Judicial Committee of the Privy Council
| Date | 01 August 1995 |
| Published date | 01 August 1995 |
| Author | J A Coutts |
| DOI | 10.1177/002201839505900305 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
EFFECf
OF COUNSEL'S FAILURE TO
FULFIL
HIS DUTY
Sankar vState
of
Trinidad and Tobago
The appellant in this case-{1995] I WLR
l04-was
convicted of murder
and sentenced to death. He appealed to the Court of Appeal on the grounds
(l)
that the hostile exchanges between his counsel and the judge led to
misdirection of the jury by the judge, and (2) that, in particular,
it
led to the
judge's failure to leave to the jury the defences of provocation, self-defence
and accident. The Court of Appeal concluded that there was no evidencein
support of any of these defences; and the court added that, if they had found
in favour of the defendant's argument, they would have upheld the
conviction by applying the proviso. On appeal to the Privy Council, the
Board came to the same conclusion as to the lack of any evidence in support
of any of those defences. Lord Woolf pointed out that the Court of Appeal
had accepted as good law and practice the statement made by Lord
Goddard CJ in RvClewer (1953) 37 Cr App R 37 that an allegation of
misconduct on the part of the judge leading to the possibility that there was
not a fair trial would inevitably lead to interference on the part of the Court
of Appeal. But in this case, it was not suggested that the altercation between
the judge and counsel was in any way the fault of the judge and the
appellant's argument was not based on such an allegation.
It
was based
upon what was alleged to be the factual consequence of the fact that there
had been hostile exchanges between the two. Indeed, it was not until the
matter came before the Privy Council that it was suggested that that fact
was the real reason for saying that the defendant had not had a fair trial.
The advocate's 'undignified and unbecoming' actions had led to his being
the subject of contempt proceedings, in which he pleaded guilty. Before the
Board, it was said that his actions at the trial had deprived the defendant of
the opportunity of giving evidence, in a case in which his only chance
of escaping conviction was by his giving evidence. According to the practice
of the Privy Council, it could be said to be exceptional that an argument
could be advanced for the first time at this late stage and even more
exceptional that the Board should permit that argument to be supported by
affidavit evidence. But the Board permitted both of these 'highly unusual'
steps, as Lord Woolf termed them, to be taken.
In the event, it was this argument which was definitive in determining the
appeal, for the Board held that, although it held that an appellate tribunal
might quash a conviction on the ground that the accused had been deprived
of a fair trial, even where it was his own advocate who was responsible for
that state
of
affairs, the hostile exchanges which had taken place on this
occasion had not had the effect of preventing a fair trial. The appellant's
case was that his advocate had prevented him from giving evidence and had
then himself done no more than put the prosecution to its proofof his guilt.
283
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