republic of trinidad and tobago in the court of...
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Cr. App. No. 31 of 2009
BETWEEN
ANTON HAINSLEY BRUCE
Appellant
And
THE STATE
Respondent
PANEL:
P. Weekes, J.A.
A. Yorke-Soo Hon, J.A.
R. Narine, J.A.
APPEARANCES:
Mr. Jagdeo Singh instructed by Ms. Hasine Shaikh for the Appellant.
Ms. Dana Seetahal, S.C. for the State.
DATE DELIVERED: 18th DECEMBER, 2013
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JUDGMENT
Delivered by: A. Yorke-Soo Hon JA.
BACKGROUND
1. On October 12 2009, the appellant, Anton Bruce was convicted of the
murder of Kareema Roberts (the deceased) and sentenced to death by hanging.
The appellant has appealed his conviction and four grounds of appeal were
filed on his behalf.
CASE FOR THE PROSECUTION
2. In April 2004, the appellant lived at an apartment at Paradise Avenue,
Calcutta No. 3, Mc Bean Village Couva together with Shemilia Roberts, the
mother of the deceased, her two other children Jayelle and Jackeisha and the
deceased, who was two and half at the time. The apartment was one of two in a
house and each comprised a separate bedroom and a kitchen. Shemilia’s
cousin, Radica Leah Sookraj, lived in the second apartment with her husband
and son. Both families shared a toilet and bath.
3. On the morning of April 8, 2004, Shemilia went to work leaving the
deceased and her siblings in the care of the appellant, who was unemployed
and who took care of the children. At around 8:00 am, the appellant spoke to
Radica telling her that the deceased was vomiting. Radica administered Gravol
to the deceased, which she vomited. The appellant then left with the deceased
for the Couva Medical Facility, where he arrived at 9:35 am. At the Facility, the
deceased was examined by Dr. Adesh Goolcharan and Dr. Sri Lataha
Yalamalchi. Dr. Goolcharan examined the deceased around 9:37 am and
observed no physical abnormalities. She was not acutely ill and the records
showed that her symptoms were consistent with a viral illness. The deceased
was treated for vomiting with Gravol and Geesol and discharged sometime
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before 10:50 am. No swelling or bruising was observed at this time and the
deceased was “comfortable”.
4. The appellant returned home around midday with the deceased. Radica
spoke to him. The appellant put the deceased on the couch in Radica’s living
room where she observed that the deceased was tossing, turning and groaning
as if she was in pain. She noticed a mark under her chin and also observed
that the deceased’s stomach appeared to be swollen. The appellant told her
that the deceased got the mark when she hit her chin on a sink at the hospital
and that he had put soft candle on it.
5. Radica noticed that the deceased appeared to be in a lot of pain and told
the appellant that they needed to take her back to the hospital. The deceased
by this time had “soiled” herself and the appellant cleaned her up. As Radica
and the appellant were about to leave the house the deceased’s head fell back
as if she were unconscious and she appeared to be gasping.
6. They ran to Joy Lett’s house (a relative) and she called an ambulance.
Joy lifted the dress of the deceased and saw bluish marks on the abdomen
area. The deceased appeared to be unconscious. Upon arrival, the ambulance
attendants tried to revive the deceased by administering CPR but she did not
respond. The deceased was taken to the Couva Health Facility where she was
attended to by Dr. Goolcharan who noted that she was non-responsive and
that there was no cardiac activity. Attempts were made to revive the deceased
but she was pronounced dead at 1:35 pm.
7. That same afternoon, the complainant, Sgt. Hogarth Edward Lumy, went
to the Couva Health Facility where he viewed the body of the deceased and
observed reddish marks on her face, left chest and abdomen.
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8. The complainant saw and spoke to the appellant who said that the
deceased had complained of chest pains and began vomiting and that he
followed the advice of his neighbor and took her to the hospital.
9. Around 7:50pm, the appellant, who was not a suspect at the time, gave a
written statement not under caution to PC Radhaykissoon. In it he stated that
the deceased had had a fever for over six days, including the night before and
that that morning she was vomiting and refused to eat. He said he put her in
the bathroom to bathe and when he returned, he found her lying face down.
The appellant also said that at one point he held her over the sink to clean her
up because she was vomiting and she slipped and hit her chin on the sink.
The appellant stated that he then took her to the hospital where she was
treated with an injection and Geesol and that they remained there until she
stopped vomiting. However, upon their return home she became ill again; she
started to groan and wanted to use the bathroom. He and the neighbour
decided to take her back to the hospital but she got something like a seizure.
Her pulse got progressively weak and she could not be resuscitated. After
giving the statement the appellant was allowed to leave the police station.
10. The next day, Shemilia asked the appellant what had happened. He told
her that he had been playing with the deceased, throwing her up when she
slipped from his hands and fell. She asked him if he mentioned that to the
police and he said no. Shemilia told him to go back and tell the police what he
told her.
