Privy Council Appeal No. 98 of 2001
(1) Kizza Sealey and
(2) Marvin Headley Appellants
The State Respondent
THE COURT OF APPEAL OF TRINIDAD
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 14th October 2002
Present at the hearing:-
Lord Hope of Craighead
Lord Rodger of Earlsferry
Sir Philip Otton
[Majority judgment delivered by Lord Hutton]
This section was enacted to restore, in effect, the felony/murder rule which the Board in Moses v. The State  AC 53 declared had ceased to apply in Trinidad and Tobago when the distinction between felony and misdemeanour was abolished by section 2(1)(a) of, and Schedule 1 to, the Law Revision (Miscellaneous Amendments) (No. 1) Act 1979.“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.”
The Grounds of Appeal advanced before the Board Ground 1: Failure to disclose by the prosecution
“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.”
This letter was placed before the Board and it contains the description of the two attackers in a written statement made by Mr Chen on 25 January 1999. However the appellants contend that Mr Chen made earlier statements to the police containing descriptions of the two attackers when he was in the hospital on the morning of 25 January which should have been disclosed to the defence. Their Lordships do not accept this submission. The evidence of Constable Toussaint and Sergeant Martinez who saw Mr Chen in the hospital shortly after the attack was that he made a “report” to them. There is no evidence that he made a statement to either of them in the hospital containing a description of the attackers or that if he did, the description was inconsistent with the description which Mr Ramgoolan handed over to the defence and should have been disclosed pursuant to the principle stated in Berry v The Queen  2 AC 364.
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
“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?”
“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.”
“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.”
In R v Fannon (1922) 22 SR NSW 427, 429-430 Ferguson J stated:
“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.”
In the opinion of their Lordships the law is correctly stated in Blackstone’s Criminal Practice 2002 para. F18.13:
Ground 3. The judge failed to give full and fair directions to the jury in relation to the issues of identification and alibi“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  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  AC 964).”
“Q. Do you recall the 2nd of February, 1999?
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.”
In his summing up the judge said at pages 185 and 186:
“... 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, ...”
“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”.
Ground 4. The failure of the appellants’ counsel to raise their good character
“[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.”
No reply was received to this letter from Ms Beckles or Mr Gokool.
“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.”
“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.”
“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.”
Defence counsel accepted that the failure to ask for a good character direction was due to his inadvertence and the Court of Appeal held the omission of a good character direction due to this inadvertence rendered the conviction unsafe. Henry LJ stated:
“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  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  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 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.”
and of the observation of Henry LJ in Kamar The Times, 14 May 1999 that a good character direction:“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”
“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.”
Dissenting judgment delivered by Lord Hope of Craighead and Sir Philip Otton