Peart (Shabadine) v R

CourtCourt of Appeal (Jamaica)
Judgment Date19 December 2003
Neutral CitationJM 2003 CA 53
Judgment citation (vLex)[2003] 12 JJC 1914
Date19 December 2003
Jack Hines for the appellant
Terrel Lawrence-Butler, Crown Counsel for the Crown

CRIMINAL LAW - Murder - Capital - Death penalty - Breach of constitutional right to fair hearing - Offences Against the Person Act




Before Wesley James J and a jury the appellant Shabadine Peart was convicted on 10 th June, 2000, for capital murder in contravention of section 2( 1)(d) (1) of the Offences against the Person Act as amended ("the Act") and pursuant to section 3(1) sentenced to death. He did not seek to address the Court on sentence which was assumed to be mandatory. He has been on death row since conviction.


As regards the merits of the case my brother Smith J A has examined with care the relevant grounds of appeal and found that the conviction must be affirmed. I am in agreement with that finding, and might only refer to that aspect of the case where it is necessary to elucidate on the constitutionality of the sentence. The important issue of constitutional law to be determined is whether, since the enactment of the Constitution on August 6, 1962 - the appointed day -the sentence of death imposed by the Court should be construed as discretionary rather than mandatory as was the case before the appointed day.


This issue was dealt with by this Court in the closely reasoned judgments of Forte P, Panton J A and Clarke JA(Ag.) in the case of Lambert Watson v. R. No. 2 SCCA 117/99 delivered 16 th December 2002. The decision of the Court was that the mandatory sentence of death was saved by Section 26(8) of the Constitution. The Court came to that decision on a reference by the Board and its decision on the issue is presently on its way to the Board for a final determination.


Prior to the hearing of Lambert Watson this Court [Downer J.A. dissenting, Panton J A and Clarke J A Ag.] in R.v. Dale Boxx SCCA 123 of 2000 also decided that a mandatory sentence of death was permissible since the appointed day. The written judgments in both cases were delivered on the same day. Of equal significance was that the judgment of the Board in The Director of Public Prosecutions v Mollison No. 2 Privy Council Appeal No. 88 of 2001 was delivered on 22 nd January 2003. This is the first post Mollison judgment.


Understandably, the issue is of exceptional public importance so that when the hearing of this case commenced, before reasons were delivered in Lambert Watson or Boxx, counsel was directed to file and argue a ground of appeal on the issue of the mandatory sentence of death. We also took the precaution of ordering a Social Enquiry Report with a clear intimation that this Court was willing to hear evidence if necessary in mitigation. The Social Enquiry Report has now been submitted to the Registrar.


The further supplementary ground filed and argued by Mr. Hines reads as follows:


The constitutional rights of the applicant were violated when the court sentenced him to death in the following ways:

  • 1. Section 20 (1) of the constitution was breached as he was not afforded a fair hearing as to sentence.

  • 2. Section 17 (1) of the constitution was breached as the sentence constituted inhuman and degrading punishment in its application.

  • 3. The nature of the imposition of the death penalty violated the doctrine of the separation of powers."


When the judgment in Lambert Watson was delivered, had I agreed with it, there would have been no need to write this judgment. Two courses were open to me. I could simply say I adhered to the reasons I had put forward in Boxx. Or I could re-examine the issues.


