The Judicial Committee of the Privy Council Decisions

Johnson v. The State (Trinidad and Tobago) [1999] UKPC 36 (21st July, 1999)

Anthony Nevada Johnson Appellant

v.

The State Respondent

FROM

THE COURT OF APPEAL OF TRINIDAD

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st July 1999

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Lord Slynn of Hadley

[Delivered by Lord Hutton]

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1. This is an appeal by special leave by Anthony Nevada Johnson from the decision of the Court of Appeal of Trinidad and Tobago which on 19th November 1996 (with reasons given on 5th March 1997) dismissed his appeal against his conviction and sentence of death by the High Court of Trinidad and Tobago on 30th November 1995 for the murder of Michael Hercules on 14th August 1993.

 

2. The evidence adduced by the prosecution against the appellant was as follows. The deceased, Michael Hercules, was the Commissioner of Prisons in Trinidad and Tobago and on the evening of 14th August 1993 was armed with a legally authorised 9 mm semi-automatic pistol. On that evening at 9.20 p.m. he parked his car on the road in Ninth Avenue, Barataria, Port of Spain, in front of the house of Mrs. Catherine Critchlow. The deceased then stood on the road beside the open door of his car and had a conversation with Mrs. Critchlow who was standing in front of her gate facing the deceased. Mrs. Critchlow then saw two men walking towards them. One of the men was dressed in a white jersey with a print of skyscrapers on the front and the other man was dressed in a dark coloured jersey. Less than a minute after the two men had passed and when the deceased was about to get back into his car to leave Mrs. Critchlow heard a sound of running coming up behind the deceased’s car. She turned back and saw two men dressed similarly to the two men who had just passed her, but now wearing masks, running towards the deceased. The area of the street was brightly lit with street lights and security lights from private dwellings and business premises. The man in the dark jersey was about three feet away from her. He was holding a gun in both hands pointed at the deceased. The second man, in the white jersey with skyscrapers printed on it, was behind the first man and his hands were pointed at the deceased cupped in the form of a gun, although he was not carrying a gun. Shooting then began and Mrs. Critchlow ran back into her house and as she ran she saw the man in the white jersey running away. Both the deceased and the man in the dark jersey (who was named Glen Mitchell) died in the shooting. The deceased sustained four bullet wounds to his body fired by the revolver carried by Glen Mitchell and Glen Mitchell sustained three bullet wounds fired from the semi-automatic pistol carried by the deceased.

 

3. The police were soon at the scene and when driving along Ninth Avenue Sergeant Bereton saw the appellant walking fast with a limp and what appeared to be bloodstains on his clothing which included a white jersey with a print of skyscrapers on it. The appellant told Sergeant Bereton that some men had come in a black car and started shooting at him. Sergeant Bereton took the appellant to Port of Spain General Hospital where he received treatment for bullet wounds at 10.30 p.m.

 

4. Seeram James was a security guard on duty on the evening of 14th August 1993 at business premises on Ninth Avenue close to the scene of the shooting. Between about 8.00 p.m. and 8.30 p.m. he saw two men walking on the street, one was wearing a black T-shirt and the other one was wearing a white T-shirt. Shortly before 9.30 p.m. he again saw the same two men pass by but in the opposite direction. Within three minutes or less he heard gunshots. On 17th August 1993 at an identification parade both Mrs. Critchlow and Seeram James identified the appellant as being the man they had seen on Ninth Street in the white jersey.

 

5. Corporal Antoine went to the Port of Spain General Hospital on the night of the shooting where he saw the appellant and cautioned him and the appellant replied "I was just passing when a man in a black car began shooting and I got shot".

 

6. About 1.30 a.m. on 15th August the appellant was taken to Morvant Police Station where he was detained. On 16th August Superintendent Charles saw the appellant and cautioned him. The appellant made an oral admission to the effect that he and Mitchell had decided to take a car that night and that Mitchell had a gun and that he knew that Mitchell had had that gun for the previous three months. They went to take a car and shooting had started. Superintendent Charles asked the appellant if he wished to make a statement in writing and the appellant said he did. The appellant then made a written statement to the superintendent in the presence of a Justice of the Peace. The admissibility of the written statement was challenged on a voire dire but the trial judge ruled that it was admissible. In the written statement the appellant said that he had known Glen Mitchell for over a year. At about 6.30 to 7.00 p.m. Glen Mitchell came and told him that they could go and look for a car. Mitchell asked him if he wanted money. Mitchell wanted a partner with him. They walked through Barataria for about an hour or about an hour and a half. Coming down Ninth Avenue they saw the car by means of a street light. They saw the driver of the car standing outside the car between the door and the car talking to a lady. The statement then continued:-