11. The appellant returned to the CID at around 9:40 am and spoke with PC
Radhaykissoon. He told him “Officer I come to tell you something that I didn’t
tell you in the statement.” PC Radhaykissoon took the appellant to the
complainant’s office. There the appellant said, “I did playing with Kareema
throwing she up in the air and she fall on the floor.” The appellant was
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cautioned by the complainant and he replied, “Officer is the truth. I was
frighten to tell allyuh she fall down. I could carry allyuh and show you where.”
12. Sometime after 4pm that day, the appellant, after being cautioned, gave
a voluntary statement in writing to the complainant in the presence of Mr.
Ramkissoon and Augustus Henry Lett, whom he had requested to be present.
The statement was an elaboration of his previous utterance that morning, to
the effect that he was playing with the deceased, throwing her up in the air
when she slipped from his grasp and fell face down on the floor. He said he
then put the deceased to hold on to the side of the bed and turned away for a
few seconds at which point she fell back on the floor. He said he put the
deceased in the bathroom and went outside to put on the tap for her bath and
when he returned he found the deceased lying face down in the bathroom. He
said that subsequent to that she began vomiting and holding her stomach.
13. On April 11 2013, the complainant informed the appellant of the results
of the post mortem, and told him that he was suspected of causing the death of
the deceased. In the presence of PC Charles and Leon Marcano, a former
neighbour, the appellant said: “Well Kareema didn’t want to eat, she pee she
self so I hit she on she bottom and she was watching me. I push she down on
the floor and I hit she about three to four hard lashes on she side and back.
She started vomiting and I carry she to the hospital.” This admission was
recorded by the complainant and signed by the appellant, Leon Marcano and
PC Charles. The complainant then asked the appellant if he wanted to give a
written statement to which the appellant replied “I done tell yuh everything
already.”
14. The appellant then told Marcano, in the presence of the complainant and
PC Charles that he had got upset and lost his temper. He said that he pushed
her down and hit and cuffed her and that he was sorry. He also said, “I lash
she too hard.”
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15. The postmortem report stated that the cause of death of the deceased
was a lacerated liver associated with multiple traumatic blunt force injuries as
well as blunt craniocerebral trauma consequent on blunt head injuries. Dr.
Hughvon Des Vignes, who performed the autopsy, said that a severe degree of
force was required to cause the brain to shift. He also opined that there must
have been a severe degree of force with some element of twisting in the chest
area. The pathologist found seventeen multiple contusions about the
deceased’s body; five on the face, six on the front chest and six on the abdomen
of the deceased, as well as several abrasions on the back, head and face of the
deceased.
16. Dr. Des Vignes stated that the injuries could not have been caused by a
standing fall or even three to four lashes to the back and stomach. He said
that because the child was dark-skinned, the bruises may have become visible
sometime after they were inflicted. The pathologist further testified that the
injuries which he observed on the body of the deceased would have been
inflicted sometime between the first and second visit to the Couva Health
Facility based on the findings of Dr. Adesh Goolcharan at 9:35 am and 1:35pm
on April 8 2004. The basis of Dr. Des Vignes conclusion is that the abdomen
when examined on the first visit was soft and not “distended” or swollen with a
torn liver and bleeding into the belly. Dr. Des Vignes said that if the injury to
the liver had been there at the time of Dr. Goolcharan’s examination the
abdomen would have become rigid and even the placing of the hand on the
belly would result in pain to the child. He said the injuries could have
occurred within an hour or two before death.
17. On April 12, 2004, the appellant was charged for murder.
CASE FOR THE APPELLANT
18. The appellant testified and called three witnesses.
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19. He accepted that he was the stepfather of the deceased and claimed he
had a father-daughter relationship with her and cared for her whilst her
mother was at work. He said about a week before April 8, 2004 the deceased
became ill and had a fever at intervals.
20. Sometime after Shemilia left for work on the day in question he noticed
that seven to eight hundred dollars which he had in a pouch was missing.
Jayelle admitted to the appellant that he and his sister spent the money at the
parlour next door. The appellant having confirmed that the children spent the
money at a nearby shop then took out a whip and gave Jackeisha ten lashes on
her buttocks and also lashed Jayelle “all over”. The appellant said that prior to
that day the two siblings were unruly, in particular Jayelle.
21. The appellant said he decided to discipline the deceased as well so as not
to “look bias” as she was not listening and was also “part of the spending”. He
grabbed her by her hand and hit her twice on her buttocks. He said the
deceased struggled to get away from him and “her feet came out from under
her” and she fell. Whilst she was on the ground he struck her about three to
four times. He hit her on her lower left side, a little below the hip. He then
took her up and put her on the bed.
22. He then left the children in the bedroom and went to the kitchen to make
lunch. He said that a few minutes later Jackeisha told him that the deceased
was vomiting. He took the deceased to the bathroom, left her there and went to
get a towel. When he returned to the bathroom he saw her lying on her
stomach on the floor with the left side of her face on the floor. The deceased
continued vomiting which caused him to take her to Radica whom he had
known to be a nurse. Radica crushed half of a tablet and gave it to the
deceased. Before leaving Radica’s kitchen the deceased vomited again. She
appeared slow, sick and quiet. He took her to the bathroom and turned on the
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tap. The deceased stretched over the face basin to wash her face when she
slipped and hit her face just below the chin. Following this he took the
deceased to the Couva District Health Facility where a doctor examined her
and she was discharged.
