STAFFORD AND ANOTHER v THE STATE (NOTE)

PRIVY COUNCIL

[1999] 1 WLR 2026

HEARING-DATES: 20, 21, 30 July 1998

30 July 1998

CATCHWORDS:

Trinidad and Tobago — Crime — Homicide — Murder — Constructive malice doctrine abolished — Judge misdirecting jury in accordance with constructive malice principle — Whether provisio to be applied — Whether alternative verdicts to be substituted — Supreme Court of Judicature Act (Laws of Trinidad and Tobago, 1980 ed, c 4:01), ss 44(1), 45(2)

HEADNOTE:

APPEAL (No 7 of 1998)

The defendants, Giselle Stafford and Dave Carter, appealed with special leave from the judgment of the Court of Appeal of Trinidad and Tobago (Sharma, Gopeesingh and Permanand JJA) on 14 January 1997 giving reasons for on 3 December 1996 dismissing their appeals against their convictions of murder on 14 June 1996 at the Port of Spain Assizes before Volney J and a jury.

The facts are stated in the judgment of their Lordships.

CASES-REF-TO:

Buxoo v The Queen [1988] 1 WLR 820, PC

Chan Wing-Sui v The Queen [1985] AC 168; [1984] 3 WLR 677; [1984] 3 All ER 877, PC

Gayle v The Queen (unreported), 12 June 1996; Appeal No 40 of 1995, PC

Gransaul v The Queen (unreported), 9 April 1979; Appeal No 26 of 1978, PC

Lee Chun-Chuen v The Queen [1963] AC 220; [1962] 3 WLR 1461; [1963] 1 All ER 73, PC

Mitchell v The Queen [1998] AC 695; [1998] 2 WLR 839, PC

Moses v The State [1997] AC 53; [1996] 3 WLR 534, PC

Reg v Powell (Anthony) [1999] 1 AC 1; [1997] 3 WLR 959; [1997] 4 All ER 545, HL(E)

Reg v Vickers [1957] 2 QB 664; [1957] 3 WLR 326; [1957] 2 All ER 741, CCA

Stirland v Director of Public Prosecutions [1944] AC 315; [1944] 2 All ER 13, HL(E)

Thompson v The Queen [1998] AC 811; [1998] 2 WLR 927, PC

Woolmington v Director of Public Prosecutions [1935] AC 462, HL(E)

CASES-CITED:

Ajodha v The State [1982] AC 204; [1981] 3 WLR 1; [1981] 2 All ER 193, PC

Crosdale v The Queen [1995] 1 WLR 864; [1995] 2 All ER 500, PC

Glennon v The Queen (1994) 179 CLR 1

Mohammed (Fazal) v The State [1990] 2 AC 320; [1990] 2 WLR 612, PC

Reg v Anderson; Reg v Morris [1966] 2 QB 110; [1966] 2 WLR 1195; [1966] 2 All ER 644, CCA

Reg v Greatrex (unreported), 19 March 1998, CA

Reg v Roberts (Kelvin) [1993] 1 All ER 583, CA

Reg v Uddin [1999] QB 431; [1998] 3 WLR 1000; [1998] 2 All ER 744, CA

Wilde v The Queen (1988) 164 CLR 365

COUNSEL:

John McLinden and Andrew Bodnar for the first defendant; Peter Thornton QC and Richard Hermer for the second defendant; James Guthrie QC for the state.

JUDGMENT-READ:

Cur adv vult 30 July.

PANEL: Lord Hoffmann, Lord Hope of Craighead, Lord Clyde, Sir Brian Neill, Sir Christopher Staughton

JUDGMENTBY-1: LORD HOPE OF CRAIGHEAD

JUDGMENT-1:

LORD HOPE OF CRAIGHEAD: The defendants Giselle Stafford (“Giselle”) and Dave Carter (“Carter”) together with Learie Raphael Rimple (“Learie”) were charged jointly with the murder of Everald Verette sometime between 16 and 17 November 1992. Learie died before the case could be brought to trial. On 14 June 1996, after a trial before Volvey J in the High Court, Giselle and Carter were both found guilty of the murder. They were sentenced to death. They appealed against their convictions to the Court of Appeal of Trinidad and Tobago. On 3 December 1996 the Court of Appeal (Sharma, Gopeesingh and Permanand JJA) dismissed their appeals. On 19 January 1998 they were granted special leave to appeal to their Lordships’ Board.

