Fox v the Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote,Lord Hoffmann |
| Judgment Date | 02 October 2001 |
| Neutral Citation | [2001] UKPC 41 |
| Court | Privy Council |
| Docket Number | Appeal No. 66 of 2000 |
| Date | 02 October 2001 |
[2001] UKPC 41
Present at the hearing:-
Lord Bingham of Cornhill
Lord Mackay of Clashfern
Lord Hoffmann
Lord Clyde
Lord Scott of Foscote
Privy Council
[Majority judgment delivered by Lord Hoffmann]
The appellant Mr Bertill Fox is a well-known citizen of Basseterre, St Christopher, a bodybuilding champion and former Mr Universe. He owns and operates a gym. On Friday 26 September 1997 he returned from a visit to England. During his absence he had left his keys to his house and gym with his fiancée Miss Leyoca Browne. She worked in a dress shop in Basseterre named Royalty Fashions, owned by her mother Violet Browne, who was known as Babs. On the day after his return, the appellant spoke on the telephone to a friend named Edmund Tross. He was a businessman, his girlfriend Julisca Wallace was an attendant at the gym and he himself helped the appellant run it. The appellant told Mr Tross that he had "caught Leyoca and a guy".
On the morning of Tuesday 30 September 1997 Amanda Matthews, who also worked in Royalty Fashions, noticed the appellant standing on the verandah outside the shop. Leyoca went out to meet him. There was a brief conversation and they came back inside, with Leyoca leading the way. At that point Babs emerged from the back. According to Amanda, she placed herself between the appellant and Leyoca and said: "Don't come in here with that". There was a scuffle followed by a scream and then a shot. At that point Amanda Matthews ran to the bathroom and locked herself in. She heard two more shots, waited a few minutes and then came out. Leyoca had been shot once in the back. Babs had been shot in the head and side. Both women died in hospital later that day.
After the shooting, the appellant went to Mr Tross's office. There he found Leon Isaac, Mr Tross's assistant. According to him, the appellant said that he had just shot two people and wanted to see Mr Tross. He was out but Isaac contacted him by telephone. When he returned to the office, the appellant was waiting. According to Mr Tross, the appellant greeted him by saying that he had "just shot Leyoca and Babs". He explained that he had found a paper which showed that Leyoca had received $1500 from someone and had gone to confront her about it. They had got into an argument and then Babs had got between them and tried to push him outside. He did not know what happened as he took out his gun and started shooting them.
Mr Tross said that they had better go to the police and the appellant agreed. They went together and saw the station officer, Inspector Baker. Mr Tross acted as spokesman. He said: "My friend here just told me he shot somebody". According to the Inspector, the appellant heard this and did not demur. He was charged with the murder of Leyoca and Babs.
At the trial, the defence was partly foreshadowed by questions put to Mr Tross and Mr Isaac in cross-examination suggesting that the appellant had told them that Leyoca and Babs had "got shot" but not that he had shot them. Both witnesses adhered to their original versions. The appellant did not give evidence but made an unsworn statement from the dock, as defendants in St Christopher were then allowed to do. He said that when he returned home from England, he found that the pouch in which, on home ground, he regularly carried a gun and bullets was missing. He decided that Leyoca must have taken it and on that Tuesday morning went to Royalty Fashions to retrieve it. Leyoca greeted him warmly and said that the pouch was in the shop. She had given it to her mother for safekeeping but would go and fetch it. As she went back into the shop to do so, Babs appeared in an angry mood, waving the gun and pouch in her hands. Leyoca placed herself between them, but Babs managed to give him a push over her daughter's shoulder, saying "Don't come in here with that". These were the words which Amanda Matthews had heard Babs say, but according to her evidence they had been addressed to the appellant. He, on the other hand, says that they were addressed to Leyoca and he took "that" to be a derogatory reference to himself. He wrestled with her for the gun which went off and shot Leyoca. After a further struggle it went off again and shot Babs. The appellant then panicked and ran away to Mr Tross's office. He told Isaac that Leyoca and Babs had "got shot". His head was spinning and he was in shock. When Mr Tross came, he told him also that "Leyoca and her mother just got shot".
