The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 46 of 1997

 

Terrence Barrow Appellant

v.

The State Respondent

 

FROM

 

THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

 

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 4th March 1998, Delivered the

23rd March 1998

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Present at the hearing:-

Lord Lloyd of Berwick

Lord Jauncey of Tullichettle

Lord Nolan

Lord Hope of Craighead

Sir Christopher Staughton

  ·[Delivered by Lord Lloyd of Berwick]

 

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1. At the conclusion of the hearing their Lordships allowed the appeal for reasons to be given later.  This they now do.

 

2. On 22nd January 1993 the appellant, Terrence Barrow, was convicted of murder on a retrial, the jury having failed to agree at his first trial.  The facts were that on 18th April 1989 Desmond Andrews was shot and killed near Martineau Lane, East Dry River, Port of Spain.  There were four witnesses of the killing, of whom two were cousins of the deceased, and two were brothers.  They all gave evidence at the retrial.  One of the cousins, known as "Toco", said that he saw the appellant on the steps of the Basilon Community Centre with something  beneath his coat.  There was another man with him.  They were about twenty feet away from where Toco was sitting.  He heard the other man say "Give me  the  gun  if you don't want to shoot".  But the appellant pushed him away.  He then pulled a long gun from under his coat, and fired at the deceased.  The three other eye witnesses all gave evidence that they saw the shooting.  Afterwards the appellant picked up a red cartridge from the ground and ran away.  Toco gave a statement to the police the same day.  The appellant gave evidence.  He said that he was on his way home from work at about 11.00 a.m. in the morning, when he came across the deceased beating up "a little fellow" known as Curtis Mendoza.  The appellant came to the little fellow's rescue.  He kicked the deceased, who retaliated by pulling a cutlass and pelting him with stones.  Later the same morning the appellant was on the steps of the Community Centre, when he saw three men coming towards him.  One of them he recognised as Toco.  He was holding a black garbage bag.  The other two had cutlasses.  Toco raised the garbage bag as if to point it at the appellant.  The appellant grabbed hold of the bag, and as they were struggling, he heard a loud explosion.  As he ran away, he heard two or three more explosions.  A fortnight or so later he went to the police, and offered to make a statement.

 

3. In addition to giving evidence himself the appellant called Curtis Mendoza to say that he was being attacked by the deceased when the appellant came to his rescue.  More important, he called his employer, Webster Charles, to give character evidence on his behalf.  Mr. Charles said that the appellant had worked for him since 1980, and that he was a very efficient and honest worker.  The police inspector in charge of the case confirmed that the appellant had no previous convictions.

 

4. In opening the appeal Mr. Dingemans drew attention to certain discrepancies in the evidence given by the prosecution witnesses.  He criticised the judge for brushing these discrepancies on one side, and telling the jury that it would be "a waste of time" to consider them.  Their Lordships do not find it necessary to go into detail, since there are more serious defects in the summing up.  It would not in any event be surprising to find discrepancies in the evidence when witnesses are describing an incident which took place nearly four years before.

 

5. The first of the serious criticisms concerns the way in which the judge dealt with the appellant's character.  As will already  have  become  clear,  the appellant's sole defence was accident.  There were four prosecution witnesses who said that they saw him shoot the deceased.  He alone said it was an accident.  It was a case of word against word.  The credibility of the appellant was thus a crucial ingredient in the defence case.  In addition (and unusually in their Lordships' experience of cases from the Caribbean) the defence called a witness to speak to his good character.  Yet the judge entirely mistook the purpose of that evidence.  What the judge said was as follows:-

"I should touch here at this juncture for the evidence called in support of the defence because, you see, the man Webster Clarke gave only limited assistance to the accused.  All his evidence dealt with is, look, this man used to work for him.  And on that -- February, March, he, the accused, came to him with three small jobs somewhere between Basilon Street in the area there but he doesn't know whether these jobs were embarked upon.

  He doesn't know what happened on that day.  He wasn't there.  He doesn't know whether the accused was in that East Dry River area on that date.  And he doesn't even know if the jobs were undertaken.  So his assistance to the accused is limited."

 

6. It should have been obvious that Mr. Clarke was called to give character evidence, and not as a witness of fact.  Yet nowhere does the judge give a conventional direction as to the relevance of good character.  Nowhere does he mention the fact that the appellant had no previous convictions.

