Privy Council Appeal No.

51 of 2004

The State Appellant

v.
Brad Boyce Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th January 2006
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Present at the hearing:-

Lord Bingham of Cornhill
Lord Hoffmann
Lord Hutton
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Hoffmann]
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1. In the early hours of 1 September 1996 there was an

altercation outside a nightclub in St James, in the course of which
Brad Boyce struck Jason Johnson a hard blow to the head.
Johnson fell to the ground and was taken unconscious to San
Fernando General Hospital, where he underwent an emergency
craniotomy later in the day. On 9 September he developed
aspiration pneumonia and was put on a ventilator, where he
remained in a coma until he died on 16 September.

2. Boyce was charged with manslaughter and tried before

Volney J and a jury in July 1998. He put forward two defences.
The first was that he had acted in self-defence. The second was that
the blow had not been a cause of Johnson’s death, which was
attributable instead to two incidents which had occurred in

[2006] UKPC 1
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hospital: the insertion of a feeding tube into the lung instead of the
stomach and the temporary failure of the ventilator.

3. This appeal is not concerned with the first line of defence, on

which various eye-witnesses gave evidence. On the question of
causation, the State called two medical witnesses. Both were
young and relatively inexperienced. Dr des Etages was a recently
qualified houseman who had observed the craniotomy (his first)
and afterwards took notes of Johnson’s treatment in the
neurosurgery recovery unit and, after the onset of his respiratory
failure, in the intensive care unit. Dr des Vignes was the
pathologist who had conducted the autopsy. He had been employed
by the Trinidad and Tobago Forensic Science Centre since the
previous November.

4. Dr des Vignes was firm in his view that Johnson had died of
the complications of the concussive injuries to the brain which he
had received and not because of any mishaps which had or might
have occurred in the hospital. At the end of the prosecution case
there was a submission of no case to answer which the judge
rejected. The accused then gave evidence in support of his claim to
have acted in self-defence and the defence called Dr Daisley, a
medical expert. His opinion was that Johnson’s treatment in
hospital had caused his death.

5. Events then took an unusual course. After Dr Daisley had

been cross-examined, but before re-examination, the judge of his
own motion recalled Dr des Vignes to ask him about his
qualifications in forensic pathology. It appeared that he was not
registered as such with the Trinidad and Tobago Medical Board
and that his fellowship in Alberta was more in the nature of an
apprenticeship than a formal course leading to a certificate or
diploma. Instead, the Chief Medical Examiner, under whose
general supervision he had performed some 270 autopsies, had
simply written a letter recommending Dr des Vignes as competent
to act as a forensic pathologist and he had been so employed by the
Forensic Science Centre.

6. The judge then, still acting of his own accord, called Professor
Chandulal, the Chief Forensic Pathologist, to ask him about the
qualifications required for civil service appointment as a forensic
pathologist. He said that one needed a medical degree followed by
a postgraduate degree in forensic pathology which would be
accepted as registrable by the Medical Board of Trinidad and
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Tobago. Professor Chandulal said that he was registered as a

forensic pathologist but that Dr des Vignes was not.

7. After hearing this evidence and submissions from counsel, the

judge decided that Dr des Vignes was not qualified as an expert for
the purpose of giving an opinion on the cause of death and that his
evidence was inadmissible and should be withdrawn from the jury.
He then ruled that the evidence of Dr des Etanges did not provide
a sufficient basis for a finding by the jury that Boyce had caused
Johnson’s death and directed the jury to acquit.

8. Under the ancient rules of common law, that would have been
an end of the matter. The prosecution had no right to appeal
against a jury’s verdict of not guilty on a trial by indictment. On
29 October 1996, however, the Administration of Justice
(Miscellaneous Provisions) Act 1996 had come into force. It added
a new section 65E to the Supreme Court of Judicature Act:
“(1) Section 63 notwithstanding, the Director of Public
Prosecutions may appeal to the Court of Appeal –

(a) against a judgment or verdict of acquittal of a trial court

in proceedings by indictment when the judgment or
verdict is the result of a decision by the trial judge to
uphold a no case submission or withdraw the case from
the jury on any ground of appeal that the decision of the
trial judge is erroneous in point of law.”

