The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 45 of 1997

 

Winston Solomon Appellant

v.

The State Respondent

 

FROM

 

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 8th December 1997

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hutton

Lord Saville

Mr. Justice Gault

  ·[Delivered by Lord Steyn]

 

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1. This is an appeal by special leave from a decision of the Court of Appeal of Trinidad and Tobago dated 29th November 1996 which dismissed the appellant's appeal against his conviction for murder on 7th February 1996.

 

2. On the evening of 1st August 1992 in a public street in Port of Spain, the victim was stabbed a number of times with a cutlass.  She died nine days later.  The victim was the appellant's wife.  Together with their children she had left the appellant a few months before.  The prosecution case was simple and straightforward.  P.C. James, an off-duty police officer, testified that he noticed what was apparently an argument between the appellant and his wife, and that he saw the appellant stabbing his wife several times.  The appellant threw the cutlass into a nearby yard.  P.C. James took  the  appellant  to  a  police  station.   Another  police officer, Sergeant Marcelle, said that on the day after the stabbing he showed a bloodstained cutlass found near the scene to the appellant who admitted that it belonged to him.

 

3. The appellant gave evidence that on 1st August 1992 he spoke to his wife outside the house of her grandmother.  On the appellant's account they agreed to spend the weekend together.  A slim dark man, about 6 foot tall, then intervened.  His wife said that he was her friend.  This man said that the appellant had no right to be there.  The grandmother came out and told them to stop arguing.  The appellant went downtown to buy food.  He was going to meet his wife at an appointed place.  Suddenly, he heard a scream and the same man came running to him swinging a knife at him.  The appellant first avoided him and then unsuccessfully chased him.  When he returned he found that his wife had been stabbed.  His case was that P.C. James had a grudge against him, because of a drugs deal that had gone sour, and that P.C. James falsely implicated him.  He also denied that the cutlass belonged to him.

 

4. After a summing up, which contained much critical comment on the defence case, the judge permitted the clerk of the court first to ask the jury "do you wish to retire to consider your verdict?"  The jury did want to retire and in due course returned a verdict finding the appellant guilty of murder.  Their Lordships observe at once that, as the Board explained in Crosdale v. The Queen [1995] 1 W.L.R. 864, at pages 875G-876A, it is unfair to an accused to ask the jury whether they wish to retire inasmuch as it may be understood to mean that there may be nothing to discuss.  Given the particular circumstances of this case, counsel did not suggest that this feature afforded the appellant an independent ground of appeal.

 

5. On the appeal to their Lordships' Board a considerable volume of new evidence regarding the appellant's mental state at the time of the killing was produced.  Before considering the potential impact of this material it will be necessary to examine briefly the other grounds of appeal of the appellant.

 

(1)Introduction of hearsay evidence.

Counsel submitted that inadmissible hearsay was admitted when Sergeant Marcelle was allowed to testify that he spoke to the victim in hospital and that thereafter he interviewed the  appellant.   Counsel  submitted that the implication was that the victim identified the appellant as the person who stabbed her.  And counsel said that it was neither a dying declaration nor part of the res gestae.  Seen in context their Lordships are satisfied that this item of evidence, and the judge's comment on it, had no effect on the outcome of the trial.  After all, the appellant was already in custody and he had already been seen by Sergeant Marcelle earlier that morning.  In these circumstances no injustice could have been caused by this evidence.

 

(2)Lack of warning as to lies.

The judge did remind the jury that they were not to convict the appellant just because he was lying.  Counsel submitted, however, that he should have gone further and given a specific warning not to convict the appellant simply because he was lying.  On the facts of the present case there was no realistic distinction between the issue of lies and the issue of guilt.  The judge's direction was tailored to the case before the jury and there was nothing wrong in this part of the summing up.

 

(3)Comment on the failure to put the defence case at the Preliminary Inquiry.

The judge questioned the appellant about his failure to put his case to the Crown witnesses at the Preliminary Inquiry.  The judge thereafter commented on this in his summing up.  Counsel for the respondent accepted that the judge erred in both respects.  Their Lordships agree and will revert to the consequences of these irregularities after they have examined the next ground of appeal.

 

(4)Prejudicial comments on the defence case.

Counsel for the appellant has taken their Lordships to a number of passages in which he submitted that the judge poured scorn on the appellant's case that P.C. James falsely implicated him in the stabbing.  While counsel relied on the cumulative effect of a number of passages, the flavour of the judge's comments appears from the following passage:-

"Anyway, as I said, the Accused does not have to prove anything but, ... while he does not have to prove anything, an Accused person goes in the witness stand and starts making accusations involving police officers of very serious offences, while he does not have to prove  anything,  one  cannot  just  make an allegation like that, but you are the judges of the facts.  You have to consider whether somebody can go in there and say anything and you will believe it."

