The Judicial Committee of the Privy Council Decisions

Kelvin Culpepper Appellant

The State Respondents

On the night of 28-29 October 1987 Lorna McCarthy was murdered. The appellant, Kelvin Culpepper, was arrested on 11 January 1988 and charged with her murder the next day. Although committed for trial in May 1988, his trial did not begin until 11 July 1994, largely because of the court backlog in Trinidad. On 14 July, following a summing-up by Deyalsingh J., a jury found him guilty of murder and he was sentenced. He appealed against conviction. On appeal he was represented by different counsel, who found himself unable to advance any grounds of appeal on the appellant’s behalf. His appeal was dismissed on 2 May 1996 by Sharma, Hamel-Smith and Hosein, JJA. He now appeals to the Board by special leave granted on 10 June 1999. The appellant makes a number of complaints concerning the investigation of this crime, the course of proceedings, his representation at trial and the trial judge’s summing-up.

 

1. The evidence at trial was very largely undisputed. The deceased was an elderly woman who lived alone at 45, St. Vincent Street, Port of Spain. A neighbour (Edna Best) visited her on the evening of 28 October 1987 and left her alive and well at about 9 p.m. It was the practice of the deceased to hang three padlocks on hooks on the inside of her door but not to lock them. On leaving, Edna Best locked the outside gate to the house with a key she was given. At about 8 a.m. the next morning Edna Best telephoned the deceased but there was no answer and at about 11 a.m. she returned to the house. She opened the gate with the key she had been given and found the back door to the house ajar. She entered and saw the three padlocks on a chair. She saw the body of the deceased on the bed in her bedroom. The deceased was lying on her back, partly unclothed, with a pillow over her face. A pair of glasses was on the bed between her legs. According to Edna Best, who knew her well, the deceased was very short-sighted and habitually wore glasses. Edna Best saw a pocket book on the floor, which appeared to be empty. She also saw the butt of a cigarette and a matchstick. The deceased had not smoked. Edna Best left the house and called the police.

 

2. A number of police officers attended at the address that morning. They included a photographer and two fingerprint experts. The house was carefully examined. One of the officers found, on the back of the left-hand lens of the glasses on the bed, a semi-visible impression which when enhanced by dusting revealed a clear print of a right thumb. The police took possession of the glasses, and the print was later photographed. The pillows and bed linen on the deceased’s bed were taken for scientific examination: these were duly examined but yielded no evidence on which reliance was placed at trial.

 

3. A post mortem examination was performed on the deceased. The cause of death was found to be asphyxia caused by smothering. It was also found that the vagina and anus of the deceased had been forcibly penetrated, and swabs were taken which showed the presence of semen. Swabs were also taken from the mouth of the deceased and samples of blood were taken. A pubic hair not belonging to the deceased was found on her body. All these items were tested, but none of them yielded evidence on which reliance was placed at trial.

 

4. In due course police fingerprint experts satisfied themselves that the print which they had obtained and photographed on the glasses of the deceased corresponded with prints of the appellant which they held in the Fingerprint Registry at Port of Spain. The appellant was arrested on 11 January 1988 and told that the police were investigating a murder committed at 45, St. Vincent Street between 28 and 29 October 1987, that a pair of glasses had been found on the bed of the deceased and that his fingerprint impression had been found on the glasses. He was then cautioned and replied (according to the police officer, although this evidence was challenged) "If my fingerprint was found there, charge me". On the following day, with the consent of the appellant, the police took a fresh set of finger-prints from him. On comparing the sample fingerprints with the impression found on the glasses of the deceased, the police concluded that the degree of correspondence between the two was such as to show that they were made by the same person. Evidence to this effect was the foundation of the prosecution case against the appellant. Following his arrest the appellant was driven to the house of the deceased, which he said he had never entered, and he denied all knowledge of the crime. He gave no detail of his whereabouts on 28-29 October.

 

5. The appellant appeared before the court on repeated occasions in the early months of 1988. At most of the later hearings evidence was led, and reports on the examination of the items taken from the house of the deceased, and of the swabs taken from her body, were tendered in evidence. At all these hearings leading up to the committal of the appellant for trial he was unrepresented, having declined legal representation. The appellant was not, so far as we know, invited to give body samples for comparison with those taken from the deceased, and he gave none. No request was made by him or on his behalf to test the samples which had been taken.

