Kizza Sealey and Another v The State

[Majority judgment delivered by Lord Hutton]

At the Port of Spain Assizes the two appellants were charged with the murder of Don Christopher Prescott on 25 January 1999. They were each found guilty by the jury on 29 February 2000 and were sentenced to death. They appealed against their convictions to the Court of Appeal and by a judgment delivered on 20 March 2001 the Court of Appeal dismissed their appeals. The appellants now appeal by special leave to the Board.

The prosecution case at the trial was that at about 9.00 am on 25th January 1999 James Chen was walking in Independence Square in Port of Spain carrying a bag which contained about TT$2,000 in cash which he was intending to lodge in a bank. The deceased, Don Prescott, was accompanying him as a bodyguard. Two men armed with knives, who the prosecution alleged were the appellants, approached Mr Chen and Mr Prescott and one demanded that Mr Chen hand over the bag. Mr Prescott placed himself between Mr Chen and the two men. Mr Chen handed the bag over but kept hold of the strap and attempted to pull the bag back. One of the two men stabbed Mr Prescott in the chest and Mr Chen was also stabbed by both men who then ran off without the bag of cash. Mr Prescott and Mr Chen were both taken to hospital. Mr Prescott died from the knife wound which he had sustained about two hours after his arrival at hospital and Mr Chen recovered.

The two appellants took part in an identification parade on 2 February 1999 at which Mr Chen did not identify either of them.

The principal prosecution witnesses at the trial were Mr Chen and Police Corporal Roland Holder. Mr Chen gave evidence of the stabbing attack on him and Mr Prescott by the two men. The evidence of Corporal Roland Holder can be summarised as follows. He was a police officer who had been in the police force for 31 years. At about 9.00 am on 25 January 1999 he was driving in plain clothes in an unmarked car along Independence Square in a heavy flow of traffic and was moving at a very slow speed (he put his speed at two to three miles an hour in cross-examination). As he drove along he noticed about four car lengths away from him a group of four men making movements on the pavement at his side of the road. They were about an arm's length away from each other.

At first he could not recognise any of the men, but when he was about two car lengths away, or about 12 feet, he recognised two of them. He said that he had known them since they were little boys. One of them was the appellant, Kizza Sealey, and the other was the appellant, Marvin Headley. They both lived in the same neighbourhood as he did and he saw them almost every day and he had seen them earlier that same morning. He saw that all four men were gesturing with their hands and feet.

There was a sounding of car horns and Headley looked towards his car and said "officer" when he (Holder) was about three to five feet away from Headley. His car windows were down so he could hear him. Sealey and Headley then ran off along Independence Square, going back in the direction from which Holder had seen them coming, passing about two to three feet to the left of his car. When he reached the spot where the other two men were, he saw bloodstains on their upper clothes. After staying there for about a minute or two, he drove off round the block in search of Sealey and Headley, but he could not find them. After that he went to Besson Street Police Station where he spoke to Constable Duncan.

Among the other prosecution witnesses were Constable Ryan Duncan and Sergeant John Martinez. Constable Duncan said that on 25 January 1999 he was attached to the Besson Street Police Station and on that day Corporal Holder came to the station and had a conversation with him. Subsequent to his conversation with Corporal Holder he had a conversation with Sergeant Martinez.

Sergeant Martinez said that on 25 January 1999 around 10.00 am he went to the casualty department of the Port of Spain General Hospital where James Chen "made a report to me". He returned to the Besson Street Police Station around 4.00 pm and had a conversation with Constable Duncan. He then went to another police post where he spoke to Corporal Holder. In reply to the question in cross-examination whether, at any time after 10.00 am, he had a conversation with the parents of either of the appellants, he replied that he spoke to the parents.

