Page 1 of 67 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Criminal Appeal No. P023 of 2013 CR No. 0031 of 2003 DANIEL AGARD Appellant AND THE STATE Respondent PANEL: A. Yorke-Soo Hon, J.A. N. Bereaux, J.A. M. Mohammed, J.A. DATE DELIVERED: July 25, 2019 APPEARANCES: Mr. Jagdeo Singh, Mrs. Renuka Rambhajan, Mr. Trevor Clarke and Mr. Criston J Williams appeared on behalf of the Appellant. Mr. Travers Sinanan and Ms. Mauricia Joseph appeared on behalf of the Respondent.
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Page 1 of 67
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Criminal Appeal No. P023 of 2013
CR No. 0031 of 2003
DANIEL AGARD
Appellant
AND
THE STATE
Respondent
PANEL:
A. Yorke-Soo Hon, J.A.
N. Bereaux, J.A.
M. Mohammed, J.A.
DATE DELIVERED: July 25, 2019
APPEARANCES:
Mr. Jagdeo Singh, Mrs. Renuka Rambhajan, Mr. Trevor Clarke and Mr. Criston J
Williams appeared on behalf of the Appellant.
Mr. Travers Sinanan and Ms. Mauricia Joseph appeared on behalf of the
Respondent.
Page 2 of 67
JUDGMENT
Delivered by: A. Yorke-Soo Hon, J.A.
INTRODUCTION
[1] The appellant, Daniel Agard, and another man (“the other man”), were both
charged for the triple murders of Maggie Lee (Maggie), Lynette Pearson (Lynette)
and John Cropper (John) which occurred on the night of December 11, 2001. The
appellant was charged on December 19, 2001, and on July 14, 2004, he was
convicted and sentenced to death. He successfully appealed his convictions and a
retrial was ordered on April 15, 2005. At the retrial, in September 2013, he was
convicted and sentenced to death. He now appeals the convictions.
CASE FOR THE PROSECUTION
[2] The appellant was the great-nephew of John and Angela Cropper (“the Croppers”).
Maggie was his great grandmother, Lynette was his great aunt and John was his
great uncle. Ken and Robin were Maggie’s sons and Angela and Lynette were her
daughters. In 1999, the appellant did some work for the Croppers at their home
in Cascade. Whilst in their employ, he stole an electronic item from them and he
was fired. He also worked for Ken, and his employment was terminated as a result
of an altercation. The appellant made threats to kill Ken and his family and to burn
down Ken’s house. He also threatened to kill Robin as well as Maggie, John, Angela
and even his own mother.
[3] In August 2001, the appellant went to the Croppers’ residence to collect a pair of
boots and requested a letter of recommendation from Angela and an opportunity
to speak with John. He also made demands for money but Angela denied all his
requests. He then threatened to damage the Croppers’ car and refused to leave
the premises. The police had to be called in.
Page 3 of 67
[4] On December 11, 2001, Lynette held a tea party at the Croppers’ home. Angela
was abroad at the time. Around 5:30 pm that evening, Anjanie Maharaj was
visiting her mother who lived near the Croppers. She observed two men at the
bottom of a nearby hill, close to the track which led to the Croppers’ residence.
After the party, one Judith Sheppard assisted Lynette to tidy the premises. She left
around 6:30 pm. Angela telephoned John on both December 11 and 12, 2001 but
received no answer.
[5] On December 12, 2001, at approximately 2:00 am, the appellant’s image was
captured on camera at the ATM machine at Republic Bank in Tunapuna. The
bank’s record showed that he conducted several transactions using John’s card
and accessing John’s account. He withdrew the sum of two thousand dollars
($2,000.00) altogether on that day. Dion Jones, a taxi driver, was hired by the
other man to come to his home at Maitagual Road. When Jones got there, he met
the appellant whom he had known before as ‘Dougla’. The appellant told Jones
that he had been evicted and needed a place to store his belongings and
requested to be taken to Mendez Drive. Upon their arrival, the appellant placed
two television sets and two bags inside the car. They then proceeded to the home
of Jones’ brother, Daryl Mc Donald in Maitagual Road where they left the items.