 

6. In July 1990 the glasses of the deceased, the bed linen and pillows taken from her house, the cigarette butt found there and the body samples taken from the deceased were destroyed when the police station where they were held was set on fire.

 

7. Counsel was instructed to represent the appellant in January 1993. No application was made before the trial or when it began to stay the proceedings as an abuse on the grounds of delay, no complaint was made that the appellant was prejudiced in his defence by the passage of time or the destruction of the exhibits and no complaint was made that body samples had not been sought from the appellant to compare with those taken from the deceased.

 

8. Apart from formal evidence of identification of the deceased, the prosecution evidence led at the trial fell under three heads. The first head included the evidence of Edna Best, which was not challenged. She confirmed that the police had looked at the deceased’s glasses found on her bed and had taken them away. She did not see, or did not mention, the dusting process, although the police officers’ evidence was that this was done when she was present. The second head comprised the evidence of four police officers, describing attendance at the deceased’s house, the finding of the thumbprint, its enhancement, the photographing of the glasses and the print, the taking of sample prints from the appellant on 12 January 1988, the comparison made between the sample prints and that found on the glasses, the appellant’s answer when told of the police investigation and the visit to the deceased’s house. Most of the police evidence was directed to the crucial thumbprint on the glasses. It was not suggested to them on behalf of the appellant that this print had been planted, or that the officers were dishonest or mistaken. There was no challenge to very detailed evidence given to show the correspondence between the thumbprint on the glasses and the sample print taken from the appellant. No objection was taken to the admission of any evidence, save for an untenable objection to the admission of a photograph of the deceased lying on her bed with the glasses between her legs. The only significant challenge was to the answer alleged to have been given by the appellant when told of the finding of his print on the glasses. The third head of evidence was that given by Professor Chandulal, the Chief Forensic Pathologist in Trinidad and Tobago, describing his findings made on the post mortem examination. His evidence was not controversial.

 

9. At the end of the prosecution case it was submitted that there was no case fit for consideration by the jury on the ground that no sufficient nexus was shown between the glasses on which the thumbprint had been found and the deceased. This submission was rejected. The appellant gave evidence. He said that he had been living at Sunshine Avenue, San Juan, at the end of October 1987 but could not say where exactly he had been on 29 October. He said he knew nothing about the deceased or about her murder, and had never been to her house which he had been shown by the police. He could not remember saying that the police should charge him if they found his fingerprint on the deceased’s glasses. He could not remember that he had ever been asked to hold the deceased’s glasses at the police station. He agreed that he smoked cigarettes. He denied that he had murdered the deceased or committed other offences against her. His evidence was very brief.

 

10. Some of the complaints made on behalf of the appellant on this appeal are of more substance than others. It is convenient to consider first those which are, in the opinion of the Board, the most substantial.

 

Delay

 

11. It was submitted that the lapse of over six years from the arrest of the appellant to his trial was such a period as gravely to prejudice the defence of the appellant. This lapse of time would, it was argued, have provided ground for an application to stay the proceedings as an abuse of the process of the court. It was accepted that such an application might not have succeeded, but if the trial judge had rejected it he would have done so on the basis that he would warn the jury in his summing-up that the passage of time was potentially prejudicial to the appellant and that the jury should take full account of this when considering their verdict. As it was, no such direction was given and this omission rendered the conviction unsafe.

 

12. The Board cannot accept this submission. It is well-established that a trial court can stay proceedings on grounds of delay, but the circumstances must be exceptional and the defendant must show on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held, in other words that the continuance of the prosecution amounts to a misuse of the process of the court: see Attorney-General’s Reference (No. 1 of 1990) [1992] QB 630 at 643-4. This condition could not have been met in the present case. It is also well-established that in some cases, where the defence has been hampered or prejudiced by the passage of time, an appropriate explanation and warning by the trial judge may be called for. But the direction, if any, which is called for will depend on the circumstances of the particular case, and there may be no need for any explanation or warning if there is nothing to suggest that the defence has been in any way prejudiced or hampered: see Reg. v. Henry H. [1998] 2 Cr.App.R. 161 at 168E; Reg. v. Lloyd (unreported, CACD, 30 November 1998); Reg. v. Graham W. [1999] 2 Cr.App.R. 201. It might indeed be damaging to a defendant to warn the jury of the risk that recollections may fade with the passage of time if the defendant has not complained of any difficulty in remembering. Here, the appellant was arrested just over two months after the murder. He cannot complain of that delay. He then had the opportunity to cast his mind back to the end of October. He may well not have known where he had been on the night of 28-29 October, but he could not have forgotten if he had been to the house of the deceased on that night and there was nothing whatever to suggest that his memory would have been better had the trial taken place earlier.