 

7. Mr. Knox, for the respondent, concedes that such a direction should have been given.  But he submits that, on the facts of this case, the failure to give a direction caused no injustice.  Their Lordships return to this submission when considering whether or not to apply the proviso to section 44(1) of the Supreme Court of Judicature Act.

 

8. In view of Mr. Knox's very proper concession, it is unnecessary to refer to the recent authorities in this field, such as Reg. v. Bellis [1966] 1 W.L.R. 234, Reg. v. Vye [1993] 1 W.L.R. 471 and Reg. v. Aziz [1996] A.C. 41.  In fairness to the judge, Mr. Knox pointed out that Reg. v. Vye was only heard on 2nd February 1993, some ten days after the summing up in the present case; and their Lordships were told that there was not at the time any clear practice in Trinidad  to  direct  juries  as  to  the  relevance  of  good character.  But as against that, the Board had already made clear in Berry v. The Queen [1992] 2 A.C. 364, an appeal from Jamaica, that previous good character is always relevant to credibility.  The failure to give a direction as to the relevance of the appellant's good character was a serious omission.

 

9. But the way in which the judge dealt with Mr. Clarke's evidence compounded the error.  For it may have led the jury to believe that Mr. Clarke was called for the sole purpose of giving evidence as to the facts, as to which, of course, he could give no relevant evidence at all.

 

10. The second serious defect comes at the end of the summing up.  Having directed the jury, correctly, that the appellant's defence was accident, and that it was for the prosecution to negative that defence, and having further directed the jury, more doubtfully, that the appellant was not relying on self-defence, the judge seemed to be coming to the end of what he called "the merry road", when he found that he had fifteen minutes to fill in.  So he decided to add some "little comments".  The first of these comments, which he described as "an important little direction" was something which had occurred to him the previous night.  He then read out the following proposition:-

"A person, who in circumstances of necessity, intervenes with the sole object of restoring the peace by rescuing a person, even a stranger who is being attacked, does what he is permitted in law to do."

 

11. There followed a lengthy passage in which the judge developed the point.  Their Lordships quote a few paragraphs in order to give the flavour:-

"What this -- what I want to point out, however, the -- now, where such a defence is raised, it's probably part of their defence, I think probably part of their defence, is the first portion to the real defence.  Where such a defence is raised, the question of necessity for intervening at all and the reasonableness or otherwise of the manner of the intervention of the issues which should be left to you, the jury, but -- so what you have to do here.  You have to decide, look, first of all, was -- if you believe the accused story, was there any necessity for him to intervene?  You see, you will bear in mind a lot of things which I'll come to deal with in a moment.

...

 

  Was the situation such that he should have intervened at all, if you accept what he says. ...

 

  First of all, you will have to examine the entire circumstances.  Was there any necessity for him to intervene?  Was the situation such, if you believe what he says, that there should have been any intervention at all having regard to the fact that they were perfect strangers?  You have to look at the situation.

 

  As I said, without knowledge of the -- whether there was a relationship, whether they could have been a son and a father, a brother and another relative or things like that, you have to wonder.  Is it normal here in Trinidad and Tobago for people to intervene just like that, especially if you claim you were a perfect stranger?

 

  Secondly, the reasonableness of the intervention is a matter for you; and thirdly, you also have to consider the manner of the intervention.  So these are things, Members of the Jury, you will have to determine using your common sense as men and women of this world.

 

  Is it a normal thing here in this country that people just intervene like that especially having regard to the ages of the individuals?  One a grown-up person, that is to say Desmond Andrews, and the other one what you call a kid, a kid probably in the sense -- a young person in the sense that he's about 15, 16.

...

 

  These three things will have to be left with you.  One, was there any need to intervene at all; two, the reasonableness or otherwise of the intervention; and thirdly, the manner of the intervention are issues for you, Members of the Jury.

 

  But the law does permit an intervention but you have to look at it.  Is it a normal thing here in Trinidad and Tobago or is it so overseas?  Well, that is not your business.  But do you think in a case like this there was need for intervention?  If you accept that, of course you accept what he is saying.  If you don't accept that, that's the end of it."

