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Warren v. The State (Trinidad and Tobago) [1998] UKPC 48 (9th December, 1998)

Privy Council Appeal No. 11 of 1998

Phinis Warren Appellant

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 9th December 1998

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Present at the hearing:-

Lord Hope of Craighead

Lord Cooke of Thorndon

Lord Clyde

Lord Hutton

Lord Hobhouse of Woodborough

·[Delivered by Lord Hutton]

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1. On 10th May 1991 at the San Fernando Assizes, after a trial before Deyalsingh J. and a jury, the appellant was convicted of the murder of his son, Ronald Koylass, and was sentenced to death. On 12th July 1994 the Court of Appeal of Trinidad and Tobago dismissed his application for leave to appeal against his conviction. On 23rd April 1998, by Order of the Acting President of the Republic of Trinidad and Tobago, the appellant’s sentence of death was commuted to a term of imprisonment and hard labour for a period of 75 years. The appellant now appeals by special leave to their Lordships’ Board against the judgment of the Court of Appeal.

The prosecution evidence in relation to the background facts.

2. The appellant lived with Donna Koylass as his common law wife until March 1985 when they separated. Donna Koylass was the mother of the appellant’s four children, Alicia, Melissa, Regan and Ronald. Ronald was born on 24th September 1985. Between December 1985 and June 1988 Ronald lived in the village of Syne with a woman, Janice Sylvester, who lived near to the appellant. In June 1988 the appellant came to Janice Sylvester and said that he wanted his son Ronald, and the appellant then took Ronald to live with him in his house in the village.

3. Kaidar Baksh was a neighbour of the appellant. On several occasions between July 1988 and 27th September 1988 he saw Ronald bearing signs of mistreatment. On one occasion between early August and early September he saw Ronald’s lips burst and a tooth missing. He asked the appellant how the child’s lips burst and the appellant said that Ronald had his mouth open at all times and he may have hit him. He said if you beat a child to learn, the child will surely learn; but if you beat a child thinking the child will die, then the child will die.

4. Towards the end of September 1988 the appellant’s three other children and Ronald were living with the appellant. On 6th October 1988 Janice Sylvester went to a friend’s house to enquire about Ronald, but Ronald was not there. She then went to neighbours in the village and enquired about Ronald but she could not find him. On 8th October 1988 she went to the local police station at Siparia and made a report. On that day Corporal Parasram of the Criminal Investigation Division went to Syne village and identified himself to the appellant. He asked him for Ronald. The appellant told him that a man by the name of Belcon had come to his premises on 5th October 1988 and said that he was the father of Ronald, and he had given Ronald to Belcon. Corporal Parasram asked the appellant for a description of Belcon and for his address. The appellant replied that he did not know where Belcon lived nor could he give a description of him.

5. The next day Corporal Parasram returned to the appellant’s home and asked him if he had found out anything about the whereabouts of Ronald and he replied that he had told him that Belcon had taken the child on 5th October 1988 and since then he had not seen the child or Belcon. Corporal Parasram then took the appellant to the CID office at Siparia where he detained him and later handed him over to Inspector Douglas.

6. On 10th October 1988 Inspector Douglas told the appellant that he was investigating a report of the disappearance of his son Ronald. After the Inspector had told him of his rights and cautioned him the appellant said that he had given Ronald to a man named Belcon on 28th September 1988. The appellant said that he did not know Belcon’s correct name and address and that he had first seen Belcon on 27th September 1988 when he had come to his house claiming to be Ronald’s father.

7. On 11th October 1988 Inspector Douglas interviewed the appellant again and told him that he had information that he was seen flogging Ronald with a cutlass file on 28th September 1988 and that since then Ronald had not been seen. He then cautioned the appellant and again told him of his rights. The appellant said that on 29th September 1988 he had taken Ronald to a garden where he was cutlassing for a friend. He had put Ronald on a frico pan whilst he was cutlassing. He returned about 1¹/₂ hours later to look after Ronald and saw him lying on the ground dead. He became confused because he had no money, so he put Ronald’s body in a maroon handbag which he had at home, carried the bag with Ronald’s body to Mora Dam, made a raft out of bamboo on which he placed the bag with the body and pushed it out on the dam. At the request of Inspector Douglas the appellant then recorded this account in a written statement which he signed. Later that day a justice of the peace interviewed the appellant about the circumstances in which he had made the written statement and the justice of the peace then authenticated the statement. After the appellant had made his written statement Inspector Douglas asked him to take him and show him the places where he had seen Ronald lying dead on the ground and where he had pushed him out on the dam on a raft. The appellant then took him to these places. Inspector Douglas made several searches around the dam but found nothing.

