Saturday, June 2, 2007
Read the reports to see what the weaknesses were in each paper and also to better understand the level of answers expected by the examiner.
1. May/June 2005 Report
2. May/June 2004 Report
3. May/June 2003 Report
Friday, June 1, 2007
Attorney General and Minister of Justice, A.J. Nicholson, has intervened in the case involving Easton Grant, a Jamaican man, who is attempting to represent himself before the London-based Privy Council, but has been refused a visa to enter England.
Mr. Nicholson yesterday wrote to the British High Commissioner Jeremy Creswell, seeking a reversal of the decision.
Mr. Grant, a former teacher at the Montego Bay Community College in St. James, is seeking to have his termination of employment deemed illegal. He has so far been unsuccessful, having exhausted the local courts and has been granted leave by the Court of Appeal to take his case to the London lawlords.
His case hearing is set for October 30 and 31, but the English High Commission turned down his visa application saying he had not demonstrated that he will return to Jamaica.
In his letter to Mr. Creswell yesterday, Mr. Nicholson noted that the Judicial Committee of the Privy Council remains Jamaica's final court of appeal.
"This, I believe, clearly implies that litigants will have access to their final court without impediment, and should not be denied the right to pursue their appeals to the highest level.
To date, Mr. Grant has opted to argue his case without legal representation, as is his right: he should be permitted to continue to do so especially before our highest court," Mr. Nicholson said.
Tuesday, May 8, 2007
The Public Defender Act was passed in Jamaica in 1999, coming into effect April 16, 2000, repealing the Ombudsman Act and replacing the Office of the Parlimentary Ombudsman with the Office of the Public Defender with additional jurisdiction to investigate circumstances where it is alleged that a person's Constitutional rights have been violated.
Monday, May 7, 2007
Read David Rowe's article, "Trial by Jury- Right or Privilege" for a discussion of Hinds v R.
The Act purported to establish a new court called the Gun Court. The court was empowered to sit in three Divisions, namely a Resident Magistrate’s Division, a Full Court Division and a Circuit Court Division. One or other of these Divisions was empowered to try certain kinds of offences which, prior to the coming into force of the Act were cognizable only in a Resident Magistrates Court or in a Circuit Court of the Supreme Court of Jamaica.
The Review Board was to consist of five persons of whom the Chairman was to be a judge or a former Supreme Court or Court of Appeal Judge. None of the other members of the Board was a member of the Judiciary. They were to be the Director of Prisons, the Chief Medical Officer, a nominee of the Jamaica Council of Churches and a person qualified in psychiatry nominated by the Prime Minister after consultation with the Leader of the Opposition. Thus the majority of persons on the Review Board did not consist of persons appointed in the manner laid down in Chapter VII of the Constitution for persons entitled to exercise Judicial powers.
In substance therefore, the power to determine the length of any custodial sentence imposed for an offence under s. 20 of the Firearms Act 1967 was removed from the Judicature and vested in a body of persons not qualified under the Constitution to exercise judicial powers. The only function left to the Gun Court itself in relation to the length of the custodial sentence was the right to make recommendations for the consideration of the Review Board. Even though the Review Board was obliged to take the recommendations into consideration, it was not obliged to follow it. The power of decision rested with the Review Board alone.
Hinds and others were convicted in the Resident Magistrate’s Division of the Gun Court and sentenced to detention during the Governor General’s pleasure. They appealed to the Court of Appeal against conviction and sentence on the grounds, inter alia, that the provisions of the Act under which they had been tried and sentenced were in conflict with the Constitution of Jamaica and therefore void.
1. The provisions of the Act which provided for the establishment of a Full Court Division consisting of three Resident Magistrates were in conflict with the Constitution of Jamaica and, therefore, void since their practical consequence was to give to a court composed of members of the lower judiciary jurisdiction to try and to punish by penalties, extending in the case of some offences to imprisonment for like, all criminal offences, however grave, apart from murder or treason, committed by any person who had also committed an offence under s. 20 of the Firearms Act 1967.
2. The general rule in s. 20 (3) of the Constitution that trials should be held in public entrenches a previously existing common law rule. The rule however, was subject to the exceptions laid down in s. 20(4) and the exception applicable in this case was that which permitted persons other than the legal representatives of the parties to be excluded from the proceedings in the interests of public safety and public order. The Gun Court Act required all cases to be heard in camera. Parliament is vested with power under section 48(1) of the Constitution to make laws for the peace, order and good government of Jamaica.