"We pass the car and went round the corner which is the first corner after the street with the Express or Mirror Newspaper .... We put on masks .... He take out his gun, a spin barrel 38 from his waist or his pocket on the left side as he is a left-hander. We started to go back to the car; he Glen was in front and I was about two yards behind him .... Glen run up to the man to about arms length, and I was coming up behind him. As Glen reach up to the man, shots start to fire. I turn to run and I get shoot in my back, then I get shoot on my left thigh and I fall, then while I was on the ground I get shoot on my right leg. I get up and limp around the corner to the right side. I jump over a wall into an empty lot ... and I … start running in the direction of the Roundabout [Plaza]. Before I reach to the corner police pass me .... When they stop me they ask me what it is went on and I told them it had a shoot out and I get shot ... I didn't tell them that I was involved. They take me and carry me to the hospital in Port of Spain. I did not have the mask when the police stopped me, I had take it off my head and throw it away when I started to run .... When the police officer told me at the hospital that the mister we shoot was the Commissioner of the Prisons, I want to make it clear that I didn't shoot him".

 

7. At the trial the appellant gave evidence in his own defence which may be summarised as follows. On the night of 14th August he went with his uncle in the latter’s car to search for his aged grandmother who was reported missing. After searching for a time he and his uncle decided to split up and he began walking on his own. He also said that he did not know Glen Mitchell. He began to walk north along Ninth Avenue and he saw a parked car and a man standing in the open doorway of the car talking to a woman who was nearby. Some people then came running up behind him and then two persons ran past him. One of them had a white jersey and blue jeans. He heard some shots. Then he said he felt a burning in his foot and back and fell. He got up and started to run. He fell and a police officer came up and took him to hospital for treatment for his injuries. Corporal Antoine then took him from the hospital to a police station. On the way to the police station a police officer threatened him and Corporal Antoine hit him. At the police station he told Superintendent Charles that police officers poked his injuries. He said that he did not dictate the written statement and he was shown the statement already prepared and said he signed it without reading it as Superintendent Charles had promised him he would go back to hospital if he signed it. He felt weak and dizzy at the time. Therefore the defence advanced by the appellant at his trial was that he had innocently been present at the scene of the shooting and that he did not know Mitchell and did not take part in the commission of any offence with him.

 

8. At the time of the trial in November 1995, before the decision of this Board in Moses v. The State [1997] AC 53, it was thought that the felony/murder rule was part of the law of Trinidad and Tobago and that a killing in the course of a felony involving violence constituted murder irrespective of intention to kill or cause grievous bodily harm. Therefore the prosecution based its case against the appellant on the felony/murder rule and in opening the case prosecuting counsel told the jury:-

"So I repeat to you, the basis of the State's case is the felony murder rule. The State is not saying that the accused was armed at that night and shot. What the accused is saying, that he went along with the gunman as part and parcel of a plan to rob, which is a serious crime involving personal violence. And in the course of that attempted robbery, Mr. Hercules was killed by the gunman and the law says, where two or more persons embark on a serious crime involving personal violence, even though at the beginning your intent was not to kill - we are not saying they went there to kill Mr. Hercules, we are saying they went there to rob - and in the process of the robbery this killing took place. The law says as long as you participated in the plan to rob and you were involved in the crime, then if someone is killed, that is not robbery that is murder."

 

9. In his summing up the judge also directed the jury solely in relation to the felony/murder rule and at no time directed the jury that the crucial issue (as was made clear in Chan Wing-Siu v. The Queen [1985] AC 168) was whether the appellant contemplated that in the course of taking the car Glen Mitchell might fire his revolver with the intention of killing or causing grievous bodily harm to the driver. The judge said at page 458 of the record:-

"If an accused in pursuance to a prearranged plan to rob embarks on that common enterprise, that is a common understanding between the accused and another person, to commit a robbery and he was present with the person who did the killing or who killed the victim, and his presence there was not as an innocent observer, but his presence there was to aid and abet in the commission of the crime, and the person it was planned to rob is killed -- here you are told that that person was shot at, so his killing was brought about by Glen Mitchell -- and the person it was planned to rob is killed in pursuance to that common plan, the fact that the accused did not do the killing but was a party to the common crime renders him equally liable for murder. That is, there was participation by the accused. If there is participation by the accused by way of aiding and/or abetting, he will be equally liable for the crime committed by the other person who did the killing."