9. Pursuant to this section, the Director appealed on the grounds,

inter alia, that the judge had erred in law in holding the evidence of
Dr des Vignes inadmissible and, consequently, in ruling that there
was no evidence to go to the jury on the issue of causation. In the
Court of Appeal the defence, as well as contesting the appeal on
the merits, challenged the court’s jurisdiction on a number of
grounds. The first and most important was that section 65E was
unconstitutional because inconsistent with the fundamental human
right not to be deprived of liberty except by due process of law and
the right to the protection of the law, both of which are declared
and enacted by section 4 of the Constitution:
“4. It is hereby recognised and declared that in Trinidad and
Tobago there have existed and shall continue to exist,
without discrimination by reason of race, origin, colour,
religion or sex, the following fundamental human rights and
freedoms, namely:
 4

(a) the right of the individual to life, liberty, security of the

person and enjoyment of property and the right not to be
deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and
the protection of the law;…”

10. The Court of Appeal (Sharma, Jones and Nelson JJA)

accepted this submission. In a judgment given by Jones JA on 30
November 2001, they referred to the analysis of sections 4 and 5
(as they now are) by Lord Diplock in Maharaj v Attorney-General
of Trinidad and Tobago (No 2) [1979] AC 385 and Thornhill v
Attorney-General of Trinidad and Tobago [1981] AC 61 and in
particular to his statement in Thornhill (at pp. 69-70) that section 4
declared that the rights and freedoms described in the section
already existed in Trinidad and Tobago and enacted that they
should continue to exist. Lord Diplock went on (at p. 70) to say:
“The lack of all specificity in the descriptions of the rights
and freedoms protected contained in section [4] (a) to (k)
may make it necessary sometimes to resort to an examination
of the law as it was at the commencement of the Constitution
in order to determine what limits upon freedoms that are
expressed in absolute and unlimited terms were nevertheless
intended to be preserved in the interests of the people as a
whole and the orderly development of the nation; for the
declaration that the rights and freedoms protected by that
section already existed at that date may make the existing
law as it was then administered in practice a relevant aid to
the ascertainment of what kind of executive or judicial act
was intended to be prohibited by the wide and vague words
used in those paragraphs …”

11. Jones JA proceeded to examine the law as it was at the

commencement of the Constitution and found that it included an
absolute right not to be tried for the same offence after a verdict of
acquittal by a jury:
“Prior to the enactment of the new provisions an accused
person who had been acquitted of a charge against him was
in a position to regard his liberty as inviolable in respect of
the same matter. Indeed he had regained his full freedom and
could not be placed in further jeopardy. That was the ‘due
process’ which he enjoyed and … which also constituted
protection of the law. That was the legal principle that had
come to be well understood in our society. Any law, the
 5

effect of which is likely to place the citizen in further

jeopardy is a law which offends the due process clause of the
Constitution. It deprives the individual of the procedural
provisions which were available to him …”

12. In essence, the reasoning of the Court of Appeal was that

under the common law rule as it existed at the time of the
Constitution, a second trial of an accused who had been acquitted
by a jury would have been a denial of due process of law. It
follows that immunity from the possibility of such a trial formed
part of the right to due process which was entrenched by section 4
of the Constitution.

13. This proposition was skilfully and persuasively deployed

before the Board by Mr Hudson-Phillips QC but their Lordships
think that it is wrong and that it derives plausibility only from an
ambiguity in the term “due process”. In one sense, to say that an
accused person is entitled to due process of law means that he is
entitled to be tried according to law. In this sense, the concept of
due process incorporates observance of all the mandatory
requirements of criminal procedure, whatever they may be. If
unanimity is required for a verdict of a jury, a conviction by a
majority would not be in accordance with due process of law. If
the accused is entitled to raise a defence of alibi without any prior
notice, a conviction after the judge directed the jury to ignore such
a defence because it had not been mentioned until the accused
made a statement from the dock would not be in accordance with
due process of law.

14. But “due process of law” also has a narrower constitutional

meaning, namely those fundamental principles which are necessary
for a fair system of justice. Thus it is a fundamental principle that
the accused should be heard in his own defence and be entitled to
call witnesses. But that does not mean that he should necessarily
be entitled to raise an alibi defence or call alibi witnesses without
having given prior notice to the prosecution. A change in the law
which requires him to give such notice is a change in what would
count as due process of law in the broader sense. It does not
however mean that he has been deprived of his constitutional right
to due process of law in the narrower sense. Lord Millett made this
point in Thomas v Baptiste [2000] 2 AC 1, 22-24, when he said
that the term “due process” in the Constitution –
“does not refer to any particular laws and is not a synonym
for common law or statute. Rather it invokes the concept of
 6

the rule of law itself and the universally accepted standards

of justice observed by civilised nations which observe the
rule of law … It does not guarantee the particular forms of
legal procedure existing when the constitution came into
force; the content of the clause is not immutably fixed at that
date.”

