Joseph and Boyce v Attorney General et Al

• Jurisdiction: Barbados
• Judge: Williams, C.J.,Waterman, J.A.,Williams, J.
• Judgment Date: 31 May 2005
• Neutral Citation: BB 2005 CA 6,BB 2005 CA 7
• Court: Court of Appeal (Barbados)
• Docket Number: No. 29 of 2004
• Date: 31 May 2005

Joseph and Boyce

and

Attorney General et al

Williams, C.J.; Waterman, J.A.; Williams, J. A.

No. 29 of 2004

Court of Appeal

International Human Rights - Murder — Conviction — Death sentence — Appeal — Prerogative of mercy — Exhaustion of domestic remedies — Appellant convicted of murder of 22 year old deceased who was brutally beaten — Appellants sentenced to death and unsuccessfully appealing — Appeal to Judicial Committee of Privy Council heard and dismissed — Barbados Privy Council advising against exercise of prerogative of mercy — Appellants filing originating motions to stay executions pending petitions to Inter-American Commission on Human Rights — Whether appellants acquiring individual rights by reason of Barbados being party to international human right treaties — Finding that appellants have enforceable rights by reason of Barbados being party to international rights treaties — Death sentence commuted to life imprisonment.

Criminal law - Murder — Appeal against Exhausting domestic remedies — Whether international human rights law applicable for purpose of commuting death sentence to life imprisonment — Finding that death warrants already read twice to appellants with interval of 2 years between readings — Finding that mandatory death sentences passed on appellants disproportionate to twelve years manslaughter sentences passed on two co-accused — Finding that appellants had enforceable international human rights — Death sentence commuted to life imprisonment

Appearances:

Mr. M. Adrian King, Miss Wendy Maraj and Mr. Philip A. McWatt for the first appellant.

Mr. Andrew Pilgrim and Mrs. Peta-Gay Lee-Brace for the second appellant.

The Honourable Mia Amor Mottley Q.C., Attorney-General, Miss Jennifer C. Edwards, Deputy Solicitor General, Mr. Elson Gaskin, Principal Crown Counsel, Mr. Roger Barker, Senior Crown Counsel and Miss Anika Jackson, Crown Counsel, for the respondents. first appellant second appellant

INDEX

Number	Heading	Paragraph
I.	INTRODCUTION	[1] – [2]
II.	BACKGROUND	[3] – [11]
III.	THE HIGH COURT DECISION	[12] – [14]
IV.	GROUNDS OF APPEAL AND RELIEF SOUGHT	[15]
V.	ISSUE ONE — REPORTS FROM HUMAN RIGHTS BODIES (a) Introduction (b) Appellants' Submission (c) Respondents' Submission (d) Discussion	[16] – [23] [24] – [25] [26] – [31] [32] – [39]
VI.	ISSUE TWO — EXERCISE OF THE PREROGATIVE OF MERCY (a) Introduction (b) BPC following Pratt and Morgan (c) Notice disclosure and Hearing (d) Discussion	[40] – [42] [43] – [48] [49] – [52] [53]
VII.	OTHER ISSUES (a) The Ouster Clause (b) Funding	[54] – [59] [60] – [62]
VIII.	THE DEATH PENALTY AND THE PEROGATIVE OF MERCY (a) Death Sentence (b) Prerogative of Mercy not a Substitute for Judicial Sentence (c) The Heightened Importance of the Prerogative	[63] – [66] [67] – [69] [70]
IX.	DISPOSAL (a) Protection of Fundamental Rights (b) Enforcement of Fundamental Rights (c) Commutation of Sentence or Stay of Execution (d) International Human Rights	[71] – [73] [74] [75] – [87] [88] – [90]

INTRODUCTION

1 This appeal raises two main issues: first, whether it is a breach of the appellants' constitutional rights to carry out the death sentence for murder prior to receiving final reports from human rights bodies and those reports being considered by the Privy Council of Barbados (“BPC”); secondly, whether the BPC, in deciding on its advice to the Governor-General on the exercise of the prerogative of mercy, complied with the rules of fairness and of natural justice. These and the other issues raised in the proceedings are of high constitutional importance to the fundamental rights and freedoms of the individual and, in the case of the appellants, are determinative of their right to life.

