Attorney General Appellant v [1] Bernard Coard [2] Callistus Bernard [3] Lester Redhead [4] Christopher Stroude [5] Hudson Austin [6] Liam James [7] Leon Cornwall [8] John Anthony Ventour [9] Dave Bartholomew [10] Ewart Layne [11] Colville Mc Barnette [12] Selwyn Stachan [13] Cecil Prime Respondents [ECSC]
| Jurisdiction | Grenada |
| Judge | ALLEYNE, J.A.,GORDON, J.A.,d'AVERGNE, J.A. [AG.],Justice of Appeal,Suzie d'Auvergne |
| Judgment Date | 14 February 2005 |
| Judgment citation (vLex) | [2005] ECSC J0214-4 |
| Court | Court of Appeal (Grenada) |
| Docket Number | CIVIL APPEAL NO. 10 OF 2004 |
| Date | 14 February 2005 |
IN THE COURT OF APPEAL
Hon. Brian Alleyne S.C. Justice of Appeal
Hon. Michael Gordon Q.C. Justice of Appeal
Hon. Suzie d'auvergne Justice of Appeal [Ag.]
CIVIL APPEAL NO. 10 OF 2004
In the matter of the Constitution of Grenada
and
In the matter of an application by Bernard Coard and Others for Redress Pursuant to section 16 of the Said Constitution of Grenada for Contraventions of Sections 3, 5 and 8 thereof in Relation to them
Mr. Karl Hudson-Phillips Q.C., Mr. Rohan Phillip, instructed by Henry Hudson-Phillips & Co. for the Appellant
Mr. Keith Scotland and Mr. Cajeton Hood for the Respondents other than Bernard Coard and Ewart Layne
Mr. Ruggles Ferguson and Mr. Derrick Sylvester for Respondents Bernard Coard and Ewart Layne
The respondents are all inmates at Her Majesty's Prison at Richmond Hill in Grenada, and have been since they were convicted in the High Court of Grenada (hereinafter the former High Court) on December 4 th 1986 on 11 counts of murder and sentenced to death as a result, in keeping with the then lawful mandatory sentence of death for the crime of murder as prescribed by the Criminal Code of Grenada 1.
The respondents' trial took place largely in their absence. Before the actual trial commenced, on 18 th April 1986, after the learned trial judge had advised the respondents of their right to challenge jurors, the record shows that 'all the accused start clapping and stamping and chanting "This court is a Yankee Court", "This court is unconstitutional", and other similar expressions of disdain. This went on for about 10 minutes, after which the learned judge ordered the police to remove the respondents from the court, which they did. Counsel for the Crown made submissions regarding continuing the proceedings in the absence of the respondents, and referred, according to the record, among other things, to the provisions of section 8(2)(f) of the Constitution of Grenada 2. I think it would be useful at this point to reproduce the provisions of section 8(2) in its entirety:
"(2) Every person who is charged with a criminal offence—
(a) shall be presumed to be innocent until he is proved or had pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his defence;
(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice;
(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge,
and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence:
Provided that, in such circumstances as may be prescribed by law, the trial may take place in the absence of the person charged so long as no punishment of death or imprisonment (other than imprisonment in default of payment of a fine) is awarded in the event of his conviction."
The court ordered that all accused be brought back in to court. The learned trial judge recorded that they started going to the bathroom one by one. He advised them of their right of challenge, after which they all started chanting and stamping and making disparaging remarks about the judge and the court, and "make a great disorder again." The judge once again ordered their removal from the court, took and recorded evidence of the conduct of the respondents, called the respondents one by one and after citing each and asking each whether he has anything to say, to which they each make no response, he committed each to seven days for contempt, except Hudson Austin and Selwyn Strachan whom he discharged after hearing them. The court rose and on the resumption, in the presence of Mr. Strachan and Mr. Austin, began the process of empanelling a jury for the trial of the respondents. Strachan and Austin once again commence disruptive conduct, the judge cited each for contempt, allowed them the opportunity to be heard, and after hearing them, committed each for 10 days for their contempt.
