The Judicial Committee of the Privy Council Decisions

Defour v. The State (Trinidad and Tobago) [1999] UKPC 34 (21st July, 1999)

Lincoln Defour Appellant

v.

The State Respondent

FROM

TOBAGO

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Delivered the 21st July 1999

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Present at the hearing:-

Lord Browne-Wilkinson

[Delivered by Sir Patrick Russell]

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1. The appellant, Lincoln Defour, was convicted of murder before John J. and a jury at the Third Criminal Court, Port of Spain Assizes, on 14th October 1996, and sentenced to death. On 17th July 1997 the Court of Appeal of Trinidad and Tobago dismissed the appellant’s appeal. On 23rd April 1998 the appellant was granted special leave to appeal to their Lordships’ Board. On 27th April 1999, at the conclusion of the hearing of the appeal, their Lordships announced their decision that the appeal ought to be allowed, the verdict of murder quashed and the sentence of death set aside. Their Lordships indicated that, of seven grounds of appeal advanced, only the seventh and last ground of appeal succeeded. They now give their reasons for their decision.

 

The facts

2. The victim was a woman called Geraldine Pinto. The appellant was the caretaker of a beach house on Paria Main Road, Blanchisseuse. The victim had a history of mental ill health in the sense that she had been a patient in a local psychiatric hospital, but her brother testified that so far as he knew on the day of her death she was in good health.

 

3. On 29th September 1993, in the immediate vicinity of the beach house, the victim was observed by various witnesses. The principal witness was David Gibson who was staying in premises opposite the house where the appellant was caretaker. He said that at 8.00 a.m. he saw the deceased crying in the road. A little later she was in the company of the appellant whom Gibson had known for about ten years. According to David Gibson the appellant assaulted the deceased. He pulled off her jersey, and then dragged her across the road. He hit and kicked the deceased and finally dragged her toward a track across the road before the two went out of sight. David Gibson alleged that he heard screams coming from the direction of the track about five minutes later. Other witnesses, driving along the road, had seen the deceased and the appellant who were quarrelling, but only David Gibson alleged that he had seen the appellant drag the deceased into the bushes. About two hours later, according to Gibson, the appellant was running from the area where he had dragged the deceased and had in his possession a shovel or some other tool.

 

4. At about 3.00 p.m. the body of the deceased was discovered. She had been buried in a shallow grave in the area close by where the appellant had been seen dragging the deceased across the road and into the bushes. She had been stabbed to death.

 

5. A police officer, P.C. Alexander, having seen the grave went to see the appellant at the beach house across the road. The officer told the appellant that he had had a report implicating the appellant in beating and dragging a woman whereupon, according to P.C. Alexander (denied by the appellant) he had replied "Boss, this look like a big one". The appellant was arrested At the police station he denied any knowledge of the killing. He took the police officers to the beach house and there produced a garden fork and shovel, together with a knife, denying that any of these implements had anything to do with the death of the victim or her burial.

 

6. On 3rd October 1993 the appellant made a written statement to the police. He was to contend at the trial that he made the statement only because he had been promised that he would be released if he did make a statement. The statement was false. It contended that the appellant had not seen the victim on the day of the killing. At trial the appellant asserted that the deceased had been to the area of the beach house on the morning that she was killed. He had had an altercation with her because of her behaviour in throwing rubbish from a dustbin into the area where the appellant was working, but he had not attacked her and had not dragged her into the bushes. Gibson had not seen him leaving the area where the body was found. The deceased had run into the bushes but he had not followed.

 

7. The knife produced by the appellant had traces of blood upon it that were of the same group as the deceased, though the group was a common one. No incriminating evidence was found on the fork or shovel in the sense that soil on the tools did not coincide with soil in the vicinity of the grave.

 

8. The appellant gave evidence to the effect that he was not in any way responsible for the death of the victim.

 

The grounds of appeal

1. The mental condition of the victim

9. The brother of the deceased gave evidence, having identified the body. In cross-examination he was asked about his sister having been a patient in St. Anne’s Hospital. He agreed that she had been, but said that on the day of her death she had appeared to be in good health and in her right senses. Counsel for the defence sought to pursue the question of the deceased’s mental condition, but the judge refused to permit it. Before their Lordships it was contended that the judge was wrong. The behaviour of the deceased, according to the appellant, was bizarre in the extreme and any evidence of mental instability on the part of the deceased tended to support or confirm the evidence of the appellant in a case where his credibility was of vital importance.

