Alcedo Tyson v The Queen

JurisdictionBritish Virgin Islands
JudgeGonsalves JA
Judgment Date20 November 2017
Judgment citation (vLex)[2017] ECSC J1120-1
Docket NumberBVIHCRAP2013/0008
CourtCourt of Appeal (British Virgin Islands)
Date20 November 2017
Between:
Alcedo Tyson
Appellant
and
The Queen
Respondent
Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Anthony Gonsalves, QC Justice of Appeal [Ag.]

BVIHCRAP2013/0008

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal - Jurisdiction of the Court of Appeal - Whether on a criminal appeal the Court of Appeal has jurisdiction to entertain as a ground of appeal a constitutional point not taken in the High Court - Section 31 of the Virgin Islands Constitution Order 2007 - Section 41 of the West Indies Associated States Supreme Court (Virgin Islands) Act - Whether a constitutional point not taken in the High Court arises properly on appeal - Right to a fair trial - Whether appellant's constitutional right to a fair trial has been contravened - Crown's unlimited right to stand by jurors - Constitutionality of section 27 of the Jury Act - The principle of equality of arms - Whether unlimited right to stand-by jurors justifiable in the public interest - Impartiality of tribunal - Whether actual bias necessary to establish that the appellant had an unfair trial.

On 24 th June 2013, the appellant, Alcedo Tyson, was convicted of the offence of murder. He was sentenced on 12 th July 2013 to a term of life imprisonment without the possibility of parole. At his trial, the Crown stood by 21 potential jurors. The appellant appealed against his conviction on 8 grounds. The first and only ground considered by the Court is that the Crown's unlimited right to stand-by jurors made his trial unfair and was in breach of his constitutional right to a fair trial. This point was not taken by the appellant at his trial in the High Court. Therefore, the issue arose as to whether the Court of Appeal has jurisdiction to entertain a constitutional point that had not been raised in the court below.

On the issue of jurisdiction, the appellant argued that since section 41 of the West Indies Associated States Supreme Court (Virgin Islands) Act gives the Court of Appeal the discretion, if necessary or expedient in the interest of justice, to exercise any or all of the powers conferred by section 32 of that Act, it follows that the Court of Appeal has the power to make such order as the High Court might have made or ought to have made as the circumstances of the case requires. Further, that the Court of Appeal's extensive powers on the hearing of civil appeals apply mutatis mutandis to the hearing of criminal appeals. Notably, the appellant submitted that section 31(2) of the Act provides that the power of the Court of Appeal under the section may be exercised notwithstanding that no notice of appeal or respondent's notice had been given in respect of any particular part of the decision of the High Court or by any particular party to proceedings in that court. The Court of Appeal is thus empowered to make such order as the nature of the case requires and consequently the Court of Appeal is empowered to hear and determine ground 1 of his amended notice of appeal.

In response, the Crown submitted that the Court of Appeal does not possess the jurisdiction to entertain the constitutional ground of appeal. It was submitted that section 31(2) of the Virgin Islands Constitution Order 2007 provides that in alleged contraventions of the Constitution, the High Court has original jurisdiction. Further, that section 31(7) of the Constitution provides that the High Court is the appropriate forum to refer challenges that relate to the enforcement of the Constitution. It was submitted that in matters of enforcement of constitutional provisions, the Court of Appeal and the Privy Council only have appellate jurisdiction.

As it relates to the substantive ground of appeal, the basis of the appellant's contention is that: (i) section 27 of the Jury Act, which provides the Crown with the unlimited right to stand-by jurors, is unconstitutional as it offends the equality of arms provision enshrined in section 16 (the fair hearing provision) of the Virgin Islands Constitution; (ii) the Crown's unlimited right to stand-by jurors is likely to lead the fair-minded observer to find that the selection of an independent and impartial tribunal was biased; (iii) that once the appellant's right to a fair trial was breached, the appellant's conviction ought to be set aside.

In response, the Crown argued that: (i) any imbalance resulting from the unlimited right of stand-by is justified, proportionate and reasonable as the right of stand-by is required in the public interest to ensure that a competent and impartial jury is selected; (ii) the right of stand-by is dichotomous from a successful challenge of a juror for cause, and (iii) the Crown has consistently used its right of stand-by in a reasoned and responsible manner and there was no evidence presented at trial or before this Court which substantiates that any prejudice or actual bias was employed in the jury selection process.