The case for the state was that Giselle, Carter and Learie broke into the deceased’s house during the night and that they murdered him there in the course of a robbery. His body was discovered early on the morning of 17 November 1992 on the floor of his bedroom. He was dressed only in a pyjama jacket. Blood was observed coming from his ears, nose and mouth. A police sergeant who gave evidence about the scene of the killing said that he had found a bottle of rum beside the deceased’s body. A post mortem examination was carried out. This showed that the deceased had sustained various injuries to his neck, face and forehead. There were also bruises on both knee caps. There was a deep grooved imprint of a chain on his neck. A silver chain which he had been wearing was produced at the trial. The cause of death was said to be asphyxiation due to strangulation and aspiration of blood associated with other injuries. A louvre window in the bedroom was found to be broken. Carter’s fingerprint was on a piece of the broken glass. Various items of property, including two cassette players, were missing from the house. A witness named Jennifer John said that on 17 November 1992 Giselle had brought two cassette players to her and asked her to keep them for her. A neighbour of the deceased named Marlon James said that he had been woken up at about 3 am, on 17 November 1992 by noises from the deceased’s house. He looked out and saw a woman come through a hole in the deceased’s fence. She was followed by two men who came out, one after the other, through the hole with bags in their hands.

Carter was detained by the police on 18 November 1992. Giselle was arrested later the same day. They both made brief replies in which they admitted having taken things from the deceased’s house. Later that day they made written statements under caution in which they each gave detailed descriptions of their part in the robbery and of the events which led to the deceased’s death. These statements were challenged at the trial on the grounds that they were inadmissible and in any event were not true. After a voire dire the trial judge admitted the statements into evidence. Giselle and Carter both then gave evidence from the witness box. In the course of their evidence they gave an entirely different account of the incident. Giselle said that the deceased had let her, Learie and Carter into the house at about 9 pm. The deceased had taken her into his bedroom where they had had sexual intercourse. She then had an argument with him and he started to hit her. Carter came into the room and told the deceased to cool himself, whereupon the deceased pushed him against the louvre window. Learie then came in and started to cuff the deceased. At that point Giselle and Carter ran downstairs and out of the house, leaving Learie alone with the deceased. She said that she had been forced to sign her written statement. She denied having made any admissions orally to the police. Carter gave the same version of the incident as Giselle had done in his evidence. He admitted that he had signed the written statement, but he claimed that the account which he had given to the police was different from that which had been written down.

At the time of the trial the common law rule of constructive malice, known as the “felony/murder” rule, was thought still to be part of the law of murder in Trinidad and Tobago. As this was a case of a killing which was alleged to have occurred in the course of a robbery, the case for the state was a simple one. It was presented on the assumption that to convict the defendants of the murder it was sufficient to prove that they were both participating in the commission of the robbery. The trial judge gave the traditional felony/murder direction in the course of his summing up. But even as he spoke Moses v The State [1997] AC 53 was being prepared for hearing before this Board. The hearing of the appeal in that case took place on 18 and 19 June 1996, and on 29 July 1996 their Lordships delivered their judgment. They held that the felony/murder rule was no longer part of the law of murder in Trinidad and Tobago. The abolition of the distinction between felonies and misdemeanours by section 2(1)(a) of and Schedule 1 to the Law Revision (Miscellaneous Amendments) (No 1) Act 1979 (the “Miscellaneous Amendments Act”) had had the effect of abolishing the felony/murder rule also. The statute had made no mention of the felony/murder rule. But felonies had ceased to exist, and it was impossible to have a principle of felony/murder if there was no such thing as a felony.

