UKPC 2
Privy Council Appeal No 0107 of 2010
Nigel Brown (Appellant) v The State (Respondent)
From the Court of Appeal of the Republic of Trinidad and Tobago
Sir Declan Morgan
JUDGMENT DELIVERED BY
7 FEBRUARY 2012
Heard on 20 October 2011
Julian Knowles QC
(Instructed by Simons Muirhead & Burton)
Peter Knox QC
(Instructed by Charles Russell LLP)
" there was blood on the black T-shirt and the white T-shirt. The analyst could not say whether it was animal blood or human blood but it was blood. The analyst never said that it was ketchup; the analyst never said it was red colouring, he said blood. So what we have from the certificate of analysis, blood on the black T-shirt, blood on the white T-shirt. Pure coincidence? Are these coincidences, members of the jury, or is it otherwise? The State is saying that these are so interwoven one into the other that, when taken together, they can lead to the sure conclusion that this accused killed Lloyd Bailey, as Mrs Bailey said he did."
"It is entirely a matter for you whether you accept what the defence is saying, through suggestions of counsel in the course of cross examination, or whether you accept what the prosecution say, that is, that there was blood on him. It was insufficient for analysis but there was blood on him".
The judgment of the Court of Appeal
"Notwithstanding any possible benefit that may have accrued to the appellant from the admission of this blood evidence, we are of the view that its probative force would have been outweighed by its prejudicial value. Forensically, there was no basis on the blood evidence to link the appellant to the scene of the crime. In addition, the prejudicial value of the blood evidence was more so compounded by the lack of a special direction on the part of the judge to the jury that reliance on this evidence could not be considered as supporting the correctness of Mrs Bailey's identification of the appellant as the assailant."
The appeal to the Judicial Committee
The blood stain evidence
The character direction
"The defendant's good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross-examination of prosecution witnesses: Barrow v The State  AC 846, 852, following Thompson v The Queen  AC 811, 844. It is a necessary part of counsel's duty to his client to ensure that a good character direction is obtained where the defendant is entitled to it and likely to benefit from it. The duty of raising the issue is to be discharged by the defence, not by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v The Queen, at p 844."
"... It is the duty of defence counsel to ensure that the defendant's good character is brought before the court, and failure to do so and obtain the appropriate direction may make a guilty verdict unsafe: Sealey and Headley v The State (2002) 61 WIR 491; Teeluck v State of Trinidad and Tobago  1 WLR 2421..."
" a good character direction would have made no difference to the result in this case. The only question was whether it was the appellant who murdered the deceased or whether she was killed by an intruder. All the circumstantial evidence pointed to the conclusion that the appellant was the murderer. There was no evidence to suggest that anyone else was in the house that night who could have killed her or that anyone else had a motive for doing so. In these circumstances the issues about the appellant's propensity to violent conduct and his credibility, as to which a good character reference might have been of assistance, are wholly outweighed by the nature and coherence of the circumstantial evidence."
"In Teeluck's case itself, of course, the appellant's credibility was said to be "a crucial issue" to the extent that the Board was unable to conclude "that the verdict of any reasonable jury would inevitably have been the same if [the direction] had been given" (paragraph 40). So too in Jagdeo Singh's case  1 WLR 146. But the Board reached a different conclusion in Balson's case  UKPC 6 and in Brown's case  1 AC 1 and their Lordships have no doubt that the Court of Appeal were right to have done so in the present case too. The cases where plainly the outcome of the trial would not have been affected by a good character direction may not after all be so "rare"."
The verification procedure
"The effect of that procedure simply is that the police had Mrs Bailey come to say whether this person was the Nigel Brown that she referred to in her report. The issue as to whether the identification is correct is one that you will have to determine at the end of the day after you have heard all the evidence in the case."
