The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 30 of 1995

 

Peter Holder Appellant

v.

The State Respondent

 

FROM

 

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

 

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 9th July 1996

------------------

 

Present at the hearing:-

Lord Mustill

Lord Slynn of Hadley

Lord Steyn

Lord Hoffmann

Sir Ralph Gibson

  ·[Delivered by Lord Steyn]

 

-------------------------

 

1. This is an appeal by special leave of the Judicial Committee of the Privy Council against a judgment of the Court of Appeal of Trinidad and Tobago dated 5th April 1990 dismissing the appellant's appeal against his conviction of murder and sentence to death on 18th June 1988.

 

2. On the morning of 29th March 1985 three men entered the Zodiac Recreational Club in Port of Spain.  They committed a robbery.  During the robbery a 17 year old girl, Faith Phillip, was savagely attacked.  She died as a result of a massive brain haemorrhage caused by blows to her head and face with a blunt instrument.  Three men were charged with her murder: Peter Holder (the appellant), Irvin Phillip and Errol Janet.  The prosecution case against the three men was based on joint enterprise.  The appellant admitted at the trial that he committed the robbery with his two co-accused but he denied that he had struck  the deceased  or that he had been present when another robber (probably Phillip) repeatedly struck the deceased.  Phillip raised an alibi defence.  Janet said he was an unwilling participant in the robbery.  All three were convicted of murder and sentenced to death.  Subsequently, the Court of Appeal allowed the appeal of Janet on the ground that the trial judge had failed to put his defence fairly before the jury.  The Court of Appeal dismissed the appeals of the appellant and Phillip.

 

3. Their Lordships are only concerned with an appeal by the appellant (Holder).  The premise of his appeal is that he did participate in the robbery.  Counsel for the appellant also accepts that there was sufficient evidence on which a properly directed jury could convict the appellant of murder.  Subject to one minor qualification, Holder's grounds of appeal are confined to the contention that the judge misdirected the jury. Given the narrow focus of the appeal, it is possible to sketch the state of the evidence at the trial so far as it affected the appellant quite shortly.

 

4. The prosecution case was based on an eye witness account from Zelina Mohammed, who worked as a cashier in the club where the robbery and murder took place.  She described in graphic detail how the three robbers went on the rampage in the club.  The following features of the cashier's evidence, which the jury must have accepted, are material.  The appellant was armed with a knife.  He closed the gate to the club.  He forced the cashier to open the cash register.  He forced the cashier to take him to the room of the manager.  He kicked down the door to that room.  He bound and gagged the cashier.  He threatened her with his knife.  He hit her in the face.  Another robber (probably Phillip) beat the deceased to death in an adjoining room.  According to the cashier the beating lasted for a period of 3 to 5 minutes and could be heard clearly in the room where the appellant was.  The appellant testified that after he and the other two left the club, they divided the fruits of the robbery i.e. money and jewellery, equally. Moreover, in a statement to the police the appellant admitted that he had "pushed" the deceased with his foot round her shoulders about three times.  He said that this happened when the deceased tried to hold the cloth with which he tried to tie her up.  Despite objection the statement was admitted in evidence after a voir dire.  In evidence before the jury he denied that the signature on the statement was his.  The substance of the appellant's case was, as counsel put it, that Phillip had killed the deceased in an act of gratuitous violence outside the scope of the joint enterprise to rob.

 

5. Counsel for the appellant placed in the forefront of his submission the judge's directions on joint enterprise.  The material part of the direction was as follows:-

 

"... (i) if you find that these accused embarked on a joint enterprise, a prearranged plan to effect the common purpose, that is to say, rob, and to use violence which had the effect of causing grievous bodily harm.  If you find that situation, if you can infer that, then you find them all guilty.

 

(ii) Let me repeat. ... If you come to the conclusion that the three accused agreed among themselves by some prearranged plan to carry out armed robbery with violence and in order to perpetrate and complete the commission of the crime of robbery, their intention was to use violence with the intention to cause grievous, bodily, serious harm to anyone on the premises who would be likely to prevent them from carrying out their plan in pursuance of that agreement, used that violence which resulted in the death of Faith Phillip, then you find all three of them guilty.