 

10. Their Lordships consider that the trial judge was right to exclude any further evidence - or indeed any evidence - of the mental state of the deceased. It was not a material issue in the trial. For example, the appellant was not contending that he had been provoked or had acted in self-defence where the mental state of the victim might have become a material issue. The evidence of the appellant as to the deceased’s behaviour was not challenged by the prosecution and there was nothing to dispute the allegation by the appellant that she had thrown rubbish from a dustbin. Her motive for so doing or the absence of any rational explanation could have had no bearing upon what the jury had to decide. It was irrelevant, or at best went to a very peripheral part of the background. This ground of appeal, therefore, fails.

 

2. The voire dire

11. The appellant challenged the admissibility of his written statement to the police and at the trial the judge held a voire dire. Their Lordships have reservations about whether a voire dire was an appropriate procedure in the circumstances. The statement was exculpatory. It was not a confession where the voluntary nature of the statement is normally the subject matter of the voire dire. The evidence of the taking of the statement was led by the prosecution to demonstrate that the appellant had been inconsistent in his versions of events, and had initially lied to the police.

 

12. All this being acknowledged their Lordships do recognise, however, that the judge was at fault at the conclusion of the voire dire where upon the re-assembly of the jury he said:-

"Mr. Foreman, Members of the Jury, in your absence the Court heard arguments or evidence as to whether a statement recorded by the witness, ex-Inspector Thompson, from the Accused was voluntary or not, and therefore, whether it would be admissible in evidence. The ruling of the Court is that the statement is admissible."

 

13. These observations should not have been made. In Mitchell v. The Queen [1998] 2 W.L.R. 695 Lord Steyn, applying Crosdale v. The Queen [1995] 1 W.L.R. 864, said at p.701-702:-

"There is no logical reason why the jury should know about the decision of the judge … This is underlined by the fact that in modern English practice the judge’s decision after a voire dire is never revealed to the jury. … The reason why it is wrong for a judge to reveal his decision to a jury is not because it would amount to a withdrawal of an issue from the jury and it does not amount to a misdirection. The vice is that the knowledge by the jury that the judge has believed the police and disbelieved the defendant creates the potentiality of prejudice."

 

14. Was prejudice against the appellant created in the instant case? Potentially it was, but it is important to observe what the judge said in the summing up. When dealing with the statement he had found to be admissible he said:-

"However, notwithstanding the fact that the statement has been admitted into evidence, it is still a matter for you to determine what weight, if any, you will attach to that statement having regard to what the Accused has told you. It is admissible in evidence, but it is still your function as judges of the facts to determine what, if any, weight you will attach to that statement."

 

15. Their Lordships, whilst recognising that the judge’s comments in the instant case amounted to an irregularity, are satisfied that the irregularity in itself came nowhere near rendering the verdict unsafe. This ground of appeal fails.

 

3. The submission of no case to answer

16. Surprisingly, at the conclusion of the evidence for the prosecution counsel for the defence, in the presence of the jury said:-

"My Lord, I would like to submit to the Court, based on the evidence that has been adduced before this Court, there isn’t any case to answer."

 

17. Upon the direction of the judge the jury withdrew. In due course, in the absence of the jury the judge ruled that there was a case to answer. He made no comment to the jury, but no doubt they assumed, accurately, that the judge must have ruled against the defence.

 

18. In this context, as with the voire dire, it was unfortunate that the jury should have been able to assume that the judge’s reaction at that stage of the case was adverse to the appellant, but, unlike the voire dire, the judge had played no part in conveying that impression to the jury. The fault lay with the defending counsel. In the presence of the jury he indicated the nature of the submission he wished to make, instead of simply requesting that the jury should withdraw. Once counsel took that course it was inevitable that the jury would know the submission had been rejected if the case thereafter proceeded. In the judgment of their Lordships there are no legitimate grounds of complaint under this heading.

