The Judicial Committee of the Privy Council Decisions

Desmond Baptiste Appellant

v.

The State Respondent

FROM

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 8th June 2000

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Lord Nicholls of Birkenhead

[Delivered by Lord Hobhouse of Woodborough]

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1. This is an appeal brought with the special leave of their Lordships from the judgment of the Court of Appeal of Trinidad and Tobago dismissing the appeal of Desmond Baptiste from his conviction of the capital murder of Cyril Doyle after a trial before Volney J. and a jury between 24th and 31st January 1996.

 

2. The murder was alleged to have been committed in the middle of the day on 30th November 1988. A group of about 25 people were on open ground at Tillbury Place, Port of Spain, Trinidad, playing the illegal gambling game known as "whe whe". The stakes were being held by a man called Blacks. Two men approached the group. Both were black and one a bit taller than the other. The taller one produced a gun and threatened the group, making clear that it was a hold-up and he wished to rob them of their money. The group scattered. The two men chased Blacks who was running off accompanied by Steve Gill and Cyril Doyle. A witness Wendell Yearwood, who ran in the same direction, saw the taller man firing shots at the fleeing Blacks and the two others. He saw both Doyle and Gill hit and Doyle fall to the ground. Yearwood and another witness Emmanuel Lett spoke of other shots being fired by the taller man and both said that they had been wounded. Although the whole incident only lasted a very short time, quite a number of shots must have been fired. There was no evidence that any person other than the taller man had a gun.

 

3. That a robbery or attempted robbery took place involving two men and that in the course of the robbery Cyril Doyle was killed was not in dispute. It was not alleged that Baptiste was the taller man. The prosecution case was that Baptiste was the smaller man. The primary defence of Baptiste was that it was a case of mistaken identity and that he was elsewhere on 30th November. The prosecution adduced evidence of confessions which they said he had made admitting to being involved in the robbery but not in the murder. There was therefore an issue whether Baptiste had participated in the murder.

 

4. The trial in January 1996 was the third trial. The indictment had charged Baptiste together with a man called Rudolf McDonald who, the prosecution alleged, was the gunman (the taller man). The first trial in January 1993 had to be aborted. At the second in November 1994, the jury convicted McDonald but was unable to agree a verdict on Baptiste.

 

5. At the third trial, the prosecution called Yearwood and Lett. About 2 months after the killing, Lett had identified Baptiste on an identification parade as being the smaller of the two men. The reliability of his identification was questioned. He did not know Baptiste and the circumstances in which he saw the robbers were not good. His description was superficial. Also, there was contradictory evidence regarding the fairness of the parade. No identification evidence was led from Yearwood. The prosecution had to rely strongly upon the signed confession.

6. Baptiste was arrested on 24th January 1989. He was taken to the police station where he was held, questioned and later signed a written confession. Baptiste was 19 at the time and had difficulty with reading and writing. The statement was objected to on the ground that it was not his statement and he had signed it only because the police officer promised him that he would be released if he did. There was a voir dire and the police and Baptiste gave evidence. The judge preferred the evidence of the police and admitted the confession. The police evidence confirmed that Baptiste had been cautioned but not that he had at any time been advised of his right, confirmed by the constitution, to speak to a lawyer and have one present while he was being questioned. (Attorney-General of Trinidad and Tobago v. Whiteman [1991] 2 A.C. 240; Mohammed v. The State [1999] 2 AC 111). This ground of objection was however not raised at the trial, nor in the Court of Appeal.

 

7. But there was another and more fundamental feature of the trial. The trial was conducted on the basis of the felony-murder rule and the judge in his summing-up directed the jury that they could convict Baptiste of murder provided they were satisfied that Baptiste was the confederate of McDonald in the robbery and that Doyle was killed in the course of the robbery, regardless of whether or not Baptiste foresaw grievous bodily harm or death as a possible incident of the robbery. In his confession Baptiste had admitted that he took part in the robbery. On this basis he effectively had no defence to the charge applying the felony-murder rule. Counsel for the prosecution expressly relied upon the rule in his final speech to the jury. The judge in his summing-up referred at least three times to the felony-murder rule using those actual words. He directed them:-

"The accused as a confederate under the felony-murder rule, if you find him to be a confederate, would be equally liable."