Held: allowing the appeal, setting aside the conviction and sentence and remitting the matter to the court below for retrial, that:

  • 1. On a proper construction of section 31(7) of the Virgin Islands Constitution Order 2007 (“ Constitution Order”), questions arising as to the contravention of any of the provisions of Chapter 2 of the Constitution Order, in what are substantively non-constitutional proceedings in the Court of Appeal, can be determined within the non-constitutional proceedings by the Court of Appeal without the necessity of bringing a separate constitutional application before the High Court. In the instant case, the Court of Appeal does have jurisdiction under section 31(7) of the Constitution Order to entertain the first ground of appeal, that is, a constitutional point which was not taken in the High Court if it properly arises on appeal. When a constitutional point arises on a criminal appeal, once it is a challenge that goes to either the validity of the conviction when made or the lawfulness of the sentence when passed, it may be raised for the first time and dealt with on appeal.

    Section 31 of the Virgin Islands Constitution Order 2007 applied; Ong Ah Chuan v Public Prosecutor [1981] AC 648 applied; Runyowa v The Queen [1967] 1 A.C. 26 applied; Mohama Kunjo s/o Ramalan v Public Prosecutor [1979] A.C. 135 applied. Bowe (Junior) & Anor v R 2006 UKPC 10 applied; Walker v The Queen [1994] 2 A.C. 36 distinguished; Hunte and Khan [2015] UKPC 33 distinguished.

  • 2. The principle of equality of arms centers on achieving basic and reasonable proportionality as it has been accepted that it is not possible to achieve a perfect equality between the parties. Therefore, not all inequalities will result in a breach of the principle of equality of arms and amount to a violation of the constitutional right.

  • 3. The Crown's unlimited right of stand-by is not justifiable in the public interest as section 28 of the Jury Act allows the Crown to challenge a juror for a cause if, in the opinion of the presiding judge, it is improper or inadvisable for the juror challenged to be impaneled. Therefore, the Crown would not be disadvantaged in the selection of a competent jury by the removal of the unlimited right of stand-by.

    R v Andre Penn BVIHCR2009/0031 (delivered 18th February 2015, unreported) applied; Craig Alexander Bain v Her Majesty the Queen and The Attorney General of Canada [1992] 1 S.C.R. 91 applied; Porter v McGill [2001] 2 A.C. 357 applied; The Queen v Kerris Phipps BVIHCR2009/0026 (delivered 18th November 2010, unreported) disapproved.

  • 4. The tribunal must be independent and impartial but must also be perceived to be independent and impartial.

    Millar v Dickson [2002] 3 All ER 1041 considered; Porter v Magill [2002] 2 A.C. 357 considered.

  • 5. Section 27(b) of the Jury Act is unconstitutional due to the extreme disparity it creates in the jury selection process. The section permits the infringement of the principle of equality of arms by making the position of the accused extremely weaker than that of the Crown. Further, section 27(b) infringes the substantive fundamental right to a fair trial by an impartial court as the perception of bias in the selection process may result in the perception of bias during the trial. In this case, the Crown stood by 21 potential jurors without ascribing any cause. It is likely that a fair minded and informed observer would conclude that there was a real possibility of bias in the actual jury selection process of this trial and consequently in the performance of the jury and the trial itself. Therefore, the appellant's constitutional right to a fair trial by an impartial court was infringed.

    Section 27(b) of the Jury Act, Cap. 30, Revised Laws of the Virgin Islands 1991 applied; R v Andre Penn BVIHCR2009/0031 (delivered 18th February 2015, unreported) applied.

Appearances:

Mr. Patrick Thompson for the Appellant

Mrs. Tiffany R. Scatliffe Esprit, Principal Crown Counsel and

Mr. O'Neil St. A. Simpson, Crown Counsel, for the Respondent

1

Gonsalves JA [AG.]: On 24 th June 2013, the appellant was convicted of the offence of murder contrary to section 150 of the Criminal Code 1997 after a trial before Mr. Justice Redhead. At a sentencing hearing conducted on 12 th July 2013 the appellant was sentenced to a term of life imprisonment without the possibility of parole. The appellant has appealed his conviction and sentence and relies on 8 grounds. Ground 1 is expressed as follows:

“The appellant's trial was unfair and in breach of his constitutional right to a fair trial insofar as Section 27 of the Jury Act which permitted the Crown the unlimited right to stand by jurors was unconstitutional as it offended the equality of arms provision enshrined in the section 16 fair trial provisions of the BVI Constitution. At the appellant's trial the Crown stood by 21 potential jurors which was likely to...

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