The Judicial Committee of the Privy Council Decisions

Cauldero and Nigill Francois v. The State (Trinidad and Tobago) [1999] UKPC 44 (28th September, 1999)

(1) Ian Cauldero and (2) Nigill Francois Appellants

v.

The State Respondent

FROM

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 6th July 1999, Delivered the

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Lord Nicholls of Birkenhead

[Delivered by Sir Roy Beldam]

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1. On 6th July 1999 their Lordships announced that the appeal would be allowed and the case remitted to the Court of Appeal of Trinidad and Tobago with a direction that the court should quash the convictions of the appellants for murder and the sentences of death, substitute convictions of manslaughter and pass sentence in the light of the substituted convictions. Their Lordships indicated that they would give their reasons later, which they now do.

 

2. On 17th May 1996 Ian Cauldero and Nigill Francois were convicted at Port of Spain Assizes in Trinidad of the murder of Keith Phillip on 3rd January 1991 at Norvant. They were both sentenced to death. They applied to the Court of Appeal of Trinidad and Tobago for leave to appeal against their convictions but on 16th January 1997 (with reasons given on 19th December 1997) the court dismissed their applications and affirmed the convictions and sentences. The appellants now appeal to their Lordships’ Board, special leave having been granted by the Board on 20th January 1999.

 

The Facts.

3. Shortly before 2 p.m. on 3rd January 1991 Keith Phillip and his brother Anderson Phillip were driven to Small Street, Second Caledonia, Norvant, by Adrian Solomon in a car which they had hired. On arriving there Anderson Phillip got out of the car and went to speak to a man about 150-200 ft. away. Keith Phillip and Solomon remained in the car. Shortly afterwards two men, of whom Francois was undoubtedly one and Cauldero as the jury must have found the other, walked up to the car. Francois was carrying a loaded .38 revolver. Francois spoke with Keith Phillip who was sitting in the front passenger seat. Anderson Phillip who was still speaking to the man he knew in Small Street heard a shot fire off and when he looked he saw a man pointing a gun at the car with his brother "breaksing" (bending forwards). He said that after the shot fired off the man remained standing with the gun in his hand and he heard his brother tell the driver to, "drive me out of here".

 

He said:-

"While the car going the other one say, "boy shoot the man nah boy", and take the gun and fire a shot".

 

4. When the car drove off he remained standing there. Solomon drove Keith Phillip to the hospital but he had been fatally wounded and when brought into Casualty at the Port of Spain General Hospital he was certified to be dead.

 

5. Inspector Leroy Thompson went to the scene at about 3.00 p.m. on 3rd January. He there interviewed Anderson Phillip and Andrew Solomon. Both gave statements to the police that day.

 

6. Francois was arrested and charged with the murder of Keith Phillip on 19th January 1991. Neither Anderson Phillip nor Adrian Solomon picked him out at an identity parade. He made a statement in which he said that on 3rd January he had been with his partner, "Toco", whose real name was Ian Simon. They had been in Small Street, Second Caledonia, when he saw Keith Phillip (known as "Sticks") come up in a car. He and Toco had walked down to the car and he had had a gun in his waist. He continued:-

"When we reach by the car I went up to Sticks and tell him ah hear he sending threats to me saying I is a imps I liming wid Bulls and them and anyway he see me he go kill me. Sticks tell me he not on that because me and he was liming old years night. Me and Sticks was reasoning out. Toco rush to me and say yuh talking too much if you come to shoot the man shoot him. At that time I had the gun in me hand Toco snatched me gun from me hand and fire four time. Two went off and two snap (didn’t burst) ... the car end up driving off and me and Toco went back up Small Street ... Some time after, ah hear Sticks dead. Ah hear Sticks dead the same day he get shoot."

 

7. Cauldero was arrested and charged on 8th February 1991. He was identified by Anderson Phillip as one of the two men he had seen. He too made a statement in writing to Inspector Thompson in which he said:-

"Me [and Mr. X] walk down to the car he was in front and I was behind him. [Mr. X] stand up over ... car was talking to "Sticks" and [Mr. X] had a gun in his hand. When come up alongside [Mr. X]. They talking to each other ... harsh words passing."

