Stafford et Al v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann,Lord Hope,Lord Clyde,Sir Brian Neill,Sir Christopher Straughton |
| Judgment Date | 30 July 1998 |
| Docket Number | Privy Council Appeal No. 7 of 1998 |
| Court | Privy Council |
| Date | 30 July 1998 |
Lord Hoffmann
Lord Hope
Lord Clyde
Sir Brian Neill
Sir Christopher Straughton
Privy Council Appeal No. 7 of 1998
Privy Council
Criminal law - Murder — Appeal against conviction of murder and sentence of death — Whether the proviso to section 44(1) of the Supreme Court of Judicature Act cannot be applied and if a substituted verdict of manslaughter is not available the conviction must always be quashed — Moses v. State [1997] A.C. 53 considered — Court set aside death sentence and substituted a verdict of manslaughter.
JUDGMENT of THE COURT: The appellants Giselle Stafford (“Giselle”) and Dave Carter (“Carter”) together with Learie Raphael Rimple (“Learie”) were charged jointly with the murder of Everald Verette sometime between 16th and 17th November 1992. Learie died before the case could be brought to trial. On 14th June 1996, after a trial before Volvey J. in the High Court, Giselle and Carter were both found guilty of the murder. They were sentenced to death. They appealed against their convictions to the Court of Appeal of Trinidad and Tobago. On 3rd December 1996 the Court of Appeal (Sharma J.A., Gopeesingh J.A. and Permanand J.A.) dismissed their appeals. On 19th January 1998 they were granted special leave to appeal to their Lordships' Board.
The case for the State was that Giselle, Carter and Learie broke into the deceased's house during the night and that they murdered him there in the course of a robbery. His body was discovered early on the morning of 17th November 1992 on the floor of his bedroom. He was dressed only in a pyjama jacket. Blood was observed coming from his ears, nose and mouth. A police sergeant who gave evidence about the scene of the killing said that he had found a bottle of rum beside deceased's body. A post mortem examination was carried out. This showed that the deceased had sustained various injuries to his neck, face and forehead. There were also bruises on both knee caps. There was a deep grooved imprint of a chain on his neck. A silver chain which he had been wearing was produced at the trial. The cause of death was said to be asphyxiation due strangulation and aspiration of blood associated with other injuries. A louvre window in the bedroom was found to be broken. Carter's fingerprint was on a piece of the broken glass. Various items of property, including two cassette players, were missing from the house. A witness named Jennifer John said that on 11th November 1992 Giselle had brought two cassette players to her and asked her to keep them for her. A neighbour of deceased named Marion James said that he had been woken up at about 3.00 a.m. on 17th November 1992 by noises from the deceased's house. He looked out and saw a woman come through a hole in the deceased's fence. She was followed by two men who came out, one after the other, through the hole with bags in their hands.
Carter was detained by the police on 18th November 1992. Giselle was arrested later the same day. They both made brief replies in which they admitted having taken things from the deceased's house. Later that day they made written statements under caution in which they each gave detailed descriptions of their part in robbery and of the events which led to the deceased's death. These statements were challenged at the trial the grounds that they were inadmissible and in any event were not true. After a voir dire the trial judge admitted the statements into evidence. Giselle and Carter both then gave evidence from the witness box. In the course of their evidence they gave an entirely different account of the incident. Giselle said that the deceased had let her, Learie and Carter into the house at about 9.00 p.m. The deceased had taken her into his bedroom where they had had sexual intercourse. She then had an argument with him and he started to hit her. Carter came into the room and told the deceased to cool himself, whereupon the deceased pushed him against the louvre window. Learie then came in and started to cuff the deceased. At that point Giselle and Carter ran downstairs and out of the house, leaving Learie alone with the deceased. She said that she had been forced to sign her written statement. She denied having made any admissions orally to the police. Carter gave the same version of the incident as Giselle had done in his evidence. He admitted that he had signed the written statement, but he claimed that the account which he had given to the police was different from that which had been written down.
