In this issue
Welcome
Witness Anonymity Orders 10 Years On.
Hong Kong Case Summaries
Northern Ireland case summaries
Caribbean Case Summaries
Appeals against conviction - England and Wales
Caribbean Case Summaries

By Paul Taylor QC

 

Evidence Act – Identification evidence, special circumstances – Indictment, form – Indictments Act - Informal identification parade – Joint enterprise - Murder – Turnbull Direction

 

Severin v The Queen

 

[2018] CCJ 20 (AJ)

 

On appeal from the Court of Appeal of Barbados

 

S was convicted of murder and mandatorily sentenced to death. He appealed to CCJ on five grounds relating to the safety of his conviction. In summary, the challenges were based on alleged deficiencies in the trial judge’s summation to the jury relating to weaknesses in the evidence of the prosecution’s key identification witness J, that were said to have severely undermined the defence case of alibi.

 

Appeal dismissed.

 

The Court found that there were ‘special circumstances’ as set out in section 102(3)(a) of the Evidence Act – that is, that the accused (S) was known to J who made the identification; the Court rejected the argument that the possibility of the absence of street lighting impaired the reliability of J’s night-time identification; and rejected complaints about the informality of the identification exercise, and the adequacy of the Judge’s Turnbull directions.

 

In passing, the Court also remarked on the practice in Barbados of charging an accused with having “murdered” the deceased even where the law of joint enterprise is to be invoked (as happened here since it could not be proved which of the two shooters actually killed Virgil Barton). The Court observed that although the practice was in conformity with section 4 of the Appendix to the Indictments Act CAP 136, serious consideration should be given in a case like the present one to adopting the practice “of charging the accused for having jointly with other identified or unidentified persons murdered a specified person, thereby making it clear from the outset that reliance may be placed on the law as to joint enterprise.”

 

 

 

Mandatory sentence of death – Constitutionality

 

Nervais v The Queen

 

Severin v The Queen

 

[2018] CCJ 19 (AJ)

 

On appeal from the Court of Appeal of Barbados

 

Challenge to mandatory sentence of death on the basis that they were unconstitutional.

 

The Court found that the imposition of the mandatory death penalty for convictions of murder in Barbados, without mitigation and individual sentencing, was patently unconstitutional.

 

The mandatory death penalty deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime. The CCJ was of the view that the right to protection of the law or due process included the right to a fair trial. The trial process did not stop at conviction of the accused, as sentencing and mitigation were congruent components of a fair trial. As such, the principle of a fair trial must be applied to the sentencing stage and includes the right to appeal or apply for review by a higher court prescribed by law. The right to a fair trial as an element of protection of the law is one of the corner stones of a just and democratic society without which the rule of law and public faith in the justice system would inevitably collapse. The CCJ therefore held that the mandatory nature of death penalty in section 2 of the OAPA placed it in violation of the right to protection of the law as guaranteed by section 11 (c) of the Constitution.

 

The appeals were unanimously allowed, and the Court ordered that the Appellants be expeditiously brought before the Supreme Court for resentencing. Further, the Court by a majority, declared that Section 2 of the OAPA was inconsistent with sections 11 (c), 12 (1) 15 (1) and 18 (1) of the Constitution of Barbados to the extent that it provides for a mandatory sentence of death.

 

 

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