 

10. Again at the conclusion of the summing up at page 510 the judge said:-

"Now, as I have told you, robbery is a crime of violence and if an accused in pursuance to a prearranged plan to rob embarks on a common enterprise to commit a robbery, because that is the State's case, and he was present with the person who did the killing, even if that killing was done inadvertently, and his presence there was not as an innocent observer, but his presence there was to aid and abet that person in the commission of the crime, and the person it was planned to rob was killed in pursuance to that common plan, even though the accused did not do the killing, but was a party to the common plan, then he would be equally liable for murder."

 

11. Between the conviction of the appellant in 1995 and the hearing in 1997 of his application for leave to appeal to the Court of Appeal, the Board had given judgment in Moses in July 1996 that the felony/murder rule had ceased to apply in Trinidad and Tobago since 1979. Accordingly the principal argument advanced on behalf of the appellant to the Court of Appeal was that the direction of the trial judge to the jury was fundamentally flawed and that it would not be right for the Court of Appeal to apply the proviso and accordingly the conviction should be quashed. The Court of Appeal ruled that as the summing up was based on the felony/murder rule it had constituted a fundamental misdirection, but the Court of Appeal applied the proviso and affirmed the conviction and the sentence. In its judgment delivered by Ibrahim J.A. and referring to the judgment of the Board in Moses the Court of Appeal stated:-

"But the Board at p. 14 said:-

‘This is not necessarily the end of the appeal, for as shown by Reg. v. Vickers [1957] 2 Q.B. 664, there are many situations where a conviction after a felony/murder direction could just as well have been reached if the judge had chosen to explain the law in orthodox terms of intent, and in such cases the proviso to section 44(1) of the Supreme Court of Judicature Act (C.4:01) may properly be applied.’

 

Counsel for the appellant submitted that what the Board was there saying was that where the trial judge gives the felony/murder direction that direction is defective and the appeal can only be dismissed if this court decides to apply the proviso. The proviso can only be applied, he submitted, if the trial judge had also explained the law to the jury in orthodox terms of intent. With that submission we do not agree. In our opinion, this court will apply the proviso where as here the direction on the felony/murder rule was given and none in the orthodox terms of intent was, but a conviction could just as well have been reached if a direction in orthodox terms of intent was given. That opinion was repeated at the end of their judgment, where the Board, at p. 16, said: ‘All that can be done is to repeat for future guidance that, as Reg. v. Vickers demonstrates, the giving of a felony/murder direction need not inevitably lead to the quashing of a conviction’."

 

12. The reasoning of the Court of Appeal which led it to apply the proviso was stated as follows at page 522 of the Record:-

"The facts of the instant case are far different from Moses’ case. Here, the appellant knew on the night of the murder that Glen had a gun and that he had known that fact for about three months before that night. Further, immediately before they approached the deceased he saw Glen take out his gun - a spin barrel 38 - from his waist or his pocket on the left side as he was left handed. The purpose of that action was to place the use of the gun in a state of readiness for use. He, nevertheless, continued with him on the mission. Glen ran up to the deceased and the appellant followed him. Glen held the gun with his hands and he pointed it at the deceased whilst at the same time the appellant stood at the back of the car with his hands pointed at the deceased, cupped in the form as if he were pointing a gun. The conduct of both men was that they represented that they were armed with guns and the appellant by his actions fully supported and complemented Glen's attack on the deceased. They both participated in the attack and it is from that attack the deceased was murdered. A proper direction to the jury on these facts would have been that the prosecution must prove that Glen had intended to kill or to do serious bodily harm at the time he killed the deceased. In order to find the appellant guilty of murder the prosecution must prove that he had lent himself to a criminal enterprise involving the infliction of serious harm or death or to have had an understanding (tacit or otherwise) with Glen that such harm or death would, if necessary, be inflicted. In other words, the appellant is criminally liable for acts by Glen of a type which he foresees but does not necessarily intend. In such a case the murder is a crime foreseen as a possible incident of the common unlawful purpose. The criminal culpability of the appellant lies in participating in the venture with that foresight. In the circumstances of this case, the appellant lent himself to the enterprise and by so doing he gave assistance and encouragement to Glen in carrying it out which he must have realized may involve murder. See Hui Chi-Ming v. The Queen [1992] 1 AC 34.

 

On the facts of this case, we are satisfied that, if the jury had been properly directed in orthodox terms of intent in the crime of murder instead of the direction they were given based on the felony/murder rule, a conviction would just as well have been reached. We are of the opinion that the proviso to section 44(1) of the Supreme Court of Judicature Act (Ch. 4:01) ought therefore to be applied since the jury would, if properly directed, inevitably have come to the same conclusion as they did in a context where issues of intent had not been laid before them. For these reasons we are of the opinion that there is no substance in this ground of appeal."