 

He continued:-

"I don’t know what they was talking. I tell [Mr. X] gi mi the gun and a take it from him. I wanted to see if the deceased which is Sticks had a gun. I hold the handle to the car door and was telling Sticks to come out the car. Sticks was pulling back the door and a shot was fired from the gun. When the shot went off I wasn’t fully prepared to shoot. I don’t know what part ah he body the shot catch him but ah see him holding his belly. After that [Mr. X] then take the gun from me and fired a next shot at Sticks ah doh know. Where that catch Sticks because he was sitting in the car. After that the car drive off. Whilst the car was driving off [Mr. X] squeeze two time but the gun stick. I end up taking the gun from [Mr. X] ..."

8. Forensic examination showed that Sticks had died from a single gunshot wound and that a further bullet was found lodged in the door of the car.

 

9. The appellants first appeared at the Port of Spain Magistrates Court to answer the charge of murder on 14th February 1991. They appeared on a number of other occasions and eventually were committed to stand trial at the Port of Spain Assizes on 25th November 1992. The trial commenced on 1st May 1996. They were convicted and sentenced to death on 17th May 1996.

 

10. At the time of the trial Anderson Phillip had died. Adrian Solomon was not called as a witness so that the evidence implicating the appellants consisted of their two statements and, if it was admitted in evidence, the deposition made by Anderson Phillip at the proceedings in Port of Spain Magistrates Court. Counsel for the appellants objected to the deposition being read but the judge rejected their submissions and it was read to the jury.

 

11. At the trial Cauldero ran a defence of alibi and asserted that the statement he had made was not made voluntarily. Francois accepted that his statement represented the truth but he supported Cauldero by saying that "Toco" was indeed Ian Simon. There was little prospect of Cauldero’s defence of alibi succeeding but it is relevant to one of the grounds of appeal.

 

12. Before the jury the essential basis of the defence of both appellants was that, although Francois had a loaded gun, they did not go out together on a joint enterprise intending to kill the deceased Sticks. Francois, who had heard that Sticks had threatened to kill him, only took the gun to frighten him. Although Cauldero had taken the gun from him, he did not intend to shoot Sticks. The gun had gone off accidentally as he struggled with Sticks to open the car door to see if Sticks was armed.

 

13. The prosecution relied strongly on Francois’ statement and Anderson Phillip’s deposition to prove that the appellants had gone to Norvant with the intention to shoot and kill Sticks. The issues for the jury were comparatively straightforward but the judge thought it desirable to direct them in several separate passages in great detail on the legal requirements of intention and joint enterprise and whether Francois could have foreseen that Cauldero might depart from an agreed plan to frighten Sticks. Unfortunately in re-iterating his directions he sometimes changed his expressions, altering the sense of those used earlier and at times gave incorrect and confusing guidance to the jury. He did not point out the passages in the statements of the two appellants which supported their defences; nor how the abstract legal concepts he described related to them.

 

14. The deficiencies in the judge’s directions formed the main ground of the appellants’ applications for leave to appeal to the Court of Appeal of Trinidad and Tobago.

 

15. Their Lordships do not need to refer to all the grounds advanced. Counsel for Francois submitted that the judge failed to give proper directions to the jury with regard to his statement. Instead of inviting them to consider the statement as a whole, including the exculpatory parts as well as the admissions, he had directed them that they should more readily accept the admissions because they were against his interest and the jury could:-

"... reasonably assume [them] to be a reliable reflection of truth because it’s an admission, than [sic] those parts of statement where he seeks to - if he so interprets - to pass the buck that is to say to pass the bad part of it on the other person that he speaks of in the statement".

 

16. Counsel relied on the cases of Reg. v. Sharp [1988] 86 Cr.App.R. 274 and Reg. v. Aziz [1995] 2 Cr.App.R. 478. Counsel also argued that the judge had:-

"... failed to direct the jury on the legal consequences of the appellant’s contention that the gun was snatched away from him without his consent and that the deceased was shot without his consent or participation".