3. Even though the Constitution does not expressly provide for Separation of Powers of the Executive, Legislature and Judicature, it is necessary by implication that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus even though the Constitution does not contain any express prohibition upon the exercise of legislation powers by the Executive or of judicial powers by either the Executive or Legislature, the doctrine of separation of powers sill applies.
It is a well established rule of construction applicable to constitutional instruments such as the Jamaican Constitution that the absence of express words to that effect does not prevent the legislature, the executive and the judicial powers of the state being exercisable exclusively by the Legislature, by the Executive and by the Judicature respectively.
The Parliament of Jamaica cannot, consistently with the separation of powers transfer from the judiciary to any executive body whose members 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.
The power conferred upon the Parliament to make laws for the peace, order and good government of Jamaica enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law. The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and subject to any restrictions imposed by a law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out.
In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum severity, either with or without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.
Thus Parliament in exercise of its legislative power may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge’s own assessment of the gravity of the offender’s conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers is to transfer from the judiciary to any executive body whose members 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.
Even though the Review Board would, no doubt, have acted in good faith, impartially and responsibly, a breach of a constitutional restriction is not excused by good intentions with which the legislative power has been exceeded by the particular law.
It is implicit in the very structure of a constitution on the Westminster Model 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 Constitution. This was upheld in Liyanage v R  1 All E.R..650.
It followed that the provisions of the Act relating to the mandatory sentence of detention during the Governor General’s pleasure and to the Review Board were a law made after the coming into force of the Constitution which was inconsistent with the provisions of the Constitution relating to separation of powers and were void by virtue of s. 2 of the Constitution.
Sunday, May 6, 2007
Note the exemptions set out in Schedule A of the Act. Schedule A is found on page 28 of the Act.
Section 31 deals with the required number of jurors for criminal matters.
Section 31 also sets out what is to be done where a juror dies or is discharged in the course of a criminal trial.
Section 32 deals with the required number of jurors for civil matters and what is to be done where a juror dies or is discharged in the course of a civil trial.
Section 34 deals with the appointment of and duties of the Foreman of the Jury.
Saturday, May 5, 2007
1. Here is the Jamaican Constitution. It may also be found here.
2. Chapter 7 of the Constitution concerns the Judiciary :
- Section 98 speaks to the appointment of Judges to the Supreme Court
- Section 100 (1) -(10) contains information about the removal of judges of the Supreme Court.
- Section 106 speaks to the circumstances under which and the means by which a Judge of the Court of Appeal may be removed from office.
3. The Judicature (Supreme Court) Act in section 6 (2) states :
No person shall be appointed to be a Judge of the Supreme Court unless he is a
member of the Bar of Jamaica, England, Northern Ireland or Scotland-
(a) of at least ten years standing; or
(b) such number of years standing as added to a period during which he has held the office of a Resident Magistrate in Jamaica prior to his becoming a member of such Bar amounts to not less than ten years.
4. The Judicature (Appellate Jurisdiction) Act in section 4(1) states :
A person shall not be appointed to be a Judge of the Court unless he is a member of the Bar of Jamaica, England, Scotland or Northern Ireland –
(a) of at least ten years standing; or
(b) who holds or has held office as a Judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having
jurisdiction in appeals from any such court.
Friday, May 4, 2007
Section 125 (4) states that where a reference is made to the Privy Council under the provisions of subsection (3) of this section, the Privy Council shall consider the case and shall advise the Governor General what action should be taken in respect of the officer, and the GovernorGeneral shall then act in accordance with such advice.
- Dress code
- Substance abuse
- Standard of behaviour & Service standards
- Political Activity
- Absence from duty
- Conduct which is a conflict of interest
- The acceptance of gifts
- Engagement in Private Work
Chapter 10 deals with rules governing disciplinary procedure.
Thursday, May 3, 2007
". . . the applicant has to show that he is a person aggrieved. In otherwords, he has to show he is one who is wrongly deprived of or refused something to which he is legally entitled or upon whom a legal burden is cast, and not merely one who is dissatisfied with an act or decision".
by The Hon. Mr. Justice Benjamin J Odoki - Chief Justice of Uganda (at page 20 of the Journal)
Wednesday, May 2, 2007
Two cases which address the issue of entrenchment are Hinds v R and the case of Independent Jamaica Council for Human Rights Ltd & Others v Attorney General & Another .
- Section 34 which establishes the Parliament and states that it shall which shall consist of Her Majesty, a Senate and a House of Representatives.