" It will be for you to decide whether these two men, including the accused, came together, executed a robbery together, whether it was during the course of this robbery, if you accept did take place, whether it is that Cyril Doyle was shot in the course of this robbery ..."

8. At the time of the trial, their Lordships had not yet delivered their judgment in Moses v. The State [1997] AC 53 holding that the felony-murder rule had been abolished. It is therefore not surprising that the trial was conducted in accordance with that rule. It is however regrettable that at the time of Baptiste's appeal against his conviction, this development was not recognised and accordingly no point upon it was raised in the Court of Appeal nor was its impact considered by the Court of Appeal.

 

9. To direct a jury in the terms of the felony-murder rule is a clear misdirection but this is not necessarily fatal to the conviction. The application of the proviso or an order for a retrial must still be considered. (Johnson v. The State [1999] 1 WLR 2000; Stafford v. The State [1999] 1 WLR 2026). Before the proviso can be applied it is necessary to ask whether, if the jury had been properly directed, they would inevitably have come to the same conclusion. In Johnson, Lord Hutton giving the judgment of the Board, said:-

"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 Sooklal v. The State [1999] 1 WLR 2011 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 properly be applied." (at pp.2008-9)

 

10. In the present case it is accepted, clearly correctly, that it would be wrong to order a retrial. It would be the fourth trial of this man and the events in question are already over 12 years old. The question therefore is the application of the proviso and what Lord Hutton has said is pertinent. The jury were never directed to consider the state of mind of Baptiste and his contemplation of the degree of violence which would be used by McDonald. The statements relied on by the prosecution raised the issue. They made reference to the gun being carried by McDonald. There was undoubtedly evidence upon which a properly directed jury could have found that Baptiste did contemplate the use of the firearm and the infliction of serious injuries or death. (Reg. v. Powell and English [1999] 1 AC 1). But their Lordships do not consider that in this case such a verdict would have been inevitable.

 

11. Their Lordships are also influenced by another aspect of the case to which they have already referred: the failure to inform Baptiste of his constitutional right to a lawyer. This error does not of itself mean that in all cases the confession statement must be declared inadmissible. The trial judge must exercise his discretion: see the above cited cases and Mohammed in the Court of Appeal Trinidad and Tobago, per de la Bastide C.J. (24th July 1996; Criminal Appeal No. 37 of 1995). It was in dispute whether the written statement was truly voluntary and whether he fully appreciated what was said in the document he signed. This was not a case where the police deliberately flouted the suspect's constitutional rights but it was one where the circumstances under which the statement came into existence did raise a question for the judge and he should have taken into account the fact that Baptiste was denied one of his constitutional rights. This was an irregularity in the trial. It is of particular importance where the person is suspected of a capital offence that his rights be fully observed and the significance of any infringement be considered by the judge.

 

12. There was a further aspect of the trial which was criticised by Mr. Knox for the appellant. The balance of the summing-up is open to criticism and it includes passages which lack objectivity. Standing alone, these criticisms would not justify interfering with the decision of the Court of Appeal in this case. But they can properly be taken into account in considering whether there has been a denial of justice.

 

13. Their Lordships do not consider that this is a case in which the proviso should be applied. There was a serious misdirection critical to the most important issue in the case. There was a failure to take into account an important and material factor in deciding whether to admit or exclude the signed statement. The summing-up was not above criticism. Their Lordships are not satisfied that, had these misdirections and irregularities not occurred, a jury properly directed would inevitably have convicted the appellant.

 

14. Accordingly their Lordships will allow the appeal and quash the conviction.