Jones then dropped them off at the other man’s house. They did not pay Jones
and the appellant told him to keep one of the television sets until he could pay
him. On the next day, Mc Donald carried a Compaq laptop, a ‘zip drive’ and an ‘A
drive’ to one Christopher Callender and a television set to Jones’ girlfriend Malika
London.
[6] Around 9:00 am on December 13, 2001, the Croppers’ housekeeper, Agnes
Williams, arrived at their residence to take up her duties. She noticed that all the
lights were on, the gate to the premises was opened, John’s vehicle was missing
and the house was ransacked. Angela’s sister-in-law, Maria Persad subsequently
arrived and discovered the bodies of Maggie and Lynette in the bedroom, while
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John’s was in the bathtub. The deceased were gagged, their hands bound with
black computer/electrical cord and their bodies bore injuries to their necks. There
was a Du Maurier cigarette pack on the floor, although the Croppers were
environmentalists and did not allow smoking at their home. A knife was missing
from the knife block in the kitchen and there was a substance resembling blood
on the bed and the couch in the bedroom where the bodies were discovered. A
jewellery box was found lying on the floor and there was a blue denim t-shirt in
the bathroom sink. Angela later drew up a list of missing items from the home
which included electronics, money, John’s ATM card, John’s car, jewellery and a
serrated edged knife.
[7] On December 13, 2001, Jones took the appellant to an ATM machine at Republic
Bank, Independence Square, Port of Spain. Whilst there, the appellant’s image was
captured on camera around 4:45 pm and 6:25 pm. The bank’s record showed that
he conducted several transactions using John’s card and accessing John’s account.
He withdrew the sum of one thousand dollars ($1,000.00) altogether on that day.
On December 14, Jones took the appellant to Maracas Beach and to Kazim’s
Jewellery Shop in Maraval where Jones spoke with one Abdul Mohammed and
gave him a bag containing jewellery. Later that night, the appellant was arrested
by Insp. Nedd at Upper Bush Street, Maitagual and was informed of his
constitutional rights and privileges. He remained silent. Thereafter, he was taken
on inquiries to Diego Martin and Champs Fleurs and returned to Homicide at 11:00
pm where Insp. Nedd sought to interview him. However, the appellant indicated
that he was tired and Insp. Nedd postponed the interview and allowed him to rest.
[8] Around 5:25 pm on December 15, 2001, Sgt. Dick cautioned the appellant,
informed him of his right to an attorney and then interviewed him. Insp. Nedd
made contemporaneous notes of that interview. During that interview, he told
Sgt. Dick that he worked for the Croppers in 1999 and that he stole from them but
denied taking money or jewellery from them or that he was involved in the
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murders. He also said that at the material time, he was selling drugs on Prizgar
Road, after which he bought weed, smoked it and then went to sleep. He said that
he only smoked Du Maurier cigarettes.
[9] On December 16, 2001, the appellant was interviewed by Insp. Nedd and was
again cautioned and informed of his rights. Insp. Nedd requested that the
interview be taped and the appellant agreed. The appellant then proceeded to say
that he was hustling drugs on the night in question and subsequently got into an
altercation with someone. He also said that a former co-worker, with whom he
had worked at the Croppers, told him of a plan to rob the Croppers, and asked him
to participate but that he had expressly refused.
[10] On December 18, 2001, Insp. Nedd had received instructions to charge the
appellant and as he was about to do so the appellant blurted out “Mr. Nedd ah
know yuh going an charge meh for this murder so leh meh tell yuh de truth”.Insp.
Nedd then cautioned him and again informed him of his rights. The appellant, of
his own volition, proceeded to say that “If I ent tell yuh dis ah go can’t sleep”.