- Section 39 which sets out the Qualification for membership of Senate and House of Representatives.
- Section 63 (2) which states that Sessions of Parliament shall be held at such times so that a period of six months shall not intervene between the last sitting of Parliament in one session and the first sitting thereof in the next session.
- Section 64 (2), (3), (5) which deal with Prorogation and dissolution of Parliament.
- Section 68(1) which establishes that the executive authority of Jamaica is vested in Her Majesty.
Tuesday, May 1, 2007
- The Pratt and Morgan case : Earl Pratt & Ivan Morgan v The A.G. & Anor.
- The Neville Lewis case : Neville Lewis et al v A.G. & Anor.
On 30 September 2004 the Governor-General of Jamaica, acting under section 60 of the Constitution, gave his assent to three bills, the broad effect of which was to abolish the right of appeal to Her Majesty in Council and to substitute a right of appeal to a new regional court of final appeal, the Caribbean Court of Justice (“the CCJ”). The key question in this appeal is whether the procedure adopted in enacting that legislation complied with the requirements laid down in the Constitution.
The judgment of the Judicial Committee of the Privy Council declared the Caribbean Court of Justice Act 2004 along with the Caribbean Court of Justice (Constitutional Amendment) Act 2004 and the Judicature (Appellate Jurisdiction) Act 2004 unconstitutional and void.
Tuesday, April 17, 2007
JAMAICANS CALL FOR CHANGES TO SENTENCING SCHEDULE
Jamaicans attending the three justice reform consultations in Kingston, St. Ann and St. Thomas last evening (March 15) have advocated for more creative sentencing in order to achieve equity in the treatment of offenders and to reduce overcrowding in prisons. A recommendation was made from a member of the public for sentencing guidelines similar to what obtains in the United States of America to be introduced to the Jamaican Justice System. According to Mrs. Susan Reid-Jones, Project Advisor, Jamaicans feel that there was disparity in how persons were being sentenced for offences of a similar nature. “This is a matter that has been raised in just about every fora that we have held. People feel that there is need for greater consistency in sentencing”, she said.
Other concerns that were expressed in the consultations included overcrowding in cells and holding areas, improving access to legal aid, increasing the number of lawyers and their remuneration. Persons also raised the matter of how users of the court system were being treated by court staff and judges, arguing that judges should see themselves as providing a service to the public. Mrs. Reid-Jones said that there was general agreement that legal fees were too high and out of the reach of ordinary Jamaicans. She said that persons attending the consultations complained that lawyers do not attend Court until the entire legal fee has been paid.
Meanwhile, Project Manager of the Jamaican Justice Reform project, Mr. Peter Parchment, speaking on the importance of the consultations, said that the reform process was designed to engage a wide cross section of the Jamaican public in keeping with the principles and objectives of the Government’s Consultation Code and the need to ensure the credibility of the reform process. “We are using the process as an opportunity to empower the Jamaican people, improve their knowledge of the court and justice system and to ensure that the long-term development of justice service delivery reflects the views and responds to the needs and concerns of the Jamaican people. We understand that there are different perspectives on the direction of our justice system but we are confident that these consultations will result in consensus in some critical areas”, he said.
The justice reform project is expected to develop strategies and mechanisms to facilitate the modernization of the justice system to meet the current and future needs of Jamaicans. A final report on the consultations will be submitted to the national consultation which is scheduled for May this year.
Monday, April 16, 2007
From death row to freedom - Earl Pratt to be released after decades in prison
Glenroy Sinclair, Assignment Coordinator
More than a decade after the United Kingdom Judicial Committee of the Privy Council recommended that his death sentence should be commuted to life imprisonment in a landmark ruling for the Caribbean, Earl Pratt will be released this month from prison.
"The Department of Correctional Services is awaiting a formal notification regarding the status of parole applicants for May 2007," Major Richard Reese, commissioner of corrections, disclosed yesterday.
The Gleaner understands that Pratt, now in his 50s, and another high-profile inmate, Mary Lynch, 62, who was convicted for killing her husband in the early 1990s, are likely to be released as early as next Friday, but Commissioner Reese is awaiting the parole unit to complete the paper work.
The 1994 Privy Council ruling was a landmark case for Pratt and his long-time friend, Ivan Morgan, who later died of natural causes in prison. Both were sentenced to death for the October 6, 1977 murder of Junior Bissick. On three separate occasions the death warrant was read to them and they were removed to the condemned cells, located next door the gallows, at the St. Catherine correctional facility, the maximum-security prison in the parish.
