Hunter v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 08 October 2003 |
| Neutral Citation | [2003] UKPC 69 |
| Docket Number | Appeal No. 64 of 2002 |
| Court | Privy Council |
| Date | 08 October 2003 |
[2003] UKPC 69
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Clyde
Lord Hutton
Lord Millett
Privy Council
[Delivered by Lord Hope of Craighead]
This is an appeal by special leave from a decision of the Court of Appeal of Jamaica (Forte P, Bingham and Langrin JJA) on 25 October 2001 dismissing the appellants' appeals against their convictions for the capital murder of George Dewar before Smith J and a jury in the Home Circuit Court, Kingston on 22 March 2000. The second appellant, Marlon Moodie, was sentenced to death by Smith J. The first appellant, Andrew Hunter, was less than 18 years old at the time of the commission of the offence. He was sentenced by Smith J to be detained at Her Majesty's pleasure, but his sentence was varied by the Court of Appeal to one of life imprisonment with a recommendation that he not be considered for parole until he had served a period of 20 years.
At the end of the hearing their Lordships indicated that, for reasons to be given later, they would humbly advise Her Majesty that the appeals should be allowed, that the verdicts that the appellants were guilty of capital murder should be set aside, that there be substituted in each case a verdict of guilty of non-capital murder and that in the case of the second appellant a sentence of life imprisonment should also be substituted. They indicated that the cases of both appellants would be remitted to the Court of Appeal to enable that court to fix the period of imprisonment which the second appellant must serve in custody and to reconsider the period of 20 years which was fixed in the case of the first appellant. The following are the reasons which their Lordships now give for their decision.
Capital murder
The classification of the appellants' offences as capital murder was based on the provisions of section 2 of the Offences against the Person Act 1864 ("the principal Act"), as amended by section 2 of the Offences against the Person (Amendment) Act 1992, by which murder in Jamaica is categorised as either capital or non-capital murder. Section 2(1) of the principal Act, as amended, specifies the categories of capital murder, amongst which there has been included the murder of a member of the security forces acting in the execution of his duties or of a person assisting a member so acting. This is provided for in section 2(1)(a)(i) of the Act. Section 2(5)(a) includes in the definition of the expression "member of the security forces" for the purposes of that section a member of the Jamaica Constabulary Force. George Dewar ("the deceased") was an acting corporal in the Jamaica Constabulary Force, and he was acting in the execution of his duties in that capacity at the time of his murder.
In this case, as the Crown sought to prove that each of the appellants was guilty of capital murder, the provisions of section 2(2) of the Principal Act, as amended, are also relevant. This subsection provides:
"If, in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are guilty of that murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used violence on that person in the course or furtherance of an attack on that person; but the murder shall not be capital murder in the case of any other of the persons guilty of it."
The effect of section 2(2) may be summarised in this way: see Daley v The Queen [1998] 1 WLR 494, 501A-B. Where two or more persons are found guilty of any of the categories of murder referred to in subsection (1) – except that referred to in paragraph (e), which refers to murder committed pursuant to an arrangement whereby money passes as consideration for causing or assisting in causing a person's death – one or other of three additional tests must be satisfied before any of them can be found guilty of capital murder. These are (1) that the person by his own act caused the death of the person murdered; (2) that the person inflicted or attempted to inflict grievous bodily harm on the person murdered; and (3) that the person himself used violence on the person murdered in the course or furtherance of an attack on that person.
As the Board explained in Daley at p 501F-G, the purpose of subsection (2) is to limit the imposition of capital punishment. Its context is the case where two or more persons are guilty of the same murder, either because of their own act or on the principle of concert or joint enterprise. It seeks to separate out those whose participation in the murder was on the principle of joint enterprise from those who must answer for their own acts by the imposition of the death penalty. The first two tests are concerned with the person's direct use of violence on the victim – in the one case causing the death by his own act, in the other by inflicting or attempting to inflict on him grievous bodily harm. The third test also indicates that some form of violence directed at the victim is required. Merely to be acting in the course of or furtherance of an attack is not enough.
Accordingly, if two men armed with guns are acting in concert and one of them shoots at a member of the security forces acting in the execution of his duties and his shot kills him, that gunman is guilty of capital murder. If the second gunman shoots at the victim but his aim fails and his shot does not strike him, he too is guilty of capital murder. This is because he by his own act attempted to inflict grievous bodily harm on the person who has been murdered. But if the second gunman did not fire any shot at the victim or use any other kind of violence on him in the course or furtherance of the attack, he would not be guilty of capital murder. He too would be guilty of murder if he was found to have been acting in concert with the first gunman. But he would be guilty in that event of non-capital murder only, and not capital murder. It follows that if two gunmen acting in concert confront a member of the security forces, if only one of the two fires at him and no other violence is used on the victim, and if the Crown cannot prove which of them was (to put it in colloquial terms) "the triggerman", neither of the two gunmen can be convicted of capital murder.
The Board took the opportunity in Daley at p 502C-D to stress that it is necessary for the trial judge in a case where two or more persons are accused of capital murder, except that of the kind mentioned in paragraph (e) of section 1(1), to give a direction about the application to the case of section 2(2). The advice which the Board gave may be restated, for the purposes of this case, in this way. It is not enough for the judge to give directions to the jury about the law of joint enterprise and as to whether the murder was committed in the circumstances which make it capital murder as set out in subsection (1). The jury must, of course, be invited in a case of that kind to reach a separate verdict for each defendant on the question whether he is guilty of murder. But it must also be made clear to the jury that a separate verdict is required against each defendant as to whether the murder which he committed was capital murder as defined by the statute.
The facts
The Crown case was largely based on the evidence of two members of the Jamaica Constabulary Force, Constables Phillip Mitchell and Orlando Milton, who were on mobile patrol with the deceased and one other police officer in the Dunkirk area of Kingston on 5 November 1998. The four officers were in an unmarked service vehicle at about 2.30 pm. They were travelling slowly along Wild Street. They were dressed in plain clothes, but they were wearing vests which were marked "police". Each was armed with a 9mm semi-automatic pistol. Constables Mitchell and Milton said that in the course of their patrol they saw the appellants, who were both known to them, standing on the left side of the road in front of a shop. One of them looked into the shop and as he did so two other men, whom the Constables also recognised by their street names as Stammer and Foreigner, ran from the shop and joined the appellants. All four men then pulled guns from their waists and opened fire on the police vehicle.
The police officers alighted from their vehicle and returned the fire, whereupon the four men ran off into nearby premises in Wild Street. Three of the police officers gave chase while the fourth returned to the police vehicle. Constables Mitchell and Milton went onto William Street, and the deceased made his way down Shoe Lane. The appellants were observed trying to exit from premises on to William Street. But, on seeing Constables Mitchell and Milton coming down that street, they pulled back into the premises. They were seen again as they were coming from premises on to Shoe Lane. Constables Mitchell and Milton were now at the mouth of Shoe Lane where it joins William Street. The deceased was moving down Shoe Lane towards William Street and was only about 6 feet away from the appellants as they emerged from the premises. Constables Mitchell and Milton were about 24 feet away from the appellants and on the other side of them.
Constable Mitchell described what happened next. He said that he could see the entire bodies of the appellants when they came out of the premises. They had guns in their hands. They pointed the guns in the deceased's direction and opened fire. He heard loud explosions and saw the deceased fall to the ground. He said that the other two men then emerged from the same premises and that they and the appellants pointed their guns...
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