Insp. Nedd reminded him that he was under caution. The appellant then gave an
oral statement to Insp. Nedd in the presence of Sgt. Corbett, who made
contemporaneous notes of what was said. The appellant spoke voluntarily and
was not questioned by the police. The appellant described a plan to rob the
Croppers which he made with one Cudjoe one week before the incident. On
December 10, 2001, he, Cudjoe and two others went to the Croppers’ home but
it was closed and they left. The following day, he and Cudjoe were taken to the
Croppers’ residence. There were people there and Cudjoe and the appellant stood
in the bamboo patch outside until they saw John reversing his car. They then went
into the premises and the appellant grabbed a woman and Cudjoe tied a cord
around her neck. The appellant then left to get John and left the lady with Cudjoe
and he told the police that when he returned “the lady done out of it”. They had
a three-line cutlass and they did not wear any masks but he wore a hat. Cudjoe
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used the cutlass to planass1 John on a couch in the bedroom and John’s hands
were tied behind his back. The woman’s hands were tied behind her and her neck
was also tied with the same cord. The old lady’s hands were tied in front of her.
The appellant told the police that “I looking for about Wednesday to hear the
people loose them selves, I aint hearing no thing, the old lady ain’t are know
what happening she coulda even call the police”.
[11] The appellant told the police that he changed his blue long-sleeved jeans jacket
and left it in the bathroom sink and took one of John’s grey shirts. He packed up
several electrical items from the Croppers’ house and placed them inside John’s
car. He left the Croppers’ and dropped off the items at “Small Mickey’s” in Champs
Fleurs and later met Cudjoe by the ‘lookout’ at Lady Young Road. At that time, he
did not know that the deceased were killed. He first learned of their deaths from
Cudjoe, who told him he “fix it”. Cudjoe gave him three thousand dollars
($3,000.00). The appellant then drove John’s car to Hoyte’s Furniture in Champs
Fleurs and left it there. He burnt John’s shirt and the trousers which he was
wearing during the robbery. He said that “when the throat cutting start I did done
leave” and “I sure is a knife from in the house that 3-line can’t do that, I did not
carry Cudjoe to kill the people nah. I don’t know what them people dead for”. He
admitted finding jewellery inside a big “pretty jewel box” which was sold to Jones’
jeweller in Maraval.
[12] After taking the oral statement, Insp. Nedd asked the appellant whether he
wished to make a written statement, and he agreed to do so. He also volunteered
to point out several locations which he referred to in his oral statement and the
police obliged. One such location was the ‘lookout’ on the Lady Young Road,
where the police conducted a search for a knife which was alleged to have been
used in the murders but it proved futile.
1 ‘planass’ in Trinidad and Tobago’s vernacular refers to hitting someone with the flat side of the
blade of a cutlass.
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[13] During the course of their enquiries, Sgt. Dick and other officers recovered several
of the items which were missing from the Croppers’ house and Sgt. Veronique
retrieved the jewellery which was left by Jones at Kazim’s Jewellery Shop. Angela
later identified them. The forensic pathologist, Dr. Des Vignes found that the
deceased died as a result of wounds inflicted to their necks caused by a sharp-
bladed instrument. Angela’s jewellery box which was found on the scene
contained a fingerprint matching those of the appellant. The fingerprint was
‘recent’ and was contemporaneous with the time of the killing.
[14] Around 1:45 am on December 19, 2001, the appellant was charged for the three
murders and cautioned. He told Insp. Nedd, “I understand perfect well and the
statement you asked about I will give it in the morning”. Around 10:15 am, Insp.
Nedd cautioned the appellant and asked him if he still wanted to give the
statement and the appellant replied in the affirmative. Around 11:25 am, the
appellant was again cautioned and informed of his rights. He gave a written
statement in the presence of Insp. Nedd, Sgt. Corbett and Marisa Singh, a Justice
of the Peace (JP). The JP was informed by Insp. Nedd that he had already been
charged for the triple murders but that he still wanted to give a statement in
writing. No one had made any promises or threats or held out any indicements to
him in irder for him to do so.
[15] In his written statement, the appellant admitted to a plan which involved robbing
the Croppers and described how he and Cudjoe executed that plan. His written
statement contained essentially the same details as his oral admission but with
some amplification. He said that when he grabbed the woman, she began to
scream and Cudjoe placed his hand over her mouth. He said that Cudjoe “planass”
John and asked him for money. While the appellant was ransacking the house, he
heard John “bawl out” and he ran and told Cudjoe not to hit him again. Cudjoe
wore gloves, but he did not. He and Cudjoe then went through the house to see if
Page 8 of 67
they had left anything behind. The appellant left the premises using John’s car
leaving Cudjoe behind as Cudjoe said that he had “some thing to finish up”.