"Corporal Vidale then gave evidence of taking the accused to a verification procedure, what he described as a verification procedure at the Barataria Police Station on the 30th and on this occasion he said he took him there so that Mrs. Bailey could indicate whether he was the person that she referred to in her statement as the son of Margaret Brown-Charles', the person that was referred to in the statement as the assailant who attacked her husband and killed him on 28 October. ...The officer indicated that it was not an identification procedure per se. They, the investigators, needed to ascertain whether the person that she referred to in her statement is, in fact, this man whom they held. It is a matter for you. You have heard the evidence, you have seen the witnesses and you will come to your conclusion. But you bear in mind that this is a case of identification by recognition. I have given you the directions as to how you are to approach it, but this is not the situation where it is someone seeing an assailant for the first time. The police would have had a witness who said, I know this man, I have known him for 15 years, I have known him since he was a child, I know his mother. So in the circumstances, the police were well within their rights to take Mrs. Bailey to say whether that is the man ..."
"... [Inspector Lewis] was cross-examined about the whole procedure as to whether this was the appropriate procedure as to what the Standing Orders provide for, and you would recall, as I told you before, that given the nature of what Mrs. Bailey said in her statement that she knew this person, she could recognise him, she knew him for 15 years, this was the procedure the police adopted as opposed to an identification parade which really is to test the ability of the witness to identify someone in the case where they are seeing them for the first time, or in the case where it is a mere glimpse. On the evidence of Mrs. Bailey, it is open to you to find there this was no glimpse, that she saw him for a period of time. ... So that took care of the evidence of Inspector Lewis ..."
The utterances at and following the verification procedure
Discharge of the jury
"Mr Foreman, members of the jury, please disregard the last answer as given by the witness. It is expunged from the record. It is not evidence before you that you are to consider at all."
" the Court, in examining what was said by the officer in the context of the case as a whole, finds that there is no real danger of the kind of prejudice to the accused such as to render the trial unfair. The matter has been dealt with by an immediate warning being issued to the jury and the matter would be returned to at the time of the summing-up.
The Court would just like to note very briefly that in the context of the case, the statement 'is family' does not bear the kind of overwhelming prejudice which would necessitate the trial being aborted. It is to be noted that the officer did not, in his evidence, tell the accused the reason why he was arrested. There was nothing that the officer said to link his arrest to the recent attack on the deceased and Mrs Bailey.
In the circumstances, the statement 'is family' being open to other interpretations and, as I said before, given the warnings, the Court doesn't consider that it is so prejudicial as to render the trial unfair. In the circumstances the trial will continue."
" the issue is whether the response, as given by the accused, would inevitably be used by the jury to say that he was the assailant, in other words, whether the account of the accused's response 'is family' would inevitably lead them to the conclusion that he was admitting to his involvement in the matter."
"In all the circumstances, the Court having looked at the authorities and looked at the context in which the statement was made, the Court comes to the conclusion that there is no real danger of the sort of prejudice which will render this trial unfair "
"The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."
"The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: see Woolmington v Director of Public Prosecutions  AC 462, 482-483, per Viscount Sankey LC. In Stirland v Director of Public Prosecutions  AC 315, 321 Viscount Simon LC said that the provision assumed: 'a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.' As he explained later on the same page, where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility. Where the verdict is criticised on the ground of a misdirection such as that in the present case, and no question has been raised about the admission of inadmissible evidence, the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence"
The fresh evidence
"Clients may sometimes have a long history of severe social maladjustment with poor work histories. Poor interpersonal relationships are common. They are difficult to interact with because of their hostile attitudes and behaviours. They are therefore poor candidates for any type of psychological intervention. The prognosis for psychological intervention is not encouraging."
"This is a general description of the kinds of problem behaviours and attitudes that clients like Nigel would experience. It is not specifically for him but a description of clients generally who fall in this category, would perform similarly on this test. Clients like Nigel scoring as he did on this test would therefore received (sic) the same description of diagnosis, in terms of thinking, feelings and behaviour. Therefore it is more of a general description rather than specifically for this individual client.
Furthermore, on a scale of 1-10, I would estimate Nigel's problem to be rated at 7, this of moderate severity in terms of problems."
