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Cite as: [2005] WLR 2421, [2005] 1 WLR 2421, [2005] UKPC 14, (2005) 66 WIR 319, [2002] UKPC 52, 61 WIR 491, (2002) 61 WIR 491, 66 WIR 319

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Privy Council Appeal No. 98 of 2001

(1) Kizza Sealey and

(2) Marvin Headley Appellants

v.

The State Respondent

FROM

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 14th October 2002

------------------

Present at the hearing:-

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton

Lord Rodger of Earlsferry

Sir Philip Otton

[Majority judgment delivered by Lord Hutton]

------------------

At the Port of Spain Assizes the two appellants were charged with the murder of Don Christopher Prescott on 25 January 1999. They were each found guilty by the jury on 29 February 2000 and were sentenced to death. They appealed against their convictions to the Court of Appeal and by a judgment delivered on 20 March 2001 the Court of Appeal dismissed their appeals. The appellants now appeal by special leave to the Board.

The prosecution case at the trial was that at about 9.00 am on 25th January 1999 James Chen was walking in Independence Square in Port of Spain carrying a bag which contained about TT$2,000 in cash which he was intending to lodge in a bank. The deceased, Don Prescott, was accompanying him as a bodyguard. Two men armed with knives, who the prosecution alleged were the appellants, approached Mr Chen and Mr Prescott and one demanded that Mr Chen hand over the bag. Mr Prescott placed himself between Mr Chen and the two men. Mr Chen handed the bag over but kept hold of the strap and attempted to pull the bag back. One of the two men stabbed Mr Prescott in the chest and Mr Chen was also stabbed by both men who then ran off without the bag of cash. Mr Prescott and Mr Chen were both taken to hospital. Mr Prescott died from the knife wound which he had sustained about two hours after his arrival at hospital and Mr Chen recovered.

The two appellants took part in an identification parade on 2 February 1999 at which Mr Chen did not identify either of them.

The principal prosecution witnesses at the trial were Mr Chen and Police Corporal Roland Holder. Mr Chen gave evidence of the stabbing attack on him and Mr Prescott by the two men. The evidence of Corporal Roland Holder can be summarised as follows. He was a police officer who had been in the police force for 31 years. At about 9.00 am on 25 January 1999 he was driving in plain clothes in an unmarked car along Independence Square in a heavy flow of traffic and was moving at a very slow speed (he put his speed at two to three miles an hour in cross-examination). As he drove along he noticed about four car lengths away from him a group of four men making movements on the pavement at his side of the road. They were about an arm’s length away from each other.

At first he could not recognise any of the men, but when he was about two car lengths away, or about 12 feet, he recognised two of them. He said that he had known them since they were little boys. One of them was the appellant, Kizza Sealey, and the other was the appellant, Marvin Headley. They both lived in the same neighbourhood as he did and he saw them almost every day and he had seen them earlier that same morning. He saw that all four men were gesturing with their hands and feet.

There was a sounding of car horns and Headley looked towards his car and said “officer” when he (Holder) was about three to five feet away from Headley. His car windows were down so he could hear him. Sealey and Headley then ran off along Independence Square, going back in the direction from which Holder had seen them coming, passing about two to three feet to the left of his car. When he reached the spot where the other two men were, he saw bloodstains on their upper clothes. After staying there for about a minute or two, he drove off round the block in search of Sealey and Headley, but he could not find them. After that he went to Besson Street Police Station where he spoke to Constable Duncan.

Among the other prosecution witnesses were Constable Ryan Duncan and Sergeant John Martinez. Constable Duncan said that on 25 January 1999 he was attached to the Besson Street Police Station and on that day Corporal Holder came to the station and had a conversation with him. Subsequent to his conversation with Corporal Holder he had a conversation with Sergeant Martinez.

Sergeant Martinez said that on 25 January 1999 around 10.00 am he went to the casualty department of the Port of Spain General Hospital where James Chen “made a report to me”. He returned to the Besson Street Police Station around 4.00 pm and had a conversation with Constable Duncan. He then went to another police post where he spoke to Corporal Holder. In reply to the question in cross-examination whether, at any time after 10.00 am, he had a conversation with the parents of either of the appellants, he replied that he spoke to the parents.