As the Court of Appeal observed at the outset of its judgment, the practical effect of Moses v The State was to abolish the felony/murder rule retrospectively. But it was not the judgment in that case which changed the law. What it did was to declare what the law was as a result of the changes made by the Miscellaneous Amendments Act. The abolition of the distinction between felonies and misdemeanours had already been brought into effect on the Act’s commencement date. Nobody in Trinidad and Tobago appears to have observed that the felony/murder rule had been abolished, albeit tacitly, on the same day. So it is not at all surprising that the trial judge, like so many judges before him, based his summing up on the rule. But there is no escape from the conclusion that, as the law was changed upon the commencement of the Miscellaneous, Amendments Act, a direction after that date which was based on the felony/murder rule was a serious misdirection.

Their Lordships are under no illusions about the gravity of the situation which the decision in Moses v The State has revealed. It was most unfortunate that a direction in the terms approved by this Board in Gransaul v The Queen (unreported), 9 April 1979; Appeal No 26 of 1978 only a few months before the commencement date of the Miscellaneous Amendments Act, and which had been routinely given in this jurisdiction during the intervening 16 years after that date, had now to be held to have been a misdirection. It was even more unfortunate that the flawed direction should be one relating to murder, where there is such an obvious public interest in the conviction and punishment of the criminal. But fundamental principles of justice require that the law must receive effect. If the proviso to section 44(1) of the Supreme Court of Judicature Act cannot be applied, and if a substituted verdict of manslaughter under section 45(2) of that Act is not available, the conviction must be quashed. That was what had to be done in Moses The State [1997] AC 53. The question which their Lordships have had to address is whether the same result must follow in this case also. As Lord Mustill observed in Moses v The State, at p 69C-D, the fact that a direction given in accordance with the felony/murder rule must now be held to have been a misdirection need not inevitably lead to the quashing of the conviction. A careful analysis of the evidence may show that there was no miscarriage of justice, or at least that a verdict of manslaughter may properly be substituted.

The Court of Appeal had no doubt that, had the proper directions been given, the jury would have come to the same conclusion and found the defendants both guilty of murder. It applied the proviso and dismissed the appeals. In their appeal to this Board the defendants’ main argument was that the Court of Appeal was wrong to apply the proviso and that the convictions for murder should be set aside. Counsel accepted that it was open to the Board to substitute for the convictions for murder verdicts of manslaughter. But they submitted that the evidence which the jury must have accepted was insufficient to show that the violence which caused the death was within the scope of the joint enterprise. They also submitted that, as the case had been conducted from start to finish by everybody on the assumption that it was subject to the felony/murder rule, it was impossible to draw any conclusions from the jury’s verdict as to how the case would have been decided if it had been understood from the start that the rule was inapplicable.

The proviso

The first question is whether the Court of Appeal was right to apply the proviso. Section 44(1) of the Supreme Court of Judicature Act provides:

“The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: but the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.”

It has been said many times that it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal. Save in exceptional circumstances. the Judicial Committee will not embark upon a rehearing of issues such as the weight which may properly be given to the evidence or the inferences which may properly be drawn from it. These are matters which will be left to the Court of Appeal. Its decision as to whether the evidence was sufficient to support the conviction will not normally be reviewed by this Board: Buxoo v The Queen [1988] 1 WLR 820, 822; Gayle v The Queen (unreported), 12 June 1996; Appeal No 40 of 1995. As a general rule the same is true as to the application of the proviso. In Lee Chun-Chuen v The Queen [1963] AC 220, 231 Lord Devlin, giving the judgment of the Board, said:

“Their Lordships apprehend that the Board will not put itself in the position of the first appellate court and review every exercise of the proviso as a matter of course. If the relevant factors have been considered and weighed by that court, the Board will not repeat the process in order to adjust the balance according to its own ideas. But if the process employed by that court is defective in that it has made a wrong approach to the problem or considered irrelevant factors or given them a weight that is gravely out of proportion to their trite value, the Board will disregard the finding of the appellate court and approach the matter anew.”

The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: see Woolmington v Director of Public Prosecutions [1935] AC 462, 482-483, per Viscount Sankey LC. In Stirland v Director of Public Prosecutions [1944] AC 315, 321 Viscount Simon LC said that the provision assumed: “a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.” As he explained later on the same page, where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility. Where the verdict is criticised on the ground of a misdirection such as that in the present case, and no question has been raised about the admission of inadmissible evidence, the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence.

