Tabeel Lewis v The State
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWN |
| Judgment Date | 15 June 2011 |
| Neutral Citation | [2011] UKPC 15 |
| Date | 15 June 2011 |
| Docket Number | Appeal No 0093 of 2009 |
| Court | Privy Council |
[2011] UKPC 15
Privy Council
Lord Rodger
Lord Brown
Lord Kerr
Lord Clarke
Lord Dyson
Appellant
Owen Davies QC
Maya Sikand
(Instructed by Simons Muirhead & Burton)
Respondent
Howard Stevens
(Instructed by Charles Russell LLP)
On 5 November 2003 the appellant killed Dayah Ramsook in her own home at Siparia, Trinidad. He had gone there to break off a sexual relationship that had been going on between them in secret for nearly a year. He was aged 18 (of previous good character), she 63, both Jehovah's Witnesses who had met through their local church.
The injuries the appellant inflicted on the deceased that morning were severe indeed and indicative of very considerable violence. The left side of the hyoid bone was broken, resulting from severe manual pressure to the neck. There was bleeding, bruising and fluid accumulation over the top of the brain (causing congestion and swelling of the brain) inside the skull, an injury caused by the application of severe blunt force. The deceased was found hog-tied (her wrists and lower forearms bound together behind her back with cord which was then tied around her ankles so that, with her knees flexed, her ankles were drawn up towards her wrists behind her), with a gag (a sock with a tie inside it) stuffed deep into her mouth. In the opinion of the forensic pathologist, she "died as a result of asphyxiation or a lack of air or oxygen due to gagging, strangulation and hog-tying," the blunt force injury to the head being "a significant additional contributory factor to death".
On 29 March 2006, following a nine-day trial before Mohammed J and a jury at the San Fernando Assizes, the appellant was convicted of murder and sentenced to death - the mandatory sentence for murder in Trinidad and Tobago. On 10 May 2007 the Court of Appeal of Trinidad and Tobago (Warner, John and Mendonca JJA) dismissed the appellant's appeal against conviction. The basis of that appeal was that the judge had insufficiently explained to the jury that they were free to disagree between themselves as to the verdict. No such argument is pursued here. Rather the sole ground of appeal before the Board is that the trial judge should have left to the jury the partial defence of provocation (as, indeed, defending counsel asked him to do). That is the argument for which the Board, following an oral hearing on 11 October 2010, granted special leave to appeal (leaving over until the substantive hearing of the appeal the appellant's related application to adduce fresh evidence respectively from a clinical psychologist and a forensic psychiatrist).
The case against the appellant at trial was based primarily upon the evidence of a witness who saw him leaving the deceased's premises in her car on the morning of 5 November 2003, evidence from a number of other witnesses of his possession and use of the deceased's car that day, the forensic pathologist's evidence, and oral and written statements made by the appellant to the police. The appellant did not deny the killing. His defence was rather that he did not intend to kill (or, indeed, to cause the deceased any serious bodily injury) and was therefore guilty of manslaughter but not murder. The essence of the defence of provocation which Mr Owen Davies QC for the appellant contends should have been left to the jury was that the defendant was provoked into losing his self-control and violently assaulting the deceased by her conduct (words and actions) in reaction to being told that their relationship was to end, conduct which (whether intentionally or not) threatened to expose this secret relationship to his great distress and embarrassment.
The appellant was arrested two days after the killing. He was informed of the investigation into the deceased's death and the theft of the car, told he was a suspect and cautioned. He replied:
"Is only the car ah take, the keys in meh pocket."
Taken to the police station and cautioned again, the appellant replied:
"Sir, around 4 am on Wednesday, 5 th November 2003, I went to Dayah's house and I hide in a room under her house. I went to meet Dayah because we have a relationship. I hide in the room because the dogs were making noise and I did not want anyone to know I came to see her. Around 8.30 am she came downstairs into the room and when she saw me she screamed. I put my hands over her mouth to quiet her and a brown sock I had in my pocket I pushed into her mouth. We both fell to the ground and she became silent. I then tied her up with some string that I had given her some time ago. I then saw her car keys on the counter in that room. I started her car and went driving about. I parked the car in the bushes at the dam at Alta Garcie Trace."
