The Judicial Committee of the Privy Council Decisions

Brown & Anor v. The State (Trinidad And Tobago) [2003] UKPC 10 (29 January 2003)

Privy Council Appeal No. 9 of 2002

(1) Ian Brown and

(2) Everitt Isaac Appellants

v.

The State Respondent

FROM

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 29th January 2003

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Present at the hearing:-

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Sir Denis Henry

[Delivered by Lord Hoffmann]

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1. The appellants Ian Brown (also known as Foots) and Everitt Isaac (also known as Sonil) were convicted on 2 February 2000 at the Port of Spain Assizes (Lucky J and a jury) of the murders of Charmaine Jack and Desmond Orr. They were sentenced to death. On 21 September 2000 the Court of Appeal refused their applications for leave to appeal. They appeal by special leave to the Privy Council against both conviction and sentence.
2. The murders took place on the night of 1 July 1996 close to the house in Malick, Barataria, in an area known as Vegas, where Charmaine Jack, aged 22, lived with several other members of her family. She was in her room on the ground floor with Desmond Orr, who had been visiting her from time to time over the previous week. At about 10.30 pm her mother, Janet Jack, who lived in a room on the first floor, heard what sounded like breaking glass. Holding the baby she was looking after for another daughter, she went out to see what was happening. She saw Ian Brown, a near neighbour whom she had known for three years as Foots, dragging Charmaine out of the house by the hair. Following them was Everitt Isaac, whom she knew as Sonil and whom she had seen visiting Brown's house regularly over the past three months, pushing Desmond Orr and beating him across the back with the flat of a cutlass. Seeing her mother, Charmaine cried out: "Oh God, Mammy, oh God, Mammy, help me, look Foots come here with a gun to kill me". The two abductors and their victims crossed the yard and disappeared down a track into the night.
3. Fitzroy Duncan, who lived next door, also heard the sound of breaking glass and looked out from behind his curtains. He also knew Foots as a neighbour and Sonil as a regular visitor. He saw them dragging and pushing Charmaine and Desmond Orr across the yard and down the track. A few minutes after they had disappeared he heard four shots. He and Janet Jack conferred in the yard and he escorted her and the baby to the road where she found a taxi. He went back towards the house but when he heard some more shots he changed his mind and went to spend the night with his sister.
4. The following morning the bodies of Charmaine and Desmond Orr were found in the bushes just off the track, about a hundred yards from the house. Both had been shot in the head. Janet Jack and Fitzroy Duncan made statements to the police the same day, naming Foots and Sonil as the abductors. It took the police some time to find them. There was some dispute about when they were arrested (the investigating officer put the wrong date on the warrant) but it seems to have been more than a month after the murders. Once they were in custody, both Janet Jack and Fitzroy Duncan were brought in to see them and confirm that they were the right men. There was no identification parade.
5. At the trial before Lucky J and a jury, both accused relied upon alibis. Foots said that he had gone to the cinema that night with a school friend and afterwards gone to his house to watch a video. Sonil said that he had watched a basketball game with a girl friend and that they had afterwards spent the night together. Both friends gave evidence in support. But the jury did not believe them and convicted.
6. The appellants have put forward a number of separate grounds of appeal, not all of which were raised in the Court of Appeal. Their Lordships will consider them in turn.

