Richard Anthony Daniel v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 13 February 2014 |
| Neutral Citation | [2014] UKPC 3 |
| Date | 13 February 2014 |
| Docket Number | Appeal No 0048 of 2012 |
| Court | Privy Council |
[2014] UKPC 3
Lord Kerr
Lord Reed
Lord Hughes
Lord Toulson
Lord Hodge
Appeal No 0048 of 2012
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Tim Owen QC
Raj Desai
(Instructed by Simons Muirhead and Burton)
Respondent
Peter Knox QC
Tom Poole
(Instructed by Charles Russell LLP)
Heard on 13 and 14 November 2013
The appellant was convicted of murder. Provocation was not canvassed before the jury in his trial. Nor was the trial judge invited on his behalf to leave the issue of provocation to the jury and she did not do so. He appealed on the grounds that provocation ought nevertheless to have been left to the jury. The Court of Appeal upheld his conviction, holding that provocation was not available to him either (i) because he had himself induced the provocative behaviour and/or (ii) because this was a killing made murder by the "felony/murder" rule of constructive malice which applies in Trinidad and Tobago, in which provocation was held to have no place.
The State case against the appellant was that he had embarked upon a robbery at gunpoint, intending to make off with the victim's car, and had shot his victim dead. The evidence fell into three parts. There was eye-witness evidence of the robber confronting the deceased and demanding the car keys. The eye-witnesses described next hearing two gunshots and, on looking back, seeing the robber standing over the deceased. Then there were two more gunshots. The second part of the evidence identified the appellant as the robber. It did not come from the eye-witnesses but from a woman who saw a man of the description given by the eye-witnesses escaping in a taxi, and who identified the appellant at a parade. The third part of the evidence was of oral and written statements under caution made by the appellant when arrested the next day. In those statements he admitted that he had been sent to rob the deceased, and had been provided with a gun for the purpose. He said that when he asked for the car keys, the deceased had thrown a beer bottle at him and hit him in the face, causing a cut under one eye. The gun had fallen out of his hand, he said, and there had ensued a struggle for it between the two men. During this the deceased had kicked him in the groin. And, said the appellant, "I end up firing two shots with the gun and the man let go my hand." Similarly, the appellant told the police in interview "I really didn't go to shoot the man but he tried to take away the gun." A cut under the appellant's eye was seen on arrest. The deceased had three gunshot wounds, one to his lower leg and two to the abdomen. If there had been a fourth shot, it had missed.
At his trial the appellant repudiated the statements under caution. He did not give evidence, but his case as advanced through cross examination and argument was that he had not been present and that the confessions had been improperly extracted from him by the police, who had also caused the cut under his eye.
For many years prior to 1979 the law of murder in Trinidad and Tobago had followed the pre-1957 law of England and Wales. This meant that murder could be committed by (a) killing with an intention to kill, (b) killing with an intention to cause grievous bodily harm ( R v Vickers [1957] 2 QB 664) or (c) killing in the course or furtherance of a violent felony ( Director of Public Prosecutions v Beard [1920] AC 479, 493). The first two forms of intent are conveniently described as "murderous intent". The last form of murder was known as "constructive malice".
For England and Wales, the Homicide Act 1957 ("the 1957 Act") abolished the rule of constructive malice. Secondly, it introduced the new concept of diminished responsibility as a partial defence. Thirdly, it altered the substantive common law of provocation to provide that words alone were capable of constituting provocative behaviour. In relation to provocation, the 1957 Act made its changes via section 3, which modified the existing common law rather than providing a definition of provocation ab initio. Section 3 has since been superseded in England and Wales by the Coroners and Justice Act 2009, but, as will be seen, a section in identical terms continues to apply in Trinidad and Tobago.
None of these changes made by the 1957 Act for England and Wales applied at that stage to Trinidad and Tobago. Accordingly the rule of constructive malice continued to apply there.
The classification of offences into felonies and misdemeanours was abolished in England and Wales in 1967 by the Criminal Law Act of that year. The same classification was likewise abolished in Trinidad and Tobago by the Law Revision ( Miscellaneous Amendments) (No 1) Act 1979 and the Criminal Law Act 1979, it would seem without anyone appreciating that a side effect of so doing was to remove the baseline for the rule of constructive malice.
Next, Trinidad adopted the changes made in England by the Homicide Act 1957 except for the abolition of the rule of constructive malice. The Offences against the Person Act 1985 amended the earlier Offences against the Person Act 1925 (i) by inserting a new section 4A which introduced the concept of diminished responsibility, in terms essentially identical to those of the English Homicide Act 1957, section 2, and (ii) by inserting, for provocation, a new section 4B which was in identical terms to section 3 of the English statute. That section provides:
"4B. 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."
In Moses v The State [1997] AC 53, the Board drew attention to the previously unnoticed fact that the abolition of the classification of offences into felonies and misdemeanours had removed the necessary baseline for murder based on constructive malice. Within a year the legislature of Trinidad and Tobago had re-introduced the rule, by means of a new section 2A inserted into the Criminal Law Act 1979 by the Criminal Law (Amendment) Act 1997:
"2A. (1) Where a person embarks upon the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of that offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of the commission 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.
(2) For the purpose of subsection (1), a killing done in the course or for the purpose of -
(a) resisting a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(b) resisting or avoiding or preventing a lawful arrest; or
(c) effecting or assisting an escape or rescue from legal custody,
shall be treated as a killing in the course or furtherance of an arrestable offence involving violence.
(3) In subsection (2), 'member of the security forces' means a member of-
(a) the Police Service;
(b) the Prison Service;
(c) the Fire Service;
(d) the Defence Force;
(e) the Supplemental Police established under the Supplemental Police Act."
It follows that in Trinidad and Tobago the law of murder is now in the form it had in England and Wales prior to the changes made by the Coroners and Justice Act 2009, save for the retention of a form of constructive malice, as newly expressed in section 2A, viz murder committed in the course or furtherance of a violent arrestable offence as there defined.
It is trite law that at common law provocation has for decades involved a two stage enquiry. First, may the accused have killed when he had lost control of himself as a result of provocative behaviour by someone else? That is an enquiry about this accused on this occasion; it is sometimes described as a subjective enquiry. Second, if yes, might a reasonable person possessed of the ordinary powers of self-control to be expected of someone of his age and sex have reacted to the provocation as the accused did? This is an objective test for the jury and is the means by which the partial defence is limited to those for whose actions there is a limited, but reasonable, excuse. In the past difficult questions have arisen over the qualities to be attributed to the hypothetical reasonable person; those do not arise in this case and are in any event largely answered by the decision of the Board in Attorney General for Jersey v Holley [2005] 2 AC 580. In some parts of the common law world, codification of the criminal law has significantly modified one or other of the two core elements of provocation, which fact may need to be remembered when one is considering decisions from other jurisdictions, but for the present the conventional two-stage enquiry is the one with which the Board is concerned.
The defence case was that the appellant was not the man responsible for the shooting, and the State case was that this was murder in the course or furtherance of robbery at gun point. At the conclusion of the evidence, the State nevertheless submitted that the judge ought to leave the case to the jury on the alternative bases of (i) shooting with murderous intent or (ii) killing in the course or furtherance of a violent...
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