 

17. The Court of Appeal thought there was merit in this criticism of the summing-up. They said:-

"The judge ought in our view to have assisted the jury by directing their attention specifically to the parts of the evidence that bore on the culpability of Francois for the shooting, by identifying the issues of fact which were raised by that evidence, by indicating the possible inferences which might be drawn from that evidence, by explaining clearly and succinctly the principles of law (particularly with regard to joint enterprise) which would have to be applied, and showing what the result would be of applying them to some at least of the possible findings of fact that they might make with regard to Francois. None of this was done by the judge."

 

18. Later in their judgment, the Court of Appeal referred to the fact that the judge had given directions to the jury with regard to the legal principles by which the guilt of persons involved in a joint enterprise fell to be determined. He had done so on no less than seven separate occasions in his summing-up but, the court said, the directions he gave were not always either clear or consistent or indeed correct. He certainly made no attempt to apply these principles to the evidence or to any findings of fact which it might support. But in the result the Court of Appeal did not consider that the judge’s failure, or any of the other deficiencies identified in the directions given with regard to joint enterprise, led to a miscarriage of justice. They said they did not think that any reasonable jury, properly directed, could have reached any other conclusion than that the appellants were involved in a common enterprise, the object of which was to shoot the deceased. Even if Francois did not foresee that the shooting would have occurred in exactly the way it did, it could not be said that the shooting was so outside the scope of the common purpose he did not anticipate that it would end in the shooting of Sticks.

 

19. After the Court of Appeal dismissed the appellants’ applications, the prosecution disclosed in March 1998 the original statement made by the witness Anderson Phillip whose deposition had been read to the jury. It had been taken on 3rd January 1991, the day of the shooting. Significantly it contained no mention of his having heard one of the men say, "Boy shoot the man nah boy".

 

The Arguments in these Appeals.

20. Before the Board Mr. Peter Thornton Q.C. for Francois and Mr. Peter Knox for Cauldero put forward several grounds of appeal not advanced in their applications for leave before the Court of Appeal of Trinidad and Tobago and they developed in much greater detail the deficiencies in the judge’s summing-up. Their submissions can be considered under four heads:

1. Abuse of process.

2. Irregularities at the trial.

3. The judge’s directions to the jury.

4. Was the Court of Appeal justified in applying the proviso?

Abuse of Process.

21. The appellants argued that their trial took place so long after the events that a fair trial was not possible. It was over five years after the events that the jury had to decide what happened on 3rd January 1991.

 

22. It was conceded that no application was made by the appellants that the proceedings should be stayed and in their Lordships’ view, since the case for the prosecution relied essentially on the deposition of Anderson Phillip and the statements made on arrest by the appellants, the delay could not be said to have caused substantial prejudice to them. Whilst delay in criminal proceedings is always undesirable, the issue whether a fair trial could take place was primarily for the trial judge to decide and since no application was made to him and it is difficult to see that any prejudice was caused to the appellants, their Lordships do not find this ground of appeal made out.

 

Irregularities at the Trial.

23. The principal complaint under this head was that the judge permitted the deposition of Anderson Phillip to be read to the jury. It was argued first that the necessary conditions for its admission had not been made out; secondly that, had the judge known of the earlier statement made by Anderson Phillip and that it contained no reference to the damaging remark attributed to one of the men in his deposition, he would not have admitted the deposition or at least would have deleted the reference to that remark.

(i) Were the necessary conditions fulfilled?

24. Section 40(1) of the Indictable Offences (Preliminary Enquiry) Act, Chapter 12.01 of the Laws of Trinidad and Tobago, permits a deposition taken before a magistrate to be read as evidence on the trial of a person if:

(a) [Not relevant]

(b) It is proved at the trial that the deposition was taken in the presence of the accused person and that he or his legal adviser had full opportunity of cross-examining the deponent.

(c) [Not relevant].

 

25. Mr. Knox submitted that the appellant Cauldero had no full opportunity to cross-examine Anderson Phillip because counsel who then appeared for him was not present. There were a number of respects in which Cauldero would have wished the witness to be cross-examined. It would not be sensible to regard a person in Cauldero’s position as having had a full opportunity to cross-examine if his counsel was absent.