Each of the appellants gave evidence on oath in the witness box. The first appellant, Sealey, said that on the morning of 25 January 1999 he had not been in Independence Square, Port of Spain. At that time he was at his family home at 2 Cajuca Street, Morvant, with his uncle, Steve Sealey, and his grandmother. He had been staying there since 20 January 1999 and he returned to Port of Spain on 2 February 1999 having been contacted by his mother. He visited the family home in Morvant about once a month. In cross-examination he said that in January 1999 he was unemployed and used to “lime” on a bench in Beverly Hills with Marvin Headley and others. The bench was on the same street as his home in Port of Spain. He agreed that he knew Corporal Holder and that he lived next door to him.

Steve Sealey said that he lived at 2A Cajuca Street, Morvant, with his wife, his two children, his mother and two other brothers. The first appellant was his nephew and would visit him in Morvant every month. He said that the first appellant had come to stay with him in Morvant about 20 January 1999 and that he stayed for about a week and a few days. He saw him every day. On 25 January 1999 he left the house at about 10.50 am to get some car parts and the first appellant had been at the house before he left and when he came back after lunch.

The second appellant Marvin Headley said that he was not in Independence Square about 9.00 am on 25 January. On that day he was staying with his godbrother, Dale Goodridge, in St Michael Road, St Augustine. In cross-examination he agreed that he had known Corporal Holder since he was a little boy. He agreed that Kizza Sealey was a friend of his and that he used to “lime” on a bench in Beverly Hills.

Dale Goodridge said that he lived in St Michael Road, St Augustine. Marvin Headley was his godbrother. Marvin Headley would come to visit him sometimes once a month, sometimes twice a month. He came to visit him on 22 January and stayed with him until 1 February.

In the course of the prosecution case the trial judge, Volney J, asked counsel for the prosecution whether there was evidence which he could leave to the jury as to which of the attackers struck the blow with a knife which caused the death of Mr Prescott, and counsel replied that there was no such evidence. Accordingly the judge directed the jury that they should convict both appellants of murder if they were satisfied that both of them took part in an unlawful joint enterprise in the course of the execution of which violence or force was used and as a consequence someone was killed. The judge gave this direction pursuant to section 2A of the Criminal Law (Amendment) Act 1997 which provides:

“Where a person embarks on the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of the offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of that arrestable offence (or any other arrestable offence involving violence) are liable to be convicted of murder, even if the killing was done without intent to kill or to cause grievous bodily harm.”

Moses v. The State

[1997] AC 53

The first ground of appeal advanced to the Board (which had not been advanced in the Court of Appeal) was that the judge’s charge in reliance on section 2A of the Criminal Law (Amendment) Act 1997 was defective because 2A was void by reason of being inconsistent with the Constitution because it deprived the appellants of the “due process of law” and of the “protection of the law” given by section 4(a) and (b) of the Constitution.

The appellants also appealed against the mandatory death sentences imposed upon them on the ground that the mandatory death sentence for murder in Trinidad and Tobago was unconstitutional for the reasons given in the judgment of the Board in the appeals from the Eastern Caribbean Court of Appeal in Reyes v The Queen [2002] 2 WLR 1034 and R v Hughes [2002] 2 AC 259. The Court of Appeal of Trinidad and Tobago has reserved its judgment on this point in the appeal heard by it in Roodal v The State. It appeared to their Lordships that the outcome of the argument on the first ground of appeal that section 2A of the Criminal Law Act 1997 was void as being unconstitutional might depend to some extent on the outcome of the argument that the mandatory sentence of death for murder was unconstitutional. Therefore, with the agreement of counsel for the appellants and for the State, their Lordships adjourned consideration of the first ground of appeal until after the Court of Appeal had given judgment on the issue of the constitutionality of the mandatory death sentence. Accordingly their Lordships turn to consider the other grounds of appeal advanced by the appellants against their convictions.

A number of grounds of appeal were advanced before the Court of Appeal and rejected by that court which were not advanced before the Board. Therefore no further reference need be made to them.

The Grounds of Appeal advanced before the Board

Ground 1: Failure to disclose by the prosecution

This was a ground which was not raised at or before the trial or in the Court of Appeal. At the Preliminary Enquiry before a magistrate on 24 June 1999 a deposition was made by a legal officer, Mr Ramgoolan, which states:

“In accordance with the law concerning disclosure I have handed over to the Defence contents of a letter containing particulars of description of both accused persons in the matter.”