[16] When he met Cudjoe at Lady Young Road, Cudjoe told him that he “fix dat scene”.
The appellant asked what he was speaking about and he replied “dead men tell
no tales” that he, Cudjoe “fix dat an pelt de knife over de hill nah”. He told Cudjoe
that “nobody was to dead” and that they had never spoken about that. Cudjoe
told him that he was not taking any chances and to “hush his f—ing mouth”. He
threatened him and told him not to say a word to anyone because he would meet
a similar fate as he knew his family and his girlfriend. He again asked Cudjoe how
he could kill those people. Cudjoe replied that he had already spoken. The
appellant told Insp. Nedd “Mr. Nedd ah want yuh to write this. Mr. Nedd no
where in de planning anything ever talk about killing anybody. Nobody was
supposed to dead. I tell him doh even hit dem really nah because how ah know
them nah”. At the end of the statement, he was allowed to read it and he was
permitted to alter, add or correct anything and he signed it. The JP then
authenticated it.
CASE FOR THE APPELLANT
[17] The appellant gave no evidence but called one witness, Roger Peters, a police
officer whose evidence was pertinent to the conditions in which the appellant was
kept whilst in custody. The case for the appellant was one of alibi and fabrication.
The alibi was established through his first two oral statements. He also claimed
that officers fabricated the evidence against him as can be gleaned from cross-
examination conducted on his behalf.
[18] Through cross-examination, the appellant asserted that the deceased and their
families were “well linked” and prominent people and that the police had
fabricated the evidence against him with the assistance of Angela, who had
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disliked him. Some of the police officers were members of the same “lodge” as
John and they were determined to hold someone responsible for the murders.
[19] He was subjected to oppression and violence whilst in police custody. He was 18
years old, had no prior convictions and was unaware of the court procedures. He
was interrogated late at nights until the early hours of the morning. In addition,
he was never told of his constitutional rights to an attorney, friend or relative and
neither was he cautioned or had the terms of the caution explained to him.
[20] On the journey to Diego Martin and Champs Fleurs, on the night of his arrest, he
was interrogated by Insp. Nedd and further interrogated at the Homicide Division
until the early hours of the next morning. He asserted that Sgt. Dick intimidated
him and subjected him to both physical and verbal abuse in the presence of other
police officers. He accepted the contents of the statement which he gave to Sgt.
Dick on December 15, 2001, but denied that he said that he never took any money
or jewellery from the Cropper’s home. He also accepted the contents of the taped
interview of December 16, 2001.
[21] The appellant denied making the oral statement of December 18, 2001. He
insisted that it was fabricated by the police. He said that Insp. Nedd and Sgt.
Corbett told him that if he placed himself on the scene of the crime, he would be
able to go home and would be made a state witness. He, however, refused to do
so. With respect to the written statement of December 19, 2001, the appellant
said that he was “coached” from the interview notes compiled by the police on
December 18, in order for him to give it. He did not volunteer to take the police
to various places on December 18, nor did he at any time point out anything to
them.
Page 10 of 67
GROUNDS OF APPEAL
Ground 1
An irregularity occurred during the course of the trial when the trial judge
directed the jury in accordance with the principles laid down in Chan Wing-Siu v
The Queen, which were subsequently impugned by both the Supreme Court
(U.K.) and the Judicial Committee of the Privy Council, sitting in joint session in
the conjoint appeals of Jogee and Ruddock v The State. The effect of such
irregularity thereby resulted in a miscarriage of justice and the wrongful
conviction of the appellant for the offence of murder.