 

12. Their Lordships have great difficulty in understanding the meaning or relevance of this part of the summing up, and counsel were hard put to it to shed enlightenment.  The judge appears to have regarded the intervention, that is to say, the coming to the defence of Curtis Mendoza, as part of what he calls "the real defence" of accident.  Before accepting that part of the defence, the jury would, he said, have to be satisfied that there was a need for intervention.  If there was such a need, and if the manner of intervention was reasonable, all of which the jury would have to decide, then the defence would be made out.  But if there was no such need, then that would be "the end of it".

 

13. At worst the jury may have taken this to mean "that is the end of the appellant's real defence".  But even if that was not the intended meaning, the jury must at best have been left in a state of complete bewilderment.  For their Lordships can see no connection between the defence of accident as described by the appellant, and the previous conduct of the deceased which led to the appellant's intervention.  The intervention set the scene for what followed.  But whether the appellant was justified in intervening would seem to be wholly immaterial.

 

14. As with the judge's failure to deal with the appellant's good character, Mr. Knox did not seek to defend this part of the summing up.  But once again he submitted that it did not cause any prejudice, mainly, it seems, because the jury would not have understood what the judge was saying.  It would have passed completely over their heads.  It may be too, that it passed over counsel's heads, since neither counsel sought clarification when asked to comment at the end of the summing up.

 

15. However their Lordships are not so sanguine.  For the only message which emerges clearly from the passages already quoted, and the one question which may therefore have remained in the jury's minds when they came to retire, is whether it is normal in Trinidad and Tobago for people to intervene in defence of strangers.  Whatever be the answer to that question, the jury may well have thought that the judge was inviting them to disbelieve that part of the appellant's evidence.  Moreover the point was a new one.  It had not been canvassed with counsel.  Fairness required the judge to give the appellant's counsel an opportunity to deal with the point before he commenced, or resumed, his summing up: see Crosdale v. The Queen [1995] 1 W.L.R. 864. Their Lordships return to the question of good character.  Their view is that the practice in Trinidad, and elsewhere in the Caribbean, should accord with the practice approved by the House in Reg. v. Aziz.  But a failure to comply with the practice will not necessarily result in an appeal being allowed in every case.  Thus an appellant will only be able to rely on the absence of a direction if the point has been distinctly raised by the defence in the course of the trial.  This was one of the points decided by the Board in Eversley Thompson v. The Queen (Privy Council Appeal No. 37 of 1997, Judgment delivered on 16th February 1998), where Lord Hutton said:-

"However, if it is intended to rely on the good character of the accused, that issue must be raised by calling evidence or putting questions on that issue to witnesses for the prosecution: see per Lord Goddard C.J. in Rex v. Butterwasser [1948] 1 K.B. 4, 6.  Their Lordships are of opinion that where the issue of good character is not raised by the defence in evidence, the judge is under no duty to raise the issue himself: this is a duty to be discharged by the defence and not by the judge."

 

16. In the present case, the point was raised, so a direction ought to have been given.

 

17. Mr. Knox nevertheless submitted that the case against the appellant was overwhelming.  Not only was there the evidence of the four eye witnesses, but other indications also pointed to the appellant's guilt.  It would therefore be an appropriate case to apply the proviso.

 

18. Their Lordships are unable to agree.  It is true that the case was a strong one.  But everything turned on credibility.  Apart from the central issue, there were other issues on which the appellant's evidence differed from that of the prosecution witnesses.  Thus it was the appellant's evidence, as already mentioned, that he appeared voluntarily in the police station, and offered to give a statement.  This was denied by the officer in charge of the case, who said that the appellant was brought to the police station under arrest.  In all these circumstances the appellant was entitled to have his good character weighed in the scales.  Even if it had been a case of mere omission, their Lordships doubt if they would have applied the proviso.  But coupled with the positive misdirection in respect of Mr. Clarke's evidence, and the passage  at  the  end  of  the summing up which at best was irrelevant and confusing, but at worst may have caused grave prejudice, their Lordships had no option but to allow the appeal.

 

19. Their Lordships were invited to consider the question of retrial.  But having regard to the passage of time since 1989, all of which has been spent by the appellant in custody, and having regard to the fact that the appellant has already been tried twice, a third trial would not, in their Lordships' view be appropriate.

 

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