The Judicial Committee of the Privy Council Decisions

Sooklal and Francis Mansingh v. The State (Trinidad and Tobago) [1999] UKPC 37 (21st July, 1999)

(2) Francis Mansingh Appellants

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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Present at the hearing:-

Lord Slynn of Hadley

[Delivered by Lord Hope of Craighead]

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1. The appellants Narine Sooklal ("Sooklal") and Francis Mansingh ("Mansingh") together with Sooklal’s 15 year old son Sharma Sooklal (known as "Ding") were charged jointly with the murder of Mobina Ali on the night of 10th December 1992. The case was tried in the High Court of Justice by Volney J. and a jury in May 1996. During the trial Ding was acquitted on a submission that there was no case for him to answer. On 24th May 1996 Sooklal and Mansingh were found guilty of the murder. They were sentenced to death. They appealed against their convictions to the Court of Appeal of Trinidad and Tobago. On 26th February 1997 the Court of Appeal (Sharma, Ibrahim and Permanand J.J.A.) dismissed their appeals and affirmed the convictions and sentences. Reasons for the decision were given on 26th September 1997. On 23rd February 1998 the appellants were given special leave to appeal to their Lordships’ Board.

 

2. The victim of the killing was a 52 year old woman who had worked for about two years as a housemaid at the home of Sooklal’s father-in-law, Harry Narine Singh. The case for the State depended mainly upon written confession statements provided to the police by the appellants after they had been arrested and taken into custody. These statements were received into evidence without objection. There was no real dispute about the background. The outcome of the trial depended very largely on such inferences as could be drawn from admissions made by the appellants about the part which they had each played in the incident.

 

3. Sooklal’s wife believed that the deceased had been trying to persuade her father to change his will and leave his property to her instead of to his own family. It was decided that something should be done to prevent this. Sooklal agreed with Mansingh that the deceased should be given a beating to frighten her away. At about 10.30 p.m. on the evening of 10th December 1992 Sooklal, Ding and Mansingh collected the deceased by car from her home under the pretext that Harry Narine Singh was ill and needed her attention. Instead of taking her to his house they took her to a quiet spot where they stopped the car at the side of the road. Mansingh began to slap and then to strangle the deceased. She was pushed out of the car, whereupon Mansingh cut her throat with a cutlass. She was found dead at about 7.35 a.m. by a watchman the next day. A post mortem report revealed that death was due to the injuries which were inflicted when her throat was cut. Two days later the appellants were arrested and, under caution, gave written statements to the police in which they each gave detailed descriptions of their part in the incident. Mansingh admitted that he slapped and attempted to strangle the deceased and then cut her neck with a cutlass. Sooklal admitted that he was present throughout, that he saw Mansingh beating the deceased and then cutting her throat with the cutlass and that after it was all over he and the other two drove back home.

 

4. Mansingh gave evidence at the trial. He maintained that he had been drinking on the day of the incident. He said that he could not remember what happened because he was under the influence of alcohol. His only defence was that he lacked the intention which was necessary for murder. His counsel invited the jury to convict him of manslaughter. Sooklal did not give evidence. His defence was that he was party to a joint enterprise whose only purpose was to slap the deceased in order to frighten her, and that Mansingh departed from what was agreed when he attacked the deceased with the cutlass and cut her throat. His counsel submitted that for this reason he was not guilty of murder. But he accepted that he might be guilty of manslaughter.

 

5. At the time of the trial the common law rule of constructive malice, known as the "felony/murder" rule, was thought still to be part of the law of murder in Trinidad and Tobago. The State did not need to rely on this rule against Mansingh. On his own admission, he was the person who had killed the deceased by cutting her throat with the cutlass. But the case against Sooklal was presented on the basis that it was sufficient for the State to prove that he was a party to a plan to commit acts of violence on the deceased and that the deceased died from injuries sustained while that plan was being carried out. The trial judge gave the traditional felony/murder directions when he dealt with Sooklal’s position in the course of his summing up. He mentioned the fact that Mansingh’s defence was that he had acted while under the influence of alcohol. But he told the jury that if they were not sure that he had the necessary intention for murder they should acquit him, not that they should find him guilty of manslaughter. The Court of Appeal held, after examining the facts, that if the jury had been properly directed by the trial judge they would have returned the same verdicts. They applied the proviso in Sooklal’s case because of the inferences which they drew from his confession statement. In Mansingh’s case they held that the argument that he was so intoxicated as to be guilty only of manslaughter was untenable, as it was clear from his statement that he was faithfully carrying out the instructions which had been given to him by Sooklal.