15. It is therefore not sufficient that the law at the time of the
Constitution gave one a right to be immune from further
proceedings after an acquittal by a jury. Section 4 entrenched only
“fundamental human rights and freedoms” and the question is
therefore whether the old common law rule which prevented the
prosecution from appealing against an acquittal formed part of due
process in its narrower sense as a fundamental right or freedom.
Their Lordships do not think that it did. They would accept that
the broad principle that a person who has been finally convicted or
acquitted in proceedings which have run their course should not be
liable to be tried again for the same offence is a fundamental
principle of fairness. It is recognised as such in many constitutions
(see, for example, section 20(8) of the Constitution of Jamaica) and
in international human rights instruments: see for example article
14.7 of the UN International Covenant on Civil and Political
Rights and article 4 of Protocol No 7 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
But they do not think that the principle is entirely without
exceptions (see, for example, article 4.2 of Protocol No 7) and they
certainly do not think that it is infringed by the prosecution having
the right to appeal against an acquittal. The possibility of such an
appeal is accommodated in the qualification of the principle (“save
upon the order of a superior court made in the course of appeal
proceedings relating to the conviction or acquittal”) in all the
Caribbean constitutions to which their Lordships were referred
(Jamaica, Barbados, The Bahamas, Grenada, Dominica, Saint
Lucia, Saint Vincent and the Grenadines, Guyana, Antigua and
Barbuda, Belize, Anguilla, St Christopher and Nevis, Turks and
Caicos Islands, Monserrat) as well as the international instruments
which their Lordships have mentioned.

16. Although their Lordships would accept that the contents of

human rights are not necessarily the same in every country, their
Lordships see no reason why Trinidad and Tobago should regard
the common law rule as more fundamentally entrenched than it is
by neighbouring states which share its common law heritage. There
is nothing particularly unfair or unjust about a statutory rule which
enables an appellate court to correct an error of law by which an
 7

accused person was wrongly discharged or acquitted and order that

the question of his guilt or innocence be properly determined
according to law. Such a rule exists in many countries. It is true
that in Davern v Messel (1984) 155 CLR 21 the High Court of
Australia said that the common law rule was so ancient and well
settled that a statute giving a right of appeal in general terms
against the decisions of a court would not be construed as allowing
the prosecution to appeal against a decision in favour of an accused
person. Express language was needed. But the court did not
suggest that the absence of a right of appeal formed part of
fundamental due process and in the present case the language of
section 65E is clear enough.

17. Mr Hudson-Phillips drew an analogy with section 6(1)(a) of

the Constitution, which says that nothing in sections 4 and 5 “shall
invalidate … an existing law”. That meant that the entire corpus of
law as it existed at the time of independence was immunised from
invalidation. Likewise, he said it was generally assumed in
Trinidad and Tobago that all rights and freedoms which existed at
independence, legally or de facto, became constitutional rights
immunised from legislative change except by the special
procedures provided in sections 13 and 54 of the Constitution by
which Parliament may pass laws which derogate from the
fundamental rights declared by sections 4 and 5 or amend those
provisions:
“13(1) An Act to which this section applies may expressly
declare that it shall have effect even though inconsistent with
sections 4 and 5 and, if any Act does so declare, it shall have
effect accordingly unless the Act is shown not to be
reasonably justified in a society that has a proper respect for
the rights and freedoms of the individual.

(2) An Act to which this section applies is one the Bill

for which has been passed by both Houses of Parliament and
at the final vote thereon in each House has been supported
by the votes of not less than three-fifths of all the members
of that House.

54(1) Subject to the provisions of this section, Parliament

may alter any of the provisions of this Constitution …

(2) Insofar as it alters … sections 4 to 14 … a Bill for

an Act under this section shall not be passed by Parliament
unless at the final vote thereon in each House it is supported
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by the votes of not less than two-thirds of all the members of

each House.”

18. Mr Hudson-Phillips drew attention to a number of laws

passed since the Constitution came into force which did not at first
glance appear to be concerned with fundamental rights but for
which the procedure for derogation under section 13 had been
adopted.

19. Their Lordships consider that the analogy with the “existing
laws” clause is inexact. An existing law was either consistent with
sections 4 and 5 or it was not. If it was consistent, then there was
nothing to make it invalid. If it was inconsistent, it was protected
by section 6. In either case it was valid and, as Mr Hudson-Phillips
rightly says, there was no need to decide whether it would have
infringed sections 4 or 5 or not. On the other hand, section 4 gives
constitutional status only to fundamental rights and freedoms
which existed at independence and it is therefore essential to
decide whether an existing law formed part of a fundamental right
or freedom. Their Lordships derive no help from the various laws
which were passed by the special procedures since they are not in a
position to say whether those procedures were actually necessary
or not.

20. Their Lordships therefore respectfully think that the Court of

Appeal were wrong in holding section 65E to be unconstitutional.

21. The next question is whether section 65E applied to these

proceedings. As their Lordships have said, it came into force on 29
October 1996. Jason Johnson had died some six weeks earlier and
an indictable information had been laid on 19 September.
Committal proceedings followed, as a result of which the accused
was committed for trial on 13 November 1996. The actual
indictment was not filed until 17 February 1998.

