Jason Orlando Hydes v R

¶ ```html <table> <tr> <td>IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>CICA No. 20/2006</td> </tr> <tr> <td>(Ind. 11/01)</td> </tr> <tr> <td>BETWEEN:</td> </tr> <tr> <td>JASON ORLANDO HYDES</td> <td>APPELLANT</td> </tr> <tr> <td>and</td> </tr> <tr> <td>HER MAJESTY THE QUEEN</td> <td>RESPONDENT</td> </tr> <tr> <td>BEFORE:</td> </tr> <tr> <td>THE RIGHT HON. MR. JUSTICE ZACCA, P.</td> </tr> <tr> <td>THE HON. MR. JUSTICE TAYLOR, J.A.</td> </tr> <tr> <td>THE HON. MR. JUSTICE FORTE, J.A.</td> </tr> <tr> <td>Appearances: Howard Hamilton, Q.C., instructed by Keith Collins & Co. for the</td> </tr> <tr> <td>Appellant. Samuel Bulgin, Q.C., Attorney General and Trevor Ward for the Crown.</td> </tr> <tr> <td>Heard and Delivered: December 06, 2006</td> <td>Reasons Given: April 182007</td> </tr> </table> <h2>REASONS FOR JUDGMENT</h2> <p>FORTE, J.A.</p> <p>The appellant was convicted of manslaughter on August 2, 2001. As he was 15 years of age at the time of his conviction, the learned trial judge, in accordance with the provisions of section 2(2) of the First Schedule of the Youth Justice Law (2001 Revision), ordered that he be detained “until the pleasure of His Excellency the Governor be known.” In addition, he recommended that the appellant serve a “minimum of six (6) actual years of detention before release on reviter.”</p> <p>Section 2(2) of the First Schedule of the Youth Justice Law 2001 Revision provides:</p> ```
``` Where a young person is found guilty of any other offence before the Grand Court for which a person who has attained the age of seventeen would be liable to imprisonment for life, the court shall if it considers that a custodial sentence would be appropriate, sentence him to imprisonment during Her Majesty's pleasure." Although the sentence imposed by the learned trial judge is different from the wording of the Statute, no complaint has been made in that regard. Given our conclusion, (which we will express hereafter), we do no more than note the incorrectness of the terms used by the learned trial judge and point out that in any event the wording of the punishment can be changed to make it consistent with the terms of the Statute. The provisions in section 2(2) of the Schedule of the Law are the subjects of challenge in this appeal. The appellant contends that the provisions are inconsistent with the Constitution, which is based on the Westminster Model, which "guarantees a separation of powers." He argues that section 2(2) vests the power to determine the duration of the sentence to be served by him in the Executive Arm of the Government, i.e. in Her Majesty, exercising her powers through her representative, His Excellency the Governor of these Islands. He further contends that only the Judiciary can lawfully exercise such a power. Consequently, section 2(2), which vests the power to determine the duration of the sentence to be served by him in the Executive Arm of the Government, i.e. in Her Majesty, exercising her powers through her representative, His Excellency the Governor of these Islands, is incompatible with the underlying principle of the separation of powers, as enshrined in the Constitution. He relies on a number of cases; some of which will be considered later. He has asked this Court to conclude, following the dicta in these cases, that ```
The sentence of detention imposed by the learned trial judge is unlawful. He also asks the Court to construe section 2(2) in such a manner as to bring it into conformity with the Constitution. The Judicial Committee of Her Majesty’s Privy Council has accepted the principle on which the appellant has developed his contention, in several cases. It is necessary to refer to only two of these cases to adequately deal with the issues in this appeal: These are **Hinds v The Queen (1977) AC 195**, and **DPP v Mollison (No. 2) (2003) 2 AC 411**. As the Hinds case (supra) was relied upon in Mollison (supra) it is necessary only to examine the dicta in the latter, which considered provisions in a Jamaican Act, which are similar to the provisions of section 2(2). Before dealing with the Mollison case (supra) in any detail, I should state that that case deals with the Jamaican Constitution, which contains human rights provisions; particularly section 20(1) which protects the citizen’s right, to a fair hearing within a reasonable time, before an impartial and independent tribunal, when charged with a criminal offence. In some cases it has been argued successfully that the requirement for an independent tribunal would be breached in cases where the determination of the length of sentence to be served by a convict is placed in the hands of the Executive. In the **Mollison** case, the section - **29** of the **Jamaican Constitution** was disputed. The **Mollison** case, which involved the **Juvenile Delinquents Act**, came into effect of the Constitution. As a result, the provisions of that section could have been regarded as being saved by the provisions of section 26(8) of the