23. The rest of his evidence was more or less consistent with his first flat
statement of April 8, as to what happened on his return from the first visit to
the hospital. He said that in his April 8 statement he told the police everything
except “the licks”. He admitted that he had not told the complainant that he
threw the child into the air because he was frightened.
24. The Appellant also admitted that he gave the complainant a statement in
the presence of the Justice of the Peace and Henry Lett (the statement of April
9th under caution). He further admitted that when the complainant told him
that Kareema had not died from a fall and that her liver was ruptured he broke
down crying and said, “I hit she, she didn’t listening to me, I hit she the morning
then after she was vomiting.”
25. The Appellant under cross-examination said he finally told the police the
truth about what happened on April 11, 2004. He admitted the oral statement
as recorded except for the words, “I push she down on the floor….” and that he
“grab she by the face”.
26. He also agreed that the first time he said anything about Kareema taking
part in spending of stolen money was in court and accepted that he lied to the
police in saying that he threw Kareema in the air and that she fell down on the
floor. He agreed that he hit the deceased more than once in her stomach area
but insisted that he did not hit her on the chest or head. He said he hit her six
times but only once with a clenched fist. While hitting her he held her hands
tight because she was trying to get away.
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GROUND 1 – The trial judge erred in law by failing to properly direct the
jury on the issue of good character by omitting to give the propensity
limb of that direction.
27. Counsel for the appellant, Mr. Singh, submitted that the judge failed to
give the propensity limb of the good character direction. He contended that
such a direction was of critical importance to assist the jury in determining
whether the appellant acted with the necessary intention for murder when he
disciplined the deceased. By failing to give the full good character direction the
appellant was deprived of an important safeguard in the trial process which
resulted in a miscarriage of justice, for which the proviso cannot be applied.
28. Counsel for the State, Ms. Seetahal, conceded that the appellant was
entitled to a direction on the propensity limb of the good character direction.
She contended that notwithstanding such failure the medical evidence in this
matter was such that a propensity direction would have made no difference to
the jury’s finding that the appellant had the intention to kill the deceased.
LAW
29. It was established in Teeluck v The State [2005] UKPC 14 that the
giving of a good character direction is not discretionary. It is now “an obligation
as a matter of law” to give the direction where an accused is entitled to it. The
Board went on to enunciate the principles governing the direction as follows:
(i) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit the circumstances of the case:
Thompson v The Queen [1998] AC 811, following R v Aziz [1996] AC 41 and R v Vye [1993] 1 WLR 471.
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(ii) The direction should be given as a matter of course, not of discretion. It will have some value and will therefore be capable of having some effect in every case in which it is appropriate for such a direction to be given: R v Fulcher [1995]
2 Cr App R 251, 260. If it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial: R v Kamar The Times, 14 May 1999.
(iii) The standard direction should contain two limbs, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged.
(iv) Where credibility is in issue, a good character direction is always relevant: Berry v The Queen [1992] 2 AC 364, 381;
Barrow v The State [1998] AC 846, 850; Sealey and Headley v The State [2002] UKPC 52, para 34.
(v) 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 [1998] AC 846, 852, following Thompson v The Queen [1998] 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, ibid.
30. In this matter, the trial judge directed the jury on good character in the
following terms:
“You have heard that the accused is a young man of good character in the
sense that he has no convictions recorded against him. Of course, as is
quite clear, good character, cannot by itself, provide a defence to a criminal
charge, but it is evidence which you should take into account in his favour
in the following way: The accused has given evidence and as with any
man of good character, it supports his credibility. This means it is a factor
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which you should take into account when deciding whether you believe his
evidence, okay? So his good character has to be pooled into the mix and
you give it due consideration with respect to him giving his evidence, all
right, in terms of his believability, his creditability.”
31. Counsel for the State has conceded that no proper direction was given.
In Nigel Brown v The State [2012] UKPC 2, the Board noted however, the
failure to give a good character direction is not necessarily fatal. The Board
said:
“It is well established that the omission of a good character direction is not necessarily fatal to the fairness of the trial or to the safety of a conviction - Jagdeo Singh’s case [2006] 1 WLR 146 para 25 and Bhola v The State [2006] UKPC 9, paras 14-17. As Lord Bingham of Cornhill said in Jagdeo Singh’s case, ‘Much may turn on the nature of and issues in a case, and on the other available evidence.’ (para 25)…1
And the Board continued:
“...There will, of course, be cases where it is simply not possible to conclude with the necessary level of confidence
that a good character direction would have made no difference. Jagdeo Singh and Teeluck are obvious examples. But
there will also be cases where the sheer force of the evidence against the defendant is overwhelming. In those cases it should
not prove unduly difficult for an appellate court to conclude that a good character direction could not possibly have affected the jury’s verdict. Whether a particular case comes within one category
or the other will depend on a close examination of the nature of the issues and the strength of the evidence as well as an
assessment of the significance of a good character direction to those issues and evidence.2”
32. A similar view was taken in Balson v The State [2005] UKPC 2 where
the Privy Council considered that the strength and cogency of the evidence
neutralized the significance of a good character direction. The Board stated:
1Paragraph [33], Nigel Brown v. The State. 2 Paragraph [35], Nigel Brown v. The State.