 

13. It was argued on the appellant’s behalf that even if the mere passage of time had not prejudiced him, he had suffered real prejudice as a result of the loss, during the interval between committal and trial, of the body samples, including particularly the semen found on the vaginal and anal swabs taken from the deceased and the pubic hair found on her body. The loss of these samples, it was said, deprived the appellant of an opportunity to establish his innocence or at least throw doubt on his guilt by showing that the semen and the hair did not match samples taken from him. Thus, although no one can now know what a comparison of those samples with samples taken from him would have shown, the possibility exists that the appellant has suffered irreparable prejudice.

 

14. This is a much more persuasive submission. The Board would accept that if there is prolonged delay in bringing a defendant to trial, and if during that time evidence is lost which would be crucial to determining the guilt or innocence of the accused, particularly if the opportunity has not been taken to make investigations which could and should have been made, a defendant’s right to a fair trial may be infringed. Reg. v. Gajree (unreported, CACD, 20 September 1994) is an example of a case where a conviction was held to be unsafe in such circumstances. In Reg. v. Beckford [1996] 1 Cr.App.R. 94 the opposite result was reached. All depends, as pointed out in that case (at pages 102 and 103), on the facts of the particular case. Here, the appellant had the opportunity for over two years to examine the samples taken from the deceased and did not do so. Under the law of Trinidad and Tobago the police had no power to require him to provide samples for matching purposes: they could have requested samples from him, but there is no evidence before the Board either that the police requested samples or that he offered them. It is entirely speculative what such samples, if taken and compared, would have shown. The appellant based a similar argument on the destruction of the glasses. Had these survived, they could have been examined and there might be evidence suggesting that the thumbprint had been planted. But, again, the appellant had over two years in which to examine the glasses and did not do so. They were photographed. There was nothing to suggest a plant.

 

15. In the opinion of the Board, the lapse of time in this case, even when coupled with the loss of the samples and the glasses, did not render the appellant’s trial unfair or the verdict unsafe. The Board would in any event be slow to uphold a complaint which could have been, but was not, raised in the court of trial nor, by different counsel, in the Court of Appeal.

 

The summing-up

 

16. Several criticisms were made of the trial judge’s summing-up to the jury. The most serious criticism was that the judge had effectively usurped the role of the jury by expressing his own personal view of the effect of the evidence in such cogent terms as to leave the jury with the clear impression that they had no rational choice but to convict.

 

17. Particular reliance was placed on the following paragraphs of the summing-up:

 

"In other words, the accused was in the house that night and left his fingerprint on that [sic] glasses. That’s the inference that flows from the evidence of Inspector Andrews if you accept him.

 

"How else could the fingerprint of the accused be in that house on a pair of glasses on the bed of the [deceased], if he was not there physically present that night? It seems to me once you accept the fingerprint evidence as we have gone through, you must come to the conclusion that the accused was in that house that night and left his fingerprint there on the glasses.

 

"Now, if you come to that finding of fact, it seems to me that the inferences you can and ought to reasonably draw from that, or to put it another way, the inferences which will reasonably follow from that is that the accused raped, buggered and murdered the deceased by smothering. He was there. He left his fingerprint in the bedroom on the woman’s glasses.

 

"According to Inspector Andrews those fingerprints were recent, made within 24 hours of examination. She was killed, obviously, during the night of the 28th or 29th after nine o’clock when Edna Best left her, and, presumably, before eight o’clock when Edna Best ‘phoned and there was no answer. Using your common sense, you could find that she was killed some time during the dark hours of the night.

 

"If his fingerprints, the accused’s fingerprints, are found on her glasses on the bed, what other inference can any reasonable person draw from that? It seems to me, and I repeat it, the accused was in that bedroom. Since he was in that bedroom, it follows that he raped, buggered and murdered the woman by smothering her."