8. The next day Inspector Douglas again interviewed the appellant and told him that he had information that he had killed and buried Ronald, and again cautioned him and told him of his rights. The appellant replied that on the Saturday after the day he had pushed Ronald’s body out on the dam, he went to the other side of the dam and found the bag at the edge of the water but did not see Ronald’s body in it, and he then threw the bag in the bushes along Mora Dam Road. The appellant then showed Inspector Douglas the spot in the bushes where he had thrown the bag, and Inspector Douglas and the appellant then went into the bushes and the appellant took up a maroon bag which he gave to the Inspector and told him that this was the bag in which he had put Ronald’s body.

9. Inspector Douglas released the appellant from custody on 13th October 1988 and continued his investigations. He was never able to locate the man “Belcon” about whom the appellant had told him, and the appellant’s son Ronald had never been found.

The evidence of Alicia Koylass and of the appellant at the trial.

10. The most important witness for the prosecution at the trial was the appellant’s daughter, Alicia. She was aged 8 in September 1988 and was aged 11 at the time of the trial. Her evidence-in-chief was noted by the trial judge and the relevant part of his note is as follows:-

“In September, 1988, Ronald was 3 years old. On 28/9/88, I was living at Syne Village, Siparia, with my daddy. Ronald was living with us. Other brother and sister also.

11. On morning of 28/9/88, went to school. Had breakfast before I went. Daddy made breakfast. Ronald also had breakfast. After breakfast I washed the dishes. Daddy was there and Ronald was in drawing room. I went for my book bag in bedroom … That morning, before I went to school, daddy told Ronald to run. Ronald ran. Daddy beat him with a file you sharpen knife with. He hit Ronald on his back and foot. Ronald’s back was bleeding. Ronald was wearing a pink vest. I don’t remember daddy flogging Ronald before that day. Daddy was still beating Ronald when I left for school. Went back home after school. Saw daddy. Saw Ronald … in the bedroom. He was lying stiff on the bed and his foot was covered. He was still wearing the pink vest. I went for a walk after - Melissa, Regan and daddy. We left Ronald in the bedroom. Went back home. Melissa went and hand daddy a rope. She asked him what he was going to do with the rope. He said don’t ask him anything. Ronald was still in the bedroom on the bed. He wasn’t moving.

Went to bed. Slept in first room with Melissa and Regan. Ronald was in second bedroom where he was before. When I got up next morning, I did not see Ronald. I looked for him all over the house and I didn’t see him. I have not seen Ronald since that day. I went to school on the 29/9/88.

12. Saw police home by me after 29/9/88. They spoke with daddy … He told police he gave Ronald to some man named Belcon. Daddy then told us if anyone ask for Ronald, to say he give him to a man named Belcon. Told this to all of us.”

13. The cross-examination of Alicia by counsel for the appellant did not weaken her evidence-in-chief.

14. The appellant gave evidence in his own defence. The trial judge noted part of his evidence-in-chief as follows:-

“Heard Alicia give evidence. On 28/9/88, I lashed Ronald with a file. Ronald was accustomed to crying while they were going to school. I was just preparing to go and do some cutlassing for a neighbour and I really gave him a ‘little touch with the file’ on his back. Did not cut him. I was not in the habit of beating Ronald. I did go to do the cutlassing - about 100’ from home. Took Ronald with me. I put him to sit down on a frico pan close to a portugal tree. When I returned about 1¹/₂ hours later he was missing. I did nothing because I know the mother always take the children whenever she wants. Did not know where mother was living then. Other children came home from school. Ronald was not lying stiff on the bed and evening. I never told her if anyone asked for the child to say you had given him to a man named Belcon. I never told anyone I gave child to Belcon.”

15. The appellant also said that he had heard the evidence of Kaidar Baksh. He did not beat Ronald and Baksh never spoke to him about the child. In later parts of his evidence-in-chief the appellant said that he had been assaulted in the CID office. He said that he had never told Corporal Parasram or Inspector Douglas anything about “Belcon”, and he had not told Inspector Douglas that he had seen Ronald lying on the ground dead and that he had put his body on a raft. He said that he did not take the police to the garden or the dam at any time. The maroon bag was his, but he did not give this bag to the police and he did not know how the police came to be in possession of it. He kept the bag underneath his house and used it for carrying tools when going to work.