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“Mr Christopher did not lead any evidence as to the appellant’s good character, with the result that a direction to that effect was
not given by the trial judge. It is clear that the appellant had no previous convictions. This was an omission on counsel’s part for
which no satisfactory explanation has been given. But their Lordships are of the opinion that 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.3”
33. We are of the view that the strength and cogency of the evidence in this
matter would have eroded the potency of a good character direction. There is
no dispute that the appellant was the only person in whose care the deceased
was left. There is also no dispute that he inflicted the fatal injuries. He
admitted that he beat the deceased, hitting her more than once in her stomach.
The medical evidence reveals that the deceased died as a result of injuries
associated with multiple traumatic blunt force and other trauma.
34. The appellant could not be heard to complain that he did not get the
propensity limb when on his own admissions at trial before the jury he showed
himself to have the propensity to commit the acts which caused the death.
35. As in Balson above, we also find that in this case the propensity to
violent conduct and the credibility of the appellant to which a good character
reference might have been of assistance, are wholly outweighed by the nature
and coherence of the evidence. Accordingly, this ground fails.
3 Paragraph [38], Balson v. The State.
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GROUND 2 – The trial judge erred in law when he failed and/or omitted to
give to the jury a properly formulated direction on lies told by the
appellant to the police and also on statement made during his oral
testimony which the trial judge invited the jury to find were untruthful.
36. Counsel for the appellant contended that a Lucas direction ought to have
been given because lies were central to the prosecution case and the said lies
were relied on to show the guilt of the appellant. Counsel argued that the
appellant’s explanation that he was “frightened” did not obviate the need to give
a Lucas direction and there remained a clear danger that, without proper
guidance, the jury would have used the lies in a way prejudicial to the
appellant. In the circumstances, the failure to give the direction amounted to a
miscarriage of justice.
37. Counsel for the State argued that the State did not rely on the lies as
probative of the guilt of the appellant and thus a Lucas direction was
unnecessary. The State contended that the prosecution used the admitted lies
of the appellant to showcase the inconsistencies in his evidence and thereby to
question his credibility.
LAW
38. In R v Goodway [1993] 4 All ER 7 the Court held that where lies are
relied on by the prosecution as supportive of guilt, the conditions set out in R v
Lucas (1981) 73 Cr App R 159 must be fully met. These are:
(i) the lie must be deliberate;
(ii) the lie must relate to a material issue;
(iii) the motive for the lie must be a realization of guilt and a fear of the
truth; and
(iv) the statement must be clearly shown to be a lie by admission or by
evidence from an independent witness.
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39. The case of R v Burge [1996] 1 Cr App R 163 sets out the circumstances
in which a Lucas direction should be given. Kennedy LJ stated that it is
appropriate for a judge to give a Lucas direction:
(i) Where the defence has raised an alibi;
(ii) Where the judge considers it desirable or necessary to suggest that the
jury should look for support or corroboration of one piece of evidence
from other evidence in the case, and amongst that other evidence
draws attention to lies told, or allegedly told, by the defendant;
(iii) Where the prosecution seek to show that something said, either in or
out of court, in relation to a separate and distinct issue was a lie, and
to rely on that lie as evidence of guilt in relation to the charge which is
sought to be proved; or,
(iv) Where, although the prosecution has not adopted the approach in
category three above, the judge reasonably envisages that there is a
real danger that the jury may do so.
40. The purpose of a Lucas direction as explained by Judge L.J. in R v
Middleton [2001] 2 Crim L.R 251 is to ensure that the jury does not engage
in an incorrect line of reasoning. That is:
“20. …to assume that lying demonstrates, and is consistent only with, a desire to conceal guilt, or, putting it another way, to jump from the conclusion that the defendant has lied to the further conclusion that he must therefore be guilty… 22. Where, however, there is no risk that the jury may follow the prohibited line of reasoning, a Lucas direction is unnecessary. On the whole, approaching the matter generally, it is inherently unlikely that such a direction will be appropriate in relation to lies which the jury conclude that the defendant must have told them in his evidence. In this situation, the consequence of the jury rejecting the defendant’s evidence is usually covered by the general directions of
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law on the burden and standard of proof, and if a Lucas direction about lies told by the defendant in his evidence to the jury is given, it will often be circular and confusing in its effect.”
41. Importantly, in R v Taylor [1994] Crim LR 680 it was stated that:
“The fact that inconsistent statement had been made did not itself call for a Lucas direction.”