Berry v The Queen

In his evidence in cross-examination Corporal Holder said that he made only one statement, which he gave to Sergeant Martinez at the Patna Police Post on the evening of 25 January 1999. It appears that this statement was not furnished by the prosecution to the defence and it further appears that at no time did the defence ask to see the statement. In the circumstances of this case where Corporal Holder’s identification of the two attackers depended not on his description of them but on his recognition of them as two young men very well known to him, and where there is nothing to suggest that the statement contained any material which was inconsistant with his evidence, their Lordships are of opinion that the non-disclosure of his statement before the trial did not lead to any miscarriage of justice. It was further submitted on behalf of the appellants that there had been non-disclosure of an earlier statement made by Corporal Holder to Constable Duncan at the Besson Street Police Station which the appellants suggest would have contained a description of the two attackers, but the evidence does not suggest that Corporal Holder gave a statement to Constable Duncan. Both Constable Duncan and Corporal Holder described what passed between them at Besson Street Police Station as “a conversation”.

Ground 2: The judge wrongly invited the jury to draw an inference that Corporal Holder had made an earlier report that the two appellants were the attackers

In his summing up to the jury the judge said at pages 196 and 197 of the record:

“How long was it before the original observation and the identification to the police?

Now, it is open to you to find, Members of the jury, on the evidence, that some time before the complainant, that is, Martinez, John Martinez, Sergeant, went looking for Holder. You may ask yourself, why would Martinez, who is the officer who was assigned to do the case, detailed to investigate, why would he have gone to Holder? What would he have known about Holder?

You see, Members of the Jury, well Holder told you that he went to the Besson Street Police Station shortly after when he couldn’t find the men, and he spoke to the police there, he made a certain report there, and then he went to work. And it is out of that station there that Martinez spoke with the officer who had received the report, according to Holder, and Martinez went in search of Holder. He spoke to Holder and then afterwards went in search of the accused.

So where did this information come from? Was this an afterthought, that Holder just made this up afterwards? Or is it that Holder had seen two men who he knew and was doing his duty, not so much as a policeman but as a citizen, even if it might, you might consider, been very difficult on Holder to make a report on two men that he knew as infants, who lived right in his neighbourhood, what you make of that Members of the Jury?”

The appellants submitted to the Court of Appeal and to the Board that these comments invited the jury to take account of hearsay evidence and to rely on a prior consistent statement by Corporal Holder. The Court of Appeal’s reasoning on this submission was as follows at pp 273-274 of the record:

“We agree with counsel that the trial judge ought not to have so directed the jury. He was inviting them to rely on what was both improper use of hearsay evidence and a prior consistent statement by Holder to the Besson Street police. The fact that the substance of that statement was to be inferred from the conduct of the police in going in search of the appellants did not make it any more admissible than if it had been expressly reported in evidence.

This therefore was a misdirection, but what it added to the strength of the prosecution’s case was negligible. We have already identified the strengths of Holder’s identification. Further, Holder gave evidence of having himself gone in search of the appellants before making his report to the Besson Street police. In these circumstances, we are satisfied that this misdirection did not in the language of the English statute render the convictions unsafe or in the language of section 44 of our Supreme Court of Judicature Act, result in a miscarriage of Justice.”

Their Lordships reject this ground of appeal and they respectfully differ from the view of the Court of Appeal that the judge erred in this passage in his summing up. It is necessary to draw a distinction between proof that a witness had identified the accused on an earlier occasion and proof by a witness of what a third person, not called as a witness, said in making an identification, which is inadmissible as hearsay. The first type of proof is admissible. In R v Christie [1914] AC 545, 551 Viscount Haldane LC stated:

“Had the boy, after he had identified the accused in the dock, been asked if he had identified the accused in the field as the man who assaulted him, and answered affirmatively, then that fact might also have been proved by the policeman and the mother who saw the identification. Its relevancy is to shew that the boy was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake. But beyond the mere fact of such identification the examination ought not to have proceeded.”

R v Fannon

“The most trustworthy evidence of identification, that by which the jury must always be chiefly guided, is that given in the witness box by witnesses who can say on oath ‘That is the man’, and whose evidence can be tested by cross-examination. In cases where there has been a considerable lapse of time between the offence and the trial, and where there might be a danger of the witness’s recollection of the prisoner’s features having become dimmed, no doubt it strengthens the value of the evidence if it can be shown that in the meantime, soon after the commission of the offence, the witness saw and recognised the prisoner. And even where there has been no delay of the sort, in any case where a witness of the offence has not yet seen a person whom the police have afterwards arrested on the charge of having committed it, the question whether or not such a witness recognises the person arrested as the offender may be of the greatest importance either in detecting the guilty or in clearing the innocent. Upon these grounds evidence has been admitted in criminal trials from time immemorial of the identification of the accused by witnesses out of Court.”