Breach of their rights
But after waiting more than five years to be executed, the U.K. Privy Council cited a breach of their constitutional rights, under Section 17 (1) of the Constitution Act, which provides that 'no person shall be subjected to torture or to inhuman or degrading punishment'. This was after they had appealed the case.
The Privy Council recommended in 1994 that because Pratt and Morgan were on death row for more than five years after their conviction, they should not be hanged. At the time, the recommendation of the UK Privy Council provided reprieve for 110 other death row inmates in Jamaica, who were also waiting for more than five years to be executed. No one has been hanged in Jamaica since 1988.
Sunday, April 15, 2007
‘Free’ after 39 years
By FRANCIS JOSEPH Thursday, May 24 2007
SEVENTY-TWO-YEAR-OLD Christopher Ventour walked out of the St Ann’s Psychiatric Hospital a free man yesterday afternoon after spending the last 39 years there. But Ventour only tasted freedom for 20 minutes – there were no relatives or friends to meet him, nowhere safe for him to go, so on the advice of his lawyers, Ventour was readmitted to the hospital for “safe-keeping.”
Ventour was found guilty, but insane in 1968, for killing a young man in La Brea. He was the longest serving prisoner in Trinidad. His brief taste of freedom came yesterday after Justice Mustapha Ibrahim ordered in the morning that he be released forthwith in keeping with a Cabinet minute dated January 5, 2006. Ventour walked out of Ward 20 shortly after 4 pm with his lawyers Mark Seepersad and Gerald Ramdeen. He looked frail and weak. He had to be assisted by a hospital orderly. He walked slowly and at times appeared as if he was about to fall. There was a fluid bag hooked up to him due to a bladder problem. The first thing he did was to smoke a cigarette given to him by another inmate who was elated that Ventour was being released. Approached by reporters, Ventour said he was happy to be out of the hospital after 39 years. He insisted he was going home to his wife, although his lawyers reported that she had died a long time ago. He could not say how many children he has, although he said some live in the United States and others were “all over the place.”
Ventour said he intends to stay out of trouble. “I feel very happy to know I am leaving,”Ventour told Newsday. He said he hopes that his mental problems of 39 years ago would not affect him in the future. He said before he was arrested for murder, he used to hear voices in his head. Whenever that happened, he used to react and get violent. It was during one of these violent times, that he killed a young man, a crime for which he was tried and found guilty, but insane. He said he asked for help when he heard the voices, but no one took him on.
Saturday, April 14, 2007
Sex laws report for Senate tomorrow
published: Thursday June 7, 2007
The committee wrapped up its final meeting in Gordon House yesterday, after putting the finishing touches on recommendations to amend laws relating to rape, incest and other sex crimes.
Changes proposed by the committee over its seven-month-long sitting will afford more protection to vulnerable persons, including the mentally challenged, women and children.
Chairman of the committee, Senator A.J. Nicholson, who is also the Attorney-General and Justice Minister, said the report should be debated in less than two weeks.
Preparing new legislation
He said the Office of the Chief Parliamentary Counsel had the task of preparing new legislation, which would be reviewed by Cabinet and introduced in the House for debate before the end of the calendar year.
Highlighting some key areas covered in the report, Senator Nicholson mentioned the definition of rape and sexual intercourse, marital rape, abolition of the common law presumption that a boy under 14 years was incapable of committing rape; incest and related matters.
Senator Nicholson argued that the companion pieces of legislation impacted mostly on young women.
He explained that certain activities that were reported to have taken place in schools, were alarming.
The boy was charged with incest and defilement of a female imbecile, while his father was slapped with charges of aiding and abetting carnal abuse and aiding and abetting the defilement of a female imbecile.
Senior St Catherine resident magistrate Lorna Errar Gayle also ordered that the court apply to the Director of Public Prosecutions for a nolle prosequi, to allow the case to go directly to the St Catherine Circuit Court for trial.
Detective sergeant Kirk Roach of the Guanaboa Vale police told the court that between December 2006 and January this year, the boy confessed to sexually assaulting his mother six times in the one room shack where he lives with his parents and three sibblins.
Although the mother reported her son's behaviour to his father - her common law husband - he took no action, and when she became tired of her son's abuse, she told neighbours who alerted the police.A visibly distraught Errar Gayle questioned the boy, who admitted to having sexual relations with his mother, and using a condom "one of the time."
