Anthony Nevada Johnson v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 21 July 1999 |
| Judgment citation (vLex) | [1999] UKPC J0721-4 |
| Date | 21 July 1999 |
| Court | Privy Council |
| Docket Number | Appeal No. 30 of 1998 |
[1999] UKPC J0721-4
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Clyde
Lord Hutton
[Delivered by Lord Hutton]
This is an appeal by special leave by Anthony Nevada Johnson from the decision of the Court of Appeal of Trinidad and Tobago which on 19th November 1996 (with reasons given on 5th March 1997) dismissed his appeal against his conviction and sentence of death by the High Court of Trinidad and Tobago on 30th November 1995 for the murder of Michael Hercules on 14th August 1993.
The evidence adduced by the prosecution against the appellant was as follows. The deceased, Michael Hercules, was the Commissioner of Prisons in Trinidad and Tobago and on the evening of 14th August 1993 was armed with a legally authorised 9 mm semi-automatic pistol. On that evening at 9.20 p.m. he parked his car on the road in Ninth Avenue, Barataria, Port of Spain, in front of the house of Mrs. Catherine Critchlow. The deceased then stood on the road beside the open door of his car and had a conversation with Mrs. Critchlow who was standing in front of her gate facing the deceased. Mrs. Critchlow then saw two men walking towards them. One of the men was dressed in a white jersey with a print of skyscrapers on the front and the other man was dressed in a dark coloured jersey. Less than a minute after the two men had passed and when the deceased was about to get back into his car to leave Mrs. Critchlow heard a sound of running coming up behind the deceased's car. She turned back and saw two men dressed similarly to the two men who had just passed her, but now wearing masks, running towards the deceased. The area of the street was brightly lit with street lights and security lights from private dwellings and business premises. The man in the dark jersey was about three feet away from her. He was holding a gun in both hands pointed at the deceased. The second man, in the white jersey with skyscrapers printed on it, was behind the first man and his hands were pointed at the deceased cupped in the form of a gun, although he was not carrying a gun. Shooting then began and Mrs. Critchlow ran back into her house and as she ran she saw the man in the white jersey running away. Both the deceased and the man in the dark jersey (who was named Glen Mitchell) died in the shooting. The deceased sustained four bullet wounds to his body fired by the revolver carried by Glen Mitchell and Glen Mitchell sustained three bullet wounds fired from the semi-automatic pistol carried by the deceased.
The police were soon at the scene and when driving along Ninth Avenue Sergeant Bereton saw the appellant walking fast with a limp and what appeared to be bloodstains on his clothing which included a white jersey with a print of skyscrapers on it. The appellant told Sergeant Bereton that some men had come in a black car and started shooting at him. Sergeant Bereton took the appellant to Port of Spain General Hospital where he received treatment for bullet wounds at 10.30 p.m.
Seeram James was a security guard on duty on the evening of 14th August 1993 at business premises on Ninth Avenue close to the scene of the shooting. Between about 8.00 p.m. and 8.30 p.m. he saw two men walking on the street, one was wearing a black T-shirt and the other one was wearing a white T-shirt. Shortly before 9.30 p.m. he again saw the same two men pass by but in the opposite direction. Within three minutes or less he heard gunshots. On 17th August 1993 at an identification parade both Mrs. Critchlow and Seeram James identified the appellant as being the man they had seen on Ninth Street in the white jersey.
Corporal Antoine went to the Port of Spain General Hospital on the night of the shooting where he saw the appellant and cautioned him and the appellant replied "I was just passing when a man in a black car began shooting and I got shot".
