Cr 37/12 - R v Melbourne Wilson
Cr 38/12 - R v Clayton Greene
Cr 40/12 - R v Jeffrey Hall
Cr 44/12 – R v Floyd Hall
IN THE SUPREME COURT
TURKS AND CAICOS ISLANDS
1. FLOYD BASIL HALL
2. JEFFREY CHRISTOVAL HALL
3. MELBOURNE ARTHUR WILSON
4. CLAYTON STANFIELD GREENE
The Hon. Mrs. Mabel Agyemang CJ
Mr. Andrew Mitchell KC, with Mr. Quinn Hawkins, Ms. Katherine Duncan and Ms. Enjaleek Dickenson for The Crown
Mr. Earl Witter KC with Mr. Kayode Smith, instructed by Ms. Leanna Brooks-Campbell for The First Defendant
Mr. Ian Wilkinson KC with Ms. Kimone Tennant instructed by Mr. Jahmal Misick for The Second Defendant
Mr. Alair Shepherd KC with Mr. James Shepherd instructed by Mr. Ari Comert for The Third Defendant
Mr Richard Bendall with Ms. Kishanta Hall for The Fourth Defendant
DATED 9TH JANUARY 2023
1. This is a ruling in respect of an application by which the defendants invoke the provisions of s. 21 of the Constitution of the Turks and Caicos Islands 2011, alleging that, sections 38, 41 and 42 of the Criminal Procedure Ordinance Chapter 3.03 of the laws of the Turks and Caicos Islands (CPO) “curtail the right of the accused to have the last word” and are therefore unconstitutional, as they contravene sections 1 and 6 of the Constitution which provide for a fair hearing in a criminal trial.
2. The defendants argue that they ought to be permitted to bring this constitutional point in vindication of the defendants’ alleged right to the last word, not by a constitutional motion, but within the trial in order to prevent the inevitable delay that would be occasioned if they did so by way of a constitutional motion which might result in a stay of the proceedings to abide appellate processes that might follow.
3. It is the submission of the defendants, that they are entitled to know the answers to certain questions before they decide how to approach their case. These are:
(i) What is the court’s position on the application of the said sections 38, 41 and 42 of the CPO?
(ii) Must the Prosecution always have the last word, or does that order change where a defendant indicates that he will not call witnesses?
4. It is worthy of note that the application, comes after the first defendant has completed giving evidence, but has called no witnesses despite his earlier intimation to the court that he would call about two witnesses.
5. More particularly, the defendants seek the following reliefs:
a. A Declaration that all laws made in the Turks & Caicos Islands (hereafter “TCI”) are subject to the Constitution of the TCI.
b. A Declaration that, in a criminal trial, this Honourable Court has the jurisdiction to make such orders that will ensure or guarantee that an accused person has a fair trial pursuant to the fundamental rights and freedoms guaranteed by the Constitution.
c. A Declaration that the provisions of the Criminal Procedure Ordinance that give the Prosecution a right of reply and/or the right to make the last closing speech “in all cases” are unconstitutional as they deprive the defendant from being given a fair hearing or trial in breach of the provisions protecting an individual’s fundamental rights and freedoms; and
d. An Order that, in the circumstances of this particular case, the defendants are entitled to have the ‘last word’, that is to make the final closing addresses.
6. Per relief (d), the defendants pray that this court in consequence of the declaratory reliefs sought, read down s. 42 of the CPO to remove the Prosecution’s right of reply, and to give the “last word” to the defendants.
7. The crux of their argument is that to achieve fairness in this document-heavy trial in which the Prosecution opened at length and will most definitely comment on the evidence of the defence, the defendants have a right to know the totality of what is alleged against them, in order to provide a comprehensive response to it. They contend that fairness would dictate that they be placed in the position to address any flaws in the Prosecution’s analysis of their case or respond to any matters raised by the Prosecution. This, they urge would be achieved if they were given the last word in the context of the Prosecution having had the ‘privilege’ of making an opening address which differs in some respects from the cases against the defendants, and of making rebuttals/replies to the defendants’ applications of “No Case to Answer”.
8. The defendants buttress their position with the submission that other common law jurisdictions have recognised the wisdom and fairness in giving the defendant the last word, while the Turks and Caicos Islands clings to an ‘archaic’ provision which is yet to be updated, and which allegedly denies the defence a ‘right’ consistent with the concept of a fair trial.