The father told the judge he knew his son was "troubling him mother". "I talk to him and beat him two times and tell him not to go back and (I) move him out of the room," he said.
The police's account of the family also prompted the judge to order the Child Development Agency to investigate.According to the police, the father and his common law wife live with their three other young children at the house under deplorable and unsanitary conditions.
One of the children, a nine-year-old girl, reportedly had a wound to the head which was infected by maggots.The father told the judge that he had filled the wound with crushed crackers and corn meal to stop the maggots, but it did not help, so he took her to a doctor who had given him a prescription which he had not yet filled.
Friday, April 13, 2007
17-year-old sentenced to 3 years probation for carnal abuse
reported in the Jamaica Observer by Paul Henry
A judge jokingly told a 17-year-old youth who was sentenced to three years probation for carnal abuse in the Home Circuit Court on Friday to temporarily quit studying Biology in school as he had already completed the practical.
Justice Lloyd Hibbert made the comment after Attorney-at-Law Jean Barnes informed him that her client - a former Calabar High School student - was furthering his studies. As Barnes mentioned the subjects her client was pursuing at his new school, the judge interrupted when she listed Biology among them.
"Biology?" Hibbert asked. Hibbert then told the youth to drop Biology for a while as he had already "done the practical before the theory".Last June, a 13-year-old girl told her mother and the police that the youth was her "boyfriend" and that the two had had sex.
The girl left home for school on June 13, and when she did not return home her mother made a report to the Lawrence Tavern police in St Andrew. The youth was arrested and charged on June 19 for having sex with the girl. Based on information the mother received, the two were found at a house in Lawrence Tavern.The youth recently pleaded guilty to carnal abuse. Barnes told the court that the 13-year-old was introduced to her client by a mutual friend, and that the girl had expressed a desire to have sex with him.
Barnes added that adults find it difficult to control their sexual urges, much more a "boy his age" and that under the circumstances, it was difficult for her client to refuse having sex with the 13-year-old.
It was also reported that in the course of the period of his violations of the child, he threatened her life if she ever reported his abuses. In the course of these calls and discussions, many requests were made of me to write a column about it, I consequently now do so.
Let me start by saying that I was rather startled to learn the identity of the judge who pronounced that her sentence of the convict would be suspended for a period of years, (the number now escapes me), because I have always found her to be caring, sensible and appropriately judicial in her conduct and pronouncements throughout matters conducted before her. I must say though that her sentence does not make sense to me.
We do not know what was contained in the indictment. Was there only one count in the indictment, or were there multiple counts? You see, each sexual violation/each sexual act of carnal abuse is an offence.
So, if that man had committed the act of carnal abuse 20 times, for example, there should be 20 counts charged because each is a separate offence. The number of counts charged in the indictment will, of course, depend on the cogency of evidence which exists to prove each and every separate act. This evidence would include the date, time and place the sexual violation by the perpetrator is alleged to have occurred. These must form a part of the wording of the counts charging the offence in the indictment.
From the media reports of the matter, on first blush, as the report related to violations over a number of years, it would seem that the indictment would have included several counts. However, this is merely a conclusion arrived at because of the length of time alleged during which the adult male violated the child. If only one charge of carnal abuse was laid, I conclude that the DPP did not have enough evidence to lay more than one. Read the continuation of the article.
Thursday, April 12, 2007
Wednesday, April 11, 2007
When efforts were made to rescue Julia from her predicament, another child, 8 year old Mark, who was using a piece of stick, received a shock and became unconscious. Mark also suffered severe burns to both his hands.
Mark was allergic to penicillin (an antibiotic) and wore an allergy alert bracelet on his right hand.
After 3 months, Mark developed an infection in the area of the burn while still in the hospital and was treated with penicillin. He had a severe allergic reaction which left him unable to breathe on his own. Six days after receiving the penicillin Mark died.
With what, if anything, can Fitzroy be charged for the deaths of Julia and Mark?
Note : this situation question has been adapted from the facts of the Jamaican case which may be found at the following citation: R v Fitroy Greenland 27 JLR 558
For both the deaths of Julia and Mark, Fitzroy can be charged for manslaughter as a result of an unlawful act. However, in the case of the charge for Mark’s death, Fitzroy may argue in his defence that the chain of causation has been broken and thus, if he is successful, he may be acquitted of this charge.
In order to secure a conviction for manslaughter by an unlawful act, the burden of proof rests on the prosecution to prove, beyond a reasonable doubt, four things.
