The Judicial Committee of the Privy Council Decisions

Rampharry v. The State (Trinidad and Tobago) [1999] UKPC 1 (20th January, 1999)

Deshan Rampharry Appellant

1. The appellant Deshan Rampharry was indicted for the murder of Meera Sammy on 26th June 1990 at Tabaquite. At his trial before Justice L. Deyalsingh and a jury on 29th July 1993 he was convicted of murder and sentenced to death. Their Lordships were told by counsel that this sentence has subsequently been commuted to one of 75 years’ imprisonment. On appeal to the Court of Appeal of Trinidad and Tobago each of the three grounds of appeal and the appeal itself were withdrawn, and on 18th March 1997 the appeal was accordingly dismissed. The appellant appeals as a poor person by special leave. Since the ground of appeal now relied on differs from all those argued and withdrawn in the Court of Appeal, it is not necessary to refer to the judgment of that Court.

 

2. The appellant lived with Meera Sammy as husband and wife from 1979 until they separated in October 1989. During that time they had three children. At trial following a voir dire a statement by the appellant under caution was admitted in evidence notwithstanding that he denied having made it. In it he described how he evicted Meera Sammy from their home in October 1989 because on the day after he suspected her of having had a man in the house he saw her elsewhere in company of a man he did not know. He described how he went to see her on 26th June 1990. According to him she accused him of spreading a rumour that they had had sex on the beach. He replied that the children were dying to see her. The statement continued:-

"She … went into the house and came back with a long knife. She keep pushing the knife in my face. I tell her to stop, I eh come here for that she made a stab at me and I get cut in my hand. I hold on to her and we started to fight for the knife. I finally got away the knife from her I think I made a few stabs at her but I cannot say where the knife stab her."

3. The appellant then described how 12 or more people chased him before he was arrested by a police officer.

4. The Crown called two witnesses of the incident. Anthony Subero, who knew both the appellant and Meera Sammy, said that he was 20 to 25 feet away when the appellant was with her arguing. "She was saying ‘ah not going back’ and he was saying how the children want to see her etc". A few seconds later he looked up and saw the appellant pounding her. At the point when she bawled "Oh God" and spun round he saw a knife in the appellant’s right hand. "He was holding her right hand with his left hand and he was stabbing her with the knife". When Mr. Subero went towards them equipped with a piece of wood the appellant dropped the knife, and started running. The knife was later found in three pieces. The other eye witness was Rajin Garcia. He said in evidence that when he first saw the appellant and Meera Sammy they were arguing, and that the stabbing took place when he came back out of the trace, or alley, where he lived. When he saw the stabbing he started running towards them. The appellant was "pounding on her chest with something like a knife in his hands". When giving his evidence he demonstrated as he said:-

"I see [the appellant] take she hand and pull it so and then start to pound her with knife."

5. Meera Sammy’s brother gave evidence of an occasion during the separation when the appellant went to his wife’s home, "took out a knife from the kitchen … held it in his hand, and told her this is the knife I’ll use to kill you". The post mortem report showed that the dead woman sustained ten superficial stab wounds to the face and upper body in addition to the fatal stabbing through the heart which was 7.5cm deep.

6. When the appellant gave evidence he denied having threatened his wife, as her brother alleged. He said that on 26th June 1990 he was talking to his wife with his hand on her shoulder when he felt a lash on the right side of his chest. Looking round he saw it was Mr. Subero, whom he did not know. He said that Mr. Subero took from his wife the knife she had in her hand "and started pelting stabs at me". He went on:-

"Meera Sammy got between both of us and got stabbed by Andy Subero. I got cuts in my hand from ‘braksing’ the stabs."

7. This evidence was rightly described by Mr. Owen Davies, who appeared for the appellant before the Board, though not in the courts below, as "a preposterous defence" and as "defying credibility".

8. In the course of his summing-up, after summarising the evidence, the judge told the jury that, although he personally did not think it applied, he would have to give them directions on provocation "out of an abundance of caution" and "to be safe". After an overnight adjournment, he began by directing them that provocation would only arise if they accepted what the accused said in his statement. He told them that provocation consists of three elements, the third of which was that "the retaliation of the accused must be proportionate to the provocative acts". He went on to explain this by saying:-

"This is similar to self-defence. There must be some proportion between the retaliation by the accused and the actual provocative acts. And again I could use the same example I used with self-defence. If someone slaps you that may be a provocative act, but that wouldn’t cause a reasonable man to take a knife and stab the other person in return. It certainly shouldn’t in our country cause an accused person under those circumstances to do so nor should it cause a reasonable man to do so. So you look also at this third element. So we have been talking about the reasonable man and what is reasonable both in the context of self-defence and provocation. And the reasonable man must be judged in the context of the social standards that apply in Trinidad today, and the reasonable man of course means an ordinary person of either sex, not exceptionally excitable or [pugnacious] or quarrelsome or aggressive, who is possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens would exercise in society as it is today. That kind of person is the reasonable person."

9. In his admirably concise argument Mr. Davies focused exclusively upon the direction which counsel were agreed is a misdirection, that "the retaliation of the accused must be proportionate to the provocative acts". He submitted that the judge was right to leave provocation to the jury, and that, having been left, it should have been properly left. The evidence of provocation consisted of a combination of the appellant’s statement under caution and selected parts of what the prosecution witnesses said they had seen. The injuries betokened a frenzied attack, which indicated a loss of self-control. Mr. Davies argued that because the law recognises that there may come a point when self-control snaps, the injuries inflicted by an accused person may sometimes exceed what would be proportionate to the provocation.

