Franco v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 14 August 2001 |
| Neutral Citation | [2001] UKPC 38 |
| Court | Privy Council |
| Date | 14 August 2001 |
| Docket Number | Appeal No. 70 of 2000 |
[2001] UKPC 38
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Mackay of Clashfern
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Clyde
[Delivered by Lord Bingham of Cornhill]
On the evening of 12 October 1995 Ishmael Zorella (also known as Noel and Gago) was fatally stabbed at Bruce's Nightclub, Hatton, Antigua. The appellant was charged with his murder and following a trial before Benjamin J and a jury was convicted on 17 February 1997 and sentenced to death. At trial the appellant contended that he had struck the fatal blows in the course of defending himself, a defence which the jury rejected. No defence of provocation was advanced at the trial, and no direction on provocation given to the jury. On appeal to the Eastern Caribbean Court of Appeal (Byron CJ (acting), Singh and Redhead JJA) it was accepted by the Director of Public Prosecutions that on the evidence of the appellant an issue of provocation had been raised and ought to have been left for the jury's consideration, even though the defence had not been raised by the appellant. But the Court of Appeal concluded that the jury, if properly directed on provocation, would inevitably have convicted the appellant: it accordingly applied the proviso to section 39(1) of the West Indies Associated States Supreme Court Act 1969 and dismissed the appeal because it considered that no miscarriage of justice had actually occurred. The central issue in this appeal, brought by special leave of the Board, is whether the proviso was properly applied in the circumstances of this case.
The facts
Lisa Cabral had three children. The deceased was the father of two of them. The appellant was the father of the third and youngest. He lived with her, and was at her house on the evening of (it seems) 3 October 1995 when the deceased called at the house and pushed his way in, armed with a knife. A violent scene followed during which the deceased threatened Lisa and cut the appellant with the knife and threatened (according to the appellant) "to kill the both of us anywhere he met us". The scene only ended when Carlos Gomes, a friend of the deceased, entered the house, took away the knife and dragged the deceased, still threatening violence against the appellant and Lisa, out of the house. The appellant and Lisa made written statements to the police concerning this violent attack, but there is no evidence that any action was taken.
Four witnesses testified to the course of events at Bruce's Nightclub on 12 October when the deceased was killed. Of these witnesses, Gomes and the appellant were much the most significant. Gomes gave evidence that on that evening he and the deceased together went by car to the nightclub, of which they were regular patrons. The deceased got out of the car. Gomes parked it. As he did so he heard a rushing sound from the area of some rubbish drums at the entrance to the nightclub. He then saw the appellant "running" the deceased with a cutlass. The appellant chased the deceased into the nightclub, Gomes following a little behind, until the deceased, over his shoulder, sprayed some mace at the appellant. This is a substance with the effect of tear gas. Gomes got some of this in his face and went back to his car. After a time he again saw the appellant, with a cutlass, chasing the deceased. The appellant was waving and swinging the cutlass. Gomes stood between the two of them. The deceased ran away from behind Gomes and the appellant pursued him, followed by Gomes and another man not called to testify. The appellant "fired a chop" at the deceased with the cutlass, which fell to the ground. As the chase continued the deceased told Gomes "Watch it, he have a knife also". The deceased then fell face down in the road outside the nightclub, whereupon the appellant jumped on top of him and stabbed him three times in the back with a black-handled knife later admitted by the appellant to be his. The appellant was unable to pull out the knife after the third stab and left, leaving the knife lodged in the backbone of the deceased. The deceased had a long cut across the back of his head caused, according to Gomes, by the cutlass. The appellant left on a bicycle but was intercepted after a struggle and taken to a police station. According to Gomes, the deceased did nothing on that evening to interfere with the appellant. Gomes thus painted a picture of unprovoked aggression by the appellant, armed with a cutlass and a knife, against the deceased.