Constitution, (by virtue of its prior enactment to Constitution). Because of the provisions of section 26(8), Counsel in the Mollison case (supra) proffered his arguments on the basis of the doctrine of separation of powers. This is how Lord Bingham dealt with this issue, in giving the opinion of the Board: Both the Director [of Public Prosecutions] and the Solicitor-General, who appeared with him, accepted at the hearing that, subject to their argument based on section 26(8) of the Constitution, section 29 of the Juveniles Act 1951 infringes the rights guaranteed by, and so is inconsistent with, sections 15(1)(b) and 20(1) of the Constitution. Given this concession, rightly made, it is unnecessary to do more than note the reasons for it. A person detained during the Governor-General’s pleasure is deprived of his personal liberty not in execution of the sentence or order of a court but at the discretion of the executive. Such a person is not afforded a fair hearing by an independent and impartial court, because the sentencing of a criminal defendant is part of the hearing and in cases such as the present, sentence is effectively passed by the executive and not by a court independent of the executive." In the case of the Cayman Constitution, there are no human rights provisions. Specifically, there are no expressed provisions similar to that of section 20(1) of the Jamaican Constitution. It could be argued, however, that such right- to have a fair hearing before an independent and impartial court- is currently enjoyed by each citizen. However, like in the Mollison case (supra), Counsel Appellant did not pursue that contention, but was content to rely on his submission that section 2(2) of the
```markdown # Schedule (supra) is in breach of the doctrine of separation of powers, which is guaranteed by the Constitution. In the *Mollison* case (supra), Lord Bingham, in dealing with the arguments of the appellant, states thus: "No doubt mindful of the obstacle presented by section 26(8), Mr. Fitzgerald, QC for the respondent (with the able support of Dr. Lloyd Barnett for the intervening parties) based his primary attack on section 29 not on its incompatibility with the specific rights guaranteed by sections 15(1)(b) and 20(1) of Chapter III but on its incompatibility with the separation of judicial from executive power which was, as he contended, a fundamental principle upon which the Constitution was built. This might at first sight seem an ambitious contention, but Mr. Fitzgerald supported it by reference to the judgment of the Board, delivered by Lord Diplock, in *Hinds v The Queen* [1977] AC 195. The main issue in that case concerned the constitutionality of a new court established by the Parliament of Jamaica under a post-independence statute to try those accused of firearms offences. There was however a subsidiary issue concerning the constitutionality of two sections of the statute, one of which prescribed a mandatory penalty of detention at hard labour during the Governor-General’s pleasure on conviction of certain offences, the other of which provided for release only by the Governor-General on the advice of a largely non-judicial review board." Lord Bingham then went on to cite, with approval, certain passages from the judgment of Lord Diplock (supra), which are relevant to the appeal and I will make reference to them.

¶ [1] In his exposition of the principles underlying what he called the "Westminster Model" of Constitution, Lord Diplock referred (at page ```
212B) to “the basic concept of separation of legislative, executive and judicial power” and observed (at page 212D): It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. He went on to observe (at page 213C): What, however, is implicit on the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the Judicature, even though this is not expressly stated in the Constitution. *Liyanage v The Queen* [1967] 1 AC 259, 287-288

¶ [2] What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose member are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders. In this connection their Lordships would not . to imprint was sal to improve on what was said [1963] 2 Deato ue reme Cou 'by' meT seekove on W orney G 1reland n Rev se Supurt of Ha umissionerin and ien- 183, a Atto lreneral the 170, 18 ca v which concerned a law in which the choice for alternative penalties was left to the executive:
There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. The legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the courts. The selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive. Lord Bingham thereafter concluded: "Whatever overlap there may be under constitutions in the Westminster model between the exercise of judicial powers on the one hand and legislative and executive powers on the other, is totally or effectively so. Such separation based on the rule of law, was recently described by Lord Steyn as ‘a characteristic feature of democracies.’ R (Anderson) v Secretary of State for the House Department (2002) 3 WLR 1800 at 1821-1822, paragraph 50. In the opinion of the Board, Mr. Fitzgerald has made good his challenge to section 29 based on its incompatibility with the constitutional principle that judicial functions (such as sentencing) must be not by exercised by the executive." For the avoidance of doubt, we should state that the Cayman Constitution is based on the Westminster Model, having as its foundation the principle of
The Constitution is arranged in various parts: Part I dealing with "The Governor"; Part II -Executive Council (Renamed "Cabinet" by S12003 No. 1515), Part III - Legislative Assembly; Part IV- Powers and Procedure in Legislative Assembly; Part V - The Court of Appeal; Part VA- The Grand Court and Subordinate Courts; Part VB -Complaint Commissioner and Part VI - Miscellaneous. Parts V & VA establish the Court of Appeal and the Grand Court as Superior Courts of Record and make provisions for the appointment and dismissal (in specific circumstances) of Judges of Appeal and Grand Court Judges. The Constitution, as drafted, significantly recognizes and provides for the distinctive functions of each arm of Government i.e. the Executive, Legislative and the Judiciary. To the latter it assigns judicial functions, to the [implied] exclusion of the other arms of government. It follows then, that the Cayman Constitution is faithful to the accepted doctrine of separation of powers between the Executive, the Legislative and the Judiciary, as is the case in most democratic countries. Lord Diplock, in the cited passages from the Hinds case (supra), recognizes the peculiar functions of each arm and the consequent breach if there is any trespass on judicial functions by either the Legislative or the Executive