SUBMISSIONS ON BEHALF OF THE APPELLANT
[22] Counsel for the appellant, Mr. Singh submitted that the trial judge misdirected the
jury that culpability in a joint criminal enterprise was based on the concept of
realisation and foreseeability as enunciated in Chan Wing-Siu v The Queen2. The
trial judge extensively misdirected the jury in his summation, on more than twenty
occasions, that the appellant could have been found guilty of murder if they found
that when he participated in the joint enterprise, he realised that the principal
might have used his weapon with the intention to kill or cause grievous bodily
harm.
[23] He further submitted that the principle in Chan Wing-Siu was held to be incorrect
by both the Supreme Court of the United Kingdom and the Privy Council in R v
Jogee; R v Ruddock3, in which the court ruled that the law required culpability in
joint enterprise cases to be “intention-based”. In this case, there was a clear
miscarriage of justice since there was a ‘clear danger’ that the jury utilised the
concept of realisation as a platform upon which to find the appellant guilty. This
2 [1985] A.C. 168. 3 [2016] 2 WLR 681.
Page 11 of 67
position was fortified by the fact that the jury returned to court and asked the trial
judge for further directions on the narrow issue of realisation for criminal
culpability in a joint enterprise. Consequently, the resulting conviction was unsafe.
This case was wholly distinguishable from that of Lester Pitman v The State and
Neil Hernandez v The State4.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[24] Counsel for the prosecution, Mr. Sinanan, submitted that the trial judge, in his
summation, comprehensively directed the jury in accordance with the law of joint
responsibility as it stood at the time of the trial in 2012. He referred to the Privy
Council decisions in Lester Pitman v The State and Neil Hernandez v The State
and R v Jogee; R v Ruddock. In Jogee and Ruddock, it was decided that where a
conviction was arrived at after faithfully applying the law as it stood at the time of
the trial, leave to appeal out of time would not be granted, unless the appellant
could show that he would suffer substantial injustice. He contended that the
appellant did not demonstrate that he suffered any such injustice.
[25] Mr. Sinanan further submitted that even if the jury were directed in line with
Jogee and Ruddock, they would have arrived at the same verdict as the evidence
against the appellant demonstrated that he shared his confederate’s common
intention to kill the deceased and that, at the very least, this was a “clear case of
conditional intent”. He further submitted that, in any event, when the trial judge
directed the jury on joint enterprise, he also directed them on the issue of shared
intention. He submitted that the trial judge referred to evidence of prior threats
which were made by the appellant to kill the Cropper family and this proved that
the appellant shared a common intention with his confederate, to kill or do
grievous bodily harm to the three deceased persons.
4 [2017] UKPC 6.
Page 12 of 67
[26] Mr. Sinanan also submitted that the appellant was “plainly guilty of murder”
based on the felony/murder rule under section 2 A of the Criminal Law Act, Chap
10:04, whether or not he intended to kill the deceased. In support of this
contention, Mr. Sinanan relied on both an oral statement given by the appellant
on December 18, 2001, and a written statement given the following day, in which
the appellant unequivocally admitted his participation in the robbery.
LAW, ANALYSIS AND REASONING
[27] The landmark judgment of R v Jogee; R v Ruddock5, delivered in 2016, is of
application to this case. In those cases, the two appellants had been convicted of
murders on the basis of joint enterprise in which their confederates used knives
to kill the two deceased persons. In directing the jury on accessorial liability, in
each case, the trial judges directed them in line with the principles derived from
Chan Wing-Siu6. That case established that where a secondary party realised that
there was a possibility that the principal might commit an offence, in addition to
the planned offence, and the secondary party continued in the enterprise, that
party was guilty as an accessory to the additional offence, whether or not he
intended it.