The Court of Appeal in R v Barnett [2002] 2 Cr. App. R. 11 did not find that a
Lucas direction was necessary where the appellant had given three different
versions of how he came to be in possession of a stolen painting. The Court
reasoned as follows:
“The appellant was a dealer in second-hand electrical goods. He was found in possession of a large antique painting worth approximately £40,000. When challenged by the police, he put forward three different stories as to how that painting came to be located under his bed. Each of the stories was bizarre, to say the least. The stories were inconsistent with each other. In so far as the appellant offered any explanations for his change of story, the judge place those explanations before the jury. In the circumstance of this case, there was no danger that the jury would follow what has been referred to in the authorities as the “forbidden line of reasoning”. Accordingly, a Lucas direction was not required.4” Finally, we should look at the case more broadly. Quite apart from the appellant’s three inconsistent stories, there was a large amount of other evidence, which indicated that the appellant must have known or believed that the painting was stolen.5”
42. In the present case, the appellant gave differing versions as to how the
deceased met her death. In each version he described the role which he
played. His versions were inconsistent and the judge was careful to point that
out to the jury along with his explanation that he was frightened. The judge
then pointed to the lies told by the appellant and reminded the jury of his
explanation. He stated:
4 Paragraph [33], R v. Barnett. 5 Paragraph [34], R v. Barnett.
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“When I gave the statement on the 9th, I didn’t stick with the contents of the statement that I gave on the 8th. Ah gave a different version of how Kareema fell, and the statement of the 9th of April, I went so far as to lie to the police about Kareema being thrown two feet in the air and I missed her and she fall on the floor. I lie to the police about throwing Kareema up and her falling to the floor.” He said, “When I said that I throw her about two feet over my head is a lie, it’s a lie when I answered and told the police that she fell face down on she belly. Yes, it was a lie when I also said she fell and said “ooooh” indicating a sign of pain.” He said, “Yes, I showed the police a spot where Kareema was supposed to have fallen, that was a lie too. I lie to the police on the 9th of April because I was frightened.” So he has given us an explanation as to why he is lying. He says now, “I am frightened.” He chose to lie in the statement on the 9th of April because he is saying that Sgt. Lumy tell him that something not right about the circumstances that he’s been told with respect to the death of Kareema and he got frightened. I don’t know what was the situation in terms of the interaction but he got frightened and that’s why he lied. So he has given us an explanation.6”
43. The judge reminded the jury of defence counsel’s admonition to
them:
“Don’t convict someone because he has told a lie.” And the accused has admitted that he has told many lies. He has admitted to us that he has told many lies, but you are going to, as I said, you are going to examine all that you have heard before and look at what Ms. Foderingham had said, and what Ms. Teelucksingh has said, because Ms. Foderingham would speak, for instance, to that which was raised as an issue between Dr. Des Vignes and Daisley about the damage to the liver and how long it will take for the blood of 400mm to accumulate.7”
44. At the close of the summation, counsel for the prosecution sought
a Lucas direction but the judge indicated that he had given it much
thought and concluded that he was of the view that it was not
warranted.
6 Judge’s summation, page 62, lines 13-35. 7 Judge’s summation, page 67.
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45. It is accepted that mere inconsistencies do not necessarily warrant a
Lucas direction, as illustrated in Barnett. However, unlike Barnett the
appellant herein admitted that he had lied on several occasions. Although the
prosecution did not rely on the lies as evidence of guilt there was a reasonable
danger that the jury may have so relied on them. It is our view therefore it was
insufficient for the judge to merely highlight the inconsistencies in the
appellant’s various statements and to remind the jury of his explanation. The
judge ought to have gone further and given a Lucas direction in order to avoid
this obvious danger.
46. This ground accordingly succeeds but, on a consideration of all the
circumstances of the case, it is not fatal to the conviction.
GROUND 3 – The trial judge erred, failed and/or neglected to give proper
and/or adequate directions on intention and also gave to the jury
unnecessary directions on the issue of oblique intent. The trial judge also
erred in law when he gave a material misdirection that served to usurp
the function of the jury on the issue of lawful chastisement.
47. Mr. Singh contended that while the judge correctly sought to explain the
defence of lawful chastisement to the jury, he incorrectly dismissed the
defence as inapplicable. He further submitted that the judge equated the
gravity of the injuries and causation to intention, and failed to correct this
misdirection. He argued that the judge ought to have directed the jury that the
appellant could only be found to have the requisite intention to kill or to
cause serious bodily harm if his acts were plainly dangerous and that death
was reasonably certain from his actions in order for there to be the necessary
intent. The judge also failed to direct the jury on what constituted intention.
These errors were exacerbated by the judge giving an unnecessary direction on
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oblique intention, which only served to confuse the jury and deprive the
appellant of a properly considered verdict. The judge also failed to give
adequate directions on the elements to be considered in order to find a
verdict of manslaughter. Counsel argued that these mistakes taken together
resulted in a grave miscarriage of justice.
48. Ms. Seetahal submitted that the judge correctly directed the jury on
lawful chastisement. The judge was also correct to withdraw the issue of
oblique intention from the jury. The law does not require a judge to elaborate
on what is meant by ‘intention’ thus the judge was correct in giving general
directions. The directions given on manslaughter were sufficient and the
summation in its entirety demonstrated that the judge made it clear to the jury
that manslaughter was a live issue.
