The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 23 of 1995

 

Alfred Codrington Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF BELIZE

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 27th March 1996

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Present at the hearing:-

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Mustill

Lord Hoffmann

Sir Ralph Gibson

  ·[Delivered by Lord Jauncey of Tullichettle]

 

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1. The appellant was convicted of murder in the Supreme Court of Belize on 8th February 1993 and his appeal was dismissed by the Court of Appeal on 14th May of that year. He now appeals to this Board.

 

2. The prosecution case rested primarily on the evidence of two witnesses namely Norman Vernon (a friend of the deceased, Winston Moguel) and John Miguel, the deceased's brother (the names of the two brothers were spelt differently in the proceedings).  Vernon's evidence was to the effect that at about 2.30 p.m. on 31st March 1992 he was working at a garage and the deceased was hanging about there.  A man passed on a small bicycle and the deceased spoke to him.  The man replied that he did not want any silly boy to fool around with him and the deceased offered to have a fight with their hands.  The man then rode off. Some quarter of an hour later the man on the bicycle returned and the deceased walked out of the garage to meet him. The man spoke to the deceased, who did not reply, whereupon the  man tried to kick the deceased, who grabbed his foot.  The man then produced a gun from his waist and shot the deceased in the head.  The deceased ran across the road pursued by the man but fell down on his back whereupon the man leant over him and fired two more shots which hit him in the chest.  The man then mounted his bicycle and rode away.   During this incident the deceased had said nothing although he had been cursing in the garage after the man had first ridden away. Vernon failed to identify the appellant as being the man who fired the shot.

 

3. John Miguel was visiting his grandmother nearby, he heard three shots, went to the scene and found the deceased lying on the ground.  He saw the appellant, whom he knew, riding a small bicycle with a gun in his hand and heard him say to the deceased "I will kill your fucking rass next time".  He did not see the actual shooting.

 

4. The appellant neither gave evidence nor made an unsworn statement from the dock and no other evidence was adduced on his behalf.  Before this Board the appellant was represented by Mr. Fitzgerald Q.C. but there was no appearance for the respondent.  Mr. Fitzgerald advanced three grounds of attack upon the conviction of which two related to alleged defects in the summing-up of the trial judge.

 

Standard of proof.

Counsel referred to two passages in the summing-up where the judge had referred to the standard of proof in the following terms:-

"If you are left in doubt as to whether he is innocent or guilty, then again your verdict would have to be one of not guilty.  If you have doubts, serious doubts, substantial doubts, as to whether he is guilty then you must return a verdict of not guilty.

...

 

... or you find evidence which leaves a substantial or serious doubt as to whether Alfred Codrington was the person ..."

 

5. This, it was said, was a misdirection inasmuch as it suggested that something more than a reasonable doubt was required before an acquittal would follow.  Had these two passages been the only directions on the standard of proof there would have been substance in the submission. However, they must be read in the context of the summing-up as a whole from which it appears that the judge gave a proper direction on numerous occasions.  Thus he told the jury that they must be satisfied beyond reasonable doubt on five occasions, that the evidence must make them feel sure on eight occasions and in relation to identification that they must be sure beyond reasonable doubt.  The judge concluded his

summing-up with directions on self-defence in which he twice directed the jury that the prosecution had to prove to their satisfaction beyond reasonable doubt that the assailant was not acting in self-defence.  In these circumstances their Lordships are satisfied that the jury can have been left in no doubt as to what was the required standard of proof. This ground of attack therefore fails.

 

Provocation.

Mr. Fitzgerald pointed to two aspects of the judge's summing-up on this matter which were said to be defective.  In the first instance he argued that the judge had misdirected or in any event confused the jury as to the onus of proof in the following two passages:-

(i)"... Now as I have already directed you, if you reach a point where you have found that murder was established against this accused, if you have found that, if you are convinced of that, you will then look to see if it has been established that the accused was deprived of his self-control by extreme provocation."

 

6. The use of the word "established" might, it was argued, suggest to the jury that it was for the accused to prove provocation.

(ii)"... and here I am saying this that it is for the Crown to establish that there were no circumstances of provocation.  I am saying under our Constitution the accused doesn't have to prove anything. So he does not have to prove that he was provoked.  It is for the defence to prove that he was not provoked and just like in self defence it is for the defence to prove that he was not defending himself, also it is for the defence to prove that he was not provoked, okay and the standard of proof is the same thing, beyond a reasonable doubt.  So you have to look at that.  The Crown must negative provocation.  So what must you ask yourself with respect to this particular element?  You have to ask yourself whether it has been shown by the prosecution witnesses beyond a reasonable doubt so that you feel sure that the accused was not deprived of the power of self control by extreme provocation given by Miguel.  You have to ask whether you are satisfied so that you feel sure that the prosecution has established that Codrington was not deprived of the power of self control, because of extreme provocation given to him by Miguel, the deceased."

