of the Act is repugnant to the Constitution as regards the sentencing power accorded to the Governor-General it would be void and this Court is empowered to make the necessary adaptation and modification by its own motion.

8 Nevertheless, Miss Deborah Martin out of an abundance of caution filed the following supplementary ground of appeal at this stage of the hearing. It reads:

• "1. That the sentence imposed on the Appellant that he be detained at the Governor General's pleasure pursuant to Section 29 (1) of the Juvenile's Act is unconstitutional and should therefore be set aside, and further -

• 2. That the Court should specify a period that he should serve before becoming eligible for parole.

  WHEREFORE THE APPELLANT HUMBLY PRAYS:

  • 1. That the sentence herein be set aside.

  • 2. Such further and other relief

  as this Honourable Court may deem fit"

9 The application was granted and we treated the application for leave to appeal as an appeal.

10 The United Kingdom legislative instruments which provide for the 1962 Constitution of Jamaica

11 When the Federation of the West Indies was dissolved the Imperial Parliament, through, the West Indies Act 1962 made provisions for an Independence Constitution for Jamaica. The Constitution was drafted by members from both parties of the House of Representatives in Jamaica and embodied in an Order in Council authorised by the West Indies Act. In the drafting of the Constitution the members of the House of Representatives were following United Kingdom Practice. The learned author Allen in Law and Orders 3 ^rd edition put it thus at page 91:

"orders in Council are in fact invariably prepared in the Department which is particularly concerned with the matter in hand, and their ratification by Council ...by convention of the Sovereign, The Clerk and not less than the three members is a pure formality."

12 The Order in Council 1962 No. 1550 was laid before Parliament 24 ^th July 1962 and came into effect on 6 ^th August 1962. Here is how the Order was proclaimed:

"FIRST SCHEDULE

ORDERS IN COUNCIL REVOKED BY THIS ORDER

SECOND SCHEDULE

THE CONSTITUTION OF JAMAICA

At the Court at Buckingham Palace, the 23 ^rd day of July, 1962

Present,

THE QUEEN'S MOST EXCELLENT MAJESTY IN COUNCIL

Her Majesty, by virtue and in exercise of the powers in that behalf by subsection (1) of section 5 of the West Indies Act, 1962 or otherwise in Her vested, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:-

1.-

• (1) This Order may be cited as the Jamaica (Constitution) Order in Council 1962.

• (2) Subject to the provisions of subsection (2) of section 3 of this Order, this Order shall come into operation immediately before the appointed day (in this Order referred to as "the commencement of this Order"):

Provided that where by or under this Order the Governor-General has power to make any appointment or to make any order or to do any other thing for the purposes of this Order that power may be exercised by the Governor of the Colony of Jamaica at any time after the twenty-fourth day of July, 1962 to such extent as may, in his opinion, be necessary or expedient to enable the Constitution established by this Order to function as from the commencement of this Order."

13 The arrangement of the Order will be cited later.

14 It is perhaps helpful to quote Section 5(1) of the West Indies Act. It reads thus:

"5.-(1) Her Majesty may by Order in Council make such provisions as appears to Her expedient for the government of any of the colonies to which this section applies, and for that purpose may provide for the establishment for the colony of such authorities as She thinks expedient and may empower such of them as may be specified in the Order to make laws either generally for the peace, order and good government of the colony or for such limited purposes as may be so specified subject, however, to the reservation to Herself of power to make laws for the colony for such (if any) purposes as may be so specified."

15 Apart from the West Indies Act and the Jamaica (Constitution) Order in Council 1962 made pursuant thereto, the Jamaica Independence Act 1962 of the Imperial Parliament provided that Her Majesty's Government in the United Kingdom shall have no responsibility for the Government of Jamaica, [See Sec. 6 of that Act]. It also in paragraph 1 of the First Schedule revoked the Colonial Laws Validity...