It was suggested by Mr McLinden for Giselle in the course of his argument that the proviso should be applied only to evidence which is not in dispute or is indisputable. That however is too high a test. In a criminal trial, where the defendant has pleaded not guilty, all the evidence which points to his guilt is, in one sense, disputed evidence. What is required is a fair evaluation of the evidence on both sides. But the jury’s verdict may show that they must have rejected the defendant’s evidence. In such a case his version may properly be left out of account. The application of the proviso will then depend upon the strength of the evidence against the defendant in the prosecution case.

It is against that background that their Lordships have examined the reasons which the Court of Appeal gave for applying the proviso. The conclusion which they have reached, with the greatest of respect, is that the Court of Appeal misdirected itself in two important respects as to the state of the evidence.

In Giselle’s case the Court of Appeal took into account a threat which she was said by a neighbour, Veronica Peters, to have made to the deceased when she saw her with Learie at the gate of the deceased’s house on 15 November 1992, just a few days before he died. But the trial judge told the jury in his summing up that, as that evidence was on the basis of a dock identification of Giselle, who had disputed the words which had been attributed to her, they should disregard it and wipe it out of their memory. The Court of Appeal gave no reason for taking a different view of this evidence from that taken by the trial judge. And it is clear from its judgment that this played an important part in the decision to reject her appeal. In their Lordships’ opinion it should have left this evidence out of account because the jury were directed by the trial judge not to have any regard to it. It did not farm part of the evidence on which the jury would have based their verdict, on the assumption that they had not been misdirected as to the felony/murder rule.

The main flaw in the Court of Appeal’s reasoning in Carter’s case lies in its failure to apply to the evidence in the defendant’s written statement and in the post mortem report the law as to intent which has replaced the felony/murder rule. It is clear from what Lord Mustill said in Moses v The State [1997] AC 53, 64E-F, 67H that the question was what the jury would have made of the evidence if they had been given an orthodox direction on intent and joint enterprise. So the Court of Appeal had to examine the evidence to see whether it disclosed an intention on the part of the defendants to kill the deceased or to inflict on him really serious injury or whether, if this was not so, it showed nevertheless that they were embarked upon a joint criminal enterprise and they contemplated that the deceased might be killed or might sustain really serious injury in the course of the enterprise: see Chan Wing-Siu v The Queen [1985] AC 168, 175 where Sir Robin Cooke said in the judgment of the Board that the criminal culpability lay in the participating in the venture with that foresight; see also Reg v Powell (Anthony) [1999] 1 AC 1 where these principles were considered and explained by Lord Hutton.

The problem which the state faced in the Court of Appeal was that its case at the trial had been prepared and presented on the assumption that it could take the benefit of the felony/murder rule. On that assumption it was not necessary to examine how the deceased was killed or what part, if any, the defendants took in the acts which killed him. The post mortem report was read to the jury, but the pathologist did not give evidence. The method which was used to effect the strangulation was not explored. There was no discussion in the evidence of the inferences which could be drawn from the pattern of the injuries. The defendants admitted in their written statements to having been in the house while the deceased was being assaulted. But neither of them admitted that they intended to kill him or to inflict upon him really serious injury or that they contemplated that this would occur. They did not say that they saw him being strangled. Their statements did not exclude the possibility that this was done by Learie. There was no other evidence to show which of the three people in the house was the primary party or whether the killing of the deceased was part of a joint enterprise.

This being the state of the evidence, the only way in which the defendants’ convictions for murder could have been upheld by the application of the proviso was on the ground that they were liable as secondary parties to a joint enterprise in which the murder was foreseen as a possible incident. The Court of Appeal accepted that this was the approach which had to be adopted in Giselle’s case. But Sharma JA, who delivered the judgment of the court, said that Carter had participated fully in the conduct which led to the deceased’s death. He said that he was the dominant force behind it, and that the evidence showed that all the acts which were done by Carter and Learie to the deceased “had the intended effect of silencing the deceased permanently.” He described the argument by Carter’s counsel that he was really a secondary party as “truly astonishing.” Their Lordships regret that they cannot agree with this analysis. They are unable to find anything in Carter’s statement which shows that be intended to kill or that in any other way he was the primary party in the acts which led to the deceased’s death.