22. The Court of Appeal held that section 65E applied to any
indictment filed after it came into force. Their Lordships agree.
The section gives a right of appeal “against a judgment or verdict
of acquittal of a trial court in proceedings by indictment” and
therefore, as a matter of construction, it applies to proceedings by
indictment commenced after it came into force. Proceedings by
indictment are commenced by the filing of the indictment. The
indictable information may be a necessary preliminary to
proceedings by indictment but it does not necessarily lead to such
proceedings and does not form part of them.
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23. Mr Hudson-Phillips next submitted that the matters of which

the prosecution complained did not make the judge’s decision
“erroneous in point of law”. The decision to exclude Dr des
Vignes’s evidence involved mixed law and fact. The judge applied
what he considered to be the standard of expertise required by the
law to the facts of Dr des Vignes’s qualifications as a forensic
pathologist. Likewise the decision to direct the jury to acquit was
the application of a legal standard (“evidence upon which a
reasonable jury could convict”) to the judge’s factual assessment of
the evidence. “Erroneous in point of law”, said Mr Hudson-
Phillips, meant an error of pure law which did not involve any
factual assessment. He referred to Smith v The Queen [2000] 1
WLR 1644 in which the Board, in advice delivered by Lord Steyn,
had construed the words “question of law alone” in the Bermuda
Court of Appeal Act 1964 as excluding questions of mixed law and
fact, such as the question of whether there is a case to answer.

24. In that case, however, the Bermuda statute used the terms
“question of law alone” and “question of mixed law and fact” in
such a way as to suggest that they had different meanings. In the
Trinidad and Tobago statute, the words are “erroneous in point of
law”. Their Lordships consider that this expression, used in
connection with proceedings before a jury, refers to the distinction
between questions of law which are for the judge and questions of
fact which are matters for the jury. It follows that any ruling which
may properly be made by the judge (such as whether evidence is
admissible or whether there is a case to go to the jury) is a ruling
on a point of law and can be challenged as erroneous by appeal
under section 65E. Their Lordships agree with the view of the
Court of Appeal that “the expression ‘erroneous in point of law’
connotes a situation where the trial judge falls into error in any
aspect of the case before him which calls for his determination”.

25. The Court of Appeal said that, if it had considered section

65E to be constitutional, it would have held that the judge’s
exclusion of the evidence of Dr des Vignes was erroneous in point
of law. He had concentrated entirely on whether the doctor had a
paper qualification and ignored the possibility that he might, by
reason of his knowledge and experience, be able to assist the jury
in determining the cause of death. It was true that his experience
was still relatively limited but the jury had seen him give evidence
both in chief and in cross-examination and would no doubt take
both his qualifications and experience into account in estimating
the weight of his evidence. The court also considered that it was
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wrong of the judge to call Professor Chandulal solely for the

purpose of giving his opinion on the expertise of another witness.

26. On both of these points their Lordships agree. It follows that

the judge’s rulings were erroneous in point of law. Section 65G
provides that on an appeal from an acquittal the Court of Appeal
may “(a) dismiss the appeal or (b) allow the appeal, set aside the
verdict, and order a new trial”. There was some discussion about
whether, if the appeal was allowed, the Court of Appeal was also
obliged to set aside the verdict and order a new trial, or whether it
had a discretion to refuse to do so. Their Lordships do not think
that Parliament could have intended that in every case in which the
accused had been acquitted as a result of an error of law by the
judge, the Court of Appeal would be bound to allow the appeal and
order a new trial. There would be cases in which such a course
would be most unjust; for example, where an important defence
witness had died. On the other hand, it would be unsatisfactory to
allow the appeal and set aside the acquittal, leaving the guilt or
innocence of the accused hanging in the air, without ordering a
new trial. The position is different when an appeal against a
conviction is allowed and no new trial ordered. There the
conviction is simply quashed. In their Lordships’ view, if the Court
of Appeal considers that there was an error of law but that there
should not be a new trial, it should correct the error but then simply
dismiss the appeal and leave the acquittal standing.

27. In the present case it is now nine years since the incident
occurred. The issues turn upon eye-witness evidence of some fast-
moving events outside a nightclub in the early morning, much of
which was understandably confused and contradictory, and some
complicated medical evidence. The decision as to whether to order
a new trial must take into account that, unlike the convicted
appellant, the acquitted respondent has believed himself absolved
from guilt. Their Lordships consider that in ordering a new trial
after an acquittal, an appellate court should be satisfied that it will
be fair in the sense that there is not (by reason, for example, of
fading memory or missing witnesses) a materially greater risk of an
inaccurate verdict than there would have been if the case had been
properly left to the jury at the first trial. In this case, they do not
think that it would be fair for the accused to be tried again after
such a lapse of time. They will therefore dismiss the appeal.