Curtis Charles and Others v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Slynn of Hadley |
| Judgment Date | 26 May 1999 |
| Judgment citation (vLex) | [1999] UKPC J0526-1 |
| Court | Privy Council |
| Docket Number | Appeal No. 33 of 1998 |
| Date | 26 May 1999 |
[1999] UKPC J0526-1
Present at the hearing:-
Lord Slynn of Hadley
Lord Clyde
Lord Hutton
Lord Hobhouse of Woodborough
Sir Patrick Russell
Privy Council
[Delivered by Lord Slynn of Hadley]
On 31st July 1987 Anthony Ward was shot dead in a street at Morvant, Trinidad. The next day the three appellants were arrested and they have been in prison since then. They appeared before the magistrate on 4th August 1987 but were not committed for trial until 11th August 1988. The trial was fixed for 6th November 1991 but on that date no jury was available. The trial eventually began on 11th November 1991 and on 5th December 1991 the appellants were all convicted of murder. That was already more than four years after the incident. Two and a half years later on 15th June 1994 all the convictions were quashed by the Court of Appeal on the ground of misdirection by the trial judge in his summing up. The prosecution wished to continue the case and a retrial was ordered and subsequently fixed for 10th April 1995. Since on that day no jury was available the second trial began on 11th April 1995. On 25th April 1995 the jury concluded that they could not agree on a verdict.
The prosecution still insisted on continuing and the appellants appeared before the judge and jury on 19th September 1996 (some nine years one month after the incident and two and a quarter years after a retrial was ordered). An application was made on behalf of Leroy Carter (with which it seems, or at least seems likely, that the other defendants were associated) that the proceedings should be stayed on the ground that to try them for the third time after such a long delay was an abuse of the process of the court.
The application was refused and the trial began. On 30th September 1996 all the defendants were convicted and sentenced to death. The Court of Appeal dismissed an appeal on behalf of all three appellants on 25th September 1997. Now, almost 12 years after the incident, their Lordships are asked to set aside the convictions on the ground that it was an abuse of process to try the accused for the third time in 1996 after so many years, alternatively on the ground of serious misdirection by the judge as to the elements necessary to be established before there could be a conviction for murder. A third ground was raised that the judge failed to direct the jury as to Leroy Carter's good character.
The prosecution case was that it was Steve Carter who fired the bullet which killed Ward but that the others were present and chased down the street together. They were consequently, it was said, part of a joint enterprise to kill or to do Ward serious bodily harm. On arrest the defendants agreed that they had chased after Ward on the afternoon in question because Ward had threatened them after his partner had been locked up, for which Ward held the accused responsible. Curtis Charles said that he was carrying a small cutlass and two stones, Steve Carter that he had a cutlass and Leroy Carter that he had carried a beer bottle. They heard a shot fired but it was not they who fired it.
At the third trial Curtis Charles said that he had been advised by counsel to remain silent (though the wrongness of that advice was later a ground of appeal); Steve and Leroy Carter gave evidence. They said that Ward had shot at them and at others in the past but that on this occasion none of them had a gun and there was no pre-arranged plan to attack Ward.
On the appeal following the third trial the Court of Appeal rejected the criticisms that the judge had not directed the jury as to provocation or self-defence since on the facts these did not arise. The court also rejected Curtis Charles' contention that his conviction should be set aside on the grounds of the incompetence of his counsel. Strangely counsel for the appellants did not raise the issue that the trial judge had been wrong not to grant a stay on the ground that in all the circumstances it was not in accordance with due process to try the appellants for the third time nine years after the event. That, however, is now at the forefront of their appeals.
The respondent accepts that it is a common practice, though not a rule of law, for the prosecution to offer no evidence where two juries have disagreed but that here the position is different; only one jury was unable to reach a verdict. It was thus for the prosecution to decide whether the public interest in the conviction of criminals required the second retrial to go ahead subject to the discretion of the trial judge to stay the proceedings for abuse of process. Since the trial did go ahead Mr. Guthrie Q.C. submits that the only question is whether that trial was unfair. Here it was not unfair since the facts were not complicated; two of the appellants gave evidence and did not show any real difficulties in recollecting what had happened.
The first question is whether the appellants would be allowed to raise this issue at this stage. Whether there should be a retrial, including the question whether the time between the events alleged and the retrial is such as to make a retrial unfair or an abuse of process of the court, is a matter to be raised in the first place before the trial judge and the Court of Appeal. Their Lordships would generally be reluctant to allow the issue to be raised for the first time before them. Here, the issue was raised squarely before the judge even though it was not raised before the Court of Appeal. In the circumstances their Lordships accept that since the matter was raised before the trial judge the appellants are entitled to raise the issue before them on this appeal.
It is to be noted in the first place that the Constitution of Trinidad and Tobago does not expressly provide for the right to a speedy trial or a trial within a reasonable time although it does confer upon a person charged with a criminal offence the right to a fair trial. In Director of Public Prosecutions v. Tokai [1996] A.C. 856 however, the Board stressed that where a complaint was made of undue delay before trial the rules of the common law and the procedures of the criminal courts of Trinidad and Tobago were usually sufficient to secure the fairness of the trial since one of the powers of the judge was to stay proceedings if he felt that to allow them to continue would be unfair. If he did not stay the proceedings it was his duty to direct the jury as to any matter arising from the delay which was favourable to the defence.
In Attorney-General's Reference (No. 1 of 1990) [1992] 1 Q.B. 630 the Court of Appeal in England stressed that a stay on the grounds of delay was to be imposed only in exceptional circumstances. Lord Lane C.J. at page 643-644 said:-
"In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay. … no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, the continuance of the prosecution amounts to a misuse of the process of the court."
In George Tan Soon Gin v. Judge Cameron [1992] 2 A.C. 205 the Board, however, indicated a broader approach. At page 225 in the speech delivered by Lord Mustill their Lordships said:-
"Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair."
In Barker v. Wingo (1972) 407 U.S. 514 the Supreme Court of the United States was concerned with a case brought under the 6th Amendment to the Constitution which entitled the accused to enjoy "the right to a speedy and public trial". The Board in Bell accepted that the principles there stated [in relation to a speedy trial] have relevance and importance "in any Constitution written or unwritten, which protects an accused from oppression by delay in criminal proceedings". The Supreme Court considered that the right to speedy trial was designed to protect three interests of the defendants namely:-
"(i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last … If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to record accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." (page 532)
Whether a stay should be granted raises some questions analogous to those which arise when a decision has to be taken as to whether there should be a retrial. In Reid v. The...
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