Blackstone’s Criminal Practice 2002

“In the ordinary course of events, where the identifying witness testified adequately against the accused at trial, the pre-trial identification serves to prove his consistency and his ability to make an identification under fair and objective circumstances. It is admissible, in other words, by way of an exception to the rule against previous consistent statements (Christie [1914] AC 545). If the police officer who supervised the identification parade is called to testify as to the identification, he can do so only in support of the identifying witness. His testimony cannot go to the issue of the accused’s guilt, because he has no first-hand knowledge of it. Without the evidence of the original witness, his testimony would be hearsay, and there is no special rule making hearsay admissible in identification cases (Sparks v The Queen [1964] AC 964).”

Ground 3. The judge failed to give full and fair directions to the jury in relation to the issues of identification and alibi

In his summing up on the issue of identification the judge gave the jury directions which fully complied with the guidelines set out in R v Turnbull [1977] QB 224. The judge also gave the jury proper directions as to how they should consider the alibis put forward by the appellants. The main thrust of the appellants’ criticism is that the judge failed to highlight what they submitted were specific weaknesses in the identification evidence. Their Lordships do not accept this submission. In Rose v R [1994] 46 WIR 213, 217 Lord Lloyd of Berwick stated that the judge is not required to make a “list” of the weaknesses in identification evidence, or to use a particular form of words when referring to those weaknesses. Their Lordships are in agreement with the Court of Appeal that the judge, as he was entitled to do, rehearsed with the jury all the evidence bearing on the identification and left it to them to determine whether Corporal Holder was mistaken.

The appellants directed specific criticisms towards a passage in the judge’s summing up referring to the fact that Mr Chen had not made an identification of the two appellants. The examination-in-chief of Mr Chen at page 105 of the record ended as follows:

“Q. Do you recall the 2nd of February, 1999?

A. Yes.

Q. You recall going on an identification parade on that day?

A. Yes, sir.

Q. And you did not identify anyone?

A. No, I was frightened.”

“... before you can find a fact affirmatively, that is, for example, before you can say, ‘guilty as charged’, you must not only find the facts, but you must be sure at the end of the day, that the facts are as you have found them.

In doing so you look at the demeanour of the witnesses; you look at their interest in the matter, and this applies equally to the evidence that come from the accused men and their own witnesses. You look at who has taken the oath; you look at the persons as they give their evidence, what interest do they have in the matter? You look at Mr. Chen, he has not identified his assailants. Is there a reason for that? But it is not for you to speculate, but does he have an interest in seeking to say what happened because someone who was close to him, an employee, lost his life when that employee sought to prevent, what it is open to you to find, to have been a robbery or attempted robbery of Mr. Chen? Is that his interest? Is his interest to see that, at the end of the day, justice is done? Or, is his interest to see that these two men be convicted?

Well you have heard his evidence. In this case he has not pointed at these accused men. He has not, so you wonder, is his evidence evidence that you can accept as being truthful? And his evidence has not been challenged and you would want to reason that the reason for this is that the accused, so far as they are concerned, were not there, so they have no instructions to give their attorneys, if they were at St. Augustine or Morvant what business they have with what happened with Mr. Chen. I don’t know what happened, so I can’t challenge Mr. Chen.

So you see, Members of the Jury, you consider the interest of the witness. Does he have any reason to perjure himself, to lie, to try to deceive you? And you see, you consider all these things in judging, ...”

The appellants submitted to the Court of Appeal and to the Board that these comments were unfair and highly prejudicial to the appellants because they may have suggested to the jury that Mr Chen recognised the appellants at the identification parade but was too frightened to identify them. The Court of Appeal’s observations on this submission were as follows at pp 264-265:

“While prosecuting counsel ought not to have posed to Chen the question which prompted the response he got, we find that the suggestion by counsel for the appellant that the jury might have inferred that Chen had, or might have been, threatened by persons associated with the appellant, to be improbable and unwarranted. Had the trial judge left the matter there, there could possibly have been cause for complaint, but he went on in his directions to emphasize to the jury that the appellants were not identified by Chen. In particular he pointed out to them that while Chen related the incident which resulted in Prescott’s death he was unable to say, ‘It was these two men, or either of them’ who did it. In these circumstances we fail to see how the jury could have interpreted the evidence of Chen as supporting the identification of the appellants. We are satisfied that the dominant message conveyed to the jury was to make no assumption prejudicial to the appellants from the explanation which he gave for failing to identify anyone”.