 

4. Lies told by the appellant

19. As earlier indicated the appellant lied to the police when, in a written statement, he said that he could not remember the last time he had spoken to the victim whereas later he was to admit having seen the deceased on the morning of the murder. The appellant’s explanation for lying as given by him in the witness box is not entirely clear, but the prosecution plainly relied upon the lies as probative of guilt.

 

20. On more than one occasion in speeches by counsel the jury were reminded that the telling of lies did not of itself prove guilt, and when the judge summed up he made this abundantly plain.

 

21. Upon the principles laid down in Reg. v. Lucas [1981] 1 Q.B. 720 the jury should also be directed that "the motive for the lie must be a realisation of guilt and a fear of the truth" (per Lord Lane C.J. at p. 724). John J. said, in summing up:-

"Why was it that he distanced himself from the deceased in that statement? Why was it he could not remember when was the last time he had seen her? Why was his recollection of ‘Wazzie’, as she was also called, so poor to him? You may very well come to the conclusion that maybe he was lying because he knew he was involved; he knew he had something to do with it."

 

22. Counsel for the appellant, Mr. Adrian Fulford Q.C., submitted that the use of the word "maybe" flawed this part of the summing up because the jury might take the view that for the lies to be probative of guilt it was sufficient if they raised an inference of guilt simply as a possibility. Their Lordships do not agree that what was no more than a slip of the tongue could have had the impact on the jury suggested, and in the context of the summing up read as a whole the Board is satisfied that there was no material misdirection in relation to lies.

 

5. The knife

23. Their Lordships can deal with this ground of appeal very shortly.

 

24. Inspector Thompson, with the co-operation of the appellant, recovered from the beach house some gardening implements and a knife. Traces of blood were subsequently found on the knife and, as earlier indicated, part of the grouping coincided with blood taken from the victim. That was far from conclusive that the knife was the murder weapon as the judge recognised and told the jury, but clearly, in the judgment of their Lordships, the forensic evidence was admissible and relevant.

 

25. At one stage it was thought that before the trial and after the knife had been taken by the police the appellant had alleged that he had cut himself upon the knife when carving pork. Had this been so there would obviously have been a duty upon the prosecution to obtain a sample of the appellant’s blood and compare that with blood recovered from the knife. Had the appellant’s blood been of the same group as the deceased a great deal of the force of the forensic evidence would have been eliminated. But, as it transpired during the course of the hearing before the Board, the reality was that the appellant made no complaint of having cut himself until he was giving evidence. There was no reason, therefore, why the prosecution should have taken a sample of the appellant’s blood. The authorities were not put on notice by the appellant. There was no irregularity at the trial relating to the evidence adduced about the knife.

 

6. The shovel and garden fork

26. Just as with the knife the police recovered a shovel and garden fork from the beach house. It was contended that because there was no forensic evidence connecting the implements with the burial of the victim the fork and shovel should not have been exhibited at the trial. The evidence was that the appellant was seen by David Gibson in possession of garden implements and walking from the direction of the grave. The subsequent finding of the fork and shovel at the beach house was, therefore, part of the narrative and could not be regarded as irrelevant and inadmissible. No objection was taken at trial. Their Lordships are satisfied that the implements were properly admitted as part of the evidence, the weight and significance of which remained a matter for the jury.

 

7. The verdict and the time element

27. The trial of the appellant occupied the court for four working days and the evidence for three days. So soon as the summing up came to an end there was an unfortunate intervention by the Clerk of the court. He said:-

"Mr. Foreman, have you and the other Members of the Jury arrived at a verdict upon which you all agree in respect of the Accused or do you wish to retire to consider your verdict?"

 

28. In the previous year, 1995, the Board had had occasion to consider the procedure in Crosdale v. The Queen [1995] 1 W.L.R. 864, an appeal from Jamaica. In that case the judge had asked the jury to consult amongst themselves to see if they wanted to go to the jury room to consider their verdict.

 

29. The jury did retire, as they did in response to the Clerk’s enquiry in the instant case, but Lord Steyn, giving the judgment of the Board in Crosdale said at page 875:-

"The judge should not have asked the jury whether they wished to retire. It is a cardinal rule of criminal procedure that a trial judge must avoid any hint of pressure on a jury to reach a verdict: Reg v. Watson [1988] Q.B. 690, 700B … their Lordships cannot exclude the possibility that one or more jurors understood the judge to be conveying to them that there was really nothing to discuss. In these circumstances the conclusion cannot be avoided that the judge’s question whether the jury wished to retire was a material irregularity."