At the time of the trial the common law rule of constructive malice, known as the “felony/murder” rule, was thought still to be part of the law of murder in Trinidad and Tobago. As this was a case of a killing which was alleged to have occurred in the course of a robbery, the case for the State was a simple one. It was presented on the assumption that to convict the appellants of the murder it was sufficient to prove that they were both participating in the commission of the robbery. The trial judge gave the traditional felony/murder direction in the course of his summing up. But even as he spoke Moses v. The State [1997] A.C. 53 was being prepared for hearing before this Board. The hearing of the appeal in that case took place on 18th and 19th June 1992, and on 26th June 1992 their Lordships delivered their judgment. They held that the felony/murder rule was no longer part of the law of murder in Trinidad and Tobago. The abolition of the distinction between felonies and misdemeanours by section 2(1)(a) of and Schedule 1 to the Law Revision (Miscellaneous Amendments) (No. 1) Act 1979 had had the effect of abolishing the felony/murder rule also. The statute had made no mention of the felony/murder rule. But felonies had ceased to exist, and it was impossible to have a principle of felony/murder if there was no such thing as a felony.
As the Court of Appeal observed at the outset of its judgment, the practical effect of Moses was to abolish the felony/murder rule retrospectively. But it was not the judgment in that case which changed the law. What it did was to declare what the law was as a result of changes made by the Miscellaneous Amendments Act. The abolition of the distinction between felonies and misdemeanours had already been brought into effect on the Act's commencement date. Nobody in Trinidad a Tobago appears to have observed that the felony/murder rule had been abolished, albeit tacitly, on the same day. So it is not at all surprising that the trial judge, like so many judges before him, based his summing up on the rule. But there is no escape from the conclusion that, as the law was changed upon the commencement of the Miscellaneous Amendments Act, a direction after that date which was based on the felony/murder rule was a serious misdirection.
Their Lordships are under no illusions about the gravity of the situation which the decision in Moses has revealed. It was most unfortunate that a direction in the terms approved by this Board in Gransaul v. The Queen, 9th April 1979, only a few months before commencement date of the Miscellaneous Amendments Act, and which had been routinely given in this jurisdiction during the intervening 16 years after that date, had now to be held to have been a misdirection. It was even more unfortunate that the flawed direction should be one relating to murder, where there is such an obvious public interest in the conviction and punishment of the criminal. But fundamental principles of justice require that the law must receive effect. If the proviso to section 44(1) of the Supreme Court of Judicature Act cannot be applied, and if a substituted verdict of a manslaughter under section 45(2) of that Act is not available, the conviction must be quashed. That was what had to be done in Moses. The question which the Lordships have had to address is whether the same result must follow in this case also. As Lord Mustill observed in Moses at p. 69D, the fact that a direction given in accordance with the felony/murder rule must now be held to have been a misdirection need not inevitably lead to the quashing of the conviction. A careful analysis of the evidence may show that there was no miscarriage of justice, or at least that a verdict of manslaughter may properly be substituted.
The Court of Appeal had no doubt that, had the proper directions been given, the jury would have come to the same conclusion and found the appellants both guilty of murder. It applied the proviso and dismissed the appeals. In their appeal to this Board the appellants' main argument was that the Court of Appeal was wrong to apply the proviso and that the convictions for murder should be set aside. Counsel accepted that it was open to the Board to substitute for the convictions for murder verdicts of manslaughter. But they submitted that the evidence which the jury must have accepted was insufficient to show that the violence which caused the death was within the scope of the joint enterprise. They also submitted that, as the case had been conducted from start to finish by everybody on the assumption that it was subject to the felony/murder rule, it was impossible to draw any conclusions from the jury's verdict as to how the case would have been decided if it had been understood from the start that the rule was inapplicable.
The proviso
The first question is whether the Court of Appeal was right to apply the proviso. Section 44(1) of the Supreme Court of Judicature Act provides:–
“The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or...
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