 

13. Their Lordships recognise that it is not the function of the Judicial Committee to act as a second Court of Appeal and to substitute its views for those of the Court of Appeal on issues such as the weight of evidence and the inferences which may properly be drawn from evidence. However the question which arises in this case, which is whether the proviso can be properly applied where there has been a fundamental misdirection and where neither the trial judge nor prosecution or defence counsel directed their minds to the crucial issue so that no questions were asked and no evidence was given in respect of that issue, is a question of substance and importance which their Lordships think it right they should consider.

 

14. Turning to the facts of the case their Lordships recognise the force of the reasoning of the Court of Appeal. The case against the appellant was a very strong one. It is clear that the evidence that the appellant was the second man in the white jersey with Mitchell was overwhelming. It is also clear from his written statement that he knew that Mitchell was armed with a revolver when the two of them approached the driver to seize the car, and at the conclusion of his written statement the appellant did not say that he did not know that the revolver was loaded but he said that he wanted to make it clear that he did not shoot the deceased. Their Lordships are also aware that in Trinidad and Tobago firearms carried by criminals are frequently loaded and that loaded firearms are frequently fired to kill or wound in the commission of crimes. Therefore if the jury had been properly directed as to the need for the appellant to contemplate the firing of the revolver by Mitchell with intent to kill or cause grievous bodily harm in order to constitute the crime of murder and questions and evidence in the trial had been directed to this issue it is probable that the jury would have convicted the appellant of murder. But that is not the test, the test is whether the jury would inevitably have convicted.

 

15. Moreover, not only was the jury given no direction as to the need for the appellant to have contemplated that Mitchell might have used the revolver with intent to kill or cause grievous bodily harm, but because the minds of the judge and counsel were concentrated on the felony/murder rule no questions were put to the appellant either by the prosecution or the defence as to whether he was aware that the revolver was loaded or unloaded and whether he contemplated that Mitchell might fire with intent to kill or cause grievous bodily harm. It appears that this point was not advanced in argument to the Court of Appeal and the Court of Appeal did not expressly advert to it.

 

16. As Mr. Blake Q.C. on behalf of the appellant submitted, most drivers of cars would not be armed and prepared to use a firearm as was the deceased, and it is not improbable that Mitchell fired at the deceased and killed him because the deceased drew his own pistol and fired at or was about to fire at Mitchell. Therefore if the trial had been conducted on the correct view of the law so that attention had been given to what the appellant contemplated in relation to the use by Mitchell of his revolver, the appellant might have claimed that he anticipated that a driver menaced with a revolver would not fight back but would simply surrender the car without the need for the armed robber to fire at him, and that he did not anticipate that Mitchell would fire his revolver. Their Lordships consider that the jury would probably have rejected such a claim but their Lordships are unable to hold that such a rejection would have been inevitable.

 

17. Their Lordships are mindful that this is a capital case and because the crucial issue was ignored at the trial and no questions and no evidence were directed to it, their Lordships have reached the conclusion, on balance, that it was not proper to apply the proviso and therefore hold that the appeal must be allowed and the conviction for murder quashed.

 

In Moses the Board stated at page 67:-

"... as shown by Reg v. Vickers [1957] 2 Q.B. 664, there are many situations where a conviction after a felony/murder direction could just as well have been reached if the judge had chosen to explain the law in orthodox terms of intent, and in such cases the proviso to section 44(1) of the Supreme Court of Judicature Act may properly be applied."

 

18. However on the facts of that case the Board declined to apply the proviso and quashed the conviction for murder. Their Lordships observe that in the case of Vickers the appellant had himself attacked the householder to prevent recognition with blows and kicks from which she died, and had clearly intended to cause her grievous bodily harm.

 

19. Their Lordships do not intend to lay down a general rule in relation to cases where a felony/murder direction has been given in relation to an accomplice who did not himself use a firearm or some other deadly weapon such as a knife but where the principal offender did use such a weapon, because the facts of individual cases vary considerably. But their Lordships consider that the Court of Appeal should be slow to apply the proviso where the result of an erroneous felony/murder direction has been that the crucial issue as to what the accomplice contemplated in relation to the use of a deadly weapon was never considered at the trial and no questions and no evidence related to it. In such cases their Lordships consider that the interests of justice will be better served if the Court of Appeal considers whether a retrial should be ordered. There may, however, be cases, of which the decision of the Board in Narine Sooklal and Francis Mansingh v. The State is an example, where it is very clear that the accomplice contemplated that the deadly weapon would be used with intent to kill or cause grievous bodily harm and in such a case the proviso can be properly applied.