 

30. Their Lordships recognise, of course, that the offending question did not come from the judge in the instant case, but in coming as it did from an official of the court it created at least the seeds of pressure upon the jury to reach a verdict "because there was really nothing to discuss".

 

31. The irregularity, in their Lordships’ judgment, did not end with the Clerk’s intervention. The jury, having retired, deliberated from 11.45 a.m. to 2.45 p.m., a period of three hours. They were then brought back into court. The foreman indicated that they had not reached a verdict. The transcript discloses that some of the jury were troubled by the sufficiency of the evidence, the credibility of David Gibson and the possibility of a "site visit".

 

32. The judge felt that he could not assist the jury further and he went on:-

"Mr. Foreman a question of a site visit at this stage does not arise. … I am now going to give you an additional thirty minutes to return to the Jury room and consider your verdict."

 

33. A short discussion with the Bar took place whereupon the judge said:-

"Mr. Foreman, please stand. I asked you when you indicated to the clerk that you did not arrive at a verdict upon which you all agreed whether given additional time, you would be likely to come to a verdict. You answered in the affirmative. If given additional time, is it likely you would arrive at a verdict?"

 

34. The foreman replied "Yes", whereupon the judge said:-

"Thank you. I am giving you an additional thirty minutes."

 

35. In their Lordships’ judgment the imposition of a time limit of thirty minutes was a material irregularity. No one can say for certain what effect it had upon the minds of individual jurors but within 20 minutes a verdict of guilty was returned.

 

36. The researches of counsel unearthed only one authority where it was recorded that the judge had fixed a time limit for further deliberation by the jury and it came from the Court of Appeal of Trinidad and Tobago: Reg. v. David Michael (1975) 27 W.I.R. 307. In that case, too, the jury were given thirty minutes. Phillips J.A. considered that the course taken appeared to be unprecedented and the conviction was quashed.

 

37. In the opinion of the Board there is an appreciable risk that the imposition of a time limit of thirty minutes placed the jurors under pressure to reach a verdict, although this would not have been the intention of the judge, and influenced some jurors to agree to a verdict to which they would not have subscribed if more time for deliberation has been allowed to them. Moreover after the jury were brought back to court and the foreman referred to some matters which troubled them, the jury were not reminded that in the event of an irreconcilable disagreement it was their duty to say so. Accordingly their Lordships consider that the conviction was unsafe and should be quashed.

 

38. The question then arises whether the case should be remitted to the Court of Appeal to consider whether there should be a retrial. It is submitted on behalf of the appellant that the death of the deceased took place 5 years and 9 months ago and the prosecution case relied very largely on the evidence of various civilian witnesses whose recollection of the events will have faded. Since his conviction and sentence in October 1996 the appellant has been facing the agony of execution and would still face the risk of execution if a retrial were ordered. In addition if the appellant were to be retried the fact that the State had withdrawn from membership of the United Nations Human Rights Committee and Inter-American Commission on Human Rights would mean that the appellant would no longer be able to petition those bodies in relation to a conviction and sentence of death for murder. For these reasons it is submitted that the case should not be remitted to the Court of Appeal to consider whether a retrial should be ordered.

 

39. It is submitted on behalf of the respondent that the case against the appellant was a very strong one and that it was in the interests of justice that the appellant should not escape justice because the judge made an error at the end of the trial in the words he addressed to the jury. In relation to the withdrawal of the State from the human rights bodies it is submitted that the State was entitled to take this course and that there could be no valid objection to a retrial taking place in accordance with the law then applicable.

 

40. On balance their Lordships consider that in the circumstances of this case the appropriate course is to remit the case to the Court of Appeal for that court to consider, in the light of the guidance given by the Board in its judgment in Reid v. The Queen [1980] AC 343, whether there should be a retrial. Accordingly their Lordships allow the appeal and quash the conviction and sentence, and remit the case to the Court of Appeal to consider whether a retrial should be ordered.