 

6. At the hearing of the appeal before their Lordships’ Board the argument for Mansingh was presented first, as he was the first named accused at the trial. Their Lordships have found it convenient to follow the same order in setting out their reasons for the judgment which they propose to issue in this case.

 

Mansingh.

7. The trial judge gave the following direction to the jury with regard to Mansingh’s defence that he lacked the requisite mens rea for murder because he was intoxicated:-

"Now, let me tell you in relation to that statement that the accused has said certain things about the intake of alcohol, puncheon rum. If you think, having considered all the evidence in this case on that issue and in determining what was his intent, if you find that he is the one who cut the woman in her throat, if you think because of drink he may have lacked the necessary intention, you will acquit him. You will convict him only if the prosecution has satisfied you so that you are sure that, notwithstanding the drink that he had taken, he did have the intention either to kill or to do grievous bodily harm."

 

8. Mr. Kentridge Q.C. for Mansingh said that the sole issue in his appeal was whether he was entitled to a direction that, if he lacked the specific intent for murder because he was drunk, he should be found guilty of manslaughter. The evidence against him consisted of his confession statement and the evidence which he gave on oath at the trial. There was no dispute that the confession statement had been properly admitted by the trial judge. In his statement he said that he and Sooklal had taken two drinks each of puncheon rum, and that he did not know what had got into his head when he chopped the deceased’s neck with the cutlass. His explanation for what he had done was: "I get so stupid". Mr. Kentridge accepted that this was a rather thin basis for the submission that Mansingh lacked the specific intent for murder because he was intoxicated. But he was able to show that Mansingh enlarged upon this point when he gave evidence at the trial. In his evidence he said that he and Sooklal had drunk some alcohol and had become intoxicated. When his own counsel asked him to say what had happened after he and Sooklal had picked the deceased up from her house, his reply was:-

"A. I don’t remember. I had alcohol in my head.

 

Q. What’s that? You cannot remember …

 

A. I cannot remember because I was under alcohol."

 

9. The point was put to him again when he was being cross-examined by Sooklal’s counsel:-

"Q. Mr. Mansingh, I’m trying to understand. What you’re saying is on the night of the incident .. are you saying that you drank so much alcohol that you were drunk that night?

 

A. Yes, I was drunk, yes."

 

10. Mr. Kentridge submitted that so long as there was some evidence that the accused was drunk at the time when the offence was committed the judge must leave it to the jury to consider whether he was guilty of manslaughter. In this case it was plain that the judge did not think that there was no evidence that Mansingh lacked the necessary intent for murder. This was because he decided to give the jury a direction about this in his summing up. What he had omitted to do was to leave it to them to consider whether he was guilty of manslaughter.

 

11. Mr. Kentridge developed his argument by reference to authority. He submitted that in Reg. v. Majewski [1977] AC 443, 454H–455A Lawton L.J. summarised the existing state of the authorities correctly when he said, after referring to Lord Birkenhead L.C.’s speech in Director of Public Prosecutions v. Beard [1920] A.C. 479:-

"Whatever differences of opinion there may be about what Lord Birkenhead L.C. meant by a "specific intent" there can be none about the relevance of evidence as to self-induced intoxication when there is a charge of murder; it can reduce murder to manslaughter but cannot bring about an acquittal."

 

In Bullard v. The Queen [1957] AC 635, 644 Lord Tucker said that every man on trial for murder had the right to have the issue of manslaughter left to the jury if there was any evidence on which such a verdict could be given. Mr. Kentridge accepted that in this case, by directing an acquittal rather than a reduction of murder to manslaughter, the trial judge had given the appellant a more favourable direction than that to which he was entitled. But he said that, far from helping him, this had been to his prejudice. The test was that which had been explained in Reg. v. Maxwell [1990] 1 W.L.R. 401, 408F:-

"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."