There were only two passages in Giselle’s statement which linked her in any way to the killing. The first described what she saw when she went into the house:

“Learie came and open the door for me and I went inside the bedroom. I put on the light in the bedroom and I saw Dave was on top of Mr Verette beating him. Verette was lying on his back on the floor. He had on only a pyjama blouse. I saw Learie went and tie his feet with a blue and red handkerchief and Learie then take a sheet from the bed and tie Mr Verette mouth with the sheet. Dave take a sheet and tie Verette hands. Mr Verette was bawling ah ah ah and Dave take a pillow from the bed and put it over Mr Verette face and press it down over his face and Mr Verette stop bawling.”

The second described what she did after searching the house:

“After I finish search I went to where Verette was lying. I did not see him moving so I put my hand by his nose and feel by his neck for pulse beat. But he was not breathing or neither I feel any pulse in his neck. I did this to make sure he was dead . . . I took out a bottle of White Magic Rum from the wardrobe and place it by the side of Verette to make anyone who came and meet him dead would think that he was drinking and the rum what kill him.”

Carter’s description of his part in the attack on Verette was also in two parts. In the first passage he described what he did when he went into the house:

“I went inside and saw the man standing in front of Learie and the man saying who is you who is you thief thief’ went and stood behind the man and I put my hand over his mouth to quiet him but he started to struggle and me and he ended up on the bed. I say Learie come fast and tie the man hands fast. Learie went and tie the man foot. Me and the old man roll off the bed and we end up on the floor. I tell Learie tie his foot and come and tie his hands fast. I ask Learie who is that knocking on the door and he said is Giselle. Learie leave me holding the man mouth and went and open the door. Learie stayed about a minute or two before he find the key to open the door. I tell him forget about Giselle and come and tie the man hand. Learie not take me on he went and open the door for Giselle. When Giselle come inside they close back the door. I tell Giselle come and hold his foot because he was pounding the floor with his heel. Learie come and tie his hand and Giselle was holding his foot. When Learie finish tie his hand ah tell him come and tie his mouth and the man bite me on my middle finger. Learie pulled off the sheet from the bed and tied up the man mouth and nose.”

He then described the search of the house, during which he left Verette lying on the floor. In the second passage he said:

“While we were searching the house the man was not making any noise. I say he was knock out. Learie hit him a lash. When we reached by the door I tell Learie let us go and loose the man so I went and loose him. The man was not moving after a while I untie his face. I untie everything. The man was lying down as if he was dead. I put my hand by his nose. I felt a slight hit of air and he was breathing very slow. Giselle ask me if the man dead. I say no it look as if he knock out. I pushed his face and I hear him groan. I tell Giselle the man breathing slow the man go dead.”

In their Lordships’ view there is nothing in these passages to indicate that Carter intended to silence the deceased permanently. The description which he gave was of actions which he took, and which Learie took on his direction, to tie him up and to keep him quiet while the house was searched. There is no mention of the chain around the deceased’s neck or of anything which could be linked to the cause of death in the post mortem report. The Court of Appeal did not go on to examine Carter’s case on the alternative assumption that his participation in the death was secondary. The whole basis of its decision was that he was a primary party and that he and Learie intended to silence the deceased permanently.

The Court of Appeal thought that there a close analogy between the present case and Reg v Vickers [1957] 2 QB 664, where the appellant had broken into the deceased’s house to commit a burglary. He came upon the occupier, whom he attacked with many blows and kicks on the face from which she died. Sharma JA said that that case bore an uncanny resemblance to the present case. He asked rhetorically whether, while it was true that in Reg v Vickers there was no secondary party, there could have been any doubt that, had Giselle been with Vickers at the time and done precisely what she did in this case, she would have been found guilty of murder. He then asked whether there would have been any doubt about the jury’s verdict if it was further assumed that it was not Vickers but Carter.