 

7. It can be seen from the sentences above in which the word "defence" occurs that this was a slip of the tongue which must have  been  obvious to  the  jury.  When  the direction  on provocation is read as a whole it is quite clear that at no time was the judge suggesting that there was any burden of proof on the accused in relation thereto.  In the passage above referred to he twice said that the Crown must negative provocation. He repeated this towards the end of the direction on provocation and once again in the closing moments of the summing-up.  In these circumstances their Lordships consider that the jury were made well aware of where the onus of proof properly lay.

 

8. In the second instance he argued that the judge had misdirected the jury as to what in law constituted provocation in the following passage:-

"So you have to examine now if you believe that the accused is the person, then you have to examine that whether his actions were done at a time he was out of his mind, he had lost control of his mind because of extreme provocation which he had received at the hands of the deceased."

 

9. This was, as the Court of Appeal pointed out, an undoubted misdirection but it must once again be viewed in the context of the direction on provocation as a whole. It followed almost immediately after a direction that the jury had to see if it had "been established that the accused was deprived of his self control by extreme provocation". It was in turn followed by a passage in which the judge having posed the question "what is this extreme provocation which reduces murder to manslaughter?" and answered it by referring to circumstances "likely to deprive a person, of ordinary character and in circumstances in which the accused was in, of the power of self control".  The reference to loss of self control was then repeated no less than three times in as many sentences and thereafter on three further occasions during the course of the direction.  In their Lordships' view the direction on provocation, read as a whole, was quite sufficient to instruct the jury as to what was its proper constitution.

 

10. Mr. Fitzgerald further argued that even if none of the foregoing points were individually sufficient to vitiate the summing-up nevertheless the combination of all the various mistakes to which he had referred contaminated the whole summing-up to the extent that any conviction following thereon would be unsafe. Their Lordships reject this argument. It is possible to isolate and criticise certain passages in the summing-up but when it is read as a whole the judge's directions are seen to deal adequately with all the matters in question.  The appellant's attack on the summing-up therefore fails in toto.

 

11. Mr. Fitzgerald, however, advanced a further ground of appeal which was not before the Court of Appeal.  This was to the effect that the appellant had been deprived of a fair trial inasmuch as he had been denied the opportunity of putting his case in evidence to the jury by the refusal of his counsel to let him give evidence.  In support of this submission Mr. Fitzgerald relied on two affidavits, namely, one by the appellant which contained an account of the incident in which he referred to a violent struggle between himself and the deceased during which his, the appellant's, gun went off accidentally.  The affidavit concluded with the words "my attorney did not wish for me to give evidence (sworn or unsworn) at my trial in my defence even though I desired it".  Before the Court of Appeal the appellant was represented by a different attorney, Mr. Sampson, who signed the second affidavit stating inter alia that at his first interview with the appellant the latter had vehemently complained that his trial attorney did not obey his instructions.  Mr. Fitzgerald argued that these affidavits demonstrated that the appellant had been denied a proper opportunity of putting his defence before the jury and that having regard to the decision of this Board in Sankar v. The State of Trinidad and Tobago [1995] 1 All ER 236 the appeal should be allowed.

 

12. Their Lordships consider that this argument takes too much out of Sankar.  In that case the Board had before it not only an affidavit from the appellant but one from his trial counsel as well as the judge's notes.   The Board was thus in a position to assess what had happened during the trial.  In the present case the Board has before it only one side of the story.  The attorney who represented the appellant at his trial has inexplicably declined to provide assistance in the matter notwithstanding the appellant's waiver of privilege, and no help has been forthcoming from the Crown.  This situation would create disquiet in relation to a trial for any serious offence but must do so particularly in one for capital murder.  However, their Lordships do not have before them sufficient information to determine whether or not there has been a miscarriage of justice.  Such a determination could only be made after information had been obtained from the appellant's trial attorney and perhaps from the Crown and the judge's notes.  These are all matters with which the local court is far better equipped to deal than this Board.  In these circumstances their Lordships consider that the proper course is to remit the matter to the Court of Appeal under section 8 of the Judicial Committee Act 1833 in order that it may consider the further ground of appeal, namely, that the appellant had been deprived of a fair trial inasmuch as he had been denied the opportunity of putting his case in evidence to the jury by the refusal of his attorney to let him give evidence and thereafter make such further order as appears to it to be appropriate.  In making this remit their Lordships must not be seen as in any way commenting on the merits of the defence which the appellant claims to have wished to put before the jury.

 

13. In conclusion it should be emphasised that, where it is alleged on behalf of an accused that he has been denied the opportunity of stating his defence to a jury, this is a matter which is far more suitable for consideration by a local Court of Appeal than by this Board.  Counsel, therefore, should not be reluctant to raise the matter before a Court of Appeal even if it involves criticising a colleague should the interests of justice require that this be done.  If this Board does have to deal with such a matter it will be far better able to do so if it has available the views of the Court of Appeal thereupon.

 

14. Their Lordships will accordingly humbly advise Her Majesty that the appeal ought to be allowed and the matter remitted to the Court of Appeal for its consideration of the further ground of appeal enunciated above.

 

 

 

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