Later that same day the appellant made a written statement which included the following:
"… around 4 am on Wednesday 5 th November, 2003 I went to Dayah Ramsook's home … I am accustomed to going to her home around that time because we have a relationship and I does not want my parents to know that I does leave home to go to her and both of us agree that the family, that is both of us families shouldn't know about our relationship …"
The statement then described, consistently with the appellant's earlier oral statement although elaborating the description of his assault upon the deceased, what had occurred.
The appellant gave sworn evidence at the trial. The judge's summing up of his evidence to the jury included the following:
"The evidence of the accused was that sometime after this [the deceased's surprise on seeing the appellant and his grabbing her around the mouth to prevent her from screaming], the accused told the deceased about his intention to break off their relationship that very morning, and the deceased then started to cry. The accused told the deceased that the relationship could not continue and that her crying would not change his mind because the relationship had to stop. The deceased then got upset. She told the accused that he could not do people that, and that he could not just come into people's lives and leave just like that, and she accused him of being unfair to her by wanting to end the relationship. At that time the accused said that the brother of the deceased, Dipnarine Ramsook, who lived next door, was cleaning his yard. The deceased then started to talk hard and 'all kind of thing'. After that, the deceased and the accused started to struggle because he wanted to keep the deceased quiet. During the course of the struggle, the deceased bit him on his hand. The accused did not want the attention of Dipnarine Ramsook to be drawn because that would have had the effect of exposing the secret relationship."
The single most relevant answer given by the appellant in evidence to explain why he had been struggling with the deceased was this:
"Because she was talking hard and thing, and her brother was right there, I didn't want it to be exposed but like she wanted that, but I didn't want that, sir."
So much for the evidence.
The question of provocation arose for the first time after the close of the evidence at the " Ensor hearing" (routinely held before counsel's speeches to discuss the relevant factual issues and the legal directions to be given). It was raised initially by the judge himself (transcript p 1012) who said that, if it were said to arise, he would want defence counsel (Mr Gray) "to identify the evidence suggestive of loss of self- control on the part of the accused. Because on the face of it, there appears to be none, all right." During the Ensor hearing the judge asked Mr Gray more than once what was the evidence from which it could be inferred that the defendant had lost his self- control, a question which Mr Gray kept answering (almost as if at cross-purposes) by reference to the deceased's implied threat to reveal the existence of their relationship. At p 1027 of the transcript, however, appears this:
"Mr Gray: I understand my Lord's position in terms of there being direct evidence that, 'Listen, I wanted to keep this thing quiet. This lady was making an effort to reveal this thing, and I couldn't get another opportunity to keep her quiet, and I just lose it in trying to keep her quiet.' There is no direct evidence of that.
The Court: Well, I appreciate your point that an accused doesn't have to say it in so many words, that 'I lost it', or 'I saw red', or 'I lost my self- control', but there must be some evidence capable of being identified which is capable of supporting such an inference that there was a loss of self-control. And you are saying that that evidence, when one looks at the unfolding of events …, it can be inferred.
Mr Gray: Can be inferred."
The judge's ruling on provocation appears finally at p 1057 of the transcript:
"With respect to provocation, I have considered this carefully, and I have looked at the evidence and I have looked at the authorities and, in my respectful view, no triable issue of provocation arises on the evidence. And I have looked at the case of Acott, in particular, and I do not see any evidence of any specific act or words of provocation resulting in a loss of self-control on the part of the accused. I think, in the circumstances, it would then be speculative to leave the defence of provocation to the jury. So I would not be leaving that defence to the jury."
The defence of provocation, it should here be noted, is identical in Trinidad and Tobago under section 4B of the Offences Against the Person Act, Chap 11:08 to that in England and Wales under section 3 of the Homicide Act 1957 (until the abolition of that defence and its replacement by the defence of loss of control with effect from 4 October 2010 pursuant to sections 54-56 of the Coroners and Justice Act...
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