Their Lordships recognise that in Moses v The State [1997] AC 53, 61 Lord Mustill referred to the facts in Reg v Vickers [1957] 2 QB 664 and to the observations of Lord Goddard CJ, at p 671, in order to illustrate his point that in many cases the abolition of the felony/murder rule had left the outcome of murder trials unaltered. But the Court of Appeal was wrong to regard the case as analogous with the position in which Giselle and Carter were placed in the present case. The jury in Reg v Vickers had been given a summing up by the trial judge which Lord Goddard CJ described, at p 671, as quite impeccable. There was no question of having to apply the proviso. The question was whether Vickers was guilty of murder because he had killed a person with the necessary malice aforethought being implied from the fact that he intended to do grievous bodily harm. Nobody else was involved, so there was no issue as to whether any secondary party was also guilty of the murder on the principles applicable to joint enterprise.

In this situation their Lordships are in no doubt that they must disregard the findings of the Court of Appeal in the case of both Giselle and Carter. They do so on the grounds that, in Giselle’s case, the Court of Appeal took into account evidence which should have been left out of account and that, in Carter’s case, it proceeded upon a wrong view of the evidence. So the whole matter as to the application of the proviso is at large for decision by this Board.

The approach which their Lordships have taken is to ask themselves whether, if they had received the appropriate directions on intent and joint enterprise, the jury would without doubt have convicted the defendants of murder on a consideration of the whole of the admissible evidence. They have left out of account the alleged threat by Giselle. They have also left out of account what the defendants said in their evidence from the witness box. It is clear from the jury’s verdict that they did not believe that evidence. So their Lordships are left with the evidence about the finding of the body in the morning, the post mortem report and the written statement by each defendant which cannot, of course, be used as evidence against the other defendant who was not present when it was made.

There is one other piece of evidence to which their Lordships’ attention was drawn by Mr McLinden at the end of his argument. This was a medical report by Mr Frank William Cross, a consultant trauma surgeon at The Royal London Hospital. It had been prepared during the hearing of the appeal at the request of Giselle’s solicitor in view of doubts which had arisen as to the conclusions which might properly be drawn from the post mortem report. Their Lordships were satisfied that it was proper for them to have regard to this report, as the cause of the death was not explored at the trial due to the wrong assumption that the case could be brought under the felony/murder rule. Mr Cross based his opinion on the contents of the post mortem report, the description of the body when it was found the next morning and Giselle’s statement to the police. The important points which emerge from his report are that the death in this case was due solely to strangulation. The process would have taken a minimum of three minutes to cause death. Although the deceased sustained a number of facial injuries none of them would have led to his asphyxiation. This was caused by the application of a chain to the front of his neck. The pattern of his injuries showed that he was strangled from behind, either in a standing or kneeling position or lying face down, the pressure being applied to the chain from behind. The contusions on both knee caps were consistent with the deceased having been strangled while in a kneeling position. The blows to the head which he sustained were almost certainly non-contributory.

Their Lordships find it impossible to say that a reasonable jury, having considered all this evidence, would inevitably have convicted either Giselle or Carter of this murder. The process of strangulation by means of the chain was a deliberate, sustained process. No mention is made in either of the two written statements of anything in the course of the struggle which resembles the actions which led to the deceased’s death. There is nothing in them which would have entitled the jury to draw the necessary inferences. In neither case was anything said which would justify a finding that the defendants were aware that the deceased was being strangled or that this was something which either of them contemplated as part of their joint enterprise. In this situation the proviso cannot be applied and the convictions for murder in each case must be quashed.

The alternative verdict

Section 45(2) of the Supreme Court of Judicature Act provides:

“Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence . . .”

In this case the jury had to decide whether to accept the evidence which the defendants gave from the witness box which, if believed, would have excluded them from participation in the robbery or whether to proceed instead upon an acceptance of the accounts which they had given in their written statements to the police. Their verdict shows that they rejected the defendants’ evidence. They must have been satisfied from their written statements that they were both party to a scheme to carry out a robbery.