Joint enterprise

7. The chief ground of appeal advanced on behalf of both accused before the Board concerned the judge's directions on the law of joint enterprise. There was no direct evidence to show who had fired the fatal shot. Charmaine, in her last cry for help, had said that Foots had a gun. But Sonil might also have had a gun and used it. Or he might have taken Foots's gun. In order to convict both appellants, it was therefore necessary to find them liable on the basis of joint enterprise.
8. The simplest form of joint enterprise, in the context of murder, is when two or more people plan to murder someone and do so. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury. This might be called the paradigm case of joint enterprise liability. But things become more complicated when there is no plan to murder but, in the course of carrying out a plan to do something else, one of the participants commits a murder. The most common example is a planned robbery, in which the participants hope to be able to get what they want without killing anyone, but one of them does in fact kill. In such a case, the other participants may still be guilty of murder, provided that they had the necessary state of mind. The precise nature of that state of mind was until recently not entirely clear. But in R v Powell (Anthony) and English [1999] 1 AC 1 the House of Lords said that it meant that the other participant realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm, i.e. with the intent necessary for murder. Thus the Powell and English doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen.
9. The evidence of Janet Jack and Fitzroy Duncan and the manner in which the victims met their deaths strongly suggested that the two accused arrived with the common intention of murdering them and carried that plan into effect. It had all the appearance of a brutal execution. As the accused denied having been there at all, their evidence could not cast the events in a different light. The trial was conducted on the basis that the only matter seriously in issue was whether the accused had been correctly identified as the murderers. Of course it is true that the accused, having decided to put forward alibi defences, could not very well say that if those defences were rejected, they wished to explain that the other accused had fired the fatal shots and that they had not foreseen that he might do so. That is always the forensic handicap of an accused who puts forward a false alibi. But the judge has a duty to put to the jury any defence which fairly arises on the evidence, whether the accused is relying upon it or not. Before summing up, Lucky J invited submissions in the absence of the jury on whether there was anything counsel thought should be mentioned. Counsel for the prosecution said that he had forgotten to refer to joint enterprise in his closing speech and suggested that judge deal with it in the summing up. Neither of the defence counsel referred to the subject.
10. The judge began his summing up by reminding the jury that the accused were indicted on a charge of murder and outlined the facts as alleged by the prosecution. He told the jury that the case against each accused had to be considered separately. Then he dealt with joint enterprise:

"The second basic direction I want to give you is this, and I may return to it. The Prosecution's case is that the accused committed this offence together. Where a criminal offence is committed by two or more persons, each of them may play a different part. But if they are acting together as part of a joint plan or agreement to commit it, they are each guilty. The words 'plan' and 'agreement' do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment, nothing need be said at all. It can be made with a nod and a wink or a knowing look or it can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.

Your approach to the case should therefore be as follows: If in looking at the case of either accused you are sure that he did an act or acts or [as?] part of a joint plan or agreement to commit it, he is guilty. Put simply or in other words, the question for you is: Were they in it together?"

11. Although the judge said that he might return to the question of joint enterprise, he did not. Both Mr Richard Jones QC, who appeared for Ian Brown, and Mr Dingemans QC, who appeared for Everitt Isaacs, say that the direction was inadequate. But their criticisms are not the same. Mr Jones says that while the direction was a correct statement of the law, as it might appear in a text book, the judge did not relate it to the facts of the case. He did not, for example, link it to his explanation of the legal elements of murder, so that the jury understood that a plan to commit murder meant that there had to have been a common intention to kill or inflict serious bodily harm. And he did not, when outlining the evidence of how the murderers had arrived and abducted the victims, say that it was behaviour from which the jury could infer such a common intention.
12. Their Lordships do not think that it was necessary to spell these matters out. The case raised no questions of any difficulty about the legal elements of murder. The victims were shot in the head at point blank range. Whoever fired the shots obviously intended to kill. So when the jury were told that joint enterprise meant a plan to commit the offence and that they had to be sure that the acts were done as part of an agreement to commit the offence, they must have understood that they had to be satisfied that the intentional killing which had obviously taken place was the result of the common intention of both accused. And the behaviour from which such a common intention could be inferred was also clear enough.
13. Mr Dingemans says that the direction was insufficient because it did not explain that if there was no common intention to murder, foresight that a murder might be committed was needed to convict the party who did not kill. Instead, the judge gave the jury only the plain vanilla version of joint enterprise: a plan to commit the actual offence charged. Thus the jury were not invited to consider what might have been the position if, as was possible, the plan had been only to frighten or assault the victims and one of the accused had then unexpectedly shot them.
14. In their Lordships' opinion, the judge was well advised not to invite the jury to speculate upon what might have been the common intention of the accused if they had not planned to kill. It was sufficient to tell them that, in order to convict, there had to have been such a plan. That might have been favourable to the accused in the sense that it did not allow the jury to convict on the basis of some other plan accompanied by foresight of the possibility of murder. It excluded the Powell and English extension. But there was no evidential basis for the existence of some other plan. Of course it was possible that the accused had come pursuant to a plan to frighten or beat up. But these were theoretical possibilities. On the facts as the jury must have found them, there was no reason to suppose that both accused had not intended to do what they actually did. The facts were quite different from the common case in which the object of the expedition appears to have been to commit robbery, burglary, rape or some other crime. In such cases, there is no compelling inference that there must also have been a plan to kill. The question therefore becomes one of foresight that one of them might kill. But in this case, while it is of course possible that there may have been some other plan, the evidence does not suggest any other than murder. In such circumstances, their Lordships think it is right to instruct the jury simply that they must be satisfied that there was indeed a common intention to murder. It would only have confused them to add that in some cases such an intention may be unnecessary. Their Lordships do not therefore accept that the direction on joint enterprise was inadequate.