2 The appellants, Jeffrey Joseph (“Joseph”) and Lennox Ricardo Boyce (“Boyce”), were convicted of the murder of Marquelle Hippolyte on 2nd February, 2001, and sentenced to death by Payne, J. as he was mandated to do by statute. This Court dismissed their appeals against conviction and sentence on 27th March, 2002. Death warrants were read to them on 26th June, 2002, notifying them of their impending executions, which were scheduled for 2nd July, 2002. On 27th June, 2002, the appellants filed originating motions in the High Court to stay their executions pending the hearing of their appeals to the Judicial Committee of the Privy Council (“JCPC”) on the ground that the mandatory death penalty was unconstitutional. On 25th July, 2002, the appellants petitioned the JCPC for special leave to appeal and their appeals were heard and dismissed on 7th July, 2004. Thereafter, death warrants were read to the appellants for the second time on 15th September, 2004, notifying them of the new date for their executions, 21st September, 2004. On 16th September, 2004, the appellants filed originating motions in the High Court to stay their executions pending their petition to the Inter-American Commission on Human Rights (“IACHR”) and to determine their rights under the Constitution. The 2002 motions were consolidated and heard with the 2004 motions. On 22nd December, 2004, Greenidge, J. dismissed the motions. It is from his decision that the appellants have appealed.

II. BACKGROUND

3 Marquelle Hippolyte was brutally beaten with pieces of wood by four assailants on 10th April, 1999, and sustained serious injuries from which he died five days later on 15th April. Included in the many fractures and other injuries sustained by Hippolyte was a fracture of the left parietal region of the skull. A diagnosis of traumatic brain injury was made. Surgery was performed, but he did not recover. At the time of his death he was 22 years old. The enormity of this crime cannot be overlooked.

4 Romaine Curtis and Rodney Ricardo Murray were also charged with the murder of Hippolyte. The events leading up to the death of Hippolyte arose out of an altercation between Hippolyte and Murray at the place where they worked. The evidence was that the four accused pursued and attacked Hippolyte while he was playing basketball near his home. At the beginning of the trial of the four, the Crown accepted pleas from Bend and Murray on the lesser charge of manslaughter and Payne, J. sentenced them both to 12 years' imprisonment. However, Joseph and Boyce rejected the prosecution's offer to accept a plea of guilty of manslaughter because, according to their affidavits, they claimed that the evidence against Bend and Murray was stronger than the evidence against them. We should add that the attorneys-at-law who now appear for Joseph and Boyce did not represent them at their trial.

5 After this Court dismissed the appeals on 27th March, 2002, Mr. Andrew Pilgrim, attorney-at-law, on the following day, 28th March, prepared and had signed the necessary documents indicating Joseph's intention to petition for special leave to appeal to the JCPC in forma pauperis. Mr. Pilgrim by letter dated 2nd April, 2002, informed the BPC that arrangements were being made to apply for special leave to appeal and formal notice of the petition was served on the BPC on 5th April, 2002. The letter requested that Joseph should not be executed until he had exhausted his right of appeal. The letter further stated that if it was the intention of the BPC to consider whether the sentence should be commuted, all documentation and information should be made available to Joseph so that his instructions on the same could be taken.

6 A notice dated 6th April, 2002 from the BPC was sent to Joseph informing him that a meeting of the BPC would be held to advise the Governor-General as to the exercise by him of his powers under section 78 of the Constitution in relation to the prerogative of mercy. He was invited to submit, within 21 days of receipt of the notice, representations in writing for the exercise of mercy in his favour. He was informed that those representations may be made by him or on his behalf by a friend or an attorney-at-law. On 16th April, 2002, the BPC forwarded copies of the following documents to Mr. Pilgrim: (1) Report of the trial judge, (2) Court of Appeal Decision, (3) Record of Criminal Appeals, (4) Report of the Superintendent of Prisons, (5) Report of the Medical Officer of the Prison, (6) Report of the Chaplain of the Prison and (7) Antecedent History from the Commissioner of Police. A further letter dated 4th June, 2002 from the BPC to Mr. Pilgrim drew his attention to the notice dated 6th April, 2002 and that no written representations had been made on behalf of Joseph.

7 On 16th April, 2002, Boyce was also given notice of his right to make written representations and provided with the documents referred to in the preceding paragraph. On 16th April, 2002, Mr. Alair Shepherd Q.C., on behalf of Boyce, prepared similar documents to those of Joseph, indicating Boyce's intention to petition for special leave to the JCPC in forma pauperis and notice thereof was served on the BPC on 17th April, 2002. Mr. Shepherd addressed to the BPC similar correspondence to that of Mr. Pilgrim. By letter dated 3rd May, 2002, he requested that the BPC make no decision on execution prior to Boyce exhausting his domestic remedies and being afforded the opportunity to petition human rights bodies. However, he did not object to a preliminary decision being made, provided that decision was to commute the sentence. The appellants' London solicitors advised that they had until 26th July, 2002, to file an application for special leave to appeal and the BPC was made aware of this date. On 3rd June, 2002, the BPC wrote to Mr. Shepherd in similar terms to the letter of 4th June to Mr. Pilgrim. There was no response to the letters. The Clerk of the BPC informed the appellants' attorneys-at-law that the BPC would be meeting on 24th June, 2002, to advise the Governor-General as to the exercise of the prerogative of mercy. No...