About 1.30 a.m. on 15th August the appellant was taken to Morvant Police Station where he was detained. On 16th August Superintendent Charles saw the appellant and cautioned him. The appellant made an oral admission to the effect that he and Mitchell had decided to take a car that night and that Mitchell had a gun and that he knew that Mitchell had had that gun for the previous three months. They went to take a car and shooting had started. Superintendent Charles asked the appellant if he wished to make a statement in writing and the appellant said he did. The appellant then made a written statement to the superintendent in the presence of a Justice of the Peace. The admissibility of the written statement was challenged on a voire dire but the trial judge ruled that it was admissible. In the written statement the appellant said that he had known Glen Mitchell for over a year. At about 6.30 to 7.00 p.m. Glen Mitchell came and told him that they could go and look for a car. Mitchell asked him if he wanted money. Mitchell wanted a partner with him. They walked through Barataria for about an hour or about an hour and a half. Coming down Ninth Avenue they saw the car by means of a street light. They saw the driver of the car standing outside the car between the door and the car talking to a lady. The statement then continued:-
"We pass the car and went round the corner which is the first corner after the street with the Express or Mirror Newspaper …. We put on masks …. He take out his gun, a spin barrel 38 from his waist or his pocket on the left side as he is a left-hander. We started to go back to the car; he Glen was in front and I was about two yards behind him …. Glen run up to the man to about arms length, and I was coming up behind him. As Glen reach up to the man, shots start to fire. I turn to run and I get shoot in my back, then I get shoot on my left thigh and I fall, then while I was on the ground I get shoot on my right leg. I get up and limp around the corner to the right side. I jump over a wall into an empty lot … and I … start running in the direction of the Roundabout [Plaza]. Before I reach to the corner police pass me …. When they stop me they ask me what it is went on and I told them it had a shoot out and I get shot … I didn't tell them that I was involved. They take me and carry me to the hospital in Port of Spain. I did not have the mask when the police stopped me, I had take it off my head and throw it away when I started to run …. When the police officer told me at the hospital that the mister we shoot was the Commissioner of the Prisons, I want to make it clear that I didn't shoot him".
At the trial the appellant gave evidence in his own defence which may be summarised as follows. On the night of 14th August he went with his uncle in the latter's car to search for his aged grandmother who was reported missing. After searching for a time he and his uncle decided to split up and he began walking on his own. He also said that he did not know Glen Mitchell. He began to walk north along Ninth Avenue and he saw a parked car and a man standing in the open doorway of the car talking to a woman who was nearby. Some people then came running up behind him and then two persons ran past him. One of them had a white jersey and blue jeans. He heard some shots. Then he said he felt a burning in his foot and back and fell. He got up and started to run. He fell and a police officer came up and took him to hospital for treatment for his injuries. Corporal Antoine then took him from the hospital to a police station. On the way to the police station a police officer threatened him and Corporal Antoine hit him. At the police station he told Superintendent Charles that police officers poked his injuries. He said that he did not dictate the written statement and he was shown the statement already prepared and said he signed it without reading it as Superintendent Charles had promised him he would go back to hospital if he signed it. He felt weak and dizzy at the time. Therefore the defence advanced by the appellant at his trial was that he had innocently been present at the scene of the shooting and that he did not know Mitchell and did not take part in the commission of any offence with him.
At the time of the trial in November 1995, before the decision of this Board in Moses v. The State [19997] A.C. 53, it was thought that the felony/murder rule was part of the law of Trinidad and Tobago and that a killing in the course of a felony involving violence constituted murder irrespective of intention to kill or cause grievous bodily harm. Therefore the prosecution based its case against the appellant on the felony/murder rule and in opening the case prosecuting counsel told the jury:-
"So I repeat to you, the basis of the State's case is the felony murder rule. The State is not saying that the accused was armed at that night and shot. What the accused is saying, that he went along with the gunman as part and parcel of a plan to rob, which is a serious crime involving personal violence. And in the course of that attempted robbery, Mr. Hercules was killed by the gunman and the law says, where two or more persons embark on a serious crime involving personal violence, even though at the beginning your intent was not to kill - we are not saying they went there to kill Mr. Hercules, we are saying they went there to rob - and in the process of the robbery this killing took place. The law says as long as you participated in the plan to rob and you were involved in the crime, then if someone is killed, that is not robbery that is murder."
In his summing up the judge also directed the jury solely in relation to the felony/murder rule and at no time directed the jury that the crucial issue (as was made clear in Chan Wing-Siu v. The Queen [19885] A.C. 168) was whether...
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