The suggestion that the gun had been in the possession of Babs and Leyoca was entirely new and the prosecution obtained leave to call evidence after the close of the defence case to rebut it. Julisca Wallace said that she had seen the appellant at the gym with his gun on the previous evening. Mr Tross returned to the witness box to say that he had seen the appellant with his gun on the Saturday and the Monday.
The judge left two issues to the jury. The first was the question of whether the appellant had shot the two women at all. The judge described this as a defence of accident, but he explained that, unusually, the appellant was not saying that he had fired accidentally. His case was that Babs had accidentally shot first Leyoca and then herself in the course of the struggle for possession of the gun. The judge said that he appellant did not have to prove that his version was true. It was for the prosecution to make the jury feel sure that the two women met their deaths at the hands of the appellant and that he intended to kill them.
Secondly, he told the jury that if they considered that the appellant had fired the shots, they should consider whether he might have been acting in self-defence. He gave a detailed direction on the law of self-defence.
The jury convicted the appellant of both murders and the judge imposed the mandatory death penalty. His appeal to the Eastern Caribbean Court of Appeal was dismissed. He appeals to the Privy Council against both conviction and sentence. The appeal against sentence is on the ground that the mandatory death penalty is unconstitutional. There is a recent decision of the Eastern Caribbean Court of Appeal which has so held, but an appeal to the Privy Council in that and other cases is pending. In the circumstances it was agreed that this hearing should consider only the appeal against conviction.
Mr Fitzgerald QC, who appeared for the appellant, argued the appeal against conviction on three grounds. First, he said that the judge had misdirected the jury about the value of the unsworn statement from the dock. Secondly, there should have been a direction that the jury could convict of manslaughter on the ground of provocation. Thirdly, the direction on self-defence was inadequate.
Unsworn statement
The Criminal Evidence Act 1898, which first allowed the accused a general right to give evidence on oath in England, preserved by section 1(h) the right to make an unsworn statement. Similar provisions were afterwards enacted in many Commonwealth countries. The evidential status of such a statement has always been troublesome both for judges to explain and juries to understand. As a result, section 1(h) was repealed in England by the Criminal Justice Act 1982. In St Christopher and Nevis the right to make an unsworn statement was abolished after the trial in this case by The Law Reform (Miscellaneous Provisions) Act, 1998.
The classic explanation of the unsworn statement is that given by Lord Salmon in Director of Public Prosecutions v Walker [1974] 1 WLR 1090. The judge may tell the jury that they may consider that the statement is of less value than sworn evidence because the accused has chosen not to submit himself to cross-examination. But he must direct them that it is material in the case and that it is for them to decide what weight, if any, they will give to it.
The judge in this case told the jury that they must take the unsworn statement into consideration when determining whether or not the prosecution had discharged the onus of proof. He said that they should consider the statement in relation to the whole of the evidence in the case and that it was material which they could use. He pointed out that it had not been tested by cross-examination and said that it therefore had less cogency and weight than sworn testimony.
Thus far, the direction appears to their Lordships to have been entirely orthodox. But the judge then added:
"Such a statement cannot prove facts that have not been otherwise proven by evidence given on oath. But I should hasten to add here however….the accused does not have to prove anything."
This is the passage alleged to have been a misdirection. Their Lordships accept that its significance is not entirely clear. The jury is told that the unsworn statement cannot "prove facts" but that the appellant is not obliged to prove anything. Taken by itself, this might have left the jury rather puzzled. It was not so much a misdirection as an obscure one. But the judge then emphasised, throughout the remainder of the summing up, that the burden of proof was upon the prosecution. He put the contents of the statement to the jury: "the accused has asserted that the deaths of the two ladies were accidentally caused". He said that if the jury felt that the deaths might have been accidental, even if (contrary to the statement) the accident was that of the accused rather than Babs, they should acquit him. He ended this passage by saying "although it was the accused who has raised this matter he does not have to prove it. It is for the prosecution to make you feel sure this was no accident". He repeated this direction in various forms on a number of occasions during the remainder of the summing up. Their Lordships therefore consider that...
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