 

12. There was an obvious danger that this is what had happened in this case. Moreover the trial judge had gone to considerable lengths in his summing up during his presentation of the arguments based on the felony/murder rule to tell the jury that, once they were satisfied that there was a common plan to commit any violence, their verdict against both accused must be murder. The jury may have decided to convict the appellant of murder irrespective of the view which they formed of his evidence that he was intoxicated, either because they were unwilling to acquit him as directed by the trial judge or because they felt obliged to do so because they were confused by the felony/murder rule.

 

13. The question in the case of this appellant is whether there was a sufficient basis in the evidence for the argument that he lacked the specific intent for murder because he was intoxicated. If there was, their Lordships are in no doubt that the direction which the judge gave was a misdirection. He should have said to the jury that, if they were satisfied on this point, their verdict should be manslaughter. He was wrong to say that they should acquit him. But it is not enough for the reduction of a charge from murder to manslaughter that the evidence shows that the accused was drunk. As Lord Mustill said in Reg. v. Kingston [1995] 2 AC 355, 369C:-

"… it is no answer for the defendant to say that he would not have done what he did had he been sober, provided always that whatever element of intent is required by the offence is proved to have been present. As was said in Reg. v. Sheehan [1975] 1 W.L.R. 739, 744C, ‘a drunken intent is nevertheless an intent’."

 

14. Whenever reduction of a charge of murder on the ground of self-induced intoxication is in issue, the ultimate question is whether the accused formed the mens rea for the crime charged: Smith & Hogan, Criminal Law, 8th edition, (1996) p. 225. What is required is evidence that the accused was so intoxicated that he lacked the specific intent which is essential for murder: that is the intent to kill or to inflict grievous bodily harm upon the victim: Reg. v. Doherty (1887), 16 Cox C.C. 306, 308, per Stephen J.: Director of Public Prosecutions v. Beard [1920] A.C. 479, 499 per Lord Birkenhead L.C.; Reg. v. Majewski [1977] A.C.443, 498H-499A, per Lord Russell of Killowen.

 

15. This test is not satisfied by evidence that the accused had consumed so much alcohol that he was intoxicated. Nor is it satisfied by evidence that he could not remember what he was doing because he was drunk. The essence of the defence is that the accused did not have the guilty intent because his mind was so affected by drink that he did not know what he was doing at the time when he did the act with which he has been charged. The intoxication must have been of such a degree that it prevented him from foreseeing or knowing what he would have foreseen or known had he been sober. This was made clear by Lord Denning in Bratty v. Attorney-General for Northern Ireland [1963] AC 386, 410, in a passage which was quoted by Widgery L.J. in Reg. v. Lipman [1970] 1 Q.B. 152. 156:-

"If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary, see Beard’s case."

 

In Attorney-General for Northern Ireland v. Gallagher [1963] AC 349, 381 Lord Denning gave some helpful examples of the application of this principle:-

"If a man is charged with an offence in which a specific intention is essential (as in murder, though not in manslaughter), then evidence of drunkenness, which renders him incapable of forming that intention, is an answer: see Beard’s case. This degree of drunkenness is reached when the man is rendered so stupid by drink that he does not know what he is doing (see Reg. v. Moore (1852) 3 Car. & Kir. 319), as where, at a christening, a drunken nurse put the baby behind a large fire, taking it for a log of wood (Gentleman’s Magazine, 1748, p. 570); and where a drunken man thought his friend (lying in his bed) was a theatrical dummy placed there and stabbed him to death ("The Times", January 13, 1951). In each of those cases it would not be murder. But it would be manslaughter."

