Law Lords critical of trial judge
No re-trial for Brad Boyce

By Francis Joseph, newsday.co.tt

BRAD BOYCE, who was charged with murder in 1996 and acquitted two years later on the lesser count of manslaughter, will not have to face a re-trial, the British Privy Council ruled yesterday.

Although the Law Lords stated that the TT Court of Appeal was wrong to dismiss the State’s appeal, they found that it would be unfair to Boyce to order a re-trial more than nine years after the incident.

According to Lord Hoffmann, "the issues turn upon eyewitness 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 (Boyce) 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 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," Lord Hoffmann added.

The Privy Council comprised Lords Bingham, Hoffmann, Hutton, Scott, and Brown. Karl Hudson-Phillips QC and Ravi Rajcoomar appeared for Boyce, while Sir Godfrey Le Quesne QC and John Almeida represented the State.

In the early hours of September 1, 1996, there was an altercation outside the Edge Nightclub, Long Circular Mall, St James, in the course of which Boyce struck Jason Johnson a hard blow to the head.

Johnson fell to the ground and was taken to the San Fernando General Hospital where he underwent emergency surgery. Eight days later, he developed pneumonia and was put on a ventilator where he remained in a coma until he died on September 16.

Boyce was first charged with murder, but was committed to stand trial for manslaughter. He was tried before Justice Herbert Volney 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 did not cause Johnson’s death, but was the fault of the hospital.

During the trial, Volney questioned pathologist Dr Hughvon des Vignes about his qualifications. On his own accord, he called forensic pathologist Prof Ramnath Chandulal to ask him about the qualifications needed to be a forensic pathologist.

Volney then decided that des Vignes was not qualified to give the cause of death and that his evidence was inadmissible and should be withdrawn from the jury. He later directed the jury to acquit Boyce, who later walked free.

Under the ancient rules of common law, that would have been the end of the matter. The prosecution had no right of appeal against a jury’s verdict of not guilty. The then attorney general Ramesh Lawrence Maharaj introduced the Administration of Justice (Miscellaneous Provisions) Bill. The bill was passed and it came into force on October 29, 1996. It added a new section allowing the prosecution to appeal the decision of a judge to uphold a no-case submission or a jury’s verdict.

The Director of Public Prosecutions then appealed Volney’s decision to direct the jury to acquit Boyce. This was the first appeal under the new act. It was a test case for other appeals brought by the DPP in similar circumstances.

The Court of Appeal comprising Justices Sat Sharma, Lionel Jones and Rolston Nelson, dismissed the State’s appeal on November 30, 2001. The court found that the new act was not consistent with the Constitution and that it had not been passed with the requisite majority in Parliament and therefore was not a law in force.

The Law Lords found that if the Court of Appeal had considered the new section to be constitutional, it would have held that Volney’s exclusion of des Vignes’ evidence was erroneous in point of law.

According to Lord Hoffmann, "he (Volney) 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 is 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 wrong of the judge to call Prof Chandulal solely for the purpose of giving his opinion on the expertise of another witness."

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