``` "If consistently with the Constitution it is permissible for the Parliament to confer the discretion to determine the length of custodial sentences for criminal offences upon a body composed as the Review Board is, it would be equally permissible to a less well-intentioned Parliament to confer the same discretion upon any other person or body of persons not qualified to exercise judicial powers, and in this way, without any amendment of the Constitution to open the door to the exercise of arbitrary power by the executive in the whole field of criminal law." It is not disputed in this appeal, that His Excellency the Governor is a part of the Executive and that he has no judicial powers and responsibilities. Consequently, the only conclusion must be that section 2(2) of the Schedule of the Law, which gives His Excellency the power to determine the length of sentence to be served, is in conflict with the Constitution, which assigns that power and responsibility to the judicial arm of the government. For emphasis, I reiterate that part of the passage from Deaton case (supra), which was cited with approval by Lord Diplock in Hinds (supra), who specifically pronounced that he would not seek to improve on it. It reads: "... the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive." Section 2(2) of the Schedule to the Law does exactly that—commits punishment to the hands of the executive arm of the government. This principle is embodied in the principle of separation of powers, and the Exed must be in accordance with the constitutional principles propounded in the Hinds case, which are here adopted. Consequently, we had no hesitation, at the end of the arguments on the 12th December 2006, in allowing the appeal against sentence. ``` **Note:** The text provided is a transcription of the content visible in the image. The formatting and structure have been preserved as closely as possible.
At that time, we set aside the sentence passed by the learned trial judge and ordered, *in lieu*, that the "appellant be imprisoned during the Court's pleasure." This substituted sentence gave us some difficulty, as the Cayman Constitution does not have a comparable section, in *pari materia* to section 4(V) of the *Jamaica (Constitution) Order in Council, 1962* which provides for the preservation of laws which were in force before the coming into effect of the Constitution, and which also further provides that: "... but all such laws shall, subject to the provision of this section, be construed, in relation to any period beginning on or after the appointed day, with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of the Order." In *Mollison* Lord Bingham, in his opinion in the Privy Council, explains the purpose of this section, as follows: "It seems clear that section 4 had two complementary objects: to ensure that existing laws did not cease to have force on the coming into effect of the new legal order; and to provide a means by which existing laws could be modified or adapted to ensure their conformity with the Constitution and preclude successful challenge on the grounds of constitutional incompatibility." In all of the cases cited by Counsel for the Appellant in support of his missions, tutions with the Court to re-interpret the provisions of the relevant Constitutions which had been in force prior to the coming into effect of the new legal order, the Court to re-interpret the provisions of the relevant Constitutions which had been in force prior to the coming into effect of the new legal order, the Court allowed for such adaptations and modifications as may be necessary to bring them into conformity with the provisions of those relevant Constitutions. This allowed for
adaptation and modification in respect of the questioned provisions in those cases, in order to bring them into conformity with the doctrine of separation of powers, which their Lordships concluded was the foundation of the respective Constitutions. In those cases it was a simple exercise to place the determination of the length of the sentences passed on the appellants into the province of the Court, and in so doing rectify the breach. In the instant case, we could not undertake a similar exercise because no such power is given to us in the Cayman Constitution. Having held that the sentence imposed on the appellant was unlawful, for the reason stated, consideration had to be then given to what sentence could legally be imposed on him, he having been correctly convicted. **Section 1(1) of the First Schedule of the Youth Justice Law** provides: ``` "... the only custodial sentences that a court may make where a young person is found guilty of an offence are the sentences mentioned in this Schedule." ``` This section of the Schedule mandates that a young person, in the circumstances of the Appellant, be sentenced in accordance with **section 2(2)** of the Schedule, which directs that: ``` "The Court shall, if it considers that a custodial sentence would be appropriate, sentence him to the sentence of the offence." ``` Section 5 of the same Schedule states:
``` Where any sentence of detention has been passed with respect to a young person under paragraph 2 or 3, he shall be liable to be detained in such place (including a prison) and subject to such conditions as the Governor may direct, and while so detained shall be deemed to be in legal custody. As the sentence of detention by the Court is valid, the only breach of the Constitution is in ordering that the detention should occur "during Her Majesty's pleasure" (instead of during the court's pleasure) thereby giving to the Executive the power to determine the length of the sentence. In the Irish case of the State v O'Brien [1973] Irish Reports 50, Walsh J expressed a view, at page 72, about section 103 of the Children's Act, 1908, (which is in pari materia to section 2(2) of the Schedule (supra)), which we find persuasive and consistent with our own view. Consequently, we adopt it, in the circumstances of this case. He said: "Section 103 of the Act of 1908, as originally framed, did not require any term to be stated by the Court, but left it to be decided by the King or the Lord Lieutenant how long the detention was to be endured. This was in contrast to s. 104 of the Act of 1908 which provides that where a child or young person is convicted on indictment of attempt to murder, or certain other offences, and the court is of opinion that no other authorized punishment under the Act is sufficient, the court may sentence the offender to be or such pebe speclfr such period as may be specified in the a person was Actenced the atended : a sI do not felu in the tntas could o jua be o tr state th he retained period as mbe d that p to be sencort expreshat during sentence. hink it ay he Oireaclo not by slye detaig that the Oireachtas not by the pleasure of the court or until such time as the court thought it fit to release such a person. The powers already enjoyed by the Courts in respect of the committal of person for civil contempt of court where ```
```html <table> <tr> <td>a court may order the detention or imprisonment of a person until the court is satisfied that he has purged his contempt, or where for any good reason the court may think fit to release him, are quite analogous to this power and authorize a period of imprisonment or detention at the will of the court to compel obedience to the order of the court, which imprisonment cannot be remitted or commuted by virtue of any of the powers granted by Article 13, section 6, of the Constitution. It is a matter completely within the sphere of judicial power.</td> </tr> <tr> <td>In my view, the correct form of sentence now for a person falling to be sentenced under s. 103 of the Act of 1908 would be that the person should be sentenced to be detained, and he would thereupon be liable to be detained in such place and under such conditions as the Minister for Justice might direct. The statute further provides that while so detained the person concerned should be deemed to be in legal custody. In my opinion the words ‘during His Majesty pleasure’ were inconsistent with the provision of the Constitution of Saorstát Éireann 1922, and were inconsistent with the provisions of the Constitution of Ireland, 1937 and were not carried over as part of the law and could not be adapted."</td> </tr> <tr> <td>In keeping with those words, we are of the opinion that in the circumstances of the instant appeal, as it was in the O'Brien case (supra), the court can sentence the Appellant to be detained, until it is satisfied that he has served sufficient time in respect of his penalty and rehabilitation, with the Court</td> </tr> <tr> <td>legissection 2 of Schedulehaear that cended itoring his from tin It is clear that the translation i.e. f the First Schedule the Lentor the lature in mors progresse to tin me biggest tgisne spirit</td> </tr> <tr> <td>to treat young offenders who commit serious crimes differently from adult offenders who commit similar crimes.</td> </tr> </table> ```
Speaking of his decision in the O'Brien case (supra) Walsh J shows the appropriateness of this method of punishment when he said at page 72: "That would certainly be consonant with the original spirit of this statutory provision which was enacted in case of young persons and juveniles; the matter might be reviewed from time to time by the court concerned (though not necessarily the same judge) to enable the court to decide whether the time had come when the particular young person or juvenile might be properly released and discharged from the place of detention in which he was being confined." In coming to this conclusion we were also cognizant of the fact that this method of sentence was specifically designed to deal with young persons and is not the same as a sentence of life imprisonment, which would not address the special circumstances of a young person. In the Mollison case (supra), at page 16, Lord Bingham stated views, which are consistent with the opinion of Walsh J, and ours. He said: "A sentence of imprisonment for life is a sentence of a different nature from a sentence of indefinite detention specifically designed to address the special circumstances of those convicted of murders committed under the age of 18. Substitution of the court for the Governor General should not lead to a change, and a change disadvantageous to the detainee, in the punishment imposed." In all instances, where the circumstances are such that the most appropriate (and appropriate) approach to the question of the best sentence for the q is to be detained during the Court's pleasure.
We take note of the directives given by the Court of Appeal of Trinidad and Tobago in the case of *Chuck Attin v The State for the Republic of Trinidad & Tobago* (C.A. No. 29 of 2004) and observe that that Court followed, in principle, the directions issued by Sir David Simmons, CJ sitting in the Court of Appeal of Barbados, in the case of *Mormon Seantlebury v The Queen* Cr. App. 34 of 2002 (unreported). We suggest, however, that in the Cayman Islands, such guidelines for the Review Procedure should be formulated by the Hon. Chief Justice, after consultation with the Grand Court Judges. Finally, we advise that the Attorney General consider recommending amendments to *section 2(2) of the Schedule* to bring it into conformity with the Constitution. **Zacca, P.** **Taylor, J.A.** **Fort, J.A.** [](https://i.imgur.com/3Q5z5QG.png) 15