Scales of Justice not balanced

The decision by the Privy Council in the Brad Boyce matter is guaranteed to please no one. But this does not mean that the Law Lords have made an incorrect judgment. On Wednesday, the Privy Council decided that Justice Hubert Volney had erred when he directed a jury that forensic pathologist Hughvon des Vignes was not qualified to determine cause of death and that Boyce should therefore be freed. Boyce was on trial for manslaughter, reduced from murder in the death of Jason Johnson. Justice Volney’s instruction to the jury at the time caused great consternation, since it effectively denied Boyce a trial by jury and because Volney’s directive meant that any cases in which Dr des Vignes had given evidence could be thrown out on the same grounds.

The State, using new legislation introduced by then-Attorney General Ramesh Lawrence Maharaj, appealed the judge’s decision and, nine years later, the Law Lords confirmed that Volney was wrong. According to Lord Hoffmann, 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.” Lord Hoffmann also criticised Justice Volney for calling another pathologist for the sole purpose of giving his opinion on the expertise of Dr des Vignes.

In the nine years since this farce, the Privy Council’s decision has been essentially anticipated by the fact that Dr des Vignes has continued to function as a forensic pathologist without his expertise being called into question as in the Brad Boyce matter. The case itself became representative of the public perception that the scales of justice in Trinidad and Tobago were not balanced in dealing with poor and rich alike. According to the Law Lords, even our Court of Appeal was wrong with respect to the State’s right of appeal.

It is for this reason that the second part of the Law Lords’ decision will displease many people. The Privy Council has decided that Boyce cannot face a re-trial, since this would be unfair and impractical. Their argument is that a re-trial would make sense only if there was “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.” Clearly, after nine years, such a risk is more, not less, likely. Eyewitness evidence, which was already confused and contradictory, is liable to be more so now, while the medical evidence in the case is not entirely straightforward. Additionally, Boyce has been walking around with the reasonable assumption that he is a free man, and in the Law Lords’ judgment it would be wrong to re-try him now. In other words, the inefficiency of this country’s judicial system has helped ensure this unsatisfactory outcome.

What all this means is that justice has been half-served. On the one hand, the error of Justice Volney has been exposed, hence helping ensure that such a travesty will not occur again. On the other hand, Brad Boyce has been denied the right to a trial by a jury of his peers, and Jason Johnson’s family has received neither legal nor financial redress for his death. But, unsatisfactory as all this may be, it is better to have had a judgment than for this matter to have been left hanging in the foul air.