[28] In the case of Jogee, the trial judge directed the jury that the defendant was guilty
of murder if they accepted that he participated in the attack on the deceased while
realising that his confederate might stab him with the intent to cause really serious
harm. In the case of Ruddock, the trial judge directed the jury that it was necessary
for the prosecution to establish that the defendant and his confederate possessed
a shared common intention and that such a common intention would arise “where
the defendant knew that there was a real possibility that the other defendant
5 Jogee; Ruddock (n.3). 6 Chan Wing-Sui (n.2).
Page 13 of 67
might have a particular intention and with that knowledge, nevertheless, went on
to take part in it”.7
[29] On appeal, the Supreme Court and the Privy Council reviewed the doctrine of
accessorial liability as established in Chan Wing-Siu. The courts came to the
conclusion that the relevant law as expounded in Chan Wing-Siu had taken a
wrong turn. In allowing the appeals, Lord Hughes and Lord Toulson JJSC, in their
joint judgment, held that:
“… (1) that accessory liability required proof of a conduct element
accompanied by the necessary mental element; that the requisite conduct
element was that the accessory had assisted or encouraged the commission
of the offence by the principal; that the mental element was an intention to
assist or encourage that commission of the crime, and that required
knowledge of any existing facts necessary for it to be criminal; that neither
association or an agreement with the principal, nor presence at the scene
when the principal perpetrated the crime, was necessarily proof of assistance
or encouragement by the accessory, although it was likely to be very relevant
evidence as to whether assistance or encouragement had been provided; that
if the crime required a particular intent the accessory had to intend to assist
or encourage the principal to act with such intent; that foresight was not to
be equated with intent to assist and the correct approach was to treat
foresight as evidence from which intent to assist and encourage could be
inferred; that the law had taken a wrong turn when it had equated foresight
with intent to assist, as a matter of law, and treated foresight as an inevitable
yardstick of common purpose; and that, accordingly, the rule whereby
foresight was equated with intent would be set aside and the correct direction
applied (post, paras 7–12, 78, 79, 83, 87–92).” 8
[30] The court, in addressing the obvious concern with respect to the many convictions
arrived at by judges faithfully applying the law as it then was, made it clear that
such convictions will not automatically be rendered invalid. Lord Hughes and Lord
Toulson JJSC went on to say in their joint judgment:
7Jogee; Ruddock (n.3) at 711. 8 Jogee; Ruddock (n.3) at 681 – 682.
Page 14 of 67
“The effect of putting the law right is not to render invalid all convictions
which were arrived at over many years by faithfully applying the law as it
was then laid down. The error identified, of equating foresight with intent
rather than treating the first as evidence of the second, is important as a
matter of legal principle, but it does not follow that it will have been important
on the facts to the outcome of the trial or to the safety of the conviction.
Moreover, where a conviction has been arrived at by faithfully applying the
law as it stood at the time, it can be set aside only by seeking exceptional
leave to appeal to the Court of Appeal out of time. That court may grant
such leave if substantial injustice can be demonstrated, but it will not do so
simply because the law applied has now been declared to have been
mistaken. Refusal of leave is not limited to cases where the defendant could,
if the true position in law had been appreciated, have been charged with a
different offence.” 9 [emphasis ours]
[31] In Lester Pitman10, the Privy Council noted that the trial judge had faithfully
directed the jury in accordance with the law of joint responsibility as it was
understood at the time, in accordance with Chan Wing-Siu and R v Powell and
English11. The Board observed that in light of the decision in Jogee and Ruddock,
there was, to that extent, a misdirection. Although the Board already had before
it the appeal for which leave was granted, in the circumstances, the appellant was
allowed to argue that he should be given leave to appeal additionally, out of time,
on that new point. However, the court reiterated the position set down in Jogee
and Ruddock, that exceptional leave out of time to appeal against a conviction
which was arrived at through faithfully applying the law as it then was, would only
be granted if substantial injustice would be suffered by the appellant if it were
refused. In R v Johnson and others: R v Moises12, the Court of Appeal of the United
Kingdom noted the distinction with respect to appeals against convictions brought
out of time as opposed to those brought within time. With respect to the former,
9 Jogee; Ruddock (n.3) at 708. 10 Pitman; Hernandez (n.4). 11 [1999] AC 1. 12 [2017] 4 All ER 769.
Page 15 of 67
the court held that the fact that there had been a change in the law was
insufficient to justify exceptional leave to appeal. If a person was properly
convicted on the law as it then stood, the court would not grant leave without it
being demonstrated that substantial injustice would otherwise have been done.
In R v Crilly13, the Court of Appeal expressly approved and applied the approach
laid down in Jogee and Ruddock and R v Johnson and others.