Identification

15. The main issue at the trial was of course identification and the appellants complain of what they say were four irregularities on this question. First, the absence of an identity parade; secondly, the confrontation at the police station; thirdly the dock identifications by the principal witnesses and fourthly, the judge's directions.
16. An identification parade is not necessary, and may indeed be positively undesirable, when it is accepted that the accused is a person well known to the identifying witness. In such a case, a parade will establish the uncontroversial fact that the accused is able to identify the person he knows, but will not advance the question of whether that person committed the offence: see Goldson v The Queen [2000] UKPC 9 (23 March 2000). On the other hand, if the witness claims only slight acquaintance with the accused or the accused denies that he is the person whom the witness claims to know, an identification parade may serve a useful purpose and should be held.
17. In the present case, Ian Brown admits that he was well known to both witnesses and does not complain of the absence of an identification parade. Everitt Isaac does. He admitted in cross-examination that he knew Fitzroy Duncan, who not only saw him with Foots but used to talk to him. But he denied knowing Janet Jack. On the other hand, he admitted that he was the person who used to visit Foots, which was the description by which Janet Jack claimed to know him. In those circumstances, the value of an identification parade would have been very slight. Their Lordships do not think that the decision not to hold one can be criticised.
18. The confrontation in the police station was not arranged to provide evidence of identification in substitution for a parade but simply to reassure the police that they had not arrested the wrong people. It was not relied upon at the trial as having any evidential value. Neither was the dock identification, which was according to current practice an irregularity, but which cannot in the circumstances have caused the accused any prejudice. It must have been obvious to the jury that the prosecution case stood or fell according to whether the witnesses had correctly identified the accused on the night of the murders.
19. The judge gave a very full direction on the problems of identification evidence according to the guidelines in R v Turnbull [1977] QB 224. He told the jury that respectable and honest witnesses could often be mistaken. The only criticism made of the summing up is that he did not expressly say that one can make a mistake even in thinking that one has seen a person one knows. But of course that was the context of the summing up. The judge was giving his warning against the background of a case in which the witnesses were claiming that the accused were people they knew. The jury could hardly have thought he was warning them about the dangers of mistakes in cases in which the witnesses had never seen the accused before. That would not have been relevant or helpful. Their Lordships consider that the judge gave the jury sufficient guidance.
20. Indeed the reality of the situation was that the possibility of mistake was very small indeed. Two independent witnesses claimed to have seen the accused by good electric light over a fairly lengthy period of time - long enough for both witnesses to speak to them - and at close quarters. This reality was acknowledged by counsel in their closing addresses, in which they effectively alleged a conspiracy to make a false accusation against the accused and by the judge who summarised Ian Brown's case, at the very end of the summing up, as "they have fabricated evidence against me" and Everitt Isaacs's case as "these people have made up a case against me". The witnesses were either correct in their identification or they were liars; they were very unlikely to have both been mistaken.