Lawful Correction
49. The judge directed the jury that lawful correction was inapplicable to the
present facts:
“As far as the law of lawful correction goes, lawful correction has
reference only to a child capable of appreciating correction and not to
an infant two and a half years old. Although a slight slap may be
lawfully given to an infant by her mother, more violent treatment to
an infant so young by her mother, more violent treatment to an
infant so young by her father, her stepfather or a guardian would
not be justifiable, and I dare say then that the only question which
you the members of the jury, will have to decide is whether the
child’s death was accelerated or caused by the blows inflicted by
the accused.8”
8 Judge’s summation, page 15.
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50. The judge was correct in removing the defence of lawful correction from
the jury. The above direction sought to reflect the law as set out in R v Griffin
(1869) 11 Cox 402, where it was held that an infant two and a half years old
is not capable of appreciating correction, a father therefore is not justified in
correcting him. The headnote in Griffin goes on to say that if the infant dies
owing to such correction, the father is guilty of manslaughter. The judge in this
case did not give this aspect of the direction.
51. However, prior to removing this defence, the judge gave extensive
directions to the jury on the law in relation to lawful correction.9 He identified it
as the central theme in the case and explained that if corporal punishment was
immoderate in nature or degree or administered with an inappropriate
instrument or with an object calculated to endanger life, or limb, such
punishment is extreme and unlawful. The judge then went on to give examples
and directed the jury that persons standing in the relationship of parents to
children such as the appellant are entitled to correct them but the law only
permits punishment that is reasonable. He then proceeded to give examples of
correction which were beyond what is reasonable and directed the jury as
follows:
“If you find therefore as a fact that the Accused did beat Kareema in the context of correcting, if you find what he did ………….was unreasonable, unacceptable within the law …….. then that would be an unlawful act on his part……10”
It was after such lengthy and detailed discussions on lawful correction that
the judge withdrew the defence from the jury. However, the judge later told
the jury that lawful correction was open to them:
“How did the child die, what were the circumstances of how the lawful correction, if you were to accept that. I don’t see anything
9 Judge’s summation, page 13, line 23- page 15, line 45. 10 Judge’s summation, page 14, lines 35-38.
20
that is there to make you not accept that – nothing to stop you from coming to that conclusion11”.
52. The judge then repeated his directions on lawful correction when the
jury came in for further directions and left the issue open to them. We note
that the judge’s approach to this issue was rather confusing and may have
left the jury in a state of uncertainty as to whether this defence applied or
not.
INTENTION
53. In R v Woollin [1998] 4 AER 103 W killed his three month old son by
throwing him on to a hard surface. The Prosecution did not contend that W
desired to kill his son or to cause him serious harm. W denied that he had any
such intention. Nevertheless the issue was whether W had intended to cause
serious harm. The Recorder directed the jury that if they were satisfied that W
realized and appreciated that when he threw the child there was substantial
risk and that he would cause serious harm then it would be open to them to
find that he intended to cause injury to the child and that they should convict
him of murder.
54. On appeal he contended that by directing the jury on substantial risk the
Recorder had enlarged the mental element of murder. The appeal was
dismissed. The court held that the phrase “virtual certainty” was only
necessary where the evidence of intent was limited to the admitted actions of
the accused and the consequences of those actions. It is not obligatory where
the jury had other evidence to consider.
55. On appeal to the House of Lords, Lord Steyn carried out a detailed
analysis of the intention required in a crime of murder and examined fully the
11 Judge’s summation, page 39, lines 33-40.
21
principles set out in Maloney [1985] AC 905, R v Hancock [1986] AC 55 and
Nedrick 83CR AR 267. It was held that having regard to the mental element
in murder, a jury were required to determine whether the defendant had
intended to kill or to do serious bodily harm. Where this simple direction is not
enough, the jury should be further directed that they were not entitled to infer
the necessary intention unless they felt sure that death or serious bodily harm
was a virtually certain result of the defendant’s actions (baring some
unforeseen intervention) and that the defendant had appreciated that fact.
56. The phrase virtual certainty was not limited to the admitted actions of
the accused and to the consequences of those actions. The judge had
misdirected the jury by using the phrase substantial risk and had in effect
enlarged the scope of the mental requirement for murder.
57. In the instant case, the judge gave clear directions on the intention
required on a charge of murder.12 He told the jury that they must be sure that
the appellant had the intention to kill or to do grievous bodily harm and that
they were to find that intention by considering all the prevailing circumstances.
58. During the trial, the jury returned for further directions on the
ingredients of murder and manslaughter and the judge repeated his earlier
directions and elaborated on them.
59. However, nowhere in the summation did the judge explain to the jury
that they were not entitled to infer the necessary intention unless they were
sure that death or serious bodily harm was a virtual certain result of the
appellant beating of the deceased and that they must be sure that he had
appreciated that fact.
12 Judge’s summation, page 4.
22
60. We are therefore of the view that the judge fell short in his directions to
the jury on the requisite intention for murder.