The grounds of appeal.

16. It is unnecessary to set out the grounds of appeal which the appellant sought to rely on before the Court of Appeal, because those grounds have not been renewed before the Board and the appellant advanced new grounds of appeal which had not been relied upon before the Court of Appeal.

17. At the trial the defence advanced on behalf of the appellant was that if Ronald had been killed, he had not been killed by the appellant. However before the Board counsel for the appellant accepted that the jury were entitled to find that the appellant had killed Ronald, and the main thrust of his submissions was that on the evidence before the jury it would have been open to them to find the appellant not guilty of murder but guilty of manslaughter, and that there had been a miscarriage of justice because the trial judge had denied the jury the opportunity of returning such a verdict.

18. In support of this main ground of appeal counsel for the appellant advanced a number of submissions. One submission was that in parts of the summing up the judge misdirected the jury in that he told them that if Ronald had died by reason of violence inflicted on him by the appellant he was murdered, omitting the vital ingredient that the appellant was only guilty of murder if he killed Ronald with the intent to kill or cause grievous bodily harm. The weight of this submission has to be determined in the context of the entire summing up.

19. In an early part of his summing up at page 42 of the record, when he first described the crime of murder to the jury, the judge gave an impeccable direction as to the mental ingredients of murder. He said:-

“Now what is murder? Murder is committed where one person unlawfully kills another person with intent at the time of the killing to kill or cause serious bodily harm. Two things, killing another person and an intention at the time of the killing to kill the person or cause serious bodily harm.”

20. Then towards the conclusion of the summing up the judge again gave a correct definition of murder, stating at page 75:-

“But you will remember I told you that murder is unlawful killing with the intention to kill or cause grievous bodily harm. Those are the two elements of murder and you must be satisfied of those two elements from the circumstantial evidence. You must be satisfied from the circumstantial evidence that the accused killed Ronald and that when he killed him, he had intention to kill him or to cause grievous bodily harm.”

21. Then at page 77 he said:-

“So your final question in the context of that is, are we beyond reasonable doubt that the accused killed Ronald with intent to do him or to cause him grievous bodily harm. That’s your final question, which is the same as the question I posed before really but put in different words. If you are satisfied, then it is guilty of murder, if you are not satisfied, he is not guilty.”

22. In other parts of the summing up between these correct definitions, when he was dealing with the central issue raised before the jury by the defence, which was that the prosecution had failed to prove beyond reasonable doubt that the actions of the appellant had caused Ronald’s death, the judge on a number of occasions told the jury that if they were satisfied that the appellant had killed Ronald, they could or must find the appellant guilty of murder. At page 43 he said:-

“… if you believe that the circumstances lead to the irresistible conclusion that Ronald is dead and that the accused was responsible for his death, unlawfully. You can convict him of murder.”

23. At page 44 he said:-

“You have to be satisfied first, that Ronald is dead. Then you must be satisfied next, that he died violently at the hands of the accused, and if you are satisfied about those two facts murder is established.”

24. At page 45 he said:-

“If he is dead and was killed and the body was destroyed or concealed then he must have been murdered.”

25. At page 47 he said:-

“On that day you beat him violently. He was last seen on your bed stretched out stiff, that night he disappeared. You must be responsible for his death. That is what the State is saying, very simple case. And it is open to you to find on those facts that the accused is guilty of murder.”

26. At page 77 he said:-

“You ask yourself from all these circumstances, are we driven irresistibly to this one conclusion and this one conclusion alone that Ronald is dead and that this accused killed Ronald. That’s the crucial question in this case. Let me repeat it. You can find the accused guilty in this case only if on all the circumstances you are driven irresistibly to the conclusion that Ronald is dead and that he killed Ronald by violent means. If there is any other reasonable explanation for the circumstances of that case, then you cannot convict him.”