 

16. In their Lordships’ judgment the evidence in this case does not come anywhere near the required standard. In his statement Mansingh said that he and Sooklal had taken two drinks of puncheon each earlier in the day before picking peas, going to Sooklal’s house, cleaning the peas, going home for a bathe and then returning to Sooklal’s house in the evening. He gives a clear account of his actions throughout the incident, during which he claimed to have been acting throughout on Sooklal’s instructions. He makes no mention in this statement of being drunk, and it is impossible to take from it any suggestion that he was incapable of forming the necessary special intent. When he gave evidence at his trial four years later he said that it was after he had bathed and changed his clothes that he and Sooklal went on a little lime and drank some alcohol. When he was asked to say what happened after that he replied that he could not remember because he was drunk. When he was being cross-examined by Sooklal’s counsel he said that he had drunk so much alcohol that he was drunk that night. When he was asked whether he remembered chopping the deceased, he replied: "Sir, I can’t remember chopping she, but under alcohol maybe". He maintained the position that he could not remember what he had done throughout his evidence. But he also said in answer to a question in cross-examination by Ding’s counsel that the statement which he gave to the police was true, although he added that he told the police what was in that statement because they were beating him. In answer to prosecuting counsel he agreed that he had said that the statement was true and correct. No questions to the contrary were put to him by his own counsel, who did not suggest that the statement was inadmissible on the ground that it was not voluntary. There was no other evidence to the effect that he was drunk that evening.

 

17. That being the state of the evidence, their Lordships agree with the Court of Appeal that the trial judge gave the appellant the benefit of a direction which was not on the facts juridically sustainable. The appellant was entitled to rely on those parts of his evidence which were in conflict with his confession statement, because it was open to the jury to accept those parts of his evidence in preference to what he was said to have told the police. But for the most part he did not contradict that statement and he agreed in cross-examination that it was true. Even accepting therefore that he was drunk and under the influence of alcohol, there is no getting away from the fact that on his own admission he did what he did in response to instructions which he said he had received from Sooklal. Nor was it disputed that he was able to give a clear account of his actions two days later to the police. This case is far removed from those where a verdict of murder must be reduced to one of manslaughter because the accused did not know what he was doing due to intoxication by alcohol.

 

18. Mr. Kentridge invited their Lordships to take into account the fact that the trial judge thought it appropriate, having heard the evidence, to direct the jury to consider the question whether the appellant had the necessary intent. The suggestion was that this showed that there was sufficient evidence to go to the jury on this point. In their Lordships’ view the fact that the trial judge was acting out of an abundance of caution does not resolve the issue in the appellant’s favour. The issue is whether he was deprived of the benefit of a direction as to an alternative verdict of manslaughter to which he was entitled in the light of the evidence. The trial judge was overgenerous to the appellant when he directed the jury to acquit him if the prosecution had failed to satisfy them that he had the specific intent for murder. But there was no miscarriage of justice, because there was no evidence before the jury which would have entitled them to hold that it had not been proved that he had that intent because he was drunk.

 

Sooklal.

19. Mr. Sells Q.C. for Sooklal advanced several grounds in support of his appeal, in addition to his fundamental and undisputed point that the trial judge was wrong to direct the jury on the basis of the felony/murder rule. The first was that the judge, having decided to direct Ding’s acquittal after Mansingh had given evidence, ought to have discharged the jury and ordered a retrial in view of the prejudice which the cross-examination of Mansingh by Ding’s counsel had caused to Sooklal. The second was that Sooklal’s case had not been adequately put to the jury by his own counsel, as he did not cross-examine Mansingh sufficiently on his assertion in the course of his evidence that his statement to the police was true. He said that counsel’s whole approach to the case had plainly been based on the assumption that the case against Sooklal depended upon the application of the felony/murder rule. The third was that the trial judge erred in telling the jury that Mansingh had adopted his statement as true, and that he also erred in omitting to direct the jury that they could not rely upon a statement which Ding had given under caution to the police in so far as it might tend to incriminate Sooklal. The fourth was that the trial judge ought to have given an accomplice warning with regard to Mansingh’s evidence. And the fifth was that the Court of Appeal had been wrong to apply the proviso.

