Paria v State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] UKPC 36 |
| Court | Privy Council |
| Docket Number | Appeal No. 42 of 2002 |
| Date | 15 April 2003 |
[2003] UKPC 36
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hutton
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
Privy Council
[Delivered by Lord Rodger of Earlsferry]
On 24 July 1998 in St Joseph the appellant repeatedly beat three women about the head with a piece of wood. Two of them died that day and the third died a month later. On 19 July 2000 at Port of Spain High Court, after a trial before Archie J and a jury, the appellant was convicted of the murders of the three women and sentenced to death. On 30 January 2001 the Court of Appeal dismissed his application for leave to appeal against his convictions and sentences. He now appeals to the Board, by special leave, against his convictions. He also appeals against the mandatory sentences of death imposed upon him on the ground that they infringe his constitutional rights.
The judgment of the Court of Appeal contains a helpful summary of the facts on which their Lordships base much of the following narrative.
Prior to the offences the appellant had been in a common law relationship with Asha Arjoon, by whom he had two children, a girl aged 4 and a boy of 18 months. The couple had lived together for some 6 years before eventually separating. In July 1998 Asha and the children were living with her mother, Sita Arjoon, while the appellant was living not far away with his father. On about 21 July there was a meeting between Asha and her parents, on the one side, and the appellant on the other, for the purpose of resolving the differences that had arisen between them. It appears that, although some of the issues were resolved, others were not.
The State does not dispute that at that time the appellant's father was suffering from cancer. According to the appellant, on the evening of 24 July he saw and spoke to his father at his mother's house. In his evidence as noted by the judge, the appellant said:
"He was not looking good at all. I knew he had cancer. I was depressed about that. As a result of the conversation with my father, I was going to arrange for the children to come and spend the night with me and my father. This was at my father's request. He was sick and he wanted to see them."
The appellant said that as a result of this conversation he went to the home of Sita Arjoon where the children were. He collected his daughter and took her to see his father. He then went back to drop off his daughter at Sita Arjoon's house and to say that he would call back later to take both the children to spend the night with him and his father.
When the appellant arrived, Sita Arjoon and her friend Susan Mahabir were sitting in a shed at the front of Sita's house. He asked Susan Mahabir where Asha was. It was Sita who replied to the question, however - saying that Asha was bathing at the back of the house. The appellant said that he had not been speaking to Sita because she had told him that she did not want him in her yard. There was then an unpleasant scene involving the appellant and Sita which, according to the witnesses, went on for the best part of an hour. Susan Mahabir and the appellant gave conflicting versions of what occurred.
According to the evidence given by Susan Mahabir, the appellant launched into a volley of abuse directed at Sita. Sita remained silent. The appellant then picked up a stone and threw it at Sita. He missed. She took up the same stone and threw it back at him. She also missed. Thereupon the appellant directed another obscenity at Sita, picked up a piece of wood about 4 feet long and 2 inches thick, which was lying nearby, and attacked Sita with it. He struck her on the head. She tried to run into the house but he pulled her back on to the step where he continued to rain blows on her head. In the meantime Asha had come out to the front of the house. When she remonstrated with him about what he was doing to her mother, the appellant attacked her with the same piece of wood and battered her about the head until she fell senseless to the ground. Her sister Anna then remonstrated with him about what he had done to her mother and sister. As she went towards the road, the appellant followed and battered her on the head until she in her turn lay unconscious on the ground.
The appellant's account in evidence was that Sita Arjoon had been the aggressor during the hour or so between his arrival at the house and his attack on her. It was Sita who abused him and his family. She taunted him with offensive remarks about his sexual practices and about his mother and sisters' promiscuity, as well as directing other insults at himself and his family. Asha intervened to say that, if he continued carrying on as he was, she would have to stop him from seeing the children. It was Sita who first threw a stone at him. She threw two or three stones: one hit him and another would have hit his son if the appellant had not blocked the stone with his hand. Eventually, after the appellant was hit, he totally lost control of himself. He seemed to be watching himself pick up the piece of wood and attack Sita and then the other two women successively. He tried to stop himself from doing it but he could not, even though he realised it was wrong.
It would appear that Sita died more or less instantly and Asha shortly afterwards. Anna was taken to hospital but died about a month later. According to the pathologist's reports, all three died from fractures of the skull and injuries to the head.
The issue of provocation
Although the appellant had a ground of appeal relating to self-defence, Mr Nicol QC did not advance it at the hearing. Instead, his first argument was that the judge misdirected the jury as to the objective test in provocation because he failed to tell them that they had to take into account the appellant's evidence that he was depressed due to his father's illness.
Section 4B of the Offences against the Person Act, the terms of which are in all material respects identical with those of section 3 of the English Homicide Act 1957, provides:
"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."
When an issue of provocation arises, the section requires the jury to consider two questions: first, whether the defendant was in fact provoked to lose his self-control (the subjective test) and, secondly, if so, whether the provocation was enough to make a reasonable man do as he did (the objective test). As the authorities stand at present, there is a conflict between two decisions as to how the second question should be approached, one a decision of the Board sitting as the court of final appeal from Hong Kong and the other a decision of the House of Lords.
In Luc Thiet Thuan v The Queen [1997] AC 131 the defendant suffered from brain damage which rendered him prone to respond to minor provocation by losing his self-control and acting explosively. The relevant terms of the Hong Kong legislation were again similar to section 3 of the Homicide Act. The majority of the Board held that the reasonable (or ordinary) man was a person who shared such of the individual characteristics of the defendant as the jury might consider would affect the gravity of the provocation to him but who had the power of self-control to be expected of an ordinary man, woman or young person, as the case might be. They also held that there was no basis upon which individual characteristics of the defendant other than age and sex, which had the effect of reducing his powers of self-control below that to be expected of an ordinary person, could be attributed to the ordinary person for the purposes of the objective test.
In R v Smith (Morgan) [2001] 1 AC 146 the House of Lords declined to follow the Board's decision in Luc Thiet Thuan. In Smith the defendant stabbed an old friend to death after an evening of drinking and recriminations. The defendant called medical evidence to show that he was suffering from clinical depression which could reduce his threshold for erupting into violence. The trial judge gave a direction to the jury which was in accordance with the decision in Luc Thiet Thuan (although it does not appear to have been cited to him). He told them that, if they considered that the accused might have been suffering from a depressive illness, they should decide whether a man suffering from such an illness, but with a reasonable man's powers of self-control, might have responded to the deceased's behaviour by stabbing him to death. The fact that the depressive illness might have reduced the defendant's own powers of self-control was "neither here nor there" and should not be taken into account. By a majority, the House of Lords held that this was a misdirection. All the particular characteristics of the defendant were to be taken into account in deciding both whether he was in fact provoked and whether the objective test was satisfied. So, in determining...
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