 

(iii) If you cannot find or infer from the evidence that that was their intention, that all of or any of them was or privy to the agreed plan to use violence so as to cause grievous bodily harm, in pursuance of the crime of robbery, if you can't find that, then you will only find that one who from the evidence, you think you feel satisfied, caused the death."

(Numbering supplied)

 

6. Counsel criticised the first numbered paragraph on the basis that it confused intent with consequences.  That is right.  But the second and third paragraphs adequately repaired the defect.  Counsel also said that the judge erred in equating "serious" harm and grievous bodily harm.  Their Lordships do not agree that this is a point of substance.  Counsel then turned to what he described as the major defect in the judge's legal directions.  He emphasised that the appellant's case was that, while he was a party to a joint enterprise to rob, that joint enterprise did not extend to Phillip killing the deceased in a gratuitous act of savagery.  Accordingly, counsel submitted that the judge should have directed the jury to consider whether Phillip's attack on the deceased fell within the scope of the joint enterprise to rob.   Their Lordships observe immediately that a summing up ought to be related to the issues and evidence in a particular case.  And there are undoubtedly cases where a direction as suggested by counsel is necessary.  On the other hand, the directions in fact given must be taken into account.  The judge directed the jury that they had to be satisfied that it was the intention of the accused to cause grievous bodily harm. In so explaining the law, the judge erred in favour of the defence: the prosecution was only  obliged  to prove foresight of the possibility of the infliction

of serious bodily harm in the execution of the plan.  See Chan Wing-siu v. The Queen [1985] AC 168.  But, if the jury were satisfied in accordance with the direction actually given, then they must have been satisfied that the appellant in fact intended the infliction of serious bodily harm and that what Phillip did was therefore within the scope of the joint enterprise.  In these circumstances their Lordships are satisfied that there was no prejudicial misdirection.

 

7. Counsel further submitted that the judge failed to give a warning to the jury that in dealing with Janet's evidence against the appellant they should bear in mind that Janet might have a purpose of his own.  Relying on R. v. Cheema (1993) 98 Cr.App.R. 195 at 204 counsel submitted that this omission amounted to a material misdirection of the jury. Technically, this submission is correct.  On the other hand, the summing up made nothing of Janet's evidence against the appellant. Moreover, the point that each accused had a purpose of his own in giving evidence would have been squarely before the jury.  Their Lordships are satisfied that this misdirection caused no prejudice to the appellant.

 

8. Counsel then submitted that the judge wrongly warned the jury as to the status of the appellant's evidence that they must "look at his evidence with some caution".  The passage reads as follows:-

"Now, Members of the Jury, let me pause here.  This is evidence on oath, whereas, Members of the Jury, unsworn evidence of one accused is not evidence against the other.  When an accused person goes into the witness stand and gives evidence on oath, it is both evidence for and against him; and it is also evidence against any person who is also charged; but bearing in mind that he is likely to say things to extricate himself, whereas I am not bound to, I think you ought to also look at his evidence with some caution.

Here I am being extremely favourable.  He said that we forced open the door to the room and opened it."

(Emphasis supplied)

Counsel points out that the judge did not make clear that his warning was directed only to the use of the appellant's testimony as against his co-defendants. This is certainly one of several unsatisfactory features of a summing up which does not bear the hallmark of careful preparation.  On the other hand, their Lordships have to bear in mind that the prosecution case against the appellant, based on the largely unchallenged evidence of the cashier must have been accepted by the jury.  In the light of that evidence a jury would inevitably have regarded the explanation that Phillip's attack on the deceased was outside the scope of the joint enterprise with energetic scepticism.  The confusing direction

would not have caused any independent harm to the appellant's case.  On balance their Lordships are satisfied that the confusing direction on this point did not prejudice the appellant.

 

9. Finally, counsel for the appellant submitted that the judge erred in directing the jury to retire and deliberate at 6.40 p.m.  That the jury did not feel under undue pressure is demonstrated by the fact that they retired for more than a hour before bringing in their verdict.  That is a substantial retirement in local conditions.  Their Lordships agree with the Court of Appeal that no prejudice to the appellant was caused by the late retirement.  Nevertheless, in agreement with the Court of Appeal, their Lordships must record that such a late retirement of the jury in a capital case is undesirable.

 

10. Their Lordships are satisfied that there was no miscarriage of justice in this case. Their Lordships will therefore dismiss the appeal.

 

© CROWN COPYRIGHT as at the date of judgment.