Oblique Intention
61. Another area in which the judge may have been less than clear is in
relation to his direction on oblique intention. He directed as follows:
“I’m going to mention something for the purposes of dismissing it, getting it out of your mind so that is doesn’t confuse you. Even the very heading of the topic is strange heading. It is something called
oblique intent. It is something in the law, but let me try to explain it to you so that when you’re giving your consideration of the events you would recognize that this is something, a hoop that you do not have to put yourself through… …But I’m mentioning this to you here about this oblique intent, not for the purpose of having you give it consideration, but for the purpose in terms of your discussion and what have been put over in addresses to let you know clearly, if you look at the facts of this case on the evidence, the State would have had to show you that at some point in time during this chastisement from the case of the accused, that he formed this murderous intent and the murderous intent would be to kill or to cause really serious bodily harm13.
62. The principle of oblique intent involves the passing from lawful
chastisement to unlawful violence R.v Mackie 57 CR App R 453. One of the
questions to be decided by the jury was how far was it reasonable and therefore
lawful for the appellant to go on punishing the child.
63. In Andrew Malchan v the State CR No.27 of 2000, the same question
arose for consideration where a stepfather beat two boys with a “coffee stick”
resulting in their deaths. The Court of Appeal stated that the mens rea for
murder could be satisfied if there was evidence from which a jury could infer a
change from the intention to castigate to an intention to exterminate or to
13 Judge’s summation, page 7.
23
cause really serious bodily harm. The court concluded that there was nothing
to indicate that the intention to chastise transformed into a murderous intent.
64. At the close of the summing up Counsel for the state asked the judge
to consider whether having regard to the medical evidence, particularly with
reference to number of injuries it was open to the jury to consider that the
appellant started off with an intention to chastise and shifted to a
murderous intent. The judge disagreed, ruling that the evidence did not
support such a direction. There was no evidence to show that during the
chastisement the appellant formed the required murderous intention.
65. We agree that there is no such issue and we note that the direction
was therefore irrelevant and may have served to add more confusion in the
minds of the jurors. Although the judge told them that “it was a loop they
did not have to put themselves through” he did go on to say that for the
purpose and in terms of their discussion it was the burden of the State to
show that the appellant’s intention shifted from one of chastisement to a
murderous one.
66. This direction was therefore unnecessary. It was not relevant to the
factual scenario of this case and the judge ought not to have given it. Trial
judges ought to avoid giving inapplicable and unnecessary directions as these
may only serve to confuse and compound the tasks set before the jury.
MANSLAUGHTER
67. The judge directed the jury that manslaughter arose in two possible
ways:
24
“If you are not sure of ingredient number three and this is the issue
of intention, you will go on to consider manslaughter. Manslaughter
is a lesser alternative to murder and in this case I put it to you that
manslaughter could arise in two possible ways.
First of all, lack of intent. If at the time the fatal injuries were
inflicted the accused did not intend to kill or cause really serious
harm to Kareema Roberts, but intended some lesser harm, he is not
guilty of murder, but guilty of manslaughter. For murder there must
be an intent to kill or cause really serious bodily harm. For
manslaughter, the lesser intent to cause some harm is sufficient. So
if it is that manslaughter is being considered the lesser intent is just
that you needed to cause some harm, and the harm which you
intended to cause was the chastisement of the child in terms of the
application of his hand to the child’s body…14”
68. He further stated:
“You should note that an unlawful act and a dangerous act which
results in death may amount to manslaughter, So the test is, not did
the accused recognize that it was dangerous, but would all sober
and reasonable people recognize its danger in terms of how he went
about the beating. You have to consider all the circumstances that
may have made the chastisement unlawful. If you so find that the
chastisement was unlawful, you must further consider whether the
acts of the accused in terms of the whole beating process, whether it
was, in fact dangerous, all right.15”
69. In order to establish the “Unlawful Act” Manslaughter the following must
be established:
14 Judge’s summation, page 6. 15 Judge’s summation, pages 15-16.
25
(1) The killing must be the result of the applicant’s unlawful act.
(2) The unlawful act must be one which all sober and reasonable
people would inevitably realize would subject the victim to, at
least, the risk of some harm resulting therefrom, albeit not
serious harm.
(3) It is immaterial whether the accused knew that the act was
unlawful and dangerous and whether or not he intended
harm. The mens rea required is that appropriate to the
unlawful act in question.
(4) Harm means physical harm.
The above principles were propounded in the case of R v Church (1966)
1QB 59 and approved in DPP v Newbury (1976)62 Cr App R. 291. It
was therefore the duty of the judge to assist the jury by pointing out the
evidence establishing the ingredients of the unlawful act manslaughter.
70. Although the judge did cover all the bases, he did so in a rather
untidy manner. The overall effect of this direction was therefore
somewhat unclear and may have resulted in further confusion for the
jury thus depriving the appellant of the full benefit of this direction.
71. For the reasons aforementioned we uphold this ground of appeal.
GROUND 4 – The trial judge erred in law by failing to give the jury proper
and complete directions on the issue of the mixed statement which the
appellant gave to the police.