9. They point to the example of England and Wales which, with the passage of the Criminal Evidence (Right of Reply) Act 1964, changed the order of addresses, so that the defence has the last word in a jury trial. The defendants argue that the position in England and Wales was changed when some forceful arguments were made by eminent jurists of the Criminal Law Revision Committee, including, that it was only fair for the Prosecution which in opening their case had the first word in a trial, not to have the last word also.
10. They also rely on the Canadian case of R. v. Rose  3 S.C.R. 262 in which the Canadian Supreme Court considered the constitutionality of a statutory right for the defence to make his address first to the jury, if witnesses were called and examined by the defence, a matter that is on all fours with the instant application. While the defendants concede that the court did not hold that statute unconstitutional, as it was not demonstrated that it affected the fairness of the trial or the right of the defendant to make a full answer and defence, they argue that the majority reasoning echoed the sentiments of the Law Reform Commission of Canada as well as the arguments of the English Law Lords who were responsible for the change in legislation in the United Kingdom, giving the defence the right to the last word.
11. These and others, they cite as providing guidance to this court, called upon in this application to consider whether the provisions of ss 38, 41 and 42 of the CPO assure the fair trial guaranteed by the Constitution.
12. The defendants contend that this court must come to the conclusion that s. 42 of the CPO does not assure a fair trial, and either: read it down, substituting for its present wording, a defendant’s right to the last word in all cases, or read it down in this particular case, in order to bring it in to conformity with the s. 6 constitutional right to a fair trial. This, they posit, will be in line with paragraph 5 of the Constitution Order 2011 which provides that existing laws such as the CPO, shall “…have effect …as if they had been made in pursuance of the Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.”
13. They urge this court to construe s. 6 of the Constitution generously in accordance with the principles of constitutional interpretation expounded in such seminal judgments as Commissioner of Prisons v Seepersad (Trinidad and Tobago)  UKPC 13;  1 W.L.R. 4315 at p. 10 para. 21, and then to read s. 42 of the CPO down to make it compliant with the s. 6 provision.
14. The application has been strongly opposed by the Crown which in the first place, urges the court not to give a ruling at this time, but to wait until all the evidence is complete.
15. Other responses that both emphasize alleged procedural impropriety and an alleged lack of merit in the application, include: a question regarding the propriety of raising this matter not by way of a constitutional motion (as it seeks constitutional reliefs), but in the course of a criminal trial; a question regarding the propriety of the defendants, (especially the first defendant) essentially seeking an indication from the court, to guide the formulation of their defence strategy, which is, whether or not to call witnesses; an assertion that the defendants improperly seek a change in the law, not as it should be done, through the legislative process, but through an invitation for the court to read down legislation which the court is not entitled to do. Nor, they submit, is it even necessary to do so even if the position has since 1964, in England and Wales, been changed for the defence to have the last word. They assert this in the light of the CPO which came into force in 1969 clear in its intendment. They assert also that other countries have retained the provisions in their statutes, placing the last word in the Prosecution, and there is no indication that it affects the fair trial provisions in their various constitutions. Indeed, in Canada where this was raised, in the three cases cited by defence counsel in this application: Rose  3 SCR 262, Tzimopoulos  CanLII 152 and Akpalialuk  NUCA 02, the court did not accept that not having the “last word” in a jury trial was an infringement of the defendant’s right to a fair trial enshrined in the Canadian Charter.
16. The Prosecution assert that on the contrary, not only does the language of ss. 38, 41 and 42 of the CPO which inter alia prescribe the order of speeches (giving the right of reply (the last word) to the Prosecution in all cases, not touch and concern any of the fair trial guarantees in s. 6 of the Constitution, but that they are in fact provisions that ensure fairness in that s. 38 permits the defence to open their case, stating law and facts upon which they intend to rely, and commenting as necessary, on the evidence for the Prosecution.
17. These are the issues raised by this application:
a. Whether or not this application is well-timed.
b. Whether or not this court has jurisdiction to read down existing law to bring it into conformity with the Constitution.
c. Whether or not constitutional relief may be sought in the course of a criminal trial.
d. Whether or not, on the merits, the defendants have demonstrated that their rights are, are being or may be infringed if the defendants are not given the last word in order of closing speeches.
18. In response to the first submission of the Prosecution, I must state that I do not consider the stance of the Prosecution regarding the timing of the application, unreasonable. Indeed, fairness, in the trial may very well dictate that the questions raised by the application be answered by this court when all the evidence is in. This is in the light of the first defendant’s indication that he seeks guidance from the court regarding the strategy he should adopt in the presentation of his defence: whether or not to call witnesses, despite his earlier indication that he would do so.
