Maurice Arnold Tomlinson v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Hutchinson, J.
• Judgment Date: 19 January 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2015 HCV 05731

[2022] JMSC Civ 6

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2015 HCV 05731

Between

Maurice Arnold Tomlinson

Claimant

and

Attorney General of Jamaica

Defendant

and

The Churches

1 ^st Interested Party

and

Jamaica Coalition for a Healthy Society

2 ^nd Interested Party

and

Lawyers Christian Fellowship Limited

3 ^rd Interested Party

and

Hear the Children's Cry

4 ^th Interested Party

Mr Ian Wilkinson QC and Lenroy Stewart instructed by Wilkinson Law for the Claimant/Respondent

Ms. Althea Jarrett and Carla Thomas instructed by the Director of State Proceedings for the Applicant/Defendant

Ms. Danielle Archer for the First Interested Party

Ms. Caroline P Hay QC holding for Ransford Braham QC instructed by Richards, Edwards, Theoc and Associates for the Second Interested Party

Mr Wendell Wilkins and Jamila Thomas instructed by Lambie-Thomas and Co for the Third Interested Party

Mrs. Caroline Hay QC instructed by Caroline P. Hay for the Fourth Interested Party

Application for separate trial of preliminary issue — Court's Case Management Power — Power of Court to dispose of other applications at first hearing — Distinction between summary judgment and trial of preliminary issue — factors to be considered upon application for separate trial of preliminary issues — can application be determined without consideration of evidence

IN CHAMBERS

Hutchinson, J.

INTRODUCTION

1 In 2015, Mr Tomlinson filed a claim in which he seeks declarations in respect of alleged breaches of the rights guaranteed to him by the Constitution of Jamaica. The claim challenges the constitutionality of sections 76, 77 and 79 of the Offences Against the Person Act (OAPA). These provisions create sexual offenses and constitute the law in force immediately before the commencement of the Charter and specify as follows;

• 76. Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.

• 77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.

• 79. Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.

2 The declarations sought by the Claimant are to the effect that sections 76 and 77 of the OAPA do not apply to consensual sexual activities between any person age 16 or older, including persons of the same sex and such activities are excluded from the operation of sections 2, 29, 30, 31, 32, 33, 34, 35 as well as the First Schedule of the Sexual Offences Act, 2009 [SOA], and regulations 11, 16, 17, 18 and 21 of the Sexual Offences (Registration of Sex Offenders)

3 Section 2 of the SOA designates offences found in the First Schedule of the SOA as “specified offences” to which reporting obligations under the SOA apply. As a result of these provisions, persons convicted of any of the offences of buggery, attempted buggery, or gross indecency between men under sections 76, 77 and 79 of the OAPA are subject to the regulations; which require the entry of their names in a Sex Offender Registry and monitoring within the community.

4 The substantive action also challenges section 13(12) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act (“The Charter”) which provides:

13(12) Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 201 1, relating to- (a) sexual offences; (b) obscene publications; or (c) offences regarding the life of the unborn, shall be held to be inconsistent with or in contravention of the provisions of this Chapter'

5 On the 1 ^st of November 2019, the Defendant/Applicant filed a notice of application for Court orders in which it seeks the following orders;

• a. As a preliminary issue, there is to be a separate trial of the question of whether the Constitutionality of sections 76,77 and 79 of the Offences Against the Person Act can be enquired into by the Court in light of the Savings Law clause in section 13(12) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act.

• b. No order as to cost.

6 The application is opposed by the Claimant and it is his position that this application should be dismissed for the following reasons;

• a. Severance is not available in the instant matter.

• b. The Defendant's application is too late in time

• c. The savings clause is not purely a legal issue

• d. Severance is not allowable in this case as granting the defendant's application would not be finally determinative of the issues before the Court.

Issue

7 In respect of the application before me, the issue to be resolved is whether the Court should hold a separate/preliminary trial to determine whether the constitutionality of sections 76, 77 and 79 of the Offences Against the Person Act (OAPA) can be enquired into in light of the savings law clause in section 13(12) of the Charter.

Applicant's/Defendant's Submissions

8 In submissions on behalf of the Applicant, Ms Jarrett stated that the question raised in this application is one of pure law which can properly be determined by the Court prior to the hearing of the substantive claim. On the question of the Court's jurisdiction to treat with this issue, she relied on the following provisions of the Civil Procedure Rules (hereinafter CPR):

• 56.13 (1) At the first hearing the judge must give any directions that may be required to ensure the expeditious and just trial of the claim and the provisions of Parts 25 to 27 of these Rules apply.

• 26.1(2) Except where these Rules direct otherwise, the Court may—

  • (g) direct a separate trial of any issue;

  • (j) dismiss or give judgment on a claim after a decision on a preliminary issue;

9 Emphasis was also placed on paragraph 59.32 of Blackstone Civil Practice 2003 where it is stated that where matters are complex, costs and time can be saved if decisive or potentially decisive issues can be identified and ordered to be tried before or separately from the main trial. Counsel also highlighted that the authors of that text affirmed that the Court is empowered to make three type of orders namely;

• a. the trial of a preliminary issue on a point of law,

• b. the separate trial of preliminary issues or questions of fact and;

• c. separate trials of liability and quantum.

10 In addressing the relevant principles which should guide the Court in its consideration of this issue, Ms Jarrett cited the decision of Steele v Steele [2001] All ER (D) 227 in which Lord Neuberger set out the factors that should be considered as follows:-

• a. Whether the determination of the preliminary issue would dispose of the whole case or at least some aspect of the whole case;

• b. Whether a determination of the issue would reduce the time involved in pre-trial preparation;

• c. The amount of effort which would be involved in looking at the questions of law necessary to determine the issue;

• d. Whether it would be safe to draw conclusions on matters of fact usefulness of determining the preliminary issue;

• e. Whether the determination of the preliminary issue might unreasonably fetter the court in its pursuit of the just resolution of the proceedings;

• f. The extent of the risk that the determination of the preliminary issue would increase costs and delay;

• g. The relevance of determining the preliminary issue in the context of the whole proceedings;

• h. Whether the pleadings might be amended to avoid consequences of the determination of the preliminary issue and the extent of the risk of increased costs and delay thereby created;

• i. Whether with regard to the foregoing, it was just to rule on the preliminary issue.

11 It was acknowledged by Counsel that a number of decided cases on this point make it clear that Courts have developed a cautious approach when asked to make these orders. She argued however, that where the preliminary issue is one of law, does not require a determination of fact, is easily identifiable, can be isolated from the facts and the decision may determine the case as a whole; the utility of adopting such an approach has been recognised. The decisions of Craig Reeves v Platinum Trading Management Ltd, unreported decision from the Court of Appeal of the Eastern Caribbean delivered May 30 ^th, 2008, Allen v Gulf Oil Refining Ltd [1981] AC 1001 and Wentworth Sons Sub-Debt S.A.R.L v Anthony Victor Lomas et al [2017] EWHC 3158 (Ch) were cited in support of this argument.

12 Ms Jarrett highlighted extracts from the affidavit of Carla Thomas, specifically paragraphs 6 and 7, in which reference was made to a number of applications filed by both the Claimant and the Interested Parties. The affiant also noted that the Claimant is seeking to have five (5) expert witnesses appointed and there were similar applications filed by the interested parties. Ms Thomas averred that in light of these circumstances, there was the potential for a large number of expert witnesses which could result in a lengthy and costly trial. She posited that this application is wholly a question of law, which can be resolved without any determination of the facts of the case or the...