Skeete v. The State (Trinidad and Tobago)  UKPC 82 (24 November 2003)
Privy Council Appeal No. 89 of 2002
Marcelle Skeete Appellant
The State Respondent
THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 24th November 2003
Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Sir Andrew Leggatt
Sir Philip Otton
[Delivered by Lord Rodger of Earlsferry]
"Sir, I went by Sherry Ann Hector last night and I meet another man there and I call she out and tell she about it and she deny it. She then pick up a cutlass and I take it away from she and planass she and she get cut. She then start to push she self against the cutlass and say 'Ah go kill myself and let them hang you.'"
Later that day the appellant helped the police to recover the cutlass. On 22 June the appellant was cautioned and charged with attempted murder and with wounding with intent to cause grievous bodily harm.
"Live at Canaan. Heard the evidence of State. I plead guilty to the second count of wounding with intent. (State does not accept plea.)"
In other words, all that the appellant did, to begin with, when led as a witness for the defence was to accept that he was guilty of wounding with intent to cause grievous bodily harm.
"The affidavit is vague. It appears to be the words of a man who is clutching at straws and is desperate in the circumstances to implicate anybody, so as to save himself. It is clear that that affidavit lacks bona fides, but may we just say that it is becoming quite prevalent in these courts that when appellants or accused people have been found guilty, they have been coming to the Court of Appeal and casting blame on their counsel, hoping that the court will quash their conviction.
While it is true to say that in the most exceptional cases, the Court will order a retrial or quash the conviction, we want to make it very clear that it is only in the rarest and most exceptional cases we will do so. We have repeatedly in the past indicated that it is a most serious allegation to make and it must be properly substantiated. We will not tolerate these allegations, especially when frivolously made, as was in this particular case. We have many judgments of this court, and in the other courts, to justify the position that we have taken in this case."
The Court of Appeal not only dismissed the appeal against conviction, but also varied the appellant's sentence to include 15 strokes of the birch. The court did not make any direction that time spent by the appellant in custody pending appeal was to count as part of his sentence of imprisonment.
Conduct of Counsel at the Trial
"All these things that the accused is saying, you look at them to determine what his intention was. He is making it clear, isn't he, that he was out to kill her and probably kill anybody who came on the scene."
"Now in cross-examination [counsel] didn't challenge any of these things. So this evidence of Sherry Ann stands accepted, as it were. If the accused had a case that he didn't do these things or he didn't intend to chop her or he didn't say these words which Sherry Ann said he said, then [counsel] would have put it to her that the accused didn't say what you say that he did … but [counsel] didn't really put anything to contradict what Sherry Ann said."
"In Solomon v The State (1999) 57 WIR 324, this court considered the difference in the language of the English provision as compared with ours and we came to the conclusion that there was no substantial difference in the effect of both provisions. Subject therefore to any direction which the Privy Council may give us when it gives its decision in Boodram, we consider that when the conduct of a case by counsel forms the ground of appeal, we too ought to focus on the impact which the faulty conduct of the case has had on the trial and the verdict rather than attempt to rate counsel's conduct of the case according to some scale of ineptitude.
There is, however, one important proviso which we would attach to this approach. It is conceivable that counsel's misconduct may have become so extreme as to result in a denial of due process to his client. In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance for, whenever a person is convicted, without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed. It is not difficult to give hypothetical examples of how such a situation might occur. An obvious example would be if the accused had the misfortune to be represented by counsel whose judgment was proved to have been impaired by senility, drugs or some mental disease. Another example, closer to the facts of this case, is if counsel conducted the defence without having taken his client's instructions. This is simply another application of the basic principle that, if there is a fundamental flaw in the conduct of a trial, the conviction which results from it cannot be allowed in any circumstances to stand. One case in which this court recognised and applied that principle was Seepersad v The State (unreported) in which it was held that a summing-up was so flawed that it rendered the trial unfair and that therefore no question of applying the proviso arose. A lynching is an abomination to be condemned and at all costs prevented, not just because of the possibility that the victim may not be guilty, but because it is a denial of the link between law and justice which is an essential pillar of what we call 'civilization'."
The Board had approved this passage in Boodram v The State  UKPC 20.
Conduct of the Judge
"It seems to me that a man who chopped a woman, as the accused did, and accompanied those chops by several declarations of 'I am going to kill you' or words to that effect, could not be merely doing something merely preparatory to killing her. To me it seems to be a substantial step towards the commission of the crime of murder. That is just my view, it is a matter for you to determine."
Mr Dingemans suggested that this was too heavy a comment and that the judge should not have expressed his personal view.
"As I said, I do not think you will have any difficulty in this case in determining that issue" (the distinction between a preparatory act and the taking of a substantial step towards commission of the offence).
And later, in relation to the lesser count:
"Now, just in case, and I doubt this will occur here, but I have to give you the directions on it. Just in case you find that he wounded her but did not have the intention to cause her grievous bodily harm …"
And finally, at the end of the summing up:
"So there you have it, Mr Foreman, members of the jury. I dare say it will not be a very difficult case for your consideration, but I've had to go through the whole thing."
Conduct of counsel at the appeal
"The time during which an appellant pending the determination of his appeal, is admitted to bail, and subject to any directions which the Court of Appeal may give to the contrary on any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions which may be given by the Court of Appeal be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence."
Thus in Trinidad and Tobago time spent in custody pending the determination of an appeal will not generally count as part of the term of imprisonment under the sentence, but the court may give a direction to the contrary. Mr Dingemans submitted that in this case the Court of Appeal should have given such a direction. He referred to the decision of the Board in Tiwari v The State  UKPC 29.
"You will serve a term of life imprisonment with a declaration that you be not released from custody until 20 years from today. So ordered."
There are two separate elements in what the judge said, the sentence of life imprisonment and the declaration as to release. In terms of section 49(1) the sentence of life imprisonment will run from the date of the determination of the appeal to the Court of Appeal since there was no direction to the contrary. The declaration that the appellant be not released from custody until 20 years "from today" is not, however, to be regarded for these purposes as part of the sentence but as a separate, free-standing decision which is not caught by section 49(1). For the purpose of considering release, the 20 years will accordingly continue to run from 7 June 1995, when the trial judge's declaration was made. That conclusion does substantial justice in a case where, through no apparent fault of the appellant, his appeal was not determined until almost three years after he had begun serving his sentence.