 

18. This criticism has caused the Board considerable anxiety. When any criminal charge is being tried by jury, questions of fact are for the jury and for the jury alone. While the trial judge may give a strong direction on factual matters which are not in issue, and may properly suggest that the jury may have little difficulty in reaching a given conclusion on factual issues to which the answer is inescapable, the judge must be loyal to his own direction that while he is the judge of law the jury are the judges of fact. He must not take over the function of the jury.

 

19. Read in isolation, the paragraphs complained of lend force to the appellant’s complaint. But these paragraphs must be read in the context of this case and of the summing-up as a whole, and so read the Board does not conclude that they were such as to render the trial unfair or the conviction unsafe. The reasons of the Board are, in brief, these:

 

(1) At the outset of his summing-up the judge gave a lengthy and clear direction on the drawing of inferences and the burden and standard of proof, making plain that the burden lay on the State to satisfy the jury beyond reasonable doubt on any issue of evidence, whether direct or inferential.

 

(2) The judge gave a clear direction in conventional terms that the jury were the sole judges of the evidence and the facts. He went on to direct the jury, again in clear and conventional terms, that the jury could either accept or reject any opinion, comment or observation he might make on the facts.

 

(3) The judge instructed the jury that while they must consider all the evidence he would remind them of the highlights. He then posed the question "What is the case for the State?" and embarked on a long and detailed summary of the prosecution evidence, which was almost all the evidence in the case. The paragraphs complained of occurred in the course of that summary. At the end of it the judge said "So that, Mr. Foreman, members of the jury, are the highlights of the case for the State". He continued "Now, what is the defence of this man?" He then summarised, although necessarily more briefly, the evidence for the defence before defining, correctly, the issue the jury had to resolve.

 

(4) There were, on analysis, three issues the jury had to determine. The first was whether the prosecution had proved that it was the appellant’s thumbprint on the deceased’s glasses. In the absence of any challenge to the police fingerprint evidence and any contradictory evidence called for the defence, anything other than an affirmative answer to that question would have been perverse. The second issue was whether the thumbprint had been placed on the glasses of the deceased in her house at or about the time of the murder. It is of course possible, as counsel for the appellant argued, that the thumbprint could have been planted on the glasses by the police, or that the appellant could have encountered the deceased in the street or on a bus and picked up and handled her glasses. But none of these possibilities was supported by a shred of evidence. They are the purest speculation. The duty of the jury was to return a true verdict according to the evidence. Anything other than an affirmative answer to this second question would have been perverse also. The third issue was whether, if the thumbprint on the glasses was that of the appellant, and if it was placed there at or about the time of the murder in the house of the deceased, the appellant could be confidently identified as the murderer. Counsel for the appellant pointed out, quite correctly, that the murder could have been committed by another and the appellant could then have entered the house, perhaps in order to burgle it, and could then have touched the glasses and left; or he could have been present at the killing without taking any part in it. These are indeed theoretical possibilities. But there was again no shred of evidence to support any of them, and they were flatly contrary to the appellant’s case throughout, which was that he had never been to the house. However directed, a jury would have been bound to reject such speculations.

 

20. While the Board would wish to discourage strong expressions of personal opinion by trial judges on issues to be determined by juries, it is satisfied that there was no miscarriage of justice in this case.

 

21. The further complaint was made that the judge misled the jury at the end of his summing-up on the drawing of inferences and circumstantial evidence. This criticism was based on two paragraphs in which the judge said:

 

"Remember, as I said at the beginning, this case revolves around not only direct evidence but the inferences you can draw from the evidence. And inferential evidence, or circumstantial evidence as it is called in the court, is very cogent evidence. It is evidence upon which you can act as long as you are satisfied about the cogency of the inference you can draw from the direct evidence. So don’t be nervous about inferential evidence.

 

"It is sometimes said that inferential, or circumstantial evidence, is better than direct evidence because inferential evidence cannot lie; cannot make a mistake so to speak, whereas an eyewitness may make a mistake."