19. It is settled authority, and this court has asserted on more than one occasion, that fairness in the trial cuts both ways, so the court must ensure that the defendant has a fair trial, while also ensuring that the Prosecution is enabled to present its case in a fair manner. This is echoed most forcefully in the majority judgment in Rose.
20. Thus, this request for a cue from the court must be measured against this important question: how would the defendants have reacted if the Prosecution had sought some indication from the court as to how best to make its case?
21. Even so, due consideration having been given to the question, I am persuaded that giving the ruling at this time will not be imprudent, for having considered the two sides of the question, I feel confident that the timing of the present ruling will not place the Prosecution at a disadvantage. This is because the ruling upholds the constitutionality of the statutory provisions, declines to grant the consequential order for a reading down of s, 42, and therefore, stops short of providing any indication to the defendants regarding the continued conduct of their cases, beyond adherence to the present provisions of the CPO.
22. The question as to whether this court has the jurisdiction to modify or adapt existing legislation by reading same down must first be answered as a preliminary point. The parties are on opposite sides. While the defendants are adamant that this court may do so, in order to bring it into conformity with the Constitution as the country’s Supreme Law despite the lack of such “supreme law” provisions on the 2011 Constitution, the Prosecution insists that this court lacks jurisdiction and that any desired change in the law must necessarily be done through the legislature.
23. Having considered the matter, I am convinced (not being persuaded by the Prosecution’s stance), that such may be done in the proper case by the Supreme Court which in the exercise of its original jurisdiction, may entertain an application to enforce rights guaranteed by the Constitution.
24. Without delving into the arguments regarding the supremacy or non-supremacy of the Constitution in these islands, it seems to me that s. 5 of the Constitutional Order which reads:
“5. (1) Subject to this section, the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution”, permits reading and construction by the Supreme Court which is vested with original jurisdiction in the enforcement of rights guaranteed under the Constitution, that may modify, adapt, qualify or except existing law, in the manner that may bring such into conformity with the Constitution 2011.
25. Thus, by the use of the word “construed” in s. 5 of the Constitutional Order, which brings into play the judicial exercise of interpretation in the proper case to result in alteration, if a demonstration had been made that the provisions of the CPO would not achieve the fair trial guaranteed by s. 6 of the Constitution, this court with original jurisdiction to enforce rights and freedoms under s. 21 of the Constitution, would be in my view, in a position to inter alia, modify or adapt the CPO to achieve conformity, upon an invocation of s. 21(1).
Mode of Access
26. This application seeks constitutional relief under section 21 of the Constitution, alleging the contravention of sections 1 and 6 of the Constitution. More particularly it seeks declaratory reliefs.
27. Section 1 of the Constitution sets out the fundamental rights and freedoms of the individual without distinction of any kind, such as race, national or social origin, political or other opinion, colour, religion, among others and it sets out protections in respect of life, liberty, security of the person and the protection of the law, freedom of conscience, of expression and of assembly and association, among others.
28. In section 6 of the Constitution, the specific area of protection of the law, provides for the fair trial of a person charged with a criminal offence. Specifically, section 6 (1) refers to a fair hearing “within a reasonable time by an independent and impartial court established by law”.
29. In section 6 (2) other specific measures in relation to this, are set out and these include the presumption of innocence, the provision of information in a language the person understands, the provision of facilities, including legal aid, among others.
30. Section 21 of the Constitution, provides the method of enforcement of these specific rights, vesting the Supreme Court with the power to hear and determine breaches of constitutional rights, impending, past or present. It reads:
“21. (1) If any person alleges that any of the foregoing provisions of this Part has been, is being or is likely to be contravened in relation to him or her, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”
31. s. 21’s prescription that the Supreme Court in its original jurisdiction may entertain an application in such a circumstance and grant relief, is the prescription of a constitutional motion, by which the court then determines whether or not there has indeed been, there is, or there will be a breach of an identified right, in order that it may provide appropriate relief.
32. That is not the case here, and that is why the arguments of the defendants and the cases cited, including the Bermudian case of Jahmico Trott v The DPP and the Attorney- General of Bermuda  SC (Bda) 35 (Civ) in which a trial issue was raised and answered by the court in a constitutional motion, fails to persuade, in the instant matter, for it does not answer the present question as to whether this instant application may be brought within the course of a criminal trial.
33. Yet it seems to me that there is no real controversy over the fact that by reason of the expression “…without prejudice to any other action with respect to the same matter which is lawfully available…”, contained in s. 21(1) of the 2011 Constitution, recourse may be had to other proceedings before the Supreme Court to secure a needed protection (including the right to a fair hearing).