 

20. Their Lordships wish to make it clear at the outset that, although the trial judge must be held to have misdirected the jury when he applied the felony/murder rule, he was following the regular practice in this jurisdiction when he decided to base his summing up on this rule when he was dealing with the case against Sooklal. The situation in this case is similar to that which arose in Stafford v. The State, (unreported), Privy Council Appeal No. 7 of 1998; 30th July 1998, which went to trial shortly after the jury’s verdict in this case. Giselle Stafford and Dave Carter were convicted of murder on 14th June 1996 following a summing up which was based on the felony/murder rule. Then on 18th and 19th June 1996 the hearing of the appeal in Moses v. The State [1997] AC 53 took place before this Board. On 29th July 1996 their Lordships delivered their judgment in that case. They held that the felony/murder rule was no longer part of the law of murder in Trinidad and Tobago. The abolition of the distinction between felonies and misdemeanours by section 2(1)(a) of and Schedule 1 to the Law Revision (Miscellaneous Amendments) (No. 1) Act 1979 had had the effect of abolishing the felony/murder rule also. The statute had made no mention of the felony/murder rule. But felonies had ceased to exist, and it was impossible to have a principle of felony/murder if there was no such thing as a felony.

 

In Stafford v. The State the Board made the following observations about the effect of the decision in Moses which their Lordships think it desirable to repeat in this case as an introduction to the view which they have formed about Sooklal’s appeal:-

"Their Lordships are under no illusions about the gravity of the situation which the decision in Moses has revealed. It was most unfortunate that a direction in the terms approved by this Board in Gransaul v. The Queen, (unreported), 9th April 1979, Appeal No. 26 of 1978, only a few months before the commencement date of the Miscellaneous Amendments Act, and which had been routinely given in this jurisdiction during the intervening 16 years after that date, had now to be held to have been a misdirection. It was even more unfortunate that the flawed direction should be one relating to murder, where there is such an obvious public interest in the conviction and punishment of the criminal. But fundamental principles of justice require that the law must receive effect. If the proviso to section 44(1) of the Supreme Court of Judicature Act cannot be applied, and if a substitute verdict of manslaughter under section 45(2) of that Act is not available, the conviction must be quashed. That was what had to be done in Moses. The question which their Lordships have to address is whether the same result must follow in this case also. As Lord Mustill observed in Moses at p. 69C-D, the fact that a direction given in accordance with the felony/murder rule must now be held to have been a misdirection need not inevitably lead to the quashing of the conviction. A careful analysis of the evidence may show that there was no miscarriage of justice, or at least that a verdict of manslaughter may properly be substituted."

 

21. The central issue in Sooklal’s case, in view of this misdirection, is whether the Court of Appeal was entitled to apply the proviso. Section 44(1) of the Supreme Court of Judicature Act provides:-

"The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."

 

22. As their Lordships had occasion to point out in Stafford v. The State, it has been said many times that it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal. Save in exceptional circumstances, the Judicial Committee will not embark upon a rehearing of issues such as the weight which may properly be given to the evidence or the inferences which may properly be drawn from it. These are matters which will be left to the Court of Appeal. Its decision as to whether the evidence was sufficient to support the conviction will not normally be reviewed by this Board: Buxoo v. The Queen [1988] 1 W.L.R. 820 at p. 822; Gayle v. The Queen, (unreported), Appeal No. 40 of 1995, 12th June 1996. As a general rule the same is true as to the application of the proviso: Lee Chun-Chuen v. The Queen [1963] A.C. 220 at p. 231 per Lord Devlin. But, as Lord Devlin made clear in that case, the Board will disregard the finding of the appellate court if that court has approached the problem in the wrong way, such as by taking into account evidence which it should have left out of account or misdirecting itself as to the state of the evidence.

 

23. The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: Woolmington v. Director of Public Prosecutions [1935] AC 462, per Viscount Sankey L.C. at pp. 482-483. In Stirland v. Director of Public Prosecutions [1944] A.C. 315 at p. 321 Viscount Simon said that the provision assumed "a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict". Two distinct situations can be envisaged as to the application of this test. The first is where the verdict is criticised on the ground of a misdirection and no question is raised about the admission of inadmissible evidence. In such a case the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence. The second is where the verdict is criticised on the ground of inadmissible evidence, as where the trial judge allowed evidence to be led at the trial which was inadmissible or where he failed to direct the jury that they must disregard some part of the evidence which was properly before them against a co-accused when considering the case against the appellant. In such a case the application of the proviso will depend upon an examination of the admissible evidence, leaving wholly out of account the evidence which was inadmissible.

 

24. This case falls into the second category. But before coming to the evidence against Sooklal their Lordships must first deal with the other points raised in his appeal about errors and omissions on the part of his counsel and by the trial judge.