Each of the appellants gave evidence on oath in the witness box. The first appellant, Sealey, said that on the morning of 25 January 1999 he had not been in Independence Square, Port of Spain. At that time he was at his family home at 2 Cajuca Street, Morvant, with his uncle, Steve Sealey, and his grandmother. He had been staying there since 20 January 1999 and he returned to Port of Spain on 2 February 1999 having been contacted by his mother. He visited the family home in Morvant about once a month. In cross-examination he said that in January 1999 he was unemployed and used to "lime" on a bench in Beverly Hills with Marvin Headley and others. The bench was on the same street as his home in Port of Spain. He agreed that he knew Corporal Holder and that he lived next door to him.

Steve Sealey said that he lived at 2A Cajuca Street, Morvant, with his wife, his two children, his mother and two other brothers. The first appellant was his nephew and would visit him in Morvant every month. He said that the first appellant had come to stay with him in Morvant about 20 January 1999 and that he stayed for about a week and a few days. He saw him every day. On 25 January 1999 he left the house at about 10.50 am to get some car parts and the first appellant had been at the house before he left and when he came back after lunch.

The second appellant Marvin Headley said that he was not in Independence Square about 9.00 am on 25 January. On that day he was staying with his godbrother, Dale Goodridge, in St Michael Road, St Augustine. In cross-examination he agreed that he had known Corporal Holder since he was a little boy. He agreed that Kizza Sealey was a friend of his and that he used to "lime" on a bench in Beverly Hills.

Dale Goodridge said that he lived in St Michael Road, St Augustine. Marvin Headley was his godbrother. Marvin Headley would come to visit him sometimes once a month, sometimes twice a month. He came to visit him on 22 January and stayed with him until 1 February.

In the course of the prosecution case the trial judge, Volney J, asked counsel for the prosecution whether there was evidence which he could leave to the jury as to which of the attackers struck the blow with a knife which caused the death of Mr Prescott, and counsel replied that there was no such evidence. Accordingly the judge directed the jury that they should convict both appellants of murder if they were satisfied that both of them took part in an unlawful joint enterprise in the course of the execution of which violence or force was used and as a consequence someone was killed. The judge gave this direction pursuant to section 2A of the Criminal Law (Amendment) Act 1997 which provides:

"Where a person embarks on the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of the offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of that arrestable offence (or any other arrestable offence involving violence) are liable to be convicted of murder, even if the killing was done without intent to kill or to cause grievous bodily harm."

This section was enacted to restore, in effect, the felony/murder rule which the Board in Moses v. The State[1997] AC 53 declared had ceased to apply in Trinidad and Tobago when the distinction between felony and misdemeanour was abolished by section 2(1)(a) of, and Schedule 1 to, the Law Revision ( Miscellaneous Amendments) (No. 1) Act 1979.

The first ground of appeal advanced to the Board (which had not been advanced in the Court of Appeal) was that the judge's charge in reliance on section 2A of the Criminal Law (Amendment) Act 1997 was defective because 2A was void by reason of being inconsistent with the Constitution because it deprived the appellants of the "due process of law" and of the "protection of the law" given by section 4(a) and (b) of the Constitution.

The appellants also appealed against the mandatory death sentences imposed upon them on the ground that the mandatory death sentence for murder in Trinidad and Tobago was unconstitutional for the reasons given in the judgment of the Board in the appeals from the Eastern Caribbean Court of Appeal in Reyes v The Queen[2002] 2 WLR 1034 and R v Hughes[2002] 2 AC 259. The Court of Appeal of Trinidad and Tobago has reserved its judgment on this point in the appeal heard by it in Roodal v The State. It appeared to their Lordships that the outcome of the argument on the first ground of appeal that section 2A of the Criminal Law Act 1997 was void as being unconstitutional might depend to some extent on the outcome of the argument that the mandatory sentence of death for murder was unconstitutional. Therefore, with the agreement of counsel for the appellants and for the State, their Lordships adjourned consideration of the first ground of appeal until after the Court of Appeal had given judgment on the issue of the constitutionality of the mandatory death sentence. Accordingly their Lordships turn to consider the other grounds of appeal advanced by the appellants against their...