"The issue of fitness to plead and stand trial at the material time is relatively straightforward to consider as the mental disorder I have described (mild learning disability) is a stable state and would have been as relevant at the time of the offence as now. I have considered separate criteria in assessing Mr Brown's fitness to plead and stand trial:
i. Understanding the charges.
Mr Brown has a rudimentary and basic understanding of the nature of the charge and subsequent conviction. He understands that murder involves killing someone. He does not have the capacity to understand the concept of intent and the relationship between intention to cause grievous bodily harm and murder. If the threshold for understanding the charge is set at a relatively low level then in basic terms Mr Brown understands the charge.
ii. Deciding whether to plead guilty or not.
Mr Brown understands that guilty means that he committed the act. In my view his understanding is relatively superficial and his cognitive impairment means that he struggles to understand more complex matters like beyond reasonable doubt but in the most limited terms he understands the distinction between guilty and not guilty. I do not believe he has the intellectual capacity to apply his mind to the decision to any great extent, in other words he may not be able to weigh up all competing factors that go towards making a decision on how to plead.
iii. Exercising his right to challenge jurors.
This particular criterion is difficult to assess. There is no reason why Mr Brown could not recognise someone and identify them in court if they were on a jury. It is however more questionable that he can be assumed to understand the reason for this right and therefore whether he was sufficiently aware that he should exercise this right if appropriate.
iv. Instructing solicitors and counsel.
Mr Brown could give basic instructions in that he is able to communicate. If, however the process of giving instructions is broken down into whether Mr Brown would first be able to understand lawyers' questions, second be able to apply his mind to answering them and third whether he could convey intelligibly to lawyers the answers or instructions he wishes to give then there is significant cause for concern. Mr Brown can understand basic questions and he may apparently understand more complex questions by recognizing themes or components of questions and responding in an apparently reasonable way. It is however much more likely, given his intellectual impairment that he does not understand complex questions posed by his lawyers. His apparent reluctance to answer some questions may be related to his limited understanding. He may be able to think about the question he has been asked but without a clear understanding of the nature of the question he will not be able to apply his mind appropriately and his answers are likely to be over simplified and limited by his intellectual capacity. In summary, given the complexity of the legal situation it is unlikely that he could satisfactorily instruct solicitors and counsel.
v. Following the course of proceedings.
This is perhaps the most complex requirement and given that proceedings may be confusing for any person attempting to follow them, it is necessary to consider this capacity in relative terms. Proceedings obviously vary depending on a number of factors including the nature of the plea - it is likely that in this case it would be easier to follow proceedings in the event of a guilty plea when compared to the evidence that will be heard if there is a full trial. In my opinion Mr Brown can only follow matters of this complexity in a limited way.
He can probably understand direct questions and direct answers but once complexity and multiple themes are introduced then it is unlikely that he is able to follow things to an extent that allows his participation in the process. This opinion is based on the degree of intellectual impairment but supplemented by the experience of him at interview and the transcriptions of his evidence.
vi. Giving evidence in his own defence.
Mr Brown can give oral evidence in a strict sense but his ability to weigh up how he answers questions is limited. I recognise that this criterion may not strictly apply when considering the legal issue.
In summary, when considering these criteria as a whole it is unlikely that Mr Brown is and was fit to plead and stand trial."
"I do not believe that Mr Brown currently has the ability to properly instruct counsel or follow the proceedings of a trial as I believe he has a learning disability."
"Section 47 of the Supreme Court of Judicature Act of Trinidad and Tobago gives the Court of Appeal power in a criminal appeal to receive fresh evidence "if it thinks it necessary or expedient in the interest of justice". It was made clear by de la Bastide CJ in Solomon v The State (1999) 57 WIR 432 that the breadth and generality of this power do not remove the long accepted requirements of the law that fresh evidence should appear to be capable of belief and that a reasonable explanation be furnished for the failure to adduce it at trial. These factors are not, however, conclusive of the issue of admission of fresh evidence, and an appellate court has the overriding statutory power to admit it if it is in the interest of justice: see Benedetto v The Queen  UKPC 27,  1 WLR 1545, and cf Smalling v The Queen  UKPC 12"