 

25. The first point was that the trial judge ought to have discharged the jury and ordered a retrial when he decided to acquit Ding. Their Lordships are not persuaded that there is any substance in this ground of appeal. In the ordinary course of events submissions of no case to answer should be made on behalf of all the accused at the end of the prosecution case. Due to a misunderstanding the submission by Ding’s counsel was not made until after Mansingh, who was the first named accused, had given evidence and had been cross-examined by counsel for Ding, who was the third named accused. It was in the course of that cross-examination that Mansingh said in the clearest terms that the statement which he had made to the police was true. He had not been asked to say whether it was true when he was being examined by his own counsel, and counsel for Sooklal, who was the second named accused, had decided when his turn came to put no questions to him in cross-examination. The argument is that, if Ding had been acquitted before Mansingh gave evidence, the jury would not have had any evidence as to the truth of the statement. But the point might well have been raised by prosecution counsel in his cross-examination, as he had an obvious interest in pursuing this point. So it is by no means clear that this evidence would not have emerged before Mansingh completed his evidence. Also, the trial judge granted a request by Sooklal’s counsel to cross-examine Mansingh after he had been cross-examined by Ding’s counsel, having regard to the fact that he had said in answer to Ding’s counsel that his statement was true. In their Lordships’ opinion this removed any risk of prejudice to Sooklal, because of the opportunity which his counsel had to challenge that part of Mansingh’s evidence.

 

26. The other grounds which were advanced by Mr. Sells in support of the appeal all related in one way or another to deficiencies on the part of Sooklal’s counsel and the trial judge in regard to Mansingh’s evidence. Mr. Sells said that counsel had failed to mount an adequate challenge to Mansingh’s evidence that his statement to the police was true and that the trial judge erred in his summing up when he told the jury that Mansingh had said that everything in his statement was true and correct. There is nothing in either of these two criticisms. The approach to be taken to this issue in cross-examination was a matter for counsel to decide in the exercise of his professional judgment at the trial. Mansingh said that his statement was true in answer to Ding’s counsel, and in answer to prosecuting counsel he agreed that he had said that his statement was true and correct. So there was a basis in the evidence for the references to this point which the trial judge made in his summing up.

 

27. There is however more force in the remaining two grounds, which were these. First, the trial judge omitted to tell the jury that Ding’s caution statement was inadmissible against Sooklal. The terms of this statement were led in evidence from Inspector Frederick during the prosecution case before Ding was acquitted, and as Ding did not have occasion to enter the witness box he did not adopt it in his evidence as a true statement. During his account of the incident to the police Ding said that Sooklal passed the cutlass to him before he gave it to Mansingh. This was the only mention in any of the three caution statements that Sooklal handled the cutlass during the incident. Mr. Sells said that this was clearly prejudicial to Sooklal, and that the jury should have been told to disregard this statement. And secondly, the trial judge also omitted to give the appropriate accomplice warning in regard to Mansingh’s evidence.

 

28. The proper approach to these last two grounds of appeal is that which is to be found in the words of the proviso. It is whether it can be said that, despite these omissions on the part of the trial judge, no substantial miscarriage of justice has occurred. Mr. Cassel Q.C. for the State submitted that there was no real dispute between Mansingh’s statement and the statement which Sooklal had given to the police. As Mansingh’s evidence had not undermined Sooklal’s defence, there was no need for an accomplice warning in this case. He also submitted that, as Ding’s statement was not mentioned again in the trial after Inspector Frederick had completed his evidence, no substantial prejudice to Sooklal resulted from the judge’s omission to tell the jury to disregard it. Their Lordships prefer however to approach the application of the proviso upon the basis that the jury should have been given these directions and that, if they had been given, the jury would have disregarded this evidence. On this approach the only relevant evidence against Sooklal was his own statement to the police.