Their Lordships do not take the view that there was anything improper in prosecuting counsel asking Mr Chen whether he identified anyone on the identification parade – the question was a neutral one which did not suggest any particular answer. Subject to this qualification, their Lordships are in agreement with the opinion of the Court of Appeal. The thrust of the judge’s comments at pages 185 and 186 is not entirely clear, but they appear to suggest to the jury that the fact that Mr Chen had not identified the two appellants as the attackers meant that they could regard him as a truthful witness whose interest was to see that justice was done rather than that the two accused were convicted. But whether or not this is what the judge intended to say to the jury, their Lordships consider that the comments do not suggest that the jury should infer or speculate that Mr Chen would have identified the two men if he had not been frightened.

Ground 4. The failure of the appellants’ counsel to raise their good character

Both appellants have sworn affidavits in which they state that at the time of the trial they had clear records and that they so informed their leading counsel, Ms Penelope Beckles. The appellant Headley states that he gave this information to Ms Beckles before the commencement of the trial and the appellant Sealey states that he gave this information to Ms Beckles in the course of the trial before he gave evidence. It is not disputed by the State that both appellants had clear records. Counsel acting for the appellant Sealey in his appeal to the Court of Appeal sent a letter dated 14 August 2000 to Ms Beckles and to the appellants’ junior counsel, Mr Leon Gokool, which stated:

“[Mr. Kizza Sealey] instructs me that you had been retained to represent him at his trial and did so.

He also instructs me that he told you that he had a clean record. I see from the transcript however that no good character evidence was led from him which resulted in him being deprived of a good character direction in the Judge’s summing-up.

Having regard to these instructions I propose to file an additional Ground of Appeal to the effect that the Appellant suffered a miscarriage of justice as a result of inadequate representation.

The absence of the good character evidence will be one of the arguments in support of the Ground.

Sealey has waived privilege so that you may reply to this letter.”

The submission that the appellants had not had the advantage of a good character direction and that therefore there had been a miscarriage of justice was rejected by the Court of Appeal which stated, at p 270:

“Complaints of this nature are usually raised where evidence of good character is specifically given by an accused or elicited from prosecution witnesses and the learned trial judge fails to make reference to this in his summing-up. No good character evidence was adduced in this case. The complaint therefore is not of an omission by the judge, but of an omission by counsel. It seems to us, therefore, that any criticism of counsel’s omission in this regard must be considered in light of how this omission impacted on the outcome of the trial. The evidence against the appellant was that he was positively identified by Corporal Holder as one of the men who were involved in the murder of the deceased. Having regard to the strength of Corporal Holder’s identification evidence which was obviously accepted by the jury, it is inconceivable that evidence of this appellant’s previously clean record backed by a Vye direction, could have resulted in a different verdict.”

In the present case it is clear that had the good characters of the appellants been established the judge would have been under a duty to give the jury a direction as to the relevance of the good character of each appellant to his credibility and a further direction as to the relevance of his good character to the likelihood of his having committed the offence charged: see R v Vye [1993] 1 WLR 471. In R v Aziz [1996] AC 41, 50 and 51 Lord Steyn stated:

“It has long been recognised that the good character of a defendant is logically relevant to his credibility and the likelihood that he would commit the offence in question. … Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance.”

In the present case the fact that the appellants did not have the advantage of a good character direction was not due to the fault of the trial judge; it was due to the fault of defence counsel. There is no duty on the trial judge to give a direction on good character when the issue of good character has not been raised in evidence by the defence: see Thompson v The Queen [1998] AC 811, 844 and Barrow v The State [1998] AC 846, 852.

Whilst it is only in exceptional cases that the conduct of defence counsel can afford a basis for a successful appeal against conviction, there are some circumstances in which the failure of defence counsel to discharge a duty, such as the duty to raise the issue of good character, which lies on counsel (Thompson v The Queen [1998] AC 811, 844H) can lead to the conclusion that a conviction is unsafe and that there has been a miscarriage of justice: see R v Clinton [1993] 1 WLR 1181. In R v Kamar, The Times, 14 May 1999, the issue was whether the appellant had forced his wife to jump from a window by violence and threats, or whether she had jumped because she suffered from mental illness. Henry LJ described the position in relation to the appellant’s good character as follows:

“The appellant, aged 31 at the date of the offence, did not then enjoy an entirely good character. Four months before he had been convicted of driving offences: excess alcohol and no MOT, for which he had been fined and disqualified. However, given that the nature of those two relatively minor convictions was so totally divorced from the charges laid in the indictment, it seems to us clear that if application had been made to the judge in this regard, the judge would have directed that the appellant be treated as a man of good character. He gave evidence at the trial, and so on that basis he would have been eligible for both the credibility and propensity direction.