72. Counsel for the appellant submitted that the judge failed to direct the
jury that even though the incriminatory parts of the mixed statement were
more likely to be true, they remained duty-bound to consider the entire
statement in determining the truthfulness of the statement. The jury was
26
therefore left unguided as to what reliance and weight to place on the
statement.
73. In response, counsel for the State argued that the complaint is one of
semantics. She contended that the judge correctly directed the jury that if they
found that the appellant did give a statement, then they must consider which
parts are true and which are false. The effect of what the trial judge said to the
jury was to direct them to consider the whole statement and then come to their
determination about its truthfulness.
LAW
74. In R v Sharp (1988) 1 All E.R. 65 the House of Lords answered the
following question: Where a statement made to a police officer out of court by a
defendant contains both admissions and self-exculpatory parts do the
exculpatory parts constitute evidence of the truth of the facts alleged therein. It
was held that a statement made out of court by a defendant in criminal
proceedings containing both admissions and self-exculpatory parts should be
admitted in its entirety, so as to show the precise nature of the circumstances
in which the admission was made, even though what is said by way of
explanation or excuse was not evidence of its truth. The jury should be directed
that they should consider the whole statement in deciding where the truth lay,
the judge pointing out, where appropriate, that the incriminating parts were
likely to be true whereas the excuses did not have the same weight.
75. The judge went through parts of the appellant’s statement and directed
the jury as follows:
“Your function would be to discover where the truth lies in the statement and where falsity lies. Because, you see, generally, an accused person, in giving a statement, common sense tells us that he doesn’t easily make admissions against himself unless those admissions are true.
27
Here is what common sense tells us, nobody admits something against themselves easily except those admissions are true, but on the other hand you can find that an accused person may be trying to make exculpatory statements, he is trying to distance himself from a situation, and so you find in a statement both admissions and exculpatory parts…
Further, he said:
“You may think therefore, following common experience that the admissions will be more likely to be true than the exculpatory part of the statement, so when you are looking at the statement, what you are looking for is the truth of the incident, and generally speaking, statements will not always contain the truth, which is what the accused has told us, that the statement does not contain the truth as to what happened… …You may find that the whole thing is false; you may find a part is true and a part that is false, but what you are looking for in the statement is the truth. What you are looking for in the statement is what happened between the accused in terms of his relation-interrelationship with Kareema on the 8th April 2004, that would speak to give account of what happened to Kareema in her reaching her death16”.
He directed the jury on what weight to attach to the statement in the
following terms:
“Now what weight you give to the statement is entirely up to you. If you must accept that the statement was properly taken, you must then move on to giving whatever weight that you consider necessary, looking at all the circumstances in which the statement was made, remembering as I said, experience tells us that people do not usually make admissions against themselves very easily, but, rather, are inclined to distance themselves from a difficult or dangerous situation.”
16 Judge’s summation, page 30.
28
76. The trial judge does not operate as a robot. He is not obliged to recite an
incantation of directions word-for-word from specimens, cases or other
sources. What is required is that he communicates legal principles in a clear
and comprehensive manner so that the jury is able to appreciate and to apply
them appropriately. In this case, the judge did not specifically tell the jury that
they must consider the statement as a whole in determining its truthfulness.
However, he did tell them that they must find where the truth lies; they may
find that the whole thing is false, they may find parts to be true and parts to be
false, but that their duty was to find the truth. This direction, in our view,
though somewhat clumsily assembled, sufficiently outlines the task set before
the jurors, that is, to consider the whole statement in order to determine its
truthfulness.
77. This might be an opportune juncture at which to advise that trial judges
afford themselves the opportunity to prepare and structure their summation in
such a way so as to avoid needless repetition and restatement since this can
only serve to confuse laymen jurors who might not only be unfamiliar with the
concepts being explained but also who are also required to listen and retain,
often without the assistance of written directions.
THE ALTERNATIVE VERDICT
78. Section 45(2) of the Supreme Court of Judicature Act provides:
“Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and in the finding of the jury it appears
to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the
Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence”.
We found that the judge made substantial errors in his summation and that
grounds 2 and 3 are successful.
29
79. When we consider the circumstances in the round, we are of the view
that this is an appropriate case in which to substitute an alternative verdict
as was done in Stafford and Others v the State UK PC No. 7 of 1998 and
Birmal Roy Paria UK PC No. 42 of 2002. In this case the lesser offence of
manslaughter was alive since the appellant never denied inflicting serious
injuries upon the deceased nor that he was the only person who was
capable of inflicting the fatal injuries. The jury clearly must have been
satisfied of the facts which would have found him guilty at least, of that
other offence. We therefore substitute for the verdict found by the jury, a
verdict of manslaughter. The Board in Stafford remitted the matter for the
Court of Appeal to consider sentence.
80. We therefore order that the conviction and sentence be set aside and
substitute a verdict of guilty of manslaughter in place of a verdict of guilty
of murder.
81. We will hear counsel on the question of sentence.
82. Accordingly, this ground fails.
…………………………
P. Weekes
Justice of Appeal
…………………………
A. Yorke-Soo Hon
Justice of Appeal
…………………………
R. Narine
Justice of Appeal