The learned trial judge then recorded that the trial proceeded in the absence of the accused, "they having conducted themselves in such a manner as to render continuance of the proceedings in their presence impracticable in consequence of which I have ordered them removed and the trial to proceeds." A jury was thereupon empanelled in the absence of the respondents. Twenty-nine potential jurors were stood aside, one was challenged by the prosecution, and 2 were excused, before a panel of 12 jurors to try the accused was empanelled and sworn. The judge directed that 6 alternate jurors be sworn. Once again in the process the prosecution stood aside 14 persons called to be empanelled before 6 alternates could be sworn. The trial then commenced and proceeded to a conclusion in the absence of the respondents. They were all convicted on all counts and all sentenced to the mandatory death penalty.
On December 10 th 1986 the respondents lodged appeals against their convictions and sentences. On July 12 th 1991 the then Court of Appeal (hereinafter the former Court of Appeal) dismissed the appeals and affirmed their convictions and sentences. The judgments of the learned judges of the former Court of Appeal were read in court, we are told over a period of two days. Nevertheless, despite the best efforts of the respondents, a written record of the judgment of the former court has not been made available to them.
On July 19 th 1991 the Governor-General of Grenada assented to the Constitutional Judicature (Restoration) Act of 1991 3, and on the same date issued a Proclamation 4 appointing August 1 st 1991 as the date for the coming into effect of the said Act (hereinafter the Restoration Act).
On July 29 th 1991 the respondents filed a Motion in the former Court of Appeal, which heard the matter expeditiously, dismissed the Motion, and refused to re-
hear the appeals or to grant a stay of execution of the death sentences. As a result of the filing of that Motion and the decision of the Authority of the Organisation of Eastern Caribbean States (OECS) to which reference will be made in due course, the Proclamation of July 19 th was revoked on July 30 th, and the Restoration Act was subsequently brought into force with effect from August 15 th 1991, after the Motion before the former Court of Appeal had been disposed of.On August 15 th 1991 the Governor-General issued a series of documents under the Public Seal of Grenada headed COMMUTATION OF DEATH SENTENCE AND WARRANT FOR IMPRISONMENT. By these instruments the Governor-General, purporting to be acting in the exercise of his powers under section 72(1) of the Constitution of Grenada5, granted to each of the respondents:
'a pardon in respect of the said conviction, on condition that (he) shall be kept in custody to hard labour for the remainder of his natural life and be confined in the Richmond Hill Prisons as Her Majesty's Governor-General shall from time to time direct'.
The respondents have since been kept in confinement at the prison and remain so to the present. There has been a multiplicity of litigation on the part of the respondents concerning their trial, convictions and sentences, the present appeal being the latest.
On September 23 rd 2002 the respondents issued a Fixed Date Claim by which they claimed-
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(a) A declaration that the sentence of death imposed upon them at their trial was unconstitutional and illegal.
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(b) A declaration that the imposition of the term of imprisonment for the remainder of their natural lives by the Governor-General pursuant to the advice of the Chairman of the Advisory Committee on the Prerogative of Mercy is unconstitutional, illegal, null and void.
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(c) A declaration that the failure by the respondents to provide the applicants with the record of the proceedings including the written reasons used to justify the dismissal of the applicants' appeal against conviction is unconstitutional and illegal.
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(d) An order that the sentence of imprisonment for the remainder of the applicants' natural lives be quashed.
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(e) An order that the applicants be released forthwith.
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(f) An order that monetary compensation including aggravated and/or exemplary damages be assessed by a Judge in Chambers and paid by the respondents to the applicants as a result of the above mentioned unconstitutional actions.
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(g) Costs.
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(h) Such further or other relief as the nature of the case may require.
On 16 th March 2004 the learned trial judge made the following declarations and orders:
Declared: 1. The sentence of death imposed upon the applicants at their trial was unconstitutional and illegal.
2. The imposition of the term of life imprisonment for the remainder of the applicants' natural lives by the Governor-General pursuant to the advice of the Chairman of the Advisory Committee on the...
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