In the event, the standard double-barrelled credibility/propensity direction was not given, because no application for such a direction was made to the judge.”

“As Mr Cousins, counsel for the Crown, recognised and acknowledged in the course of his submissions, the safety of this conviction was threatened by the fact that this appellant did not have the benefit of that direction.

That concession was inevitable. This case involved the jury in weighing the reliability of the evidence of husband and wife. The wife was known to have had psychiatric problems. The nature of the threats to kill charge meant that the appellant’s conduct within the marriage were admissible to show that he intended his threats to his wife to be taken seriously (R v Clarence Williams [1986] 84 Cr App R 299). Hence she had been permitted to give evidence of violence she did not have to prove. In all those circumstances it was essential that counsel for the appellant should have applied for his client to be treated as a man of good character (R v Nye (1982) 75 Cr App R 247) and to be entitled to the full character/propensity direction (see R v Vye 97 [1993] 1 WLR 471) suitably adapted to instruct the jury how to view the background evidence relating to matrimonial violence in relation to the section 18 offence. This was a protection necessary to preserve the fairness of this trial. In our judgment it was imperative that such a direction was given to the jury. It would not be right to conclude that that direction could have no effect in this case. The purpose of the direction is to ensure that proper weight is given to good character. That was quite essential here. Here it was a necessary protection against the jury rushing to a ‘no smoke without fire’ verdict. Trial counsel’s error, in our judgment, renders this verdict unsafe.”

In R v Fulcher [1995] 2 Cr App R 251 where the trial judge had not given the good character direction laid down in R v Vye the Court of Appeal considered and rejected a submission by the prosecution that the conviction should not be quashed because the case against the accused was a strong and relatively straight-forward one. Kennedy LJ stated at page 260:

“In the light of the decision of this Court in Vye, that omission now has to be regarded as an irregularity, but Mr Kalisher submits that it was not a material irregularity, or that we should apply the proviso. He submitted, we thought with some force, that in a relatively straight-forward case such as this, it would be unrealistic to suppose that a jury needed to be told that character bears on propensity and credibility. The jury would know that already and they must have also heard counsel for the defence develop that theme. The case for the appellant was simply that although the evidence did suggest that on Boxing Day, 1990 someone had been very violent to his baby son, he was not the assailant and he did not know who was. The prosecution case was that, in the light of the evidence given by Mrs Fitzgerald and Wendy Fulcher, the jury could be sure that neither of them was the assailant. That left only the appellant, and, submitted Mr Kalisher, approaching the matter in that way, good character did not have much part to play. He posed the question whether, in reality in this case, the giving of a direction pointing to the effect of good character on credibility would have made any difference. We cannot confidently answer that question in the negative, and that is why we allowed this appeal. As Mr Jones pointed out in reply, the jury was not, in fact, directed to approach the evidence as Mr Kalisher suggested. The judge suggested to the jury an equally valid, but different three-step approach, and even if the jury had approached the matter as Mr Kalisher has now suggested, Mr Jones submitted they should have had regard to the appellant’s good character when evaluating the evidence of Mrs Fitzgerald and Wendy Fulcher.

In the light of the authorities, we must accept that a proper direction as to character has some value, and therefore is capable of having some effect in every case in which it is appropriate for such a direction to be given. This was such a case.”

Their Lordships are unable to agree with the ground on which the Court of Appeal rejected the appellants’ submission relating to good character. The Court of Appeal held that it was inconceivable that evidence of good character backed by a Vye direction could have resulted in a different verdict having regard to the strength of Corporal Holder’s identification evidence which was obviously accepted by the jury. But this reasoning is, with respect, invalid because the crucial question before the jury was whether they could accept the evidence of Corporal Holder and reject as untrue the evidence of the two appellants.

If Corporal Holder was an honest witness, the case against the appellants was one of very great strength because his evidence related to his recognition at close range in good light for a reasonable period of time of two young men who were very well known to him, But the appellants were two young men with clear records who said that they were not in Independence Square but were in different places on the morning when the attack took place, and they each called an alibi witness to support them. There was nothing to suggest that Corporal Holder bore a grudge against the two appellants but there was no evidence which directly corroborated or supported the Corporal’s evidence.