I have decided to retrace my steps in the hope that my second thoughts on this important issue might be expressed with greater depth and clarity. I propose to demonstrate firstly that the Constitution provides for a discretionary sentence of death for murder since the appointed day. It follows therefore that Section 26(8) of the Constitution cannot save the mandatory sentence of death which existed prior to the appointed day. On the contrary section 26(8) by the use of double negatives for emphasis created a special regime which empowers the judiciary to presume laws in force on the appointed day which were inconsistent with the provisions of Chapter III of the Constitution to be consistent with those provisions. Secondly, since the Act was amended to create two categories of murder, Section 26 (8) has no relevance as the amendment was no longer a law in force, but new legislation. Thirdly, I propose to show that all the Act did, and could do, was to reduce the number of offences for which there was a discretionary death sentence. Fourthly, it is proposed to demonstrate how the role of the Prerogative of Mercy, an executive act, relates to the judicial act of imposing a discretionary death sentence, Fifthly, it is proposed to examine the cases which bear upon the principle of the separation of powers as well as Chapter III of the Constitution which are relevant to a discretionary sentence of death. Further there will be an attempt to answer the question as to why this issue has just come to the fore, in view of the fact that the Constitution has been in operation for forty years.


How the Constitution provided for a discretionary death sentence since the appointed day on August 6,1962 by:

  • "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."

  • (a) The mandatory rule of construction pursuant to Section 4 (1) of the Order in Council

  • (b) The principle of separation of powers

  • (c) The provisions of Section 26(8) of the Constitution which presume laws in force before the appointed day to be consistent with the Constitution

  • (a) That the Constitution is the supreme law is expressly stated in section 2 of the Constitution. It reads as follows:


At the commencement of the Constitution, the existing legal system was made up of legislation, delegated legislation, and the common law which included prerogative powers. They are described as "existing laws", or "laws which are in force" in the Order, and they must be brought into conformity with the Constitution if the supremacy clause in the Constitution is to prevail.


The Constitution was brought into being by the Jamaica (Constitution) Order in Council 1962 ("the Order"). This Order was made pursuant to Section 5 of the 1962 West Indies Act (UK), the enabling Act. Then the 1962 Jamaica Independence Act (UK) repatriated the Constitution to Jamaica by divesting the Imperial Parliament of all responsibility for making laws governing Jamaica. The Jamaican Parliament was now empowered to repeal Imperial Acts which were applicable to Jamaica. Section 4 of the Order makes provision for the (trang6)existing laws to be brought into conformity with the Constitution. Here is how the Order is to be cited. Section 1 reads:

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


Section 2 revoked the previous Constitutional instruments and saved four important regulations which are not pertinent to this case.


Then Section 3(1) of the Order established the Constitution thus:

  • "3.-(1) Subject to the provisions of subsection (2) of this section and the other provisions of this Order, the Constitution of Jamaica set out in the Second Schedule to this Order (in this Order referred to as "the Constitution") shall come into force in Jamaica at the commencement of this Order."


There are three other relevant sections of the Order which emphasize the link between the Order and its Second Schedule. The first of these relevant sections is 4(1) which reads as follows:


Existing Jaws

"4.-(1) All laws which are in force in Jamaica immediately before the appointed day shall(subject to amendment or repeal by the authority having power to amend or repeal any such law) continue in force on and after that day, and all laws which have been made before that day but have not previously been brought into operation may (subject as aforesaid) be brought into force, in accordance with any provision in that behalf, on or after that day, but all such laws shall, subject to the provisions of this section, be construed, in relation to any period beginning on or after the appointed day, with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of this Order."


Since the Second Schedule is part of the Order, it is patent that the existing laws or the laws in force must be brought into conformity with the Constitution.


There are two features to note as regards Section 4(l)of the Order. Firstly, it recognizes the three organs of government, the Legislature to enact laws, the Executive to promulgate delegated legislation pursuant to Acts of Parliament and to administer the laws, and the Judiciary to construe legislation and the Constitution, and further to declare the common law.


The Legislature and the Executive are mandated to amend while the Judiciary is mandated to construe existing laws so as to bring them into conformity with the Constitution. It follows that from the very commencement of the Order which governs the Second Schedule, the constitutional principle of separation of powers is recognized as applicable to the Constitution.


The other relevant sections in this Order are sections 21 and 22. They read as follows:

    • "22.-(1) In this Order references to any body or to any office shall be construed, in relation to any period before the commencement of this Order, as...

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