DPP v Nelson
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 16 February 2015 |
| Neutral Citation | [2015] UKPC 7 |
| Court | Privy Council |
| Docket Number | Appeal No 0021 of 2014 |
| Date | 16 February 2015 |
[2015] UKPC 7
Lady Hale
Lord Hughes
Lord Toulson
Appeal No 0021 of 2014
Privy Council
From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda)
Appellant
James Guthrie QC
Anthony Armstrong (Director of Public Prosecutions) (Instructed by Charles Russell Speechlys)
Respondent
Dr David Dorsett
Owen Roach (Instructed by M A Law)
Heard on 27 January 2015
The defendant Kevil Nelson was convicted at trial of murder. The Court of Appeal held that there was a critical omission from the judge's direction to the jury on provocation and accordingly allowed his appeal to the extent of substituting a conviction for manslaughter. The Director of Public Prosecutions contends on this appeal that the direction did not suffer from any omission. The defendant cross appeals on separate grounds which were some of those rejected by the Court of Appeal.
In the evening of 23/24 October 2006 there was a dispute at the home of the deceased between himself and his girlfriend, Nasha Edwards. He put her out of the house. She called the police. Two officers responded, the defendant Nelson and a colleague, PC Francis. They assisted Nasha to collect her son from the home of the mother of the deceased, and then they took her at her request to the deceased's home to collect a bag of the child's necessities. By the time they arrived there it was something like 0130 in the morning. The deceased emerged from the house, carrying the bag of the baby's things. A confrontation ensued between the two officers and the deceased. How it arose and of what it consisted was in hot dispute at the trial. But in the course of it, the defendant drew his gun and shot the deceased dead when he was no more than an arm's length away.
According to Nasha, the officers had summoned the deceased out of the house and had told him that he must come to the police station, although, she said, she told them to leave him alone. According to her, the defendant then seized hold of the deceased, the deceased struck the defendant powerfully in the eye, and PC Francis tackled the deceased to the ground. Then, she said, the defendant told Francis to "watch yourself" and shot the deceased as the latter tried to get up from the ground. She said that when she asked why he had shot the deceased, the defendant replied "You don't see; he almost burst my eye? What do you want me to do?", thus indicating that he was shot as a reprisal. There was medical evidence that the defendant had received a heavy blow to the eye which had caused a 'blow out' fracture of the floor of the orbit.
The defendant's account, by contrast, was that they were leaving when the deceased approached him aggressively telling him to get out his yard. The defendant said that he saw the deceased put something shiny into his trouser pocket. When PC Francis tried to search him, the deceased knocked him to the ground and turned on the defendant, striking him in the eye. Francis grappled with the deceased and they both went to the ground, but the deceased then charged at the two officers as they retreated towards the fence of the yard. The defendant said that he believed the deceased to have a weapon in his hand. He said that he shot the deceased as he closed on the two of them, and did so in reasonable self defence.
There was undisputed evidence from police officers that when the scene was afterwards examined, a pair of scissors was found by or in the hand of the deceased. The defendant's case was that these were the weapon which the deceased had first concealed in his pocket and then had in his hand when he attacked. Nasha said that the deceased never had any kind of weapon in his possession and, moreover, that the scissors did not belong to the house.
The evidence of PC Francis at trial broadly supported that of the defendant. All witnesses had made earlier statements and were duly cross examined upon suggested inconsistencies between those statements and their evidence at trial. The pathologist's evidence suggested that the trajectory of the fatal bullet had been somewhat downwards having entered the front of the body at chest level. There was thus a direct conflict of evidence, which only the jury could resolve, as to what had happened, as to whether the defendant was under attack from the deceased, and as to whether the latter was armed with the scissors.
The defence advanced at trial was reasonable self defence, alternatively reasonable action taken to prevent a crime. Provocation was not advanced; indeed the defence case was positively inconsistent with it, because the defendant asserted that, far from being provoked to loss of control leading him to shoot the deceased, he had been in control throughout and had used his gun only as a matter of last resort when under attack. Nevertheless, on the evidence, it was plainly possible that if the jury were to reject the defendant's account and find that he had shot the deceased by way of reprisal for the severe blow to his eye, provocation might be open to it. This was therefore a trial in which the judge had to leave manslaughter by way of provocation to the jury, notwithstanding that this was not the defendant's case, and had, in doing so, to avoid saying anything which might be taken by the jury to undermine the defence which the defendant was advancing.