10. Mr. Davies cited Reg. v. Duffy [1949] 1 All E.R. 932 for the approval by the English Court of Criminal Appeal of directions given to a jury by Devlin J. His first, and classic, direction was that:-

"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."

11. With the addition, in accordance with statute, of a reference to words spoken, this direction was adopted almost verbatim by the judge, except that for the closing words he substituted, "… so subject to passion as to cause him to retaliate".

12. In the United Kingdom the Homicide Act was enacted in 1957. Section 3 of that Act is in the same terms as section 4(b) of the Offences Against the Person Act (Trinidad and Tobago Ch. 11:08), which reads as follows:-

"Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

13. Mr. Davies’ argument has two main aspects: the evidence of loss of self-control and the relevance of the need for any retaliation to be proportionate to the provocation. Neither now gives rise to any doubt in law. As to the first, in Director of Public Prosecutions v. Camplin [1978] AC 705 Lord Diplock, with whom Lord Fraser of Tullybelton and Lord Scarman agreed, pointed out at page 716C that section 3 of the Homicide Act 1957 brought about two important changes in the law: first, it abolished all previous rules of law about what can or cannot amount to provocation, and secondly, if there was any evidence that the accused lost his self-control, the judge was bound to leave to the jury the question whether a reasonable man might have reacted to that provocation as the accused did.

In Reg. v. Acott [1997] 1 WLR 306 at page 310G Lord Steyn said that:-

"In the absence of any evidence, emerging from whatever source, suggestive of the reasonable possibility that the defendant might have lost his self-control due to the provoking conduct of the deceased, the question of provocation does not arise."

14. Lord Steyn added this reminder at page 311D:-

"But importantly, … it remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self-control. If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for the jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control, there is simply no issue of provocation to be considered by the jury: Lee Chun-Chuen v. The Queen [1963] A.C. 220, 229, per Lord Devlin."

15. Their Lordships would observe that in the passage cited Lord Devlin was quoting from the speech of Viscount Simon in Holmes v. Director of Public Prosecutions [1946] A.C. 588, 597 in which he was referring to the sufficiency of material to support a view not about the accused but about a reasonable person. But there is nothing in the report of Lee Chun-Chuen v. The Queen to indicate that there was in Hong Kong when that case was decided any statutory equivalent to section 3 of the Homicide Act 1957; and their Lordships accept that the principle applies to an accused person in Trinidad now as it did to a reasonable person in Hong Kong then.

16. Counsel also referred to two recent cases of provocation in which loss of self-control was relevant: Reg. v. Stewart [1996] 1 Cr.App.R. 229, in which five blows were struck, and Cardinal Williams v. The Queen (unreported) (Privy Council Appeal No. 4 of 1998), in which there were multiple stabbings. In the former case the English Court of Appeal (Criminal Division) accepted that the five blows struck suggested a frenzied attack resulting from loss of self-control, and that the judge was right to leave the issue of provocation to the jury. In the latter case Lord Hoffmann, delivering the opinion of the Board, said at page 8 of the transcript:-

"The nature of the assault was certainly evidence from which the jury could have inferred that the appellant had lost his self-control, but once they had rejected, as they must have done, the appellant’s evidence that Caroline [his common law wife] had killed the children, there was nothing left which could have provoked the ordinary man to act as he did."

17. In the present case the appellant’s assertion in his statement under caution that "she keep pushing the knife in my face" amounted to evidence of provoking conduct, and the judge presumably regarded the number, if not the severity, of all save one of the wounds inflicted as suggestive of the reasonable possibility that the appellant might have lost his self-control.

18. In relation to proportionality, Devlin J. was also quoted by the Court of Criminal Appeal in Reg. v. Duffy (supra) at page 933 as having directed the jury that:-

"… in considering whether provocation has or has not been made out, you must consider the retaliation in provocation - that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. Fists might be answered with fists, but not with a deadly weapon, and that is a factor you have to bear in mind when you are considering the question of provocation."

19. That was of course before the passing of the Homicide Act 1957. But when it was in force Lord Diplock remarked in Reg. v. Camplin (supra) at page 717A that:-

"A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of provocation and the way in which the accused retaliated, both being judged by the social standards of the day."

In Reg. v. Acott (supra) Lord Steyn, after remarking at page 311C that "proportionality was a highly relevant matter to a defence of provocation", explained that the effect of section 3 of the Homicide Act 1957 was to convert the rule, capable of being withdrawn from the jury, that disproportionate retaliation may bar the defence into a matter of opinion within the sole province of the jury.

20. Although the account given by the appellant in his statement under caution was the only evidence capable of supporting provocation, the jury were bound to consider it. Their Lordships are doubtful whether the superficial injuries and the fatal stab wound, all inflicted by the appellant on his wife after he had disarmed her, together constituted sufficient evidence of loss of self-control resulting from her having pushed the knife in his face to warrant leaving the issue of provocation to the jury. But that is immaterial, because their Lordships are satisfied that, the judge having decided as a precautionary measure to leave the issue to the jury, his direction about the need for retaliation to be proportionate, even if it would have been exceptionable had it stood alone, was cured by the ensuing passage in his summing-up. From that it must have been plain to the jury that his direction that "the retaliation of the accused must be proportionate to the provocative acts" was to be considered in the context of the reaction to be expected of the ordinary person, judged by the standards that apply in Trinidad today. The appellant was not shown to have any characteristics which the reasonable man had to be presumed to share; and even if the jury believed the appellant’s account of what happened, they must have regarded his "pounding" of his wife with a knife, when she was defenceless and had not touched him with it, as constituting too disproportionate a reaction to such provocation as he said she had offered him for the jury to attribute it to the reasonable man. That provocation was wholly insufficient to make a reasonable man do as the appellant did. The appeal will accordingly be dismissed.

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