 

29. When the Court of Appeal came to consider the application of the proviso to Sooklal’s case it confined its examination of the evidence against him to the contents of his statement to the police and to a consideration of the inferences which could be taken from that statement alone as to the part which he had played in the incident. In Stafford v. The State their Lordships held that the Court of Appeal had taken into account evidence in Giselle Stafford’s case which should have been left out of account, and that it had proceeded in Dave Carter’s case upon a wrong view of the evidence. That being so, the whole matter as to the application of the proviso was at large for decision by the Board. In the present case the Court of Appeal did not take into account any inadmissible evidence. So the question to which their Lordships must now address their attention is whether the application of the proviso in Sooklals’ case was based by the Court of Appeal upon a wrong view of the evidence.

 

30. The prosecution case was that Mansingh used the cutlass to kill the deceased and that Sooklal was a secondary party to the murder as he himself did not use the cutlass. As their Lordships have observed in Anthony Nevada Johnson v. The State, the Court of Appeal should be slow to apply the proviso where, as the result of an erroneous application of the felony/murder rule, the question as to what the secondary party contemplated in relation to the use of a deadly weapon was not considered at the trial. It follows that in such cases the Board will examine with particular care the reasons which the Court of Appeal has given for the application of the proviso, and if these reasons are not satisfactory it will reconsider the matter afresh in the light of the relevant evidence. But there may be cases, unlike that of Anthony Nevada Johnson in which the decision was set aside and the case remitted to the Court of Appeal to consider whether an order should be made for a retrial, where it is abundantly clear from the evidence which was led at the trial that the accomplice contemplated that the deadly weapon would be used to kill or to inflict really serious injury. Where the evidence is of that character the test for the application of the proviso will normally be held to have been satisfied.

 

31. The statement which Sooklal gave to the police contained a detailed account of the incident in which he admitted to having devised a plan to frighten the deceased so that she would keep away from his father-in-law: "hit she a few slaps and thing". He admitted to having involved Mansingh and Ding in this plan, and to their having collected the deceased by car from her house. They then drove on the highway with her in the back seat beside Mansingh. The statement continued with these words:-

"While going up the road I heard lash passing in the back and I saw Francis beating the woman. I didn’t tell him nothing because I know is only frighten we want to frighten she. Francis then say he strangling the lady but she wasn’t saying nothing. When we reach a certain way on the road Francis say stop and pull she out the car and me boy was in the front seat. Francis say pass the cutlass for him and me boy Ding give him the cutlass and Francis chop the lady in she neck and leave she they. She had on a red dress and I think a black handbag. From they we drive back home and park up and I didn’t tell my wife nothing. She ask where I went and I said out the road. When Francis chop the woman in she neck he throw the cutlass in the bush. Francis take up the cutlass from home by mus."

 

32. The Court of Appeal drew the following inferences from this statement. The first was that Sooklal was well aware that there was a cutlass in his car. This was because of his statement in the last sentence that Mansingh had taken it from his (Sooklal’s) home. The second was that, as Sooklal stopped the car at Mansingh’s request, heard him ask for the cutlass and was aware that the cutlass was being passed to him, he must have known that his purpose was no longer merely to beat and frighten the deceased. The third was that there was ample opportunity for Sooklal to drive away when Mansingh and the deceased had left the car if he wished to disassociate himself from the act of using the cutlass. Instead what he chose to do was to remain where he was while Mansingh used the cutlass to cut the deceased’s throat, and then to drive him back home when it was all over.

 

33. In their Lordships’ opinion it cannot be said that Court of Appeal was not entitled to conclude that if the jury had been properly directed they would have come to the same conclusion and that they would have returned the same verdict. Indeed the terms of Sooklal’s statement were such that, if the jury had been properly directed that Sooklal would only be guilty if he contemplated that Mansingh might use the cutlass to kill the deceased or to cause her really serious injury, they would inevitably have convicted Sooklal of murder. The Court of Appeal did not employ precisely the same language as that indicated by Viscount Simon in Stirland v. Director of Public Prosecutions [1944] A.C. 315 at P. 321 when he used the words "without doubt convict". But it is sufficiently clear from its judgment that the Court of Appeal was applying this test. There is no indication that it approached the question in the wrong way or that it attached weight to the statement which was gravely out of proportion to its true value: Lee Chun-Chuen v. The Queen [1963] A.C. 220 at p. 231. On the contrary it is clear from Sooklal’s statement that he was in charge of the plan which was being put into effect that night and that he was well aware of what was going on throughout the incident. The decision of the Court of Appeal was well within the limits of the proper exercise of the function of analysing the evidence and assessing the weight to be attached to it which the Board will normally leave to that court.