Therefore the crucial question was one of credibility as between Corporal Holder and the two appellants: were the jury satisfied beyond reasonable doubt that Corporal Holder was telling the truth and that the two appellants were not – that Corporal Holder was not lying and that the appellants were? This was the very issue on which a direction as to credibility and propensity based on good character might have been of considerable importance. The importance of credibility may vary depending on the factual issue in dispute between the prosecution witness and the accused in a particular case, but where the issue in dispute is fundamental to the question of the guilt or innocence of the accused, then whether it relates to non-participation in the crime charged or to consent or to some other defence, their Lordships consider that the good character direction is an important safeguard to the accused.

Their Lordships recognise that the case against the two appellants was a very strong one and that, from a reading of the transcript, the alibi evidence appears unimpressive. But the omission of a good character direction is a defect in the conduct of the trial. Whilst recognising that there may be some cases in which the omission of a good character direction does not render a conviction unsafe, their Lordships take account of the observation of Kennedy LJ in Fulcher, at page 260, that:

“a proper direction as to character has some value, and therefore is capable of having some effect in every case in which it is appropriate for such a direction to be given”

Kamar

“was a protection necessary to preserve the fairness of this trial. In our judgment it was imperative that such a direction was given to the jury. It would not be right to conclude that that direction could have no effect in this case.”

In the circumstances of this case the question for the Board is whether the jury (which considered its verdict for about two hours) would inevitably have convicted if a good character direction had been given. Whilst it appears probable that the jury would have convicted, their Lordships are unable to conclude that the jury would inevitably have convicted.

Accordingly their Lordships allow the appeals on this ground and remit the case to the Court of Appeal to consider whether a new trial should be ordered.

____________________

Dissenting judgment delivered by Lord Hope of Craighead and Sir Philip Otton

We regret that we are unable to agree that this appeal should be allowed because the appellants did not have the benefit of a good character direction. The following are the reasons for our dissent.

There is no doubt that the appellants had a clean record. No explanation has been given for the omission by their counsel to lead evidence of their good character, but it is plain that this should have been done. There was no conceivable tactical reason for the omission. It appears to have been due at best to an oversight and at worst to incompetence.

The trial judge cannot be criticised for not giving the direction. As Lord Hutton said in Thompson v The Queen [1998] AC 811, 844 where the issue of good character is not raised by the defence, the judge is under no duty to raise the issue himself. It is for the defence, and not the judge, to raise the issue. An appellant will only be able to rely on the absence of a direction by the judge if the point has been distinctly raised by the defence in the course of the trial: Barrow v The State [1998] AC 846, 852 per Lord Lloyd of Berwick. It has been emphasised that cases where the conduct of counsel can afford the basis for an appeal must be regarded as wholly exceptional: R v Clinton [1993] 1 WLR 1181, 1187B per Rougier J. But it will be enough if the reason for the omission of evidence of good character was simply inadvertence: R v Kamar The Times, 14 May 1999.

The underlying question must always be whether the defendant was deprived of his right to a fair trial because the effect of the conduct which is complained of was that his defence was not put to the court. An unexplained omission of evidence of good character bears directly on that issue, as a defendant is entitled to the benefit of his good character as part of his defence. So we agree with the majority that the consequences for the safety of these convictions are the same irrespective of whether the fault lay with the judge or with the defence.

The point which has troubled us is the application of these rules to the facts of this case. We take as our starting point the principles which were identified by the Court of Appeal in R v Vye [1993] 1 WLR 471. There are two limbs to the direction. The first limb relates to the credibility of the defendant. A direction as to the defendant’s good character is required where he has given evidence or made statements before the trial which have been put in evidence. The second limb relates to propensity. It relates to the likelihood of his having behaved as the prosecution have alleged. A direction as to the relevance of good character to this aspect of the case is required whether or not the defendant has made pre-trial statements or given evidence.

The appellants both gave evidence at the trial. So each of these two limbs is in play in the present case. The question is whether it can be said that the jury would necessarily have reached the same verdict if they had had a full direction as to the appellants’ good character: R v Vye, p 482E per Lord Taylor of Gosforth CJ. This is a severe test. But it must be applied with a due sense of proportion and after careful consideration of all the issues that were before the jury at the trial. As Lord Lloyd said in Barrow v The State [1998] AC 846, 852, a failure to comply with the practice will not necessarily result in the appeal being allowed in every case.