27. Immediately after those sentences at page 77 the judge then gave a correct direction as to the necessary mental element in murder which their Lordships have previously set out but which it is convenient to state again:-

28. If the statements to the effect that the appellant was guilty of murder if he had caused the death of Ronald stood alone they would clearly have constituted serious misdirections, because they omitted the vital requirement that the prosecution had to prove beyond reasonable doubt that the appellant had killed Ronald with the intent to kill or cause grievous bodily harm. But their Lordships are of the opinion that, when the summing up is considered as a whole, they do not constitute misdirections because at the start of the summing up, when the judge made it plain to the jury that he was giving them the definition of murder, he made it clear that there must be the intent to kill or cause grievous bodily, and he repeated at the end of the summing up that the final question for the jury was whether they were satisfied beyond reasonable doubt “that the accused killed Ronald with intent to do him or cause him grievous bodily harm”. The passages of which the appellant complains were spoken in parts of the summing up where the judge was dealing with the central issue at the trial of whether the appellant had caused the death of Ronald, and not with the issue whether, if he had killed Ronald, he had done so with intent to kill or cause grievous bodily harm. Therefore their Lordships are satisfied that there is no danger that the jury were misled or confused or may have thought that the judge was qualifying the direction he gave them, when he was explaining the crime of murder, that there must be an intent to kill or cause grievous bodily harm for murder to be established. Accordingly their Lordships do not accept the submission that there was misdirection of the jury as to the necessary intent for murder.

29. The second main submission advanced on behalf of the appellant was that the judge erred because he made no reference to manslaughter in his summing up to the jury and therefore denied to them the opportunity to return a verdict of manslaughter which was open on the evidence. This submission was developed in three different ways. It was contended, first, that the judge should have left the alternative issue of manslaughter to the jury, notwithstanding that defence counsel did not ask for it to be left.

30. In support of this submission counsel for the appellant relied upon a passage in the judgment of the Board delivered by Lord Tucker in Bullard v. The Queen [1957] AC 635, 643 and 644, where he said:-

“In the present case the fact that the jury rejected the defence of self-defence does not necessarily mean that the evidence for the defence was not of such kind that, even if not accepted in its entirety, it might not have left them in reasonable doubt whether the prosecution had discharged the onus which lay on them of proving that the killing was unprovoked. Their Lordships do not shrink from saying that such a result would have been improbable, but they cannot say it would have been impossible. As was said by Humphreys J. in Rex v. Roberts (1942) 28 Cr.App.R. 102, 110; 58 T.L.R. 138; [1942] 1 All E.R. 187:

‘As for the question whether it was open to them on the facts, counsel for the prosecution has argued with good reason that no reasonable jury could come to such a conclusion. The court may be disposed to take much the same view, but it cannot delve into the minds of the jury and say what they would have done if the issue had been left open to them.’

31. Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.”

32. Counsel laid stress on the words of Lord Tucker:-

“Their Lordships do not shrink from saying that such a result (i.e. the verdict of manslaughter) would have been improbable, but they cannot say it would have been impossible.”

and on the words of Humphreys J. cited with approval by Lord Tucker that the appellate court:-

“… cannot delve into the minds of the jury and say what they would have done if the issue had been left open to them.”

33. In the opinion of their Lordships the passage in the judgment of Lord Tucker at page 644 relied on by the appellant must be read in the light of the opening observation at the commencement of the judgment at page 642:-

“It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.” (Emphasis added)

34. Therefore, when at page 644 Lord Tucker said “Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given”, it is clearly implicit that the reference to “any evidence” means “any evidence fit to be left to a jury”.

In Hoang Hai Viet v. The Queen [1997] H.K.L.R.D. 203 the Board held that on a charge of murder the judge was only obliged to direct the jury as to the alternative verdict of manslaughter if there was some evidential basis on which the jury could return a verdict of manslaughter. In delivering the judgment of the Board Lord Lloyd of Berwick described the evidence of the defendant and said at page 207:-

“Would that evidence, assuming it was accepted by the jury, support a verdict of manslaughter? The answer must be no. If the appellant had taken part in the assault on the victim, but without the necessary intent for murder, and without being party to the joint adventure, then a verdict of manslaughter might well have been open on the evidence. But that was not the appellant’s case. His case was that he was a mere spectator. He was following the crowd in order to find out what had happened to his friend. There was no evidence, on the appellant’s case, that he was anything other than a spectator. He never got to the point of intervention. Nor was a verdict of manslaughter open on the prosecution case. In those circumstances the position at the end of the trial was precisely the same as it had been at the beginning. There was no evidential basis for a verdict of manslaughter. There were only two possible verdicts: guilty or not guilty of murder. So the question whether the appellant was unjustly deprived of a possible verdict of manslaughter does not arise.”