[32] In R v Johnson: R v Moises it was held that:
“For appeals against conviction brought within the time limit of 28 days
specified in s 18(2) of the Criminal Appeal Act 1968, the fact that a jury was
directed in accordance with the then prevailing law, which has subsequently
been changed by the courts, does not automatically render the verdict unsafe.
Appeals against conviction brought in time must be judged in accordance with
the well-established statutory requirement identified in s 2(1) of the 1968 Act:
it is not sufficient only for there to have been some misdirection or error in the
conduct of the trial. What is critical is that the verdict is thereby rendered
unsafe. Thus, the decision in any case must be fact sensitive: a misdirection of
law which was not, in reality, in relation to a true (or real) issue in the trial,
does not thereby (and certainly not necessarily) render a conviction unsafe
(see [7], [9], below).”14
[33] Therefore, when leave is sought to appeal out of time, it will be granted only if the
appellant can demonstrate substantial injustice. However, if the appeal is on time,
he must show that the verdict was rendered unsafe.
[34] Section 51 of the Supreme Court of Judicature Act, Chapter 4:01, provides for
notice of appeal against conviction to be filed within 14 days from the date of
conviction. In this case, it is clear that the appeal against convictions was within
time in that the notice of appeal was filed on September 23, 2013, well within the
14 day requirement. It is also clear that the trial judge directed the jury on joint
13 [2018] EWCA Crim 168. 14 Johnson and others (n.12) at 769.
Page 16 of 67
enterprise in accordance with the principles laid down in Chang Wing-Siu15, which
have since been declared to be wrong.
[35] In the decision in Johnson and others (supra), the court followed the approach in
R v Graham16, concerning appeals against convictions brought within the time
limit. In Graham, Bingham CJ considered section 2 (1) of the Criminal Appeal Act
1968 UK, as amended, which provided:
“ 2 (1)Except as provided by this Act, the Court of Appeal shall allow an
appeal against conviction if they think—
(a) that the verdict of the jury should be set aside on the ground that
under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) that the judgment of the court of trial should be set aside on the
ground of a wrong decision of any question of law; or
(c) that there was a material irregularity in the course of the trial, and in
any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that they are of opinion that
the point raised in the appeal might be decided in favour of the appellant,
dismiss the appeal if they consider that no miscarriage of justice has actually
occurred.”
The above statutory provision substantially mirrors section 44 of the Supreme
Court of Judicature Act, which provides that:
“44. (1) 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 that on any ground there was a miscarriage of justice, and
in any other case shall dismiss the appeal; but the Court may, notwithstanding
that they are of opinion that the point raised in the appeal might be decided
in favour of the appellant, dismiss the appeal if they consider that no
substantial miscarriage of justice has actually occurred.”
[36] In 1995, section 2 (1) of the Criminal Appeal Act 1968 (UK) was replaced by a
simpler provision which states:
“1) Subject to the provisions of this Act, the Court of Appeal—
(a) shall allow an appeal against conviction if they think that the conviction
is unsafe; and
(b) shall dismiss such an appeal in any other case”
This new provision made it quite clear that the court needed to address only one
issue, which was the safety of the conviction. In Graham, the court identified the
question to be determined as whether, in light of any arguments raised or
evidence adduced on appeal, the Court of Appeal considered a conviction unsafe.
Lord Bingham CJ put it this way:
“If the Court is satisfied, despite any misdirection of law or any irregularity in
the conduct of the trial or any fresh evidence, that the conviction is safe, the
Court will dismiss the appeal. But if, for whatever reason, the court concludes
that the appellant was wrongly convicted of the offence charged, or is left in
doubt whether the appellant was rightly convicted of that offence or not, then
it must of necessity consider the conviction unsafe.”17
[37] There is no corresponding provision in this jurisdiction to the above amendment
of the Criminal Appeal Act 1995. Section 44 (1) of the Supreme Court of
Judicature Act presents the test in the following way: The Court of Appeal on any
such appeal against conviction shall allow the appeal if it thinks that there is a
miscarriage of justice.