 

26. Their Lordships do not know why counsel was not present when Anderson Phillip gave his deposition but the Board notes that on the preceding occasion the court recorded that counsel who appeared for Francois was "holding for counsel for Cauldero" and that he, in fact, cross-examined Anderson Phillip when he gave his deposition. It seems to the Board that there was a full opportunity for cross-examination of the witness. The fact that Cauldero’s counsel did not take advantage of the opportunity does not mean that he did not have the chance to do so. The Board is satisfied that the requirements for the admission of the deposition were met on this occasion.

 

(ii) Non-disclosure of the original statement of the witness Anderson Phillip.

27. Mr. Dingemans for the respondent submitted that under the local practice police statements were not disclosed to accused persons in criminal proceedings unless there was a material discrepancy between the contents of a witness statement and the evidence given by the witness at trial. The practice, however, is subject to the requirement of fairness to the accused. For example descriptions of suspects contained in statements are disclosed on request to accused persons where identification is in issue. In the present case these were asked for by counsel for Cauldero and were eventually given.

28. If counsel for the prosecution had known of the existence of the earlier statement and that it contained no reference to one of the men saying, "Boy shoot the man nah boy", their Lordships feel sure that counsel would have regarded the omission as capable of being a material discrepancy within the normal guidelines. If the appellants’ counsel had known of it when he gave his deposition it could have provided significant material for cross-examination and it would have lent added weight to their argument at trial that the judge should exclude the deposition or at least delete the damaging remark when it was read to the jury.

 

The Deficiency in the Judge’s Directions.

29. The appellants complained, as they had before the Court of Appeal, of the failure of the judge to tell the jury to regard the whole of the statements, both the incriminating parts and the excuses or explanations, as evidence in deciding where the truth lay. It is appropriate, as Lord Lane C.J. said in Reg. v. Duncan [1981] 73 Cr.App.R. 359 at 365, to point out that incriminating parts of a statement are likely to be true (otherwise why say them?) whereas the excuses do not have the same weight. In the present case the real complaint about the judge’s treatment of the statements in his summing-up is that nowhere in his directions did the judge identify for the jury those parts of the statements which were capable of supporting the defences. Their Lordships agree with the Court of Appeal that the judge’s comment about the exculpatory parts of the evidence given being of less weight than those which incriminated Francois was not improper in the circumstances of this case. Mr. Knox submitted that the judge had failed to direct the jury correctly about Cauldero’s defence of alibi because he failed to direct them that a false alibi might be created for innocent reasons. If there is a real danger that a jury might consider that the assertion of a false alibi was probative of guilt, they should be directed that even an innocent person may invent an alibi believing it would bolster his defence or for some other reason.

 

30. In the present case, even if Cauldero’s account that the gun went off when he did not intend it to was correct, he might well have thought that his only chance of avoiding a conviction for serious crime was to invent an alibi. It was therefore important that the jury should not regard the invention of a false alibi as confirmation of guilt of murder. Unfortunately in one or more of the passages in his summing-up the judge may well have led the jury to think that it was. For instance at one place, after referring to Cauldero’s evidence of alibi, he said:-

"If it is, members of the jury, you so find that he was on Small Street, you are sure about it, that he participated in this crime, that he took part in it with another man and that the deceased perished in the course of it and that they had the intention or it was within the foreseeable contemplation of the two men that an offensive weapon, that is a loaded firearm, might have been used and the deceased might have been shot and might have died as a result, then I can direct you as a matter of law that if that is your finding, the accused is liable to be convicted as charged for murder".

 

31. And in a later passage he said:-

"If you are satisfied on the evidence as to the identity of one of the men who fired the shot, you may consider that he has no defence to the charge of murder, that is the man who fired the shot who struck the deceased, whoever he was, on the evidence if you so find that he was not alone, on this evidence, it is open to you to find that there was another man with him the whole or part of the relevant time."

 

32. Similarly, when dealing with the passages in Francois’ statement in which by naming another man as "Toco" he sought to support Cauldero’s alibi, the judge, so far from directing the jury that this did not necessarily mean that he was guilty of murder, drew their attention to the statements in a context which suggested that the jury should reject his evidence altogether.