The first thing the Prosecution must prove is that Fitzroy had actually committed an unlawful act. The case of R v Franklin held that the unlawful act must be a crime. It is submitted that the prosecution would have no problem in proving the unlawful, criminal act. In this case, the unlawful, criminal act is the illegal connection by Fitzroy of the electricity wires to the JPS Poles.
In order to prove the mens rea for unlawful act manslaughter, the Crown must establish that Fitzroy possessed the necessary mens rea for abstracting electricity [under the Larceny Act section 15]. The mens rea must go to the unlawful act itself. In this case, the mens rea required for the crime is maliciousness (intention or recklessness) or fraud. It must be noted, however, that it is not necessary for the prosecution to prove that the defendant realised the risk of causing some harm. As long as the reasonable man in his position would have so realised, this is sufficient mens rea.
So the Crown must show that the act was dangerous in the sense that a sober and reasonable person would inevitably recognize that it carried some risk of harm.This is the third thing to be established by the Prosecution. The case of DPP v Newbury and Jones stated that in judging whether the act was dangerous, the test is not whether the accused recognised that his act was dangerous but rather whether all sober and reasonable people would have recognised its danger.The test of whether an act is dangerous, therefore, is whether the sober and reasonable man would have appreciated that the act was dangerous in the light, not only of the circumstances actually known to the accused but also of any additional circumstances of which that hypothetical person would have been aware.
The fourth element required to be proved by the prosecution is that the act was a substantial cause of the deaths of both Julia and Mark.
To establish causation it is necessary to ask whether the defendant in fact caused the specified consequence of the offence. In other words, "But for what the defendant did would the consequences have occurred?"
In the case of Julia, it is submitted that the prosecution should have no difficulty establishing that the electric shock received by Julia was the operating cause of her death. As she received that shock because of her coming into contact with the live wire as a result of Fitzroy’s illegal electrical connection, Fitzroy would no doubt be convicted of manslaughter. In other words, but for Fitzroy’s actions, Julia would not have died. In order to escape liability, Fitzroy would, it is submitted, have to set up a defence negating either the mens rea or the actus reus.
Mark’s death, however, may have a different result. It may be argued logically that had it not been for Fitzroy’s unlawful act the sequence of events concerning Mark would not have happened, i.e. Mark would not have had to try to save Julia and thus receive the burn to his hands (which required his hospitalization) which then became infected and had to be treated with an antibiotic.
However, this argument would go too far as it would appear from decided cases that there may have been, in this case, an intervening act which broke the chain of causation. In R v Jordan, following his being stabbed by the defendant Jordon, the victim died in hospital, after receiving treatment to which he proved allergic. Even though his allergy was known, the doctors still gave him the medication to which he was allergic. It was held in that case that the treatment was palpably wrong and thus constituted a new intervening act, breaking the chain of causation. The defendant was acquitted of the murder.
However, in the case of R v Cheshire, the victim, having been shot by the defendant, had to be admitted to hospital where he received a tracheotomy. Six weeks after receiving the tracheotomy the victim developed breathing problems and it was shown that the hospital had been negligent in its treatment of the victim as they had not properly recognized the cause of the victim’s breathing problem. The court held that this did not break the chain of causation. So long as the defendant’s actions contributed significantly to the death, his actions need not be the sole or even the main cause of death. The court further stated that medical negligence or even recklessness did not exclude the defendant’s liability unless it (the medical negligence/recklessness) was so independent of his acts and so potent as to make his own contribution insignificant. Only in the most extraordinary and unusual case would treatment, whether right or wrong, given in good faith by a generally competent doctor, be regarded as independent of the original injury.
It was further emphasized in R v Smith that if, at the time of death, the original wound was still an operating cause and was still a substantial cause of the death, then death can be said to be a result of the wound even though some other cause is also operating.
Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.
Tuesday, April 10, 2007
1. Definition of Ganja:
Section 2: “ganja” includes all parts of the plant known as cannabis sativa from which the resin has not been extracted and includes any resin obtained from that plant, but does not include medicinal preparations made from that plant;
2. Taking Steps preparatory to exportation of dangerous drugs:
Section 13 (5) : Every person who exports, causes to be exported, or takes any steps preparatory to exporting, any dangerous drug from the Island except under and in accordance with, the provisions of this Act shall be guilty of an offence against this Act.
Section 7A (1) Every person who imports or exports or takes any steps preparatory to exporting ganja shall be guilty of an offence…
(2) Where there is evidence-
(a) that the ganja for which an accused person has been charged under this section is packaged in such a way as to make it reasonably suitable for exporting; or
(b) that the ganja for which a person is charged was found to be in or at any prescribed port or place,
that evidence shall be prima facie evidence of steps being taken preparatory to the exporting of the ganja by the person charged.
