Cannonier v The Director of Public Prosecutions; Isaac et Al v The Director of Public Prosecutions

• Jurisdiction: Saint Kitts and Nevis
• Judge: Mitchell J.A.,Edwards, J.A.,Mitchell, J.A.,Rawlins, C.J.
• Judgment Date: 21 March 2012
• Neutral Citation: KN 2012 CA 1
• Docket Number: Criminal Appeal No. 2 of 2008; Criminal Appeal No. 19 of 2008; Criminal Appeal No. 20 of 2008; Criminal Appeal No. 21 of 2008; Criminal Appeal No. 22 of 2008
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 21 March 2012

Court of Appeal

Rawlins, C.J.; Edwards, J.A.; Mitchell, J.A. (Ag.)

Criminal Appeal No. 2 of 2008; Criminal Appeal No. 19 of 2008; Criminal Appeal No. 20 of 2008; Criminal Appeal No. 21 of 2008; Criminal Appeal No. 22 of 2008

Cannonier

and

The Director of Public Prosecutions

Isaac et al

and

The Director of Public Prosecutions

Appearances:

Mr. Edward Fitzgerald, QC, Ms. Angela Inniss with him, for Romeo Cannonier and Louis Gardiner.

Mr. Julian B. Knowles, QC, Ms. Angela Inniss with him, for Sheldon Isaac and Ruedeney Williams.

Sir Richard Cheltenham, QC, Ms. Pauline Hendrickson, Director of Public Prosecutions with him, for the respondent.

Criminal Law - Murder — Appeal against conviction — Whether trial judge erred in refusing to admit alibi evidence — Directions to the jury — Joint enterprise — Good character — Appeal against sentence — Death penalty — Whether sentence of death was unconstitutional.

This appeal involves two separate criminal appeals based on the same or similar facts and issues. Romeo Cannonier, the sole appellant in the first appeal, was tried for the murder of Delvin Nisbett, an off-duty police officer. Cannonier was convicted and sentenced to death. The four appellants in the second appeal, namely, Sheldon Isaac, Romeo Cannonier, Ruedeney Williams, and Louis Gardiner, were later tried for the murder of Gavin Gilbert, who was due to appear as a prosecution witness in Cannonier's murder trial. All four appellants were convicted, and sentenced to death.

Cannonier filed his Notice of Appeal on 8th February 2008, two days outside the fourteen day time limit prescribed by the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act (“the Court Act”). On 30th October 2008, the Court of Appeal dismissed Cannonier's application for extension of time to appeal, on grounds that it had no jurisdiction to extend the time for filing his Notice of Appeal based on the wording of section 52(2) of the Court Act. The Privy Council subsequently made a conservatory order staying the execution of Cannonier, and, on 13th May 2010, directed the Court of Appeal to consider arguments on the constitutionality of section 52 of the Court Act, the extension of time to appeal, and the merits of the appeal.

The appellants in the second appeal filed their Notices of Appeal one day outside the 14 day time limit provided for in section 52(2) of the Court Act. Their applications for leave to appeal out of time were dismissed by the Court of Appeal, which held that in view of the absolute language of that section and prior judgments by the Privy Council, they had no discretion to extend time in capital cases. However, the Court granted a stay of execution and a further extension on that stay in order to allow the appellants the opportunity to apply to the Privy Council for special leave to appeal. The Privy Council made the same order in this appeal, which was that the death penalty not be carried out on the appellants until the determination of their appeals, and that the Court of Appeal consider the constitutionality of section 52(2) of the Court Act, the application for extension of time to appeal and the merits of the appeal.

Held:

(In the first appeal) dismissing Cannonier's appeal against conviction and upholding his conviction but quashing his sentence and imposing a sentence of life imprisonment instead; (and in the second appeal) allowing Isaac's appeal against conviction and accordingly quashing his conviction and sentence; dismissing Cannonier's appeal against conviction and affirming his conviction but allowing his appeal against sentence, setting aside the death sentence imposed on him and substituting a sentence of life imprisonment which is to run consecutive to the life sentence imposed on him in the first appeal (Mitchell J.A. [Ag.] and Edwards J.A. a majority, with Rawlins C.J. dissenting); dismissing Gardiner's appeal against conviction and affirming his conviction but allowing his appeal against sentence, setting aside the death sentence and substituting a sentence of life imprisonment; dismissing Williams' appeal against conviction and affirming his conviction but allowing his appeal against sentence, setting aside the death sentence and substituting a sentence of life imprisonment, that:

• 1. Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (1953) which is ratified and adopted in Saint Christopher and Nevis provides an accused with the right to a fair trial. Contained in that right is his entitlement to a public hearing within a reasonable time by an independent and impartial tribunal. Section 10(1) of the Saint Christopher and Nevis Constitution Order 1983 (“the Constitution”) is similar. The power of the Court to refuse the appellants' application for extension of time was conferred by section 52(2) of the Court Act, which restricted the appellants' access to the Court of Appeal. The right to appeal is of particular importance in death penalty cases. In a civilized and democratic society, statutory restrictions must be shown to be reasonably justifiable. The objectives of these restrictions must be deemed sufficiently important to justify limiting a fundamental right; there must be a rational connection with the objective; and the means used to impair the right or freedom should be no more than is necessary to accomplish the objective. The time limit imposed by section 52(2) constituted an arbitrary limitation of the appellants' substantive right to appeal and has infringed upon their right of access to the Court of Appeal and the right to have the Court review the convictions and sentences. The phrase “except in the case of a conviction involving sentence of death” ought to be removed. The aim of a just and fair legal system is to ensure that citizens are afforded their guaranteed rights and protection. (per Mitchell J.A. [Ag.])

Sooriamurthy Darmalingum v. The State [2000] 1 W.L.R. 2303 applied; De Freitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing and Others [1999] 1 A.C. 69 applied.

Section 10(1) of the Constitution did secure to the appellants the right to have their proposed appeal proceedings brought before the Court of Appeal. Notwithstanding that the appellants, who had already been convicted, could no longer be described as “charged” for the purposes of section 10(1) of the Constitution, the guarantee in this section would also apply to appellate proceedings. Section 10(1) of the Constitution embodies the “right to a court”, which includes the right of access, that is, the right to institute appellate criminal proceedings before the Court of Appeal. Implicit in this right of access to the Court of Appeal, are the guarantees laid down by section 10(1) of the Constitution as regards both the organization and composition of the court, and the conduct of the proceedings and together they make up the right to a fair hearing. The appellants' right of access to the Court of Appeal would also involve the right to present their case properly and satisfactorily to a court that is independent and impartial and has full jurisdiction over the subject matter and to have a hearing in this court so that their applications for extension of time and/or their complaints in their grounds of appeal may be resolved. This is to be implied in the meaning of fair hearing in the context of Article 10(1) of the Constitution, likewise Article 6(1) of the European Convention on Human Rights. To the extent that section 52(2) of the Court Act precludes the Court of Appeal from exercising jurisdiction to extend the time for convicted persons appealing or applying for leave to appeal their conviction involving the death sentence, that section has failed to respect the appellants' right to access the Court of Appeal as guaranteed by section 10(1) of the Constitution. Furthermore, any law not in conformity with the Constitution ought to be brought into conformity with it. (per Edwards J.A. and Rawlins C.J.).

De Freitas v. Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing and Others [1999] 1 A.C. 69 applied; Golder v. United Kingdom (A/18) (1979-80) 1 E.H.R.R. 524 applied; Sooriamurthy Darmalingum v. The State [2000] 1 W.L.R. 2303 applied; Delcourt v. Belgium (A/11) (1979-80) 1 E.H.R.R. 355 applied; Tolstoy Miloslavsky v. United Kingdom (A/323) (1995) 20 E.H.R.R. 442 cited.

• 2. Section 33 of the Criminal Procedure Act governs the procedure for producing alibi evidence. Additionally, the judge has a further discretion to admit such evidence within the trial. The Court will not lightly upset the exercise by a trial judge of his judicial discretion unless it is clear that the exercise was wrong. In the first appeal, the appellant gave notice of an alibi to the police only and at the close of the prosecution's case requested permission to call two previously unmentioned witnesses. Judging from the evidence, this was seemingly a last-minute device being used by the appellant to assist his case, and therefore the trial judge rightly exercised his discretion in refusing to admit the alibi evidence. In the event that is wrong, the proviso should be applied on the basis that, even if the trial judge had admitted the alibi evidence, the overall evidence against the appellant was of such a magnitude that he still would have been convicted if the irregularity had not taken place and the alibi witnesses had turned up to testify. (per Mitchell, J.A. [Ag.]).

R v. Colin Thomas Sullivan [1970] 2 All E.R. 681 distinguished.

There is no evidence in the transcript which showed that the first appellant was informed about the provisions of Section 33 of the Criminal Procedure Act. Furthermore, there is no documentation of the judge's ruling on the appellant's late application to call the two alibi witnesses and no indication that he took into account section...