 

33. Their Lordships are doubtful whether these complaints taken in isolation would have been regarded as sufficiently serious to undermine the appellants’ convictions had the rest of the directions given to the jury been beyond criticism; but in conjunction with the other criticisms of the summing-up to which their Lordships now come, their Lordships think they are significant.

 

34. The Court of Appeal identified these deficiencies generally and considered that they had led to no miscarriage of justice. It is necessary to look at the deficiencies more specifically. In the passage already quoted, the judge directed as a matter of law that the accused were liable to be convicted of murder if the two men:-

"... had the intention or it was within the foreseeable contemplation of the two men that an offensive weapon, that is a loaded firearm, might have been used and the deceased might have been shot and might have died as a result."

 

35. In another part of the summing-up he told the jury that if they found that the appellants had combined with an intention to cause fright and that it was within reasonable contemplation or foresight that a gun might have been used as part of the common design and that the deceased might have been injured and might have died as a result of gunshot injury, then that was cogent evidence from which to find the appellants had the intention necessary for murder.

 

36. These are but two important instances of directions which were not clear, consistent or correct, as the Court of Appeal said. More specifically they could have influenced the jury to find the appellants guilty of murder although neither of them actually had the necessary intent. At no point in his summing-up did the judge identify for the jury the foundations for the defences contained in the statement and evidence of Francois and in the statement of Cauldero. Nor did he explain to them clearly how they should relate the legal concepts of intention and joint enterprise to the findings of fact they were called upon to make. The jury could well have been left with the impression that, even though the two men had agreed to take the gun only to frighten the deceased if they could reasonably have foreseen that he might be shot even unintentionally they could find the appellants guilty of murder.

 

37. Perhaps the most significant fact which told against the State’s case that the two men had agreed on a joint plan to shoot the deceased was the fact that Francois did not immediately do so. On the contrary, according to his statement, he and Sticks were "reasoning out". Nowhere did the judge direct the jury’s attention to the significance of this evidence.

 

Was the Court of Appeal justified in applying the Proviso?

38. Their Lordships cannot agree with the conclusion of the Court of Appeal that the jury, even if correctly directed, must on any findings of fact inevitably have decided the appellants were involved in a common enterprise, the object of which was to shoot the deceased. The Board accepts that it must not put itself in the position of an appellate court to review the exercise of a proviso as a matter of course. If all relevant factors have been considered and weighed by the Court of Appeal, it will not repeat the process simply to adjust the balance to its own ideas. But in the present case it can be seen that, although the Court of Appeal identified significant defects in the summing-up, they based their reliance on the proviso on their opinion that the jury even if properly directed must have found that the appellants had an intention to kill the deceased from the outset. They did not consider how the misdirections may have combined with the failure to identify evidence in favour of the defence to deprive the appellants of the chance of a verdict of manslaughter. Further the Court of Appeal were unaware of the material discrepancy in the earlier undisclosed statement of Anderson Phillip and so did not consider what difference the exclusion of his deposition might have made.

 

39. The case against the appellants was undoubtedly formidable, resting as it did on their statements, their going out with a loaded weapon and the deposition of Anderson Phillip. The remark attributed to "Toco" by Francois may have been inserted to give added support to Cauldero’s false alibi. But if the jury had accepted that Francois was "reasoning out" with Sticks and accepted that when Cauldero took the gun it went off in the struggle to open the car door when he did not intend it to, a verdict of manslaughter was not impossible.

 

40. Whilst it may well be likely that even if properly directed the jury would have found that the appellants were guilty of murder, it was not inevitable that they would do so if the relevant factors had been drawn to their attention. There is naturally a tendency for an appellate court to substitute its view of the facts for a possible view which might have been entertained by a properly directed jury. In Bullard v. The Queen [1957] AC 635 at page 644, Lord Tucker said:-

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

41. In that case the question was whether there was evidence on which the jury could have found a verdict of manslaughter on grounds of provocation but their Lordships think the same principle applies where, because of confusing directions on essential aspects of the case and a failure to identify for the jury facts supporting their defences, the appellants are effectively deprived of the chance of a verdict of manslaughter.

42. Accordingly their Lordships allowed the appeal and remitted the case to the Court of Appeal.