Section 7B. Every person who deals in ganja; or
(a) cultivates, gathers, produces, sells or otherwise deals in ganja; or
(b) being the owner or occupier of any premises, uses such premises for the cultivation or storage of ganja or the selling or otherwise dealing in ganja or knowingly permits such premises to be so used;
(c) uses any conveyance for carrying ganja or for the purpose of selling or otherwise dealing in ganja, or being the owner or person in charge of any conveyance, knowingly permits it to be so used,
shall be guilty of an offence
3. Possession of Ganja :
Section 7C : Every person who has in his possession any ganja shall be guilty of an offence…
1. Warner v Metropolitan Police Commissioner  2 AC 256 (upheld in R v McNamara (1988) 87 Cr App R 246) :
This case concerned possession of prohibited drugs. D who sold scent as a side line, collected two boxes which had been left for him at a cafe. One box contained scent, the other controlled drugs. D said he assumed both boxes contained scent.The Court of Appeal held that if D was in possession of the box and he knew the box contained something, he was inpossession of the contents, whatever they were.
-Criminal Law by J.C. Smith & Brian Hogan 7th edition
The tenant of a house might be found to be in possession of drugs found on the premises although he did not know they were there provided he had the opportunity to find out that they were. Possession was being 'knowingly in control of a thing in circumstances which have involved an opportunity (whether availed of or not) to learn or discover, at least in a general way, what the thing is'.
(a) being the occupier of any premises knowingly permits those premises to be used for the smoking of ganja; or
(b) is concerned in the management of any premises which he knows is being used for such purpose as set out in paragraph (a); or
>>> Case Law :
1. Westminster City Council v Croyalgrange Ltd  2 All ER 353 :
...it is always open to the tribunal of fact...to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not want to have his suspicions confirmed.
(d) smokes or otherwise uses ganja, shall be guilty of an offence
Monday, April 9, 2007
Note : The case of R v G has, for the most part, removed Caldwell Recklessness. Please become familiar with the decision in R v G
Most offences requiring a mens rea of recklessness now require Cunningham / Subjective Recklessness.
Sunday, April 8, 2007
Saturday, April 7, 2007
Mens Rea under the MITP Act is explained in the judgment of R v G & Another
In the U.K., the offence is Criminal Damage under the Criminal Damage Act 1971 .
For the U.K. position, see Smith & Hogan 11th edition. Please note that this edition has been updated as follows:
2005 Update to Chapter 24 Smith & Hogan
2006 Update to Chapter 24 Smith & Hogan
The following cases represent the U.K. Position.
Ayliffe & Others Judgment
R v. Jones Judgment
Friday, April 6, 2007
The position under the old act represents to a large degree the current law in Jamaica.
PLEASE NOTE THAT JAMAICA DOES NOT HAVE A THEFT ACT.
The relevant Statute covering Larceny in Jamaica is the LARCENY ACT.
Please note the differences between the provisions of the UK Theft Act and the Jamaica Larceny Act.
The offence in Jamaica is Larceny not Theft.
Thursday, April 5, 2007
Wednesday, April 4, 2007
(a) in subsection ( 1 ) [of section 2 of the Offences against the Person Act] by deleting paragraph (d), relettering paragraphs (a) to (c) as paragraphs (b) to (d), and inserting the following as paragraph (a)-
"(a) any murder
(i) committed by a person if, in the course or furtherance of, arising out of, or ancillary to, that murder, the person commits an offence referred to in subsection (1 A); or committed by a person in the course or furtherance of, arising out of, or ancillary to, an offence referred to in subsection (1A), whether or not the individual murdered was an individual that the offender intended to murder in committing the offence;
(b) the murder of -
(i) a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(ii) a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;
(iii) a judicial officer acting in the execution of his duties; or
(iv) any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force, or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;
(c) the murder of any person for any reason directly attributable to -
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or
(ii) the service or past service of that person as a juror in any criminal trial;
(d) the murder of a Justice of the Peace acting in the execution of his judicial functions;
(e) any murder committed pursuant to an arrangement whereby money or anything of value - (i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or
(ii) is promised by one person to another or to a third person at the request or direction of that other person, as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;
(f) any murder committed by a person in the course or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public.
