Spence v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Sir Patrick Russell |
| Judgment Date | 16 July 2001 |
| Neutral Citation | [2001] UKPC 35 |
| Docket Number | Appeal No. 47 of 2000 |
| Court | Privy Council |
| Date | 16 July 2001 |
[2001] UKPC 35
Privy Council
Present at the hearing:-
Lord Hoffmann
Sir Patrick Russell
Sir Christopher Staughton
Sir Andrew Leggatt
Sir Philip Otton
[Delivered by Sir Patrick Russell]
The appellant, Newton Spence, was first convicted of the murder of John Edwards in the High Court of St Vincent and the Grenadines on 26th October 1995. The conviction was quashed on appeal but, after a retrial, the appellant was again convicted of the murder on 11th November 1998. An appeal against that conviction was dismissed on 13th September 1999 by the Eastern Caribbean Court of Appeal (St Vincent and the Grenadines). Special leave to appeal to the Privy Council against both conviction and sentence was granted on 19th April 2000. The matter of sentence was remitted for consideration by the Eastern Caribbean Court of Appeal. The present appeal is concerned only with conviction.
Three grounds of appeal were argued before their Lordships namely: (a) the alleged invalidity of the jury's verdict after the trial judge had discharged one of their number during the course of the hearing; (b) the alleged failure of the judge properly to investigate a communication which had been made to another juror during the hearing; and (c) misdirections in the summing up relating to the issue of causation of the death of the victim.
The facts, in summary form, can be shortly stated. On 15th January 1995 the appellant was operating a taxi service, using his van. The victim was picked up at Langley Park in Georgetown. The taxi stopped at Georgetown Police Station where, after the appellant had been engaged in conversation with a police officer, the victim alighted from the taxi and walked away without paying his fare. The appellant told the police officer that he was going to get the fare from John Edwards and followed him. Witnesses spoke of hearing a gun shot, and one witness saw the appellant shoot the victim with a short handgun. Another police officer, who had been a passenger in the taxi, stayed with the appellant before he was taken to the police station. The victim was taken to the Georgetown Health Centre and later to the Kingstown General Hospital. There he was treated and underwent an operation in the form of a tracheostomy, but he died, it being common ground that he had suffered a gun shot wound when a bullet had penetrated and passed through the neck. The surgeon who carried out the tracheostomy was strongly criticised by another surgeon called by the defence. More of that later.
The appellant made two statements to the police to which no objection was taken. He alleged that the victim had struck him with a stone and attempted to strike him again with another stone. The appellant had then pulled his gun from its holster and fired a shot. In his evidence at trial the appellant swore that the gun had gone off accidentally and that he had not deliberately aimed or discharged the gun. He had pulled out the gun in an effort to defend himself and frighten the deceased.
It will be convenient if their Lordships dispose first of the attack upon the summing up. As earlier observed the defence called a consultant surgeon who had had access to the hospital notes. Inter alia he expressed the view that the vertical tracheal incision had been too large and that a transverse skin incision should have been employed. He expressed serious reservations as to the desirability of a tracheostomy or its necessity and in response to the judge he said that the medical treatment had contributed to the death. He conceded however that the original wound in terms of causation expressed as a percentage was 35% to 40%.
The attention of their Lordships was drawn to the provisions of the Criminal Code (Chapter 124 Laws of St Vincent and the Grenadines 1990 Revision). Section 168 provides that:
"A person shall be deemed to have caused the death of another person, although his act is not the immediate or not the sole cause of death, in any of the following cases -
(a) if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes his death. In this case it is immaterial whether the treatment is mistaken if it was employed in good faith with common knowledge and skill, but the person inflicting the injury shall not be deemed to have caused the death if the treatment which was the immediate cause of the death was not employed in good faith or was so employed without common knowledge or skill."
There are other sub-paragraphs of section 168 which have no bearing on the instant case.
The judge was not referred to section 168 and in the view of their Lordships with good reason. No one suggested in evidence that the immediate cause of death was the medical treatment, negligent or otherwise. The high-water mark of the defence medical evidence was that the medical treatment was the substantial cause of death. But at all times up to the moment of death the original infliction of the serious neck wound remained what the jury were entitled to regard as an immediate cause of death.
The judge's summing up on the issue of causation was, in their Lordships' view, impeccable. It is unnecessary to rehearse every relevant passage. Two will suffice. The judge said:
"As I said to you the prosecution must convince you, make you feel sure, that the wound was operating up to the time of death as a substantial cause of such death. No matter that something else, for example medical bad treatment or abnormally bad treatment may be operating. The wound or injury does not have to be the only cause of death."
Having reviewed the evidence the judge said later:
"Members of the jury, if having considered the evidence you are sure that the wounds in terms of percentage did contribute in terms of 35 to 40 per cent, you may quite properly conclude that was a cause of death. But you must be sure if the wounds were operating up to the time of death as a cause and remain up to the time of such death a substantial cause. It is a matter for you. It remains a matter of fact for you to decide."
The direction cited followed long-standing common law principles and in their Lordships' view were not contrary to the terms of section 168. Accordingly their Lordships reject this ground of appeal.
The validity of the appellant's conviction in this case, however, does not rest with the summing up. It depends upon the verdict having been reached by a jury properly constituted in accordance with the laws of St Vincent. So far as relevant they are to be found in The Jury Act (Chapter 21 Laws of St Vincent and the Grenadines 1990 Revision). Section 14 provides:
"A jury in a criminal trial for a capital offence shall consist of twelve persons to be selected by ballot whose verdict shall be unanimous:
Provided that in trials for murder, after two hours of its consideration, a verdict of ten jurors convicting the accused of any offence less than murder of which they are entitled by law to convict him, shall be received as the verdict in the cause."
Section 15 provides:
"If, during the course of any criminal proceeding, one of the jury dies, or becomes incapable of serving, or absents himself, it shall not be necessary to discharge the jury or to add thereto another juror, but the trial shall be proceeded with by the...
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