Andrew Lovell v The Attorney General
| Jurisdiction | Barbados |
| Judge | Mr Justice Alrick Scott |
| Judgment Date | 07 December 2018 |
| Neutral Citation | BB 2018 HC 34 |
| Court | High Court (Barbados) |
| Docket Number | No 0915 of 2016 |
| Date | 07 December 2018 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
the Hon Mr Justice Alrick Scott, Judge of the High Court (Acting).
No 0915 of 2016
Mr Bryan Weekes for the claimant.
Mr Jared Richards for the defendant.
Constitutional Law — Criminal law — Criminal appeal — Exhaustion of appeals — Whether conviction could be challenged by constitutional motion — Failure of counsel to cross-examine — Right to fair hearing — Protection of the law — Abuse of process — Res judicata.
The claimant was convicted of manslaughter following a trial in the High Court. He exhausted all of his appeals, but failed in his attempts to set aside the conviction. The claimant now states that his counsel, at the trial, committed an error during the hearing and the trial judge did not intervene. He contends that the error renders the conviction unsafe and the hearing unfair. He seeks to challenge the conviction by way of a constitutional motion. He wants a declaration that his rights to protection of the law and a fair hearing guaranteed by sections 11 and 18 of the Constitution of Barbados were infringed. He asks for an order of certiorari to quash the conviction for manslaughter and an order of mandamus ordering the claimant's release from prison.
The hearing of the action was on 25 th September 2018. Elaborate and very helpful written submissions were before me. Counsel for the claimant was excited that the issues raised in this action are novel. He could find no precedent in the Commonwealth where a conviction was challenged by way of a constitutional motion after all rights of appeal had been exhausted. In my view, the issues raised in the action are of doubtful novelty. There is a sufficient body of case law upon which the issues raised in the action could be resolved. And that body of case law is decidedly against a constitutional action being used as a weapon to attack a criminal conviction. That is to be done by way of a criminal appeal.
After a brief hearing, I dismissed the claim with reasons to follows. I considered then, as articulated below, that a person whose charge has been finally determined by a verdict of acquittal or conviction is not a person “charged with a criminal offence” to whom section 18(1) of the Constitution applies. Further, that the claimant is seeking a substantive review of his conviction in the nature of a criminal appeal, while section 18 of the Constitution seeks to secure a number of procedural safeguards. Also, that the claim is barred by res judicata and is an abuse of the process of the court.
As promised, my reasons now follow.
The claimant was charged with murder. He was tried in the High Court, and on 12 th March 2008, he was convicted of manslaughter. He was sentenced to 22 years imprisonment. The claimant appealed against his conviction and sentence to the Court of Appeal. He had new counsel then. The Court of Appeal, on 23 rd October 2013, dismissed the appeal against both the conviction and the sentence.
Following the unsuccessful appeal to the Court of Appeal, on 15 th May 2014, the claimant applied to the Caribbean Court of Justice (the “CCJ”), among other things, for special leave to appeal against his conviction and sentence. He was, on that occasion, again represented by different counsel. On 8 th December 2014, the application for special leave was dismissed for want of prosecution.
After some delay, on 10 th November 2015, the claimant filed three applications before the CCJ. These were, an application to extend the time to apply for special leave, an application for special leave to appeal against conviction and sentence, and an application for special leave to appeal as a poor person. The CCJ dismissed the applications. He then turned to the High Court for a review of the criminal proceedings by way of a constitutional motion, which came before me.
The claimant's grievance is that at his trial, the prosecution relied on his oral admissions and a written statement which he dictated and two police officers recorded. During the voir dire, the officers gave varying evidence as to how a correction was made to the date which appeared on the statement. One officer said that he spotted the error and had the claimant initial the change. The other officer stated that it was the claimant who noticed the error and asked that it be corrected. The officers were cross-examined rigorously on the matter. Despite the discrepancy on how the correction came to be made, the Judge held that the confession was admissible.
Upon resumption of the trial, one of the police officers gave evidence before the jury which was inconsistent with the evidence which he gave during the voir dire. Counsel for the claimant did not cross-examine the officer on the inconsistency. The present counsel for the claimant states that the Judge did not pick up the difference between the evidence given on the voir dire and on the resumption of the trial. The claimant was convicted of manslaughter on a majority verdict. On appeal to the Court of Appeal against conviction and sentence, the claimant did not raise the issue of the inconsistent evidence given during the voir dire and on the resumption of the trial as a ground of appeal. The claimant now says that his then counsel's failure to cross-examine the police officers on the inconsistent evidence given on the voir dire and on the resumption of the trial (the “new ground”), rendered his conviction unsafe and the trial unfair. Therefore, his conviction should be quashed.
The claimant's case is that his right to a fair hearing, guaranteed by section
(1) of the Constitution, has been infringed. He submitted that the provisions of the Constitution for the protection of human rights should be interpreted liberally, as I understand it, to give new or expanded rights and remedies. He argued too that the word “fair” must be given a wide and purposive meaning. I accept, as stated by Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, 328, that constitutional provisions directed at protecting human rights “call for a generous interpretation avoiding what has been called the “austerity of tabulated legalism”, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to…”. Lord Bingham in Hinds v Attorney General and Another (1999) 59 WIR 75 (“Hinds v AG”), para [15], was of the view that constitutions should be given a dynamic interpretation:
“The Constitution is to be read not as an immutable historical document but as a living instrument, reflecting the values of the people of Barbados as they gradually change over time. But the courts, including this Board as the final court of appeal of Barbados, must give effect to its terms.”
Constitutions are to be interpreted and applied in a manner that renders fundamental rights and freedoms effective and practical. This long-held and continuing approach to the interpretation of conventions and constitutions on human rights and fundamental freedoms finds expression in the decision of the European Court of Human Rights in Demir and another v Turkey [2009] IRLR 766, para 66:
“Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory. The Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions
JJ
The right to a fair hearing or fair trial is of some antiquity. The authors of Halsbury's Laws of England, Rights and Freedoms (Volume 88A (2018))/4, para 308, trace the right back to the Magna Carter and canonical jurists. But of course, in more recent years, fair hearing rights have been expanded by case law and have found expression in constitutional charters and conventions such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”) and the International Covenant on Civil and Political Rights (“ICCPR”). The authors of Halsbury's Laws of England, mentioned in this paragraph, write, para 308:
“It has been observed that the fair-trial principles embodied in the European Convention on Human Rights have long been recognised in the common law, but that the Convention, and Article 6 in particular, now provides for a more structured approach to the right.”
In many respects, the fair trial rights under international conventions and
constitutional charters are, in substance, similar. Indeed, Williams JA, in Alexander v The Queen (Criminal Appeal No 14 of 2007, unreported) Barb CA, observed that the United Nations Universal Declaration of Human Rights inspired the European Convention, which in turn influenced the fundamental rights provisions in the Barbados Constitution. The right to a fair hearing, as enshrined in the Barbados Constitution and in conventions, such as the European Convention, Article 6, and the ICCPR, do not set out exhaustively, the attributes of a fair hearing. They set out, in broad terms, some of the principles of a fair hearing: see Attorney General and Others v Joseph and Boyce (2006) 69 WIR 104 (“ Joseph and Boyce”), para [60]; and Dietrich v R [1993] 3 LRC 272, 280. And it appears, as observed by Mason CJ and McHugh J, in the last-mentioned case, p 280, that no court has attempted to enumerate comprehensively every attribute of a fair trial.
Section 18(1) of the Constitution of Barbados enshrines the right to a fair hearing as follows:
“18. (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent...
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