 

22. The Board would agree that this direction was not felicitous in equating circumstantial evidence with the drawing of inferences. But the judge had given a lengthy and correct direction on the drawing of inferences earlier in his summing-up and the jury would, in the Board’s opinion, have clearly understood the judge to be saying that inferences could be drawn from circumstantial evidence if the circumstantial evidence was sufficiently cogent and that circumstantial evidence was less fallible than the direct evidence of eye-witnesses.

 

23. It was also complained that the judge had misrepresented the appellant’s defence by quoting him as saying that he had been at home on the night in question, and then proceeding to give an alibi direction, when in truth the appellant had not said that he had been at home but only that he had lived at Sunshine Avenue, San Juan, throughout the period, rendering an alibi direction inappropriate. It is true that the appellant when giving evidence was not specific about where exactly he had been on the night in question, and an alibi direction was not required. Since, however, the murder was probably committed at some time between 9 p.m. on 28 October and 8 a.m. on 29 October, and the appellant did not recall being anywhere else that night, and since he was living at the same address throughout, it is not unreasonable to infer that he probably was at home if he was not at the house of the deceased. Since, further, the judge directed the jury that the State had to satisfy them beyond reasonable doubt that the appellant was at the house of the deceased and not at his own home, and that any doubt must be resolved in the appellant’s favour, it is hard to conceive that this direction prejudiced the appellant.

 

The pre-existing fingerprints of the appellant

 

24. The appellant had previous convictions and as a result the police held his fingerprints at the Fingerprint Registry in Port of Spain. In the course of evidence the senior police fingerprint expert (Inspector Andrews) made reference to doing research at the Fingerprint Registry before coming to a conclusion and giving another officer a blank fingerprint slip to obtain a set of prints from the appellant. The second officer gave evidence of receiving information from Inspector Andrews and of telling the appellant that his fingerprints had been found on some glasses found on the bed at the house of the deceased. It was then that the appellant, after caution, allegedly made his reply "If my fingerprint was found there, charge me". In summing up Inspector Andrews’ evidence to the jury the judge said:

 

"What he does next is to go to the Fingerprint Registry and make some inquiries there. He hasn’t told you what he did but we passed that over. Having made some inquiries, done some search there, he does something. He gets in touch with George, the investigating officer in this case, and he gives him a blank fingerprint slip. We have seen the fingerprint slip."

 

25. Counsel for the appellant based a number of criticisms on these passages. The appellant’s previous convictions were not and should not have been made known to the jury. The revelation that the police already had the appellant’s fingerprints on their database was an indirect way of revealing to the jury that the appellant had previous convictions. Therefore these references should not have been made, and the answer given by the appellant on being cautioned should have been excluded. It was said to be gross incompetence on the part of trial counsel not to object to these references and not to ask that evidence of the appellant’s answer be excluded.

 

26. If the criminal record of a defendant is not before the jury it is objectionable to bring it to the notice of the jury indirectly. But it seems very unlikely that this was the effect of these references, which formed a very small part of the evidence and the summing-up. Plainly this risk did not occur to trial counsel or the trial judge, and it would in the opinion of the Board require some knowledge and ingenuity to draw the inference complained of, the more so since at the trial the evidence of taking fresh fingerprints from the appellant was given before the references in question were made. It may well be that, if objected to, the appellant’s reply on being cautioned would have been excluded, but it must have been plain that the appellant was denying involvement in the murder and his answer did not amount to an admission. The risk that these references influenced the jury adversely to the appellant is, in the opinion of the Board, remote.

 

The age of the fingerprint

 

27. In his evidence given at the committal Inspector Andrews described the thumbprint found on the glasses at the house of the deceased but expressed no opinion how long it had been there before it was examined. In his evidence at trial he said:

 

"I observed that the powder stuck readily to the sweat marks on that finger impression which, to my opinion, constitutes that the impression was recently made."

 

28. In answer to further questions he referred to his studies and to experiments and tests he had carried out on the behaviour of sweat on glass, and referred to the tendency of sweat to evaporate over time. There then occurred the following question and answer:

 

"Q. As a result of these observations which you have explained to jury, can you estimate how recently during a given time frame, from the time of your observation?

 

A. I would say it would have been from within 24 hours of my examination."

 

 

29. The judge did not in his summing-up refer to this evidence specifically but left the jury in no doubt of the prosecution’s contention that the appellant’s print had been put on the glasses on the night of the murder, which was entirely consistent with the Inspector’s evidence.