34. These other proceedings before the Supreme Court, may be apart from the constitutional motion enabled by s. 21 (1) and 21(2), provided that the relief sought is possible, and/or enforceable within the context of the said proceedings.
35. Thus, in my judgment, as the procedure for the “action” referenced in s. 21(1) is not prescribed, a proceeding to protect a right brought within a criminal trial at the Supreme Court, where there is no other relief provided under any other law, is not precluded under s. 21(1).
36. However, it seems to me that to resort to such other proceedings while also purporting to invoke s. 21 which founds a constitutional motion, as the defendants purport to do, is incongruous.
37. In the present instance the defendants, invoking s. 21, seek declaratory reliefs, the first two of which are too general to come within the scope of enforceable reliefs in a criminal trial. The 3rd declaratory relief seeks a pronouncement of this court that the order of speeches which vests the last word in the Prosecution is unconstitutional, as it allegedly infringes the fair hearing provisions.
38. A consequential order is then sought to effect a change in existing law by reading down its provisions to give the last word to the defence rather than to the Prosecution.
39. It seems to me that the declarations sought: that the existing law which is sections 41 and 42 of the CPO are unconstitutional, do not seek a remedy which may be enforced in the course of a trial, for a declaration of unconstitutionality must be within the context of a constitutional motion.
40. Regarding the consequential relief (relief d.) sought, the defendants more particularly, invite the court to read down s. 42 so as to give the defence, and not the Prosecution, the right of reply (the last word).
41. It is doubtful whether an exercise to read down a statute may be undertaken without a declaration of unconstitutionality and it is also doubtful if such declaration can be made outside a constitutional motion by which the statute may be measured against the provisions of the Constitution.
42. I reproduce the relevant provisions of the CPO which have given rise to this application:
“38. The accused person or his counsel may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the Prosecution. The accused person may then give evidence on his own behalf and he or his counsel may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up
Additional witness for the defence
41. If the accused person says that he does not desire to call evidence and the Court considers that there is evidence on which he could be convicted of the offence, the accused person or his counsel (if any) may address the Court.
Right of reply
42. The Prosecutor shall in all cases have the right of reply.”
The Burden of proof
43. In my judgment, if for the sake of argument, the present application which is not a constitutional motion, brought to determine whether the fairness of the trial may be impacted, may be entertained, its success would depend upon a demonstration that intrinsically the order of speeches and in particular, the right of reply by the Prosecution, affects the fair hearing of criminal cases as it relates to the defendants. This might enable the court if so persuaded to exercise its inherent jurisdiction to make the trial conform to the fair trial provisions.
44. The words of s. 42 of the CPO are plain and unambiguous, and unless it is demonstrated that they actually infringe the defendants’ constitutional right to a fair trial, the court may not perform any construction aimed at modifying, adapting, qualifying or excepting its application with reference to these particular defendants.
45. But no such demonstration has been made.
46. It must be noted that in invoking s. 21(1) (whether properly or otherwise), the defendants assumed the burden of proving what they allege: an infringement of their constitutionally protected right (s. 6). But what they allege is not in fact clear, for while in one breath, they allege that there has been a breach of the defendants’ right to the last word, in another, they allege that it is maintaining the status quo of giving the Prosecution that last word, rather than the defendant, that constitutes a breach of the defendants’ right to a fair trial.
47. The former is untenable because no such right exists. The latter is not substantiated because no demonstration has been made as to how the fairness of a trial is impacted by the order of speeches in a jury trial in general.
48. Indeed, while the defendants have expressed strong sentiments regarding the alleged unfairness of not having the last word, no cogent evidence of such has been presented save the citation of dicta of judges who declined the very thing the defendants seek by this application: a declaration of unconstitutionality.
49. I must add that the nebulous description of a ‘perception of’ greater fairness in that the defence last word “may add to the procedural fairness of a trial” see: per Hamel-Smith CJ (Ag.) in Dave Burnett v The State Cr Ap 14 of 2006, canvassed by the defendants most strenuously, fails to establish intrinsic unfairness in a trial which is requisite in the determination of the matter placed before this court by the defendants which is: to declare that s. 42 of the CPO which fails to give the defence the last word is a breach of the fair trial provision in s. 6 of the Constitution.
50. I have noted also that in the defendants’ arguments, no distinction has been made between any possible impact of the last word by a defendant on a jury of a man’s peers and a closing address made to a judge in a judge-alone trial such as this is.
