UKPC 5
Privy Council Appeal No 0051 of 2009
Nigel Sookram v The Queen
From the Court of Appeal of Grenada
JUDGMENT DELIVERED BY
23 February 2011
Heard on 19 January 2011
Michael Grieve QC
(Instructed by Simons Muirhead & Burton)
James Guthrie QC
(Instructed by Charles Russell LLP)
The co-accused's change of plea
"You have heard Denzil Charles plead guilty. The fact that he has pleaded guilty, which you know, has no bearing on the guilt or innocence of Nigel Sookram, whose guilt or innocence you will have to determine. You are not trying Denzil Charles. You must concentrate on the case in respect of Nigel Sookram, and Nigel Sookram alone, and decide whether the evidence before you makes you sure of his guilt. If you are not sure of the guilt of Nigel Sookram, your duty is to acquit him. The prosecution has to prove its case against this accused so that you are sure of his guilt just as if Denzil Charles had not pleaded guilty."
And later still the judge added:
"You must not speculate on what role Pappy would have played, but you must concentrate on what the accused said he did."
The joint enterprise direction
"Even if there was a plan to rob the gas station, if what the other person did went beyond what was agreed or what might have been contemplated, or . . . , as in this case, the accused did not know that the gun was real, then the other person alone is responsible for the act and you must therefore find the accused not guilty."
He immediately then added, however, "When I come to examine the statement I will relate what's in the statement to that matter when I come to deal with it."
"However, if you are sure that the accused knew that the other person might have had a real gun and that he might use the gun, the law is that by participating in the plan to rob the deceased with that knowledge, he is taken to have accepted the risk that the other person would act in that way so that he, the accused, adopts those acts and is equally responsible for them."
Just as before, however, he immediately then added: "Again, I will deal with that when I come to look at the statement."
(i) "Now there are a number of options that are open to you on this statement. You can accept it in its entirety. And if you accept it in its entirety, here is what it's in effect saying. [He] puts himself on the scene with Pappy, who has pleaded guilty. You must not speculate on what role Pappy would have played, but you must concentrate on what the accused said he did. And your task is to decide whether you believe what he told the police in the statement. Now, if you believe the statement, or you conclude that it can be believed, or you are in doubt whether you should believe it or not, your duty is to acquit the accused. Why? Because he could not have committed any crime based upon the statement; because in the statement, you can draw no conclusion of an intent to kill or an intent to rob. And based upon the statement, you could well conclude that the accused is saying that he didn't know that Pappy's gun was not a toy gun. The accused is also saying he did not pick up any money after having told the other person, Pappy, he didn't want anything. And what he is saying is that he played no part; all he did was stand around, masked. In law, mere presence, even if you are masked, is not enough to amount to an unlawful act. So if you accept everything in that statement then it is your duty to acquit the accused.
(ii) But there is another option open to you and that is what is being commended to you by the Director of Public Prosecutions if you are not to reject the statement entirely, which is the first thing he is putting to you. He is saying that the statement should be rejected entirely. But it is also open to you to accept the statement partially. Now if you believe that the accused was on the scene, and he did say that he was on the scene, and why else would he say he was on the scene if he wasn't? If you believe the accused was on the scene pursuant to a plan to rob, and he was indeed unsure as to whether the gun Pappy had was a real gun, then if you find that Pappy did use the gun to shoot the deceased, resulting in his death, then the act of the accused would amount to manslaughter. Of course this conclusion must be based upon a rejection of the eye-witness evidence of Samuel de Coteau. [The judge then repeated this direction, explaining that it would amount to manslaughter because the accused would on those facts have participated in an unlawful act.]
(iii) Now the third option that is open to you is to reject the statement in its entirety. If you reject the statement in its entirety, you must then go back to the prosecution's case and examine it as a whole to determine whether you are satisfied to the extent that you feel sure that the accused is guilty of murder. What I am saying to you is that even if you disbelieve the statement, that doesn't mean that you rush to find the accused guilty; that is not how it is done. You go back to the prosecution's case, examine it carefully as a whole, and after a careful examination if you are satisfied that the accused is guilty, only then you can return a verdict of guilty. It is not for you to convict the accused because you believe that he presented a statement full of lies. You can only convict on the strength of the prosecution's case.
(iv) I repeat to you, as I said to you over and over, if you are of the view that the prosecution has not established the guilt of the accused, then you have a duty to acquit him. If you are in doubt about it also, then, too, you must acquit. If, however, you are satisfied that the prosecution has established the guilt of the accused beyond reasonable doubt, that is to say so that you can feel sure about the guilt of the accused, then your duty is to find the accused guilty."