 

20. Before the Board Mr. Blake’s principal submission on behalf of the appellant was that the trial was unfair because all who participated in it were acting under a fundamental misapprehension as to the law that defined the criminal conduct of which the appellant was accused, and as a result the factual and evidential issues central to a proper application of the law were left unexplored. Accordingly the appellant was denied the right given to him by section 5(2)(f) of the Constitution of Trinidad and Tobago to "a fair and public hearing" and therefore the proviso could not be applied to uphold the conviction. Their Lordships have held that the conviction should be quashed on a somewhat different ground, viz. that because the factual and evidential issues central to the question of the appellant's guilt of the offence of murder were left unexplored an appellate court could not be satisfied that the jury in the present case would inevitably have convicted if those issues had been explored. Therefore their Lordships do not propose to express an opinion on the validity of Mr. Blake’s submission in relation to fairness, save to observe that where an argument is advanced that a conviction or the affirmation of a conviction by an appellate court in accordance with the proper application of well recognised principles of the common law is a breach of the constitutional right to a fair hearing it must be remembered, as Lord Steyn stated in delivering the judgment of the Board in Mohammed v. The State [1999] 2 WLR 552 at page 560 that: "In framing the Constitution of Trinidad and Tobago the legislature was not writing on a blank sheet", and the argument must be assessed against the background of the settled practices of the courts which are intended to ensure fairness for an accused.

 

21. It was further submitted on behalf of the appellant that there were additional material irregularities in the trial in relation to the admissibility of the appellant's oral admission and subsequent written statement. It was submitted that contrary to the subsequent ruling of the Board in Thongjai v. The Queen [1998] AC 54, 71, the judge erred in declining to rule on the admissibility of the oral admission. It was also submitted in reliance on Mitchell v. The Queen [1998] AC 695 that further material irregularities occurred when the judge required defence counsel to specify in front of the jury the reasons why he was objecting to the admissibility of the written statement, and subsequently told the jury that objection had been taken to the admissibility of the written statement and that he had ruled that it was admissible. However the judge then went on to tell the jury that it was their duty to consider and evaluate all issues of fact as to the circumstances and signing of the statement, and he again emphasised this point to the jury in his summing up. Their Lordships are of opinion that these matters constituted irregularities for the reasons sent out in Thongjai and Mitchell, but they further consider that in the circumstances of this case, having regard to the judge's clear direction to the jury that it was for them to consider whether the appellant had dictated the statement to Superintendent Charles, the irregularities did not give rise to a risk of a miscarriage of justice and would not have constituted grounds for quashing the conviction.

 

22. As their Lordships hold that the conviction for murder must be quashed on the ground that it is not inevitable that the jury would have convicted if attention had been directed at the trial to the question whether the appellant had contemplated that Mitchell might fire his revolver with intent to kill or cause grievous bodily harm it follows from the decision of the House of Lords in Reg. v. Powell (Anthony) [1999] 1 AC 1 that the Board cannot substitute a conviction of manslaughter for a conviction of murder. In Reg. v. Powell (Anthony) it was held that where the principal offender killed a police officer by stabbing him with a knife, the secondary party was not guilty of murder where he may not have known that the principal offender was armed with a knife. It was also held at page 30C:-

"As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg. v. Anderson, that English should not be found guilty of manslaughter."

 

23. In the same way if the appellant did not foresee that Mitchell might fire the revolver, the unforeseen firing of the revolver would take the killing outside the scope of the joint venture and the appellant could not be guilty of manslaughter.

 

24. The question then arises whether the case should be remitted to the Court of Appeal to consider whether it should order a retrial. Factors which weigh against a remittal to the Court of Appeal are that the killing of the deceased took place five years and eleven months ago and the appellant has been under a sentence of death since November 1995. But countervailing considerations are that the evidence against the appellant is very strong that he was the second man who took part in the attempted seizure of the car with Mitchell, and that the vital issue which would arise in a retrial would be what was in the appellant’s contemplation when he ran with Mitchell towards the deceased and the car knowing that Mitchell had taken out his revolver, which is an issue which does not depend on the evidence of witnesses whose recollection of what they saw may have faded. In these circumstances their Lordships consider that the appropriate course is to remit the case to the Court of Appeal for it to consider whether it is in the interests of justice that a retrial should be ordered. 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.