51. There has been no demonstration that in the present judge-alone trial, the prosecution having the last word, would occasion prejudice to, or interfere with the ability of the defendants to answer the Prosecution’s case and to defend themselves adequately, such as should lead the court to a definitive finding, upon which relief may be granted.
52. Perhaps the defendants’ only complaint of substance is that it will be unfair for the defence not to be able to respond to the last speech of the Prosecution. They aver that they will not be able to tell what the case of the Prosecution is, if the Prosecution must address the court without any response from the defendant.
53. Why such would be unfair is left to surmise, not being backed by any empirical evidence of the impact of a last word on the trial, including any real likelihood of prejudice (not a fanciful apprehension) if the defendant was not allowed to have that last word. Regarding this, I consider the sentiments expressed in Rose insightful in the consideration of this question regarding which the defendants provided no answer:
“The order of jury addresses does not significantly affect the knowledge that the accused will have, at the time of the defence address, regarding the Crown’s theory of the case and interpretation of the evidence... The Crown will not be interpreting any evidence in its jury address of which the defence will not be aware. The defence will also know, as the result of events during the trial, the likely manner in which the Crown will present the evidence to the jury. Moreover, the Crown’s ability to take the defence by surprise is severely curtailed by the restrictions placed on the scope of the Crown’s closing address to the jury.
The enterprise of defending oneself against a criminal charge does not intrinsically imply a temporal order of speaking, with the accused “answering” the Crown’s jury address with a jury address in reply. What is being answered in the accused’s jury address is the evidence and the Crown’s theory of the case. The accused’s jury address is his or her opportunity to answer the Crown’s evidence and theory of the case with argument and persuasion. The social science evidence and the observations of experienced appellate court judges support a finding that the right to address the jury last is not a fundamental advantage. It is not unfair to require an accused to engage one of two equally advantageous jury address procedures…”
54. There is no gainsaying that final addresses of the court do not represent the entire trial. Beyond the inherent jurisdiction of the court to ensure fairness in a trial is the obvious fact that there are provisions in the CPO that are clearly aimed at meeting the fair hearing requirements of a criminal trial. These include s. 38 which allows a defendant to open his defence, stating the law and the facts upon which he would rely while as necessary, commenting on the case of the Prosecution, and then giving and calling evidence.
55. Nor has the defendants’ argument that other countries have changed the order of speeches (to give the defendant the last word) in order to ensure fair hearing, and that these islands lag behind, provided the needed demonstration.
56. Regarding the comparative legal landscape canvassed by the defendants, it seems to me that the change in legislation in the United Kingdom in 1964, brought about by arguments reproduced in this application by the defendants, is not by itself, an indication that these islands by providing differently, conduct demonstrably less fair trials that England and Wales, a suggestion made by the defendants.
57. In this regard, it is insightful that the CPO was enacted in 1969, five years after the 1964 change in the United Kingdom legislation, an apparent indication that the Turks and Caicos Islands, having had the benefit of the wisdom of that legislative change in the United Kingdom, chose to retain the Prosecutor’s right of reply which has been in place for five decades without challenge as to fairness.
58. Nor, are these islands alone in this. Both parties have favoured the court with research which revealed that quite a number of common law jurisdictions including Canada, still give the Prosecution the last word, and a few others give the defence the last word. In the Canadian cases cited by both the defence and the Prosecution, including Rose in which the Canadian Supreme Court considered the matter of whether or not the order of speeches impact upon the fairness of a criminal trial, thus, contravening the fair trial provisions of the Canadian Charter of Rights and Freedoms, the answer was a resounding no.
59. It is interesting to note that while the court apparently agreed with the desirability of a change in legislation to give the last word to the defendant, it decisively declined to hold that the order of speeches had any real impact on the intrinsic fairness of a criminal trial. No cases on all fours with the present have been cited in which empirical evidence of the advantage of the last word has been presented to this court.
60. In my view, this application is occasioned by nothing more than an apprehension on the part of the defendants, that the Prosecution’s last words may have some undetermined effect upon the determiner of fact, and not by any situation of substance of which the court must make inquiry under s. 21 and being satisfied of its merit, grant the relief sought.
61. I go so far as to say that perhaps the only reason for bringing the instant application is the defendants’ expressed desire to seek from the court a cue to guide the strategy of how to present their cases, not because of any intrinsic unfairness they genuinely perceive, and have laboured unsuccessfully to establish. This cannot be in pursuit of justice, which is what the fair trial provisions are aimed to achieve.
62. The application is without merit and is accordingly dismissed.
63. I refrain from any words of censure for reasons that I may advert to in the final judgment of the court.
M. AGYEMANG CJ