 

6. Counsel rightly reminded their Lordships of the duty of a trial judge as explained in Marr (1990) 90 Cr.App.R. 154.  The Lord Chief Justice observed:-

"It is ... an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge.  Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties."

 

In Mears v. The Queen [1993] 1 WLR 818, at page 822F-G, the Privy Council enunciated the same principle and emphasised that repetition of the phrase "that it is a matter for the jury" will not save an unfair or unbalanced summing up.  Their Lordships are compelled to observe that the judge's comments in the present case exceeded the limits of permissible judicial comment.

 

7. That leaves for consideration the impact of the judge's comments on the defence case, taken together with his questions and comments about the failure of the appellant to put his case at the Preliminary Inquiry.  There was a very strong case.  P.C. James' eye witness evidence was corroborated by Sergeant Marcelle by evidence that the appellant admitted that the bloodstained cutlass found at the scene was his.  In any event, the appellant's account that a police officer who had an old score to settle happened to be at the scene where his wife was stabbed was glaringly improbable.  There can be no doubt that the appellant stabbed his wife.  In these circumstances their Lordships conclude that in the particular circumstances of the present case no injustice resulted from the judge's unfortunate questions and comment.

 

(5)Provocation.

The judge ruled that there was no evidence of provocation and  so  directed  the  jury.  Counsel for the appellant submitted

that, despite the fact that the appellant denied stabbing his wife, there was sufficient evidence of provocation to bring into operation the judge's duty to leave that defence to the jury.  For this submission counsel relied on the background of domestic strife, the part of the appellant's evidence where he spoke of the victim's friend who in effect told him to go away, the evidence of P.C. James that immediately before the stabbing there appeared to be an argument between the appellant and his wife, and the fact of multiple stab wounds creating a picture of a frenzied stabbing.  Counsel argued that it would have been open to the jury to infer that provocative words by the wife triggered off the stabbing.  Counsel for the prosecution submitted that there was simply no evidence of a provoking event.

 

8. In the light of the new evidence about the mental state of the appellant, which may arguably have a bearing on the subjective question whether the appellant lost his self control, this issue was not fully explored in argument and their Lordships do not propose to rule on it.  It will be necessary to return to it briefly towards the end of this judgment.

 

The new evidence about the appellant's mental state.

At the trial of this matter there was some evidence in passing from the appellant before the jury that he had been depressed.  Counsel for the appellant was not aware of his medical history.  No investigation was made as to his mental state.

 

9. There is now before the Board material which suggests that at the time of the killing the appellant did suffer from a major depressive illness in a clinical sense or at least that he may have suffered from such an illness.  Their Lordships do not intend to describe this evidence in detail but three features stand out at this stage:-

 

(1)In February 1992 (i.e. about five months before the killing) the appellant was hospitalised for seven days for psychiatric evaluation of his state of depression;

 

(2)In the month after his arrest he made two suicide attempts, and eleven months later he made another such attempt;

 

 

(3)In July 1993 he was diagnosed as suffering from a major depression; that may mean that he was then regarded as psychotic.

 

10. Counsel were in agreement that this picture is as yet incomplete and that further psychiatric evidence may well become available.

 

11. In these circumstances counsel were agreed that the sensible course is for the Board to set aside the existing decision of the Court of Appeal in order to enable the Court of Appeal to examine any issues arising as a result of the new evidence regarding the appellant's mental state.  Their Lordships are persuaded that this is the right course to adopt.  After some debate about the terms of the remission counsel produced an order which, except in one respect, was agreed between the prosecution and the defence.  Their Lordships are satisfied that it would be right to make an order in the terms agreed.  A few comments about the order are necessary.  First, the order has deliberately been drawn in wide terms so as not to exclude any issue which may arise from new evidence regarding the mental state of the appellant.  Secondly, their Lordships accept that a final ruling on provocation, taking into account new evidence regarding the appellant's mental state at the relevant time, ought to be made by the Court of Appeal.  Thirdly, while the issue of non-disclosure of medical information regarding the appellant's mental state will be before the Court of Appeal, it is possible that, irrespective of non-disclosure and in the light of new evidence, the conviction of murder may be unsafe.  Finally, counsel for the appellant requested a direction that the appellant should be represented in the Court of Appeal by senior counsel.  The respondent remained neutral on this point.  This is the one matter not covered by the agreement of the parties.  Their Lordships are persuaded that in the circumstances of this case such representation is desirable.

 

12. Their Lordships therefore set aside the decision of the Court of Appeal and remit the matter to the Court of Appeal on the terms set out in the draft order agreed by counsel.

 

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