(1A) For the purposes of subsection (1)(a), the offences referred to in this subsection are-
(a) burglary or housebreaking;
(b) arson in relation to a dwelling house;
(c) robbery; or
(d) any sexual offence.
(2) Subject to subsection (3), every person convicted of murder other than a person-
(a) convicted of murder in the circumstances specified in subsection (1) (a) to (f); or
(b) to whom section 3 (1A) applies,shall be sentenced in accordance with section 3 (1) (b).
(3) If in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are convicted of that murder-
(a) the provisions of section 3 (1) (a) shall apply to any of those persons who-
(i) by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered; or
(ii) himself used violence on that, person in the course or furtherance of an attack on that person; and
(b) any other persons convicted of the murder shall be sentenced in accordance with section 3(1)(b).
(4) (Subsection 4 deleted by Act 1 of 2005)
(5) In this section –
"correctional officer" has the same meaning as in the Corrections Act;
"judicial officer" means –
(a) a Judge of the Supreme Court or the Court of Appeal, the Master in Chambers or any person for the time being performing the functions of a Judge of the Supreme Court or Court of Appeal or of the Master in Chambers;
(b) the Registrar or Deputy Registrar of the Supreme Court, the Revenue Court or the Court of Appeal or any person for the time being performing the functions of Registrar or Deputy Registrar;
(c) a Resident Magistrate or any person for the time being performing the functions of a Resident Magistrate;
(d) a person employed in a court's office who carries out prosecution of offences or in the Office of the Director of Public Prosecutions or engaged to carry out functions on behalf of the Director of Public Prosecutions;
"member of the security forces" means a member of
(a) the Jamaica Constabulary Force;
(b) the Jamaica Defence Force to the extent that such member has been assigned to act in aid of the Police;
(c) the Island Special Constabulary Force;
(d) the Rural Police.
Tuesday, April 3, 2007
(1) Every person who is convicted of murder falling within-
(a) section 2 (1) (a) to (f) or to whom subsection (1A) applies, shall be sentenced to death or to imprisonment for life;
(b) section 2 (2), shall be sentenced to imprisonment for life or such other term as the court considers appropriate, not being less than fifteen years.
(1A) This subsection applies to a person who is convicted of murder and who, before that conviction, has been convicted in Jamaica-
(a) whether before or after the 14th October, 1992, of another murder done on a different occasion; or
(b) of another murder done on the same occasion.
(1B) (a) Where a court pronounces a sentence of death pursuant to subsection (1)(a) -(a) the form of the sentence shall be to the effect only that the person is to "suffer death in the manner authorized by law";
(b) every person so sentenced shall, after sentence, be confined to some safe place within the correctional institution, apart from all other inmates; and
(c) the sentence may be carried into execution as heretofore has been the practice.
(1C) In the case of a person convicted of murder, the following provisions shall have effect with regard to that person's eligibility for parole, as if those provisions had been substituted for section 6(1) to (4) of the Parole Act-
(a) where a court imposes a sentence of imprisonment for life pursuant to subsection (1)(a), the court shall specify a period, being not less than twenty years, which that person should serve before becoming eligible for parole; or
(b) where, pursuant to subsection (1)(b), a court imposes-
(i) a sentence of imprisonment for life, the court shall specify a period, being not less than fifteen years; or
(ii) any other sentence of imprisonment, the court shall specify a period, being not less than ten years,which that person should serve before becoming eligible for parole.
(1D) A person shall not be sentenced to death under this section by reason of a previous conviction for murder referred to in subsection (1 A) unless-
(a) at least seven days before the trial, notice is given to him that it is intended to prove the previous conviction; and
(b) before he is sentenced, his previous conviction for murder is admitted by him or is found to be proven by the trial Judge.
(1E) Before sentencing a person under subsection (1), the court shall hear submissions, representations and evidence, from the prosecution and the defence, in relation to the issue of the sentence to be passed.
Sentence of death not to be passed on pregnant woman.
(2) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be any sentence of imprisonment that may be imposed under subsection (1)(b) instead of sentence of death.
Procedure where woman convicted of capital offence alleges she is pregnant.
(3) Where a woman convicted of murder falling within section 2(1) (a) to (f) or to whom subsection (1A) applies alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.
(4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be resworn:
Provided that -
(a) if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act or for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and
(b) where there is no trial jury, or where a jury have disagreed as to whether the woman is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.
(5) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.
(6) Where on proceedings under this section the jury find that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her any sentence of imprisonment that may be imposed under subsection (1)(b):
Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act.