The Judicial Committee of the Privy Council Decisions

Kervin Langton Appellant

v.

The State Respondent

FROM

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 29th March 2000, Delivered the

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Lord Slynn of Hadley

[Delivered by Sir Patrick Russell]

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1. At the conclusion of the hearing before their Lordships on 29th March 2000 the appeal of the appellant was allowed, his conviction for murder quashed, a verdict of manslaughter substituted, and the question of sentence remitted to the Court of Appeal. Their Lordships indicated that they would give their reasons later and this they now do.

 

2. The victim was a young woman named Nicole Agard. According to the appellant, by 2nd February 1996 he had decided to bring a long-standing relationship between him and the victim to an end. He met the deceased at her place of work and together they caught a taxi which conveyed them to the deceased’s home in Cunupia. A quarrel broke out in the taxi, and it continued inside the deceased’s house. Precisely what was said and done inside the house was and is known only to the appellant. At all events in due course the deceased emerged from her house. She was seen by a neighbour who had heard someone screaming. The appellant followed the deceased in pursuit of her and he was seen by the neighbour, Leonore Deane to stab the deceased about three times with a black-handled knife. The injuries then inflicted were not the fatal wounds. They occurred inside the house of Leonore Deane’s sister next door to Leonore’s home. The appellant followed the deceased into that house. The body was found just outside a bedroom, a brown-handled knife protruding from the chest. The appellant left the scene of the killing. By about 5.30 p.m. he was at the house of a friend Ethelson Prince. By now his hands were bloodstained and bandaged and Ethelson Prince noticed a deep cut on the right hand. Later the appellant surrendered to the police at the local police station and in due course he made a statement in writing. That statement was admitted in evidence and the appellant accepted that it was a voluntary statement. In it he recounted how he had stabbed the victim initially with the black-handled knife which he normally carried with him for legitimate purposes. In the nearby house where the killing took place the appellant alleged that he took the brown-handled knife off the deceased and used that to stab her before fleeing the scene. There was no reference in the statement as to how the deceased came into possession of the brown-handled knife, nor any detail of what she said or did within her house or elsewhere in the neighbour’s house immediately prior to the fatal attack by the appellant.

 

3. At trial the appellant gave evidence. He was of unblemished character. He said that once he arrived at the deceased’s house she started cursing him and being abusive about his daughter (who was from an earlier relationship of the appellant’s). She pulled out the brown-handled knife from beneath the bed and said that the appellant was not leaving. She advanced, wielding the knife in front of his face and he seized the knife. His hand was bleeding. He acknowledged that he got angry and when she ran away he gave chase, disarmed her, and turned the brown-handled knife upon her. The black-handled knife had earlier been broken and was discarded by the appellant. He said "I was not able to control my anger. I tripped for a little while. I could not control my anger. I delivered some stabs on the Deceased after I tripped. She fell to the ground and I left".

 

4. From the facts, as herein outlined in summary form, it is clear a defence of provocation was open to the appellant, though of course the matter was throughout a question for the jury. As their Lordships have earlier commented precisely what happened between the appellant and the deceased prior to the stabbing was known only to him and, therefore, his credibility was crucial and central to his case. The trial judge observed during the summing up in trenchant terms that the written statement to the police was basically silent as to the alleged provocative words and conduct of the deceased. Those observations were no doubt intended by the judge to be a comment directed to the reliability of the appellant’s evidence. Nowhere, however, in the summing up, did the judge refer to the relevance of the appellant’s good character. In their Lordships’ view it was highly relevant. It went both to the appellant’s credibility and to his propensity to commit the offence charged. As to his credibility, good character was particularly important to this appellant who was relying solely upon his own testimony in support of his plea. As to propensity, the jury should have been reminded that they could take account of the fact that a man of good character might be unlikely to indulge in very serious violence without first being provoked. Upon that basis also the jury were entitled to an appropriate direction. They received none.

 

5. The propositions just cited are well supported by authority. The absence of a good character direction can itself lead to the quashing of a conviction. Their Lordships take the view that in this case the omissions were so serious as to vitiate the verdict. Reference can usefully be made to the English authority of Reg. v. Vye [1993] 97 Cr.App.R. 134 where earlier authorities were reviewed. It may be worth observing that the Privy Council in Barrow v. The State [1998] AC 846 quashed a conviction in Trinidad and Tobago where, as in the instant case, there had been a failure to give a character direction.

 

6. Their Lordships now consider briefly a further ground of appeal. At a comparatively early stage in the summing up the judge dealt with the question of intention and accurately pointed out that it was necessary to prove an intent either to kill or to cause really serious injury before a verdict of murder could be returned. For some reason that their Lordships have difficulty in understanding, however, the judge went on to deal with foresight. Speaking at length of malice and malice aforethought, she said, inter alia:-

"The second state of mind is knowledge that the act which caused death would most probably cause the death of, or at least serious bodily harm. So you have the first position, where there is a clear intention to kill or to cause serious bodily harm, that is, grievous bodily harm or serious bodily harm. You have the second position, where the accused does the act with knowledge, that is, he must have known that if he did that act, it will probably cause the death of that person or at least cause him serious bodily harm.

 

So that if an accused person who stabs another and is charged with the killing, and he says, as in this case, ‘Oh, I never intended to kill or cause serious bodily harm’, well, Mr. Foreman, that is not necessarily the end of it, because it is open to you to find that a person who does such an act must have the knowledge that the type of act is the type of act which would cause death or at least cause serious bodily harm.

 

If you find that state of mind existed, then the ingredient of expressed malice would have been satisfied. It is very important that either of these two states of mind must precede or exist at the time of the stabbing. So that you will have to ask yourselves: What was the intention of the accused when he pulled out the knife and stabbed the deceased? You will also have to ask yourselves: What do you think was the intention of the accused? Did he intend that day that Nicole Agard will be killed? Was it his intention that serious bodily harm come to the person of Nicole Agard? You may say no, and you may find that he did not have the necessary intention. But then, what about the second position? Did he have the knowledge that day that the act was one which could probably cause death or serious bodily harm? If your answer to that is in the affirmative, then he would have had the necessary intention.

 

The mental element in murder is a specific intent, the intention to kill or the intention to cause serious bodily harm. Nothing less suffices. If you find at the end of the day the accused had no intention to kill or cause serious bodily harm, then you must find him not guilty.

 

Now, that is expressed malice which we just spoke about. What about implied malice? Now, in many cases where no malice is expressed or openly indicated, the law will imply malice from the deliberate cruel act committed by one person against another and in those circumstances, you can imply malice. In this case, you can imply malice to the accused if you believe the State’s case that he pursued the deceased Nicole Agard with a knife and stabbed her."

 

7. In the judgment of their Lordships the passage cited was confused and confusing. It seemed to equate foresight with intention, and it contained passages which were the plainest possible misdirections. So much was acknowledged by counsel for the State.

 

8. In the light of all the circumstances of the instant case, had these misdirections as to intention stood alone it might still have been possible to affirm the conviction, but that is far from the reality of the case when the non-direction as to character is brought into account.

 

9. Finally there was a complaint that the summing up was unfair and unbalanced. Despite its serious deficiencies their Lordships do not accept this proposition.

 

10. On any view the appellant was responsible for an unlawful killing and it was upon this basis that their Lordships substituted the verdict of manslaughter.