 

30. Criticism was made of trial counsel for failing to object to this new evidence of the age of the print, and for failing to seek an adjournment of the trial to give him an opportunity to research the matter. Had he researched the matter, it was argued, it could have been shown by reference to a standard work on fingerprinting that the age of a fingerprint cannot be reliably calculated. Thus the prosecution case would have been weakened, and the credibility of Inspector Andrews undermined. This was another instance of incompetence on the part of trial counsel.

 

31. The Board is not impressed by this complaint. It was permissible to ask Inspector Andrews the question he was asked at trial even though this had not been asked before, and permissible for him as an expert to give his opinion. Had trial counsel been taken by surprise by the answer, he could no doubt have sought an adjournment in order to research the matter. Had he done so, and had he confronted the Inspector with the authority now relied on, the Inspector might well have adhered to his empirical opinion. But had he acknowledged the difficulty of accurately estimating the age of a fingerprint, and acknowledged that it could have been made more than 24 hours before his examination, this would have done little to strengthen the defence case because the credibility of Inspector Andrews was not under attack and the appellant was proffering no explanation how his print had come to be on the glasses at any time more than 24 hours before the murder. Had the Inspector given no estimate of the age of the fingerprint, or had he modified the estimate given, it could scarcely have affected the jury’s conclusion.

 

Competence of trial counsel

 

32. In argument before the Board, counsel made swingeing criticisms of trial counsel. Complaint was in particular made that trial counsel had failed to respond to a letter sent to him on 7 April 1999 putting over 50 questions to him concerning his preparation for and conduct of the appellant’s trial.

 

33. The Board would deprecate the failure of counsel to respond in any way to a letter such as that of 7 April 1999, which was followed up by much more recent letters and telephone calls. The resentment of counsel receiving a letter couched in such terms is under-standable, but that does not excuse the lack of a professional response. It is, however, noteworthy that different counsel, instructed to represent the appellant in the Court of Appeal, made no criticism of his predecessor, and the Court of Appeal itself expressed no concern about the representation of the appellant. Nor, so far as the Board is aware, has the appellant himself made any criticism of trial counsel. It does not appear that any waiver of privilege has ever been sought from the appellant, so as matters stand trial counsel is not at liberty to disclose matters which are the proper subject of legal professional privilege. In the result, the Board has no knowledge of the instructions given by the appellant to trial counsel or of the steps taken to prepare the appellant’s defence. It cannot speculate on the instructions which may have been given or the steps which might have been taken in the light of those instructions. It appears on the record that the appellant faced a very strong, although circumstantial, case to which the bare denial of the appellant offered no effective answer. On the materials before it, and in the absence of any consideration of this matter by the Court of Appeal, the Board cannot infer that the appellant’s defence was prejudiced by incompetent representation.

 

The mental state of the appellant

 

34. Counsel did not suggest that the mental state of the appellant afforded him any defence if he was the killer of the deceased, but suggested that his mental capacity was very limited and that this reflected on the fairness of his trial. Reliance was placed on his somewhat vague answers in evidence and on his tendency to answer by saying that he could not remember. Reliance was also placed on two occasions in the transcript of his cross-examination when it appears that the appellant was about to say something but did not complete what he was apparently intending to say before prosecuting counsel resumed his questioning. This was another ground for criticising the competence of trial counsel.

 

35. There is no evidence before the Board on the mental state of the appellant. It may well be that he is of low intelligence or mentally unwell or both. That is unhappily true of many criminal defendants. But it was never suggested that the appellant was unfit to stand trial, and the Board has no reason to think that he was. His vagueness and difficulty in remembering do not suggest that he was unable to give instructions or follow the course of the trial. If, as suggested, the appellant was interrupted in the course of his evidence when on the point of giving a revealing answer, it seems most unlikely that the judge would not have intervened if defence counsel did not, since the judge would have wanted the jury to hear what the appellant wished to say. This was not an aggressive cross-examination, and it seems likely that the appellant’s answers simply petered out.

 

36. The Board has not attempted to address all the more minor points advanced on behalf of the appellant. Neither singly nor cumulatively can they affect the outcome. The Board will humbly advise Her Majesty that this appeal must be dismissed.