The Court of Appeal was faced with the necessity to deal with a large number of grounds advanced by the defendant. Of those, the last to be raised was that the judge had wrongly omitted to tell the jury that provocation could arise despite the fact that the defendant had shot the deceased with the necessary intent for murder, namely the intent either to kill or to do grievous bodily harm.
It is of course trite law that murderous intent (of either kind) is in no sense inconsistent with the partial defence of provocation. Indeed, provocation assumes murderous intent. It only arises when the essential elements of murder are all proved, including murderous intent. If the judge had indeed left manslaughter to the jury in a manner which might have led it to think that murderous intent negated provocation, that would have been a material misdirection.
The Court of Appeal was persuaded that this error had been made. In its judgment it quoted a single passage from the summing up which, as it correctly observed, did not sufficiently avoid this potential error. In this passage the judge told the jury:
"Before you can convict the accused of murder, the Prosecution must make you sure that he was not provoked to do as he did. Provocation has a special meaning in this context, which I'll explain to you in a moment. If the Prosecution does make you sure that he was not provoked to do as he did, he will be guilty of murder. If on the other hand you conclude either that he was or that he may have been provoked, then the defendant would not be guilty of murder but guilty of the less serious offence of manslaughter."
The Board agrees that if that were all that had been said about provocation, the summing up would have been defective. But it was not. The passage cited came in the context of a careful summing up which made the correct position amply clear to the jury.
The judge had first correctly identified the legal ingredients of murder, including murderous intent of either kind, and he had explained intent in entirely appropriate detail. He had gone on, correctly, to set out the law on self defence (alternatively prevention of crime) which was the defence relied on by the defendant. His treatment of it is, rightly, the subject of no kind of complaint; it was full, accurate and correctly tailored to the facts of the case. In the course of it, he had correctly told the jury that murderous intent did not negate self defence. It was only after this that the judge turned to provocation, correctly pointing out that it was not the defence relied upon but that it was his duty to explain any defence which might arise on the evidence, whether relied upon by the defendant or not.
The judge then provided a textbook definition of provocation, using the words of the statute, as counselled by Lord Diplock in DPP v Camplin [1978] AC 705at 718E. As a result, on four different occasions, the judge correctly used the formula: 'was the defendant (or may he have been) provoked to do as he did'? He coupled his direction upon provocation with references back to the ingredients of murder as he had previously defined them, thus including murderous intent. In particular he said this just two pages after the passage cited by the Court of Appeal:
"If you are sure that what was done and/or said would not have caused an ordinary sober person of the defendant's age and sex to do as he did, the prosecution will have disproved provocation. And providing the Prosecution has made you sure of the ingredients of the offence of murder, because all the ingredients are the same as the offence of murder, your verdict will be guilty of murder.
If on the other hand you answer is that what was done and/or said would or might...
To continue reading
Request your trial
-
Timothy Pierre v The State
...2016 at page 60 lines 4 to 27. 33 Summation dated June 23, 2016 at page 56 lines 45–50 34 C.A. Crim.37/2001 35 [1975] 1 All ER 890 36 [2015] UKPC 7 37 Cr App No. S015 of 2014 38 Transcript dated June 16, 2016 at page 44 lines 22–35. 39 (2014) 83 WIR 496 40 [1997] 1 All ER 706 41 Summati......
-
Tyrone Burke (Chief Personnel Officer) Appellant v Otto Sam Respondent
...Instrument No. 916 of 1979. 2 See: Endell Thomas v Attorney General of Trinidad and Tobago, [1982] AC 13. 3 (1893) 6 R. 67 at 70–71. 4 [2015] UKPC 7. 5 [1947] AC 484, 487–488. 6 [2014] UKSC 41 . 7 [2012] EWCA Civ 1230 . 8 Per: Sir John Laws in Graham v Police Service Commission and the At......
-
Burke (Chief Personnel Officer) v Sam
...criminal cases. It was addressed by the Privy Council in the context of a criminal matter in Director of Public Prosecutions v. Nelson. [ [2015] UKPC 7] At paragraphs 23 and 24, the Board endorsed the general principle that if a party proposes to invite a jury to disbelieve the evidence of......
-
Clifford Gibson v R
...behoves every trial judge to be very cautious about withdrawing the issue from the jury…” 18 In Director of Public Prosecutions v Nelson [2015] UKPC 7. In 2015, The Judicial Committee considered in an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court. Lord Hughes deliv......