But the written statements contained ample material to show also that the defendants both knew that the deceased was in the house before they went into it and that it was part of the joint enterprise that he should be restrained and kept quiet, by force if necessary. Carter admitted to having taken part in the assault on him and of inflicting upon him some violence as he was being tied up. Giselle said nothing to dissociate herself from these actions. On the contrary, when she realised that he had died as a result of what had been done to him during the robbery, she tried by placing a bottle of rum beside him to cover up the true cause of his death. There is enough here to show that the defendants had the necessary mens rea to convict them of acts which were done to the deceased to restrain him which were unlawful and were likely to cause him some harm. The death occurred while they were in the house. It occurred while they were still engaged on the joint enterprise of robbery which they foresaw would be accompanied by some violence to the deceased.

In their Lordships’ view the material in the written statements, when taken with the jury’s verdict, is sufficient to show that the jury must have been satisfied of facts which would justify the defendants’ conviction for manslaughter.

The voire dires

There is however one remaining ground of appeal. It was submitted that there was a miscarriage of justice on the ground that the trial judge dealt with the voire dire procedure in regard to each of the two written statements contrary to the practice described in Mitchell v The Queen [1998] AC 695. In that case it was held that the jury ought not to be informed of a judge’s decision on a voire dire held to determine the admissibility of a confession and that no discussion of an intended objection to a confession on the grounds of its admissibility should take place in front of the jury: see also Thompson v The Queen [1998] AC 811. The reason is that, if the judge’s decision on the question of admissibility is revealed to the jury, there is the risk that the defendant will suffer unfair prejudice. The voire dire procedure is designed to protect the defendant, by enabling the question whether a confession was made voluntarily to be determined in the jury’s absence. That protection is put at risk if the jury are made aware of the grounds for the objection before they retire, and of the decision which the judge has reached upon it when they return at the conclusion of the voire dire. So the question in each case, where something has been done which contravenes the proper procedure, is whether what occurred gave rise to any real prejudice or risk of injustice.

What happened in this case was that the police officer stated, without objection, that Giselle had made a written statement. When prosecuting counsel sought to have the written statement admitted into evidence the trial judge asked whether there was any objection. Giselle’s counsel stated that she objected to the statement being admitted on the grounds that her client’s signature to it was obtained by the use of force and that the contents of it had not been supplied by her. At this point, without any further discussion, the trial judge told the jury that he had to conduct an inquiry in their absence as to its admissibility and the jury then left the court. Having conducted a voire dire the judge ruled that it was admissible. On the jury’s return he made no reference to the reason why the statement was being admitted into evidence.

In Carter’s case the fact that he had made a written statement was elicited from the police officer. Carter’s counsel then objected on the ground that the contents of the statement were not those which his client had dictated, although the signatures were his signatures. The judge was in some doubt as to whether a voire dire was necessary in these circumstances, and there was a brief discussion about this before the trial adjourned for the weekend. When the trial resumed the following Monday the judge told the jury that, having regard to the objection which had been taken on the previous Friday he would have to ask them to retire to the jury room while he attended to a matter which concerned him. A voire dire was then held and the judge decided to admit the statement. The jury were then recalled and the trial proceeded without any further comment by the trial judge.

Their Lordships are satisfied that no real prejudice or risk of injustice occurred in either case. The judge was told in the jury’s presence what the grounds were for each objection. But there was no further elaboration of them in a way that would have alerted the jury to the issues of credibility which the judge was being asked to decide. Nor did the judge say anything to the jury about the conclusions which he had reached after listening to the evidence in the course of the voire dires. When it came to his summing up the judge gave the jury full and proper directions as to how they should approach the statements when they were examining this part of the evidence. In these circumstances it is clear that the irregularity when the grounds for the objection were stated in the jury’s presence did not cause any injustice in either case.

Conclusion

For these reasons their Lordships will substitute for the verdicts of murder in each case verdicts of manslaughter. The sentences of death must be set aside. It will be for the Court of Appeal to decide what the sentences should be in each case in the light of the alternative verdicts of manslaughter.

DISPOSITION:

Appeals allowed. Convictions quashed. Verdicts of manslaughter substituted.

SOLICITORS:

Simmons & Simmons; Clifford Chance; Charles Russell.


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