Fingerprint evidence

21. The police gathered up the glass which the murderers had broken when they made an entry and found a piece which had Ian Brown's fingerprint upon it. His explanation was that he had in the past visited Charmaine's room to play cards with her and her friends and that he may have touched the glass on such an occasion.
22. In view of the strength of the other identification evidence, not a great deal was made of the fingerprint. The judge said that the prosecution were saying that it was made on the night of the murders and that according to the evidence of Inspector Dillon, the investigating officer, Ian Brown had told him that he never went to Charmaine's room. On the other hand, the defence were saying that he touched the glass when he went to play cards. The context in which he made these remarks was a direction that if there were two possible inferences, the jury must accept that in favour of the accused. Counsel for Ian Brown says that the judge should expressly have directed the jury that the fingerprint had very little probative value. But their Lordships think that this was a matter for the jury and that the issue was put fairly before them.

Spontaneous statements

23. The statement of Charmaine to her mother as she was being dragged away, saying that Foots had a gun, though hearsay, was admitted under the exception for spontaneous statements or res gestae: see R v Andrews [1987] AC 281. No complaint is made about the admissibility of the statement but it is said that the judge did not warn the jury that before giving the statement any weight, they must, in Lord Ackner's words ([1987] AC at p 302):

"... be satisfied that the declarant did not concoct or distort to his advantage or the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not actuated by any malice or ill-will."

24. No doubt there will be many cases in which such a warning is necessary but their Lordships think that in the present case the suggestion of concoction, distortion or malice would be fanciful. Janet Jack was accused of distortion and malice in the evidence she gave, including her evidence of what Charmaine said. That issue was fairly left to the jury. But once she was accepted as a witness of truth, the possibility that the declarant, i.e. Charmaine, was guilty of distortion, malice or concoction was quite unrealistic. All that she said was that she was being abducted by Foots, which was evident to the two witnesses, and that Foots had a gun and intended to kill her, which was tragically confirmed by the events which happened a few minutes later. So their Lordships think that there was no misdirection on this point.

Standard of proof

25. The judge gave the jury a full direction on the standard of proof. He said that the degree of proof required was "an onerous one". He said that before the jury could convict they had to be "convinced" that he was guilty. He said that they must be "satisfied so that they feel sure, certain in [their] minds". After all this he said that if after consideration of all the evidence they entertained a reasonable doubt – "I do not mean a fanciful doubt" - they were under a duty to acquit.
26. The appellants say that the reference to a reasonable doubt, which was something other than a fanciful doubt, vitiated the effect of the summing up. This was based upon some remarks of Lord Goddard CJ in R v Hepworth [1955] 2 QB 600, 603. He said that references to a reasonable doubt, by contrast with a fanciful doubt, was in itself unhelpful because these expressions did not explain themselves. The jury needed more help and it was better to tell them that they must feel sure of the prisoner's guilt. Of course the criminal standard of proof is not some point on a mathematical scale of probability and it would not help the jury very much if it were. Any choice of words to convey the appropriate degree of persuasion is bound to have some element of approximation. But Lord Goddard in Hepworth emphasised that there was no set formula. It depended upon the summing up as a whole. Their Lordships think that this summing up adequately conveyed the appropriate standard.

Conclusion

27. Their Lordships consider that all the grounds of appeal against conviction must fail and the appeal will therefore be dismissed. The appeal against sentence is on the ground that the mandatory sentence of death is unconstitutional. This point has been rejected in other proceedings in Trinidad but an appeal to the Privy Council is pending. Accordingly, and with the consent of both parties, their Lordships will adjourn the appeal against sentence to a date to be fixed after the Board has given judgment in the other case.