In Barrow v The State there were other factors as well as the absence of a good character direction. There was a positive misdirection by the trial judge as to the purpose for which the witness as to good character had been called to give evidence and there was a confusing passage at the end of the summing up. It was also a case where the defendant’s defence was accident, so the credibility of his account of the incident in which he was admittedly involved was a crucial ingredient in the defence case. In R v Kamar The Times, 14 May 1999 a good character direction was regarded as quite essential on the issue as to propensity. Identification was not in issue, as the case was one of alleged violence between husband and wife. But the wife was known to have had psychiatric problems, and a good character direction was regarded as essential to preserve the fairness of the trial. R v Vye [1993] 1 WLR 471 was a case of rape. Here again identification was not in issue, as the defendant knew the complainant. But the question of consent or no consent was the critical issue, and a direction as to good character was of the first importance in regard to the defendant’s credibility. No case was drawn to your Lordships’ attention where it has been held that the absence of a good character direction was fatal to a conviction where the issues of credibility and propensity were directed solely to a defence of alibi.

We regard this question about the effect which a good character direction would have had on this trial as one which the Court of Appeal in Trinidad and Tobago were best placed to answer. They are much more aware of local conditions than members of your Lordships’ Board. They are better able to assess the likely effect of a good character direction on the minds of the jury in a case of this kind. They are also better placed to judge the significance of other factors which an appellate court may take into account when reviewing the safety of a conviction, such as the length of time which it appears to have taken for the jury to reach a verdict. Unfortunately the reasons which the Court of Appeal gave for rejecting this ground of appeal do not stand up to close examination. They took into account the fact that Corporal Holder’s evidence was “obviously accepted by the jury”. But that is the very point which is in issue. The question is, would his evidence have been accepted if there had been a good character direction? The reasons which the Court of Appeal gave must be held to be unsatisfactory. So the matter is at large for consideration by the Board.

As is so often the case in criminal trials, there were two basic questions which the jury had to decide. The first is, was the crime which the prosecution have alleged committed? The second is, did the defendants commit the crime? As their defence was alibi, it was not suggested on the appellants’ behalf that the crime was not committed. The facts on that issue were really unanswerable. The critical issue was that of identification. But this was a recognition case.

Corporal Holder said that he recognised two of the four men who were involved in the incident. He said that they both lived near his home and that he saw them frequently. Indeed he said that he had seen them both earlier that morning. When the appellants gave evidence they agreed that they knew Corporal Holder. Sealey said that he lived next door to him. The incident took place in daylight in Independence Square. Corporal Holder said that he was two cars away when he recognised the appellants and that his view of them was not obstructed. On his evidence this was as clear a case of recognition as could be imagined. It was suggested that his view was not as clear as it might have been as he was in control of a motor vehicle in heavy traffic and because he did not mention having seen knives in the hands of the attackers. But the reliability of his identification was not seriously in question. The issue which was raised by the defence of alibi was directed to his credibility. There is no doubt therefore that his credibility and that of the appellants was a central issue at the trial.

That having been said, the question remains: can it be said that the jury would necessarily have reached the same verdict had a full good character direction been given? In our opinion there are two factors relating to Corporal Holder’s evidence which are decisive on this issue. The first is the strength of his recognition evidence. The fact that the appellants agreed that he was telling the truth when he said that he knew them both as neighbours is of great importance. He did not accept that he might have made a mistake when he identified them. This means that he would have to have been held to have been lying if he was to be disbelieved. The second factor is the absence of any suggestion at any stage in the case that he had a grudge against the appellants or that he had any other reason for giving evidence against them which he knew to be untrue. The content of his evidence was consistent with his being an honest witness who was describing simply what he saw. He showed no signs of wishing to embellish his account of the incident.

As against the strength of Corporal Holder’s evidence the alibi evidence was in reality very weak. The appellants had the benefit of the usual directions on the presumption of innocence and of the approach which must be taken to defence evidence. We think that it is stretching imagination too far to suppose that a good character direction would have made any difference to the result in this case.

For these reasons we would have rejected this ground of appeal. We would have adjourned further consideration of the question whether section 2A of the Criminal Law (Amendment) Act 1997 offends the Constitution of Trinidad and Tobago until the result is known of the hearing by the Court of Appeal of Roodal’s appeal against the mandatory death penalty.