In Winston Solomon v The State18, de la Bastide CJ (as he then was) noted that:
“The Privy Council does not appear ever to have adverted expressly to the
difference in terminology between the legislation in the two jurisdictions. They
habitually use the English terminology of 'unsafe' as the criterion by which the
validity of convictions in Trinidad and Tobago is to be assessed. For our part
we do not think there is any difference in substance between the test
17 Ibid at 308. 18 (1999) 57 WIR 432.
Page 18 of 67
prescribed by the statutory provisions in the two countries.”19 [emphasis
ours]
In support of this proposition, he relied on the dicta of Lord Hutton in the decision
in R v Mills and Poole,20 where it was said:
“There is no real distinction between a material irregularity which causes a
miscarriage of justice and a feature of the trial which causes a conviction to
be unsafe.”21
Therefore, the test employed by the Privy Council is no different from the test
applied in this jurisdiction which is, ‘was the conviction thereby rendered unsafe?’
[38] In Giselle Stafford and Dave Carter v The State22, the Judicial Committee of the
Privy Council applied the ruling in Moses v The State23 that the felony/murder rule
was no longer a part of the law of murder in Trinidad and Tobago since the
distinction between felonies and misdemeanours had been abolished. Lord Hope
of Craighead stated that the test which must be applied to the application of
section 44 is as follows: “if the jury had been properly directed, would they
inevitably have come to the same conclusion upon a review of all the evidence?”.
After a thorough review of the evidence, the court concluded that it was
impossible to say that a reasonable jury, having considered all of the evidence,
would inevitably have convicted the appellants. Accordingly, their convictions
were quashed and verdicts of manslaughter were substituted.
[39] In this case, the trial judge, in his summation carefully explained to the jury the
meaning of the concept of joint enterprise and directed them on the elements
19 Ibid at 454. 20 [1997] 3 All ER 780. 21 Ibid at 791. 22 (1998) 53 WIR 417. 23 (1996) 49 WIR 455.
Page 19 of 67
necessary for proving the culpability of a ‘secondary party’24. We note that his
directions on the requisite mental element entailed two limbs, namely (i) ‘shared
intention’,25 and (ii) ‘realisation’ or ‘foresight’26, which followed the principles in
Chan Wing-Siu27. The trial judge directed the jury in the following way:
“Now, if the Prosecution has made you sure that the accused and his
companion embarked on this joint enterprise to rob the Croppers, and that the
accused knew that his companion was armed with a cutlass, and that he
shared his companion's intention to kill or cause grievous bodily harm to all
occupants of the household present there that night, and, nevertheless,
continued to participate in the robbery, and his companion with the cutlass
did go on to kill all three persons during the course of the robbery, albeit with
a knife, with the intention to kill them or cause them grievous bodily harm,
and you are sure that the weapon produced by his companion, a cutlass, was
equally as dangerous as the weapon causing death, namely, a knife, then the
accused would be guilty of the murder of all three persons, Members of the
Jury. So that's shared intention.
And let's look at realization… Now, the Prosecution does not have to go so far
as to establish a shared intention between the accused and his companion to
kill or cause grievous bodily harm to the occupants of the Cropper household.
The accused would be guilty of the murder of all three persons if the
Prosecution has made you sure that the accused and his companion embarked
on this joint enterprise to rob the Croppers and that the accused knew that his
companion was armed with a cutlass, and the accused realized that in the
course or furtherance of the robbery, his companion with the cutlass, might
use the cutlass with the intention to kill or cause grievous bodily harm to all
three persons present, and he, the accused, nevertheless, continued to
24 Day 1 Summation page 27 line 42 - page 46 line 34; page 51 line 1 - page 53 line 44; page 59
lines 44 - page 60 line 33. Day 2 Summation page 3 line 30 – page 4 line 6. Day 3 Summation page 54 line 20 – page 56 line 19; page 59 line 13 – page 61 line 30; page 64 line 1 – page 66 line 22. 25 Day 1 Summation page 29 line 30 –page 30 line 7; page 36 lines 46-48; page 37 line 38 – page