 

34. Their Lordships have considered whether there is room on Sooklal’s case, as he was not the primary party, for the substitution of a verdict of manslaughter under section 45(2) of the Supreme Court of Judicature Act. In Stafford v. The State it was held that the Court of Appeal was wrong to apply the proviso but that there was sufficient material in the evidence to justify the appellants’ conviction for manslaughter. In the present case their Lordships are satisfied that the Court of Appeal was entitled to apply the proviso. So it must inevitably follow that the court was entitled to do what the proviso enabled it to do and dismiss the appeal. But there is further ground on which the possibility of substituting a verdict of manslaughter must be rejected in Sooklal’s case.

 

35. Mr. Cassel Q.C. said that, applying the principles discussed in Reg. v. Powell (Anthony) [1999] 1 AC 1, it was not open to him on behalf of the State to ask for the substitution of a verdict of manslaughter in Sooklal’s case. He recognised the result in his appeal would have to stand or fall on the proposition that he was guilty of murder. For their part Sooklal’s counsel accepted on the authority of that case and Reg. v. Uddin [1999] QB 431 that the alternative verdict of manslaughter was not available.

 

In Reg v. Powell (Anthony) at p. 28D Lord Hutton accepted as correct the submission by counsel in the appeal of English that to be guilty under the principle stated in Chan Wing-Siu v. The Queen [1985] AC 168 the secondary party must foresee an act of the type which the principal party committed. In English’s case that test was not satisfied. The joint enterprise was to attack the deceased with wooden posts, and English may not have known that his companion was armed with the knife which he used to stab the deceased. The use of a knife was fundamentally different to the use of a wooden post. At p. 30C Lord Hutton said:-

"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."

 

In Reg. v. Uddin at p. 440, Beldam L.J. said:-

"… if one party to a joint enterprise suddenly forms an intention to kill making use of a deadly weapon and acting in a way which no party to the common design could suspect kills using that deadly weapon the others taking part in the common enterprise are to be judged as secondary parties and are not guilty of murder unless the actions of the party causing death are of a type which they foresee but do not necessarily intend."

 

36. In a later passage at p. 440 Beldam L.J. observed that the analysis of risk which is contemplated by the joint enterprise rules, whilst appropriate in the case of criminals who agree in advance to commit an offence such as armed robbery, does not readily fit the spontaneous behaviour of a group of irrational individuals who jointly attack a common victim, each intending to inflict serious harm by any means at their disposal. But the underlying principle is clear. If there is agreement to use minor force, or if only minor force is foreseeable, and unintended and unforeseen major force by means of a deadly weapon is used by the primary party, only the primary party is guilty of the homicide.

 

37. Applying that principle to the facts of this case, if Mansingh’s use of the cutlass was not foreseen by Sooklal and he had no reason to suspect that deadly force would be used, it would follow that he would be entitled to be acquitted not only of murder by also of manslaughter. This is because there was a fundamental and obvious difference between the use of the cutlass which caused the deceased’s death and the other acts of minor physical violence which were directed against her in accordance with the common plan while she was still in the car. But on the view which the Court of Appeal took of the evidence, Sooklal was aware from the outset that the cutlass was in the car and that it was available for use on the deceased by Mansingh. He was also aware that it was being passed to Mansingh after the deceased had been pushed out of the car, yet he did nothing to dissuade him or to prevent him from using it on the deceased. When it was all over he assisted Mansingh’s departure from the scene of the crime by driving him home. It may be that Sooklal did not set out with the intention that the deceased should be killed. But once he knew that Mansingh had asked for and been given the cutlass he had the necessary degree of foresight to render him liable for her murder if it was used by him to inflict fatal injury.

 

38. The result is that there can be no question of substituting an alternative verdict of manslaughter in Sooklal’s case. The conviction of murder must be affirmed on the ground that the Court of Appeal was entitled to apply the proviso and to dismiss the appeal.

 

Conclusion.

39. For these reasons their Lordships have decided that these appeals must both be dismissed.