35. In the present case it is clear from their verdict that the jury must have rejected the appellant’s evidence and concluded from Alicia’s evidence that the appellant caused Ronald’s death by his actions on 28th September described by her. Their Lordships consider it to be clear that the only further conclusion which the jury could have drawn from Alicia’s evidence was that on that day the appellant beat Ronald severely. In her evidence Alicia said that the appellant hit Ronald on his back and foot, that Ronald was wearing a pink vest and that his back was bleeding, that the appellant was still beating Ronald when she left for school, and that Ronald was lying stiff on the bed when she came back home after school. Moreover she said “I don’t remember daddy flogging Ronald before that day”, which clearly means that she, a child of 11 at the time of the trial, regarded the beating on 28th September as a flogging. In the light of that evidence their Lordships are satisfied that there was no evidential basis for a finding that the appellant had an intent other than an intent to kill or cause grievous bodily harm.

36. Counsel for the appellant also cited to their Lordships a passage in the judgment of Lord Ackner in Reg. v. Maxwell [1990] 1 W.L.R. 401 which was a case where the defendant was convicted of robbery and appealed on the ground that the trial judge should have left the alternative offences of burglary and theft to the jury. Lord Ackner said at page 408:-

“What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. If they are so satisfied then the conviction cannot be safe or satisfactory.”

37. Their Lordships consider that this test has no application to the present appeal because in Maxwell, unlike in the instant case, there was evidence fit to raise the lesser offences of burglary and theft. But in this case there was no evidence fit to raise the lesser offence of manslaughter which is unlawful killing without intent to kill or cause grievous bodily harm.

38. Secondly, counsel submitted that the judge should have directed the jury to consider whether on the evidence there was a reasonable possibility that the appellant, in beating Ronald, may have had an intent which was less than the intent to cause grievous bodily harm, and should further have directed them that they should not convict the appellant unless they were sure that he had not had such an intent. In support of this submission counsel relied on the judgment of Winn L.J. in Reg. v. Kachikwu (1967) 52 Cr.App.R. 538, 543:-

“It is asking much of judges and other tribunals of trial of criminal charges to require that they should always have in mind possible answers, possible excuses in law which have not been relied upon by defending counsel or even, as has happened in some cases, have been expressly disclaimed by defending counsel. Nevertheless, it is perfectly clear that this Court has always regarded it as the duty of the judge of trial to ensure that he himself looks for and sees any such possible answers and refers to them in summing up to the jury and takes care to ensure that the jury’s verdict rests upon their having in fact excluded any of those excusatory circumstances.”

39. Their Lordships do not accept this submission for the reason which they have already given, namely, that there was no evidential basis for a finding that the appellant had an intent other than to kill or cause grievous bodily harm.

40. In his summing up the judge stated on a number of occasions that the appellant had given Ronald a severe beating. He said, for example, at page 74:-

“Alicia’s evidence is on the 28th, the crucial day, the father severely beat Ronald that morning, beat him to the extent that he was lying stiff on the bed.”

41. Counsel submitted that these statements constituted a misdirection and that the judge was not entitled to tell the jury that the appellant had given Ronald a severe beating, but should have left it to the jury to decide the nature of the beating. Their Lordships do not accept that submission. As they have stated, their Lordships consider that the only conclusion which could be drawn from Alicia’s evidence was that the appellant had given Ronald a severe beating, and accordingly the judge did not err in so describing the beating. Therefore their Lordships reject the argument that the judge should have left the issue of manslaughter to the jury and should have directed them in respect of that issue.

42. A further submission advanced by counsel was that in his summing up the judge had made an improper and intemperate comment when he described as “preposterous” the appellant’s statement to the police that he had given Ronald to a man called “Belcon”. In Reg. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, 209 Channell J., delivering the judgment of the Court of Criminal Appeal, said that in a proper case a judge is entitled to express his opinion strongly. In this case the judge was fully entitled to be critical of the appellant’s account to the police about “Belcon”, but their Lordships think it was undesirable for him to use the word “preposterous”. In Mears v. The Queen [1993] 1 WLR 818, 822 the Board cited with approval the words of Lloyd L.J. in Reg. v. Gilbey (unreported), 26th January 1990:-

“A judge … is not entitled to comment in such a way as to make the summing up as a whole unbalanced … It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.”

43. However in this case, where a strong comment on the “Belcon” account was fully justified, the use of the word “preposterous”, although undesirable, fell far short of making the summing up as a whole unbalanced and of constituting a ground for quashing the conviction.

44. Accordingly their Lordships dismiss the appeal.