Gilbert v.R. (Grenada )  UKPC 15 (27 March 2006)
Privy Council Appeal No 25 of 2005
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 27th March 2006
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Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Woolf]
(i) the judge's failure to warn the jury that they should ignore anything that they might have heard or read about the case in the media,
(ii) the judge being wrong to allow a witness, called Aleccia Victor who was aged 17, to give evidence that she had had a sexual relationship with the appellant and seen him slap the deceased,
(iii) the judge's directions about telephone calls which were made early on the morning of the day when the deceased's body was found,
(iv) misdirecting the jury on how it should approach the appellant's alibi,
(v) the judge's failure to direct the jury correctly as to the possible partiality of a juror.
In addition, the appellant submits that the sentence of death was unlawfully imposed because he was sentenced to death by the jury and not by the judge. That this should not have happened is accepted by Mr James Guthrie QC who appeared on behalf of the respondent.
The failure of the judge to give the jury a direction as to the appellant's good character.
"In the course of the trial the defence led no evidence in relation to the good character of the defendant. The defendant's written case on the appeal to their Lordships' Board advanced the submission that the defendant had no previous convictions and, notwithstanding that no evidence was led on this matter by the defence, the trial judge should (in the absence of the jury) have inquired whether or not the defendant had a good character, and on learning that he had, should (in accordance with Reg v Vye  1 WLR 471 and Reg v Aziz  AC 41) have directed the jury that they should take the defendant's good character into consideration in assessing both the truthfulness of his account to them and whether he was likely to have committed the offence.
It was submitted that this duty, which it was suggested lay on the judge, was analogous to the duty of the judge to direct the jury to consider a possible defence arising on the evidence upon which defence counsel had not relied, and it was further submitted that the duty was particularly incumbent on the judge where the accused faced a charge of murder carrying the death penalty."
Lord Hutton having referred to the fact that unknown to counsel the appellant had one previous conviction, continued:
"However, if it is intended to rely on the good character of the defendant, that issue must be raised by calling evidence or putting questions on that issue to witnesses for the prosecution: see per Lord Goddard CJ in Rex v Butterwasser  1 KB 4, 6. Their Lordships are of opinion that where the issue of good character is not raised by the defence in evidence, the judge is under no duty to raise the issue himself: this is a duty to be discharged by the defence and not by the judge. The duty of a judge to bring to the attention of the jury a possible defence not relied on by defence counsel is not analogous, because that duty only arises where evidence which gives rise to that defence has been given in the trial and is before the jury."
We would firmly endorse Lord Hutton's approach. This must be qualified, however, in relation to the cases where counsel defending the appellant at his trial had been guilty of what has been described as serious misbehaviour or ineptitude. The position in that situation was dealt with by the Board in Teeluck and John v The State (2005) UK PC 14;  1 WLR 2421 where the Board at para 39 said:
"There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client. Apart from such cases, which it is to be hoped are extremely rare, the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict rather than attempting to rate counsel's conduct of the case according to some scale of ineptitude: see Boodram v The State (2002) 1 Crim App 103, at para 39; Balson v The State (2005) UK PC 2 and cf Anderson v HM Advocate (1996) JC 29."
Again we endorse this approach. [We omit any mention of paragraph 34 (ii) of Teeluck which deals with the effect of a failure to give a direction as this was qualified in Bhola v. The State (Trinidad and Tobago) (2006) (No to be inserted]. However, in this case, Miss Montgomery rejected any reliance on ineptitude of the counsel who appeared in the court below. She did not herself appear in the court below, but junior counsel who did so, has sworn an affidavit in which he states:
"that at the trial we did not specifically raise the issue of the Accused's good character because in his Statement from the Dock he did put his Character in issue, and the whole Case of the Prosecution was centred around the fact that he was an Archbishop of his Church and from that position he was in breach of the trust of his congregation.
That in addition thereto, the jurisprudence on the issue of Good Character Direction was barely evolving in the OECS and Eastern Caribbean Supreme Court and because of whom the accused was at the time both Counsel felt enough had been said or elucidated in the evidence to raise the issue. The issue was mentioned in our address to the jury and was a ground of appeal in the Court of Appeal."
Unfortunately, that affidavit was only sworn on 19 January 2006 and was only served on the respondent on 20 January 2006 and so, with the hearing of this appeal being on the following Monday, the respondent had little opportunity to obtain instructions. In these circumstances, Mr Guthrie was not prepared to accept the contents of Mr Knowles' affidavit. Furthermore, Mr Guthrie points out that the trial judge expressly asked counsel at the conclusion of his summing up whether they wished him to add anything and the response was, "nothing My Lord."
"(1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements.
(2) A direction as to the relevance of his good character to the likelihood of his having committed the offence charged is to be given whether or not he has testified, or made pre-trial answers or statements."
Lord Taylor emphasised that the principles "normally" require a direction. R v Aziz  1 AC 41 explains how what Lord Taylor said should be viewed. Lord Steyn, in a speech with which the other members of the committee agreed, stated the position in the following words at p 50:
"It has long been recognised that the good character of a defendant is logically relevant to his credibility and to the likelihood that he would commit the offence in question. That seems obvious. The question might nevertheless be posed: why should a judge be obliged to give directions on good character? The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals. Hence there has been a shift from discretion to rules of practice."
Later Lord Steyn at (at p. 53D) added:
"A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant's claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye. I am reinforced to thinking that this is the right conclusion by the fact that after Vye the Court of Appeal in two separate cases ruled that such a residual discretion exists: Reg v H  Crim LR 205 and Reg v Zoppola-Barraza  Crim LR 833.
That bring me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye  1 WLR 471 and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them.
Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which may be left to the good sense of trial judges. It is worth adding, however, that whenever a trial judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions."
I would only add two comments to this common sense approach, which is particularly relevant on this appeal. The first is that if a judge has a residual discretion it follows that there can be circumstances where a conviction can be upheld if a judge omits to give a direction due to oversight and secondly the circumstances where this can be the position are not necessarily as rare as was once thought (see Lord Brown's judgment in Bhola supra paragraph 17).
"The significance of what is not said is a summing-up should be judged in the light of what is said. The omission of a good character direction on credibility is not necessarily fatal to the fairness of the trial or to the safety of a conviction. Much may turn on the nature of and issues in a case, and on the other available evidence. The ends of justice are not on the whole well served by the laying down of hard, inflexible rules from which no departure may ever be tolerated."
The absence of a good character direction in this case was neither fatal to the fairness of the trial or to the safety of a conviction.
Remaining grounds of appeal