Malcolm Isaac was an employee of the nightclub. On the evening of 12 October he heard shouting and felt his eyes and nose burning. He doused his face in water. He then saw a short man whom he did not know but identified as the appellant chasing the deceased, whom he did know. He got between the two of them and tried to keep them apart. He said "The short one fire something like that. I don't know what he had in his hand. [Witness demonstrates stabbing motion with his right hand.] I moved away". The deceased ran into the yard, the appellant following, and the deceased fell face down. The appellant stabbed the deceased three times in the back, and left on a bicycle.
Another witness, Adolphus Espinal, worked at the nightclub and was also there in the evening of 12 October talking to a woman. He saw the deceased and Gomes at the nightclub, also talking to a woman. Later he was called outside and saw the deceased lying in the road.
After his arrest the appellant made a statement in his native Spanish which was translated into English. In this he described the incident of 3 October in some detail. He also said that on the evening of 12 October he went to Bruce's Nightclub by bicycle. He was on the veranda and did not see the deceased. Then the deceased came and said "You don't remember what I told you" and sprayed him in the eyes. He shouted. Soon after he ran out and tried to get his bicycle but the deceased "came at the back of me and tried to cut me". He held the deceased to defend himself and they both fell on the ground and the appellant began to fight to defend himself. The deceased had something in his hand. The appellant ran away and the deceased came back and held on to him. The appellant then pulled out a knife to try and defend himself because he could not see properly. "I began to send stabs at him with the knife in one hand and my other hand was over my eyes". After a while he did not feel the knife in his hands and went to look for his bicycle.
The appellant gave sworn evidence at the trial. He arrived at the nightclub on 12 October. He was touched on the back and then a man pushed him and sprayed him. He recognised the man as his assailant of the week before. It was the deceased, who attacked him. The appellant tried to hold the hands of the deceased but could not see because of the spray. The deceased kept on attacking. The appellant tried to hold him but was cut on the hand. The appellant did not know what happened after. The deceased had a piece of iron in his hand which the appellant tried to take away. He was wounded on his hand and fingers. The appellant then took a knife from the deceased and began to slash to see if the deceased would let him go. The appellant tried to hold the deceased with one hand and slashed with the other. The appellant then felt the knife get stuck and the deceased fell. The appellant left to fetch his bicycle to go and tell the police he had been attacked again. In cross-examination the appellant admitted taking the knife to the nightclub, but denied taking a cutlass or chasing the deceased with a cutlass or at all, denied "firing chops" at the deceased and denied injuring the back of the deceased's head with a cutlass. He repeated that the deceased had had a piece of iron, although he had not mentioned this to the police.
There was police evidence of the injuries to the deceased. These were: a very long and deep wound to the back of the head; a deep wound on the left hand; a wound under the right arm which had torn part of the armpit; two wounds, which appeared to be stab wounds, to the left breast; two wounds to the lower portion of the back, in one of which the knife was still lodged. Death was said by the pathologist who had performed a post mortem examination on the deceased to have been due to laceration to and through both lungs and heart.
There was also police evidence of injury to the appellant on 12 October immediately after this incident. He had a bleeding wound on the right index finger and another on the left small finger. He also had a small abrasion to the left hand. There was evidence of other recently sutured wounds.
The evidence before the court was plainly unsatisfactory. Gomes left the scene of the violence for a period of unknown length and saw no wounds inflicted to the chest of the deceased. Isaac did not see the start of the incident and saw no injuries inflicted on the deceased other than those to his back when he was lying flat on the ground. Espinal described a meeting between the deceased and Gomes and a woman which cannot readily be reconciled with the evidence of Gomes, and he neither saw the appellant (of whom he was a friend) nor any violence of any kind. The accounts given by the appellant in his statement and in evidence were not fully consistent, provided no explanation of the wound to the back of the deceased's head and provided no explanation of a blood-stained cutlass found some 37 feet from the entrance to the nightclub. The medical evidence did not identify the laceration or lacerations to the lung and heart which caused the death of the deceased, although counsel appearing before the Board were agreed that it must have been one or other or both of the wounds to the front of the deceased's...
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