Privy Council Appeal No. 60 of 2000

                     (1)   Robert Mohammed and
                     (2)   Johnny Richardson	                 	           Appellants

v.
 
                             The State                                                   Respondent            

FROM

THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Delivered the 10th April 2001
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Present at the hearing:-

Lord Bingham of Cornhill
Lord Steyn
Lord Hoffmann
Lord Hutton
Lord Hobhouse of Woodborough

[Delivered by Lord Bingham of Cornhill]

1.	In the early hours of 22 June 1994 Keith Vidale was on duty as an armed security guard at the premises of his employers, Imjin Security Services Ltd., when he was stabbed to death and a number of firearms belonging to the company were taken.  The appellants, both employees of the company although not on duty that night, were arrested very shortly after the raid and were charged with murder.  On 20 March 1996, following a trial before McMillan J. and a jury, they were both convicted.  Leave to appeal against their convictions was refused by the Court of Appeal on 20 March 1997.  They now appeal by special leave of the Board.

2.	The prosecution case against the appellants at trial may be briefly summarised.  At about 1.30 a.m. on 22 June 1994 Mr. Proctor, an off-duty policeman, and Mr. Hospedales, a security officer also off duty, saw two men in the street whose behaviour attracted their suspicion.  They stopped the men.  The first, identified as Johnny Richardson, was found to be carrying a firearm.  The second, said to be Robert Mohammed, was carrying a black bag in which there were seen a number of firearms.  The two men were taken by car to the CID office in Port of Spain.  During the journey the appellants were asked how they had come into possession of the guns and Mohammed said they had got them from Imjin Security, where they worked.

3.	On arrival at the CID office, according to the police evidence, Mohammed pulled out a gun and fired twice at a police officer named Ramirez, whom he wounded.  Mohammed then ran off and was chased by the police into a nearby building and on to an adjoining roof, from which he jumped down into the street where he was seized by police officers.  He was found to be carrying a firearm.  He was taken back to the CID office. There the black bag was searched and found to contain nine revolvers, a quantity of ammunition, some locks and other items.  All these firearms (and also those found on Richardson and Mohammed) were identified as the property of Imjin Security, as were the other items.  Also in the bag were a hammer and chisel, a serrated knife with a broken handle, an ice pick and some surgical gloves. 

4.	At about 7.15 a.m. on the same day, when Richardson was in custody, he told a police officer that he had just gone to use the toilet and Robert had “stabbed up the man”.  He then made a statement under caution which he signed and later verified before a justice of the peace.  In this statement he described meeting Robert Mohammed on 21 June, going to the cinema with him and attempting to visit a club which was closed.  It was then about midnight.  The statement continued:

	“Robert then tell me let us go into work because both of us working Imjin at Dundonald Street and New Street. Both of us leave and went in the office at Imjin, I see Vidale in the office working, I tell him I going to use the toilet and I went and use the toilet leaving Robert in the office with Vidale.  I came out from using the toilet and I see Vidale on the ground with blood on his shirt and Robert with the key for the office in his hand.  He then went to the vault where they does keep the guns and he opens the vault.  I take a black bag which was on the shelf and Robert take the guns out the vault and he put them in the black bag.  Robert and I come out the office and walk down Abercromby Street.  I take one of the guns and put it in my pocket and when we was walking down Abercromby Street the police come and say freeze.  I put my hand in the air and a police take the gun out my pocket and they take the bag of guns from Robert.  The police throw me down on the ground and then he put me in the car face down.  The Police then bring me to CID on St. Vincent Street.”

He added that before he was put in the police car he received a blow to the back of the head.

5.	At about 9.50 a.m. on the same day Mohammed, also in custody, told a police officer that Richardson had killed the deceased and wanted to put the blame on him.  He then dictated and signed a statement under caution, verified by the same justice of the peace.  The statement read as follows:

	“Last night around 7 o’clock Johnny Richardson came and check me home.  A couple days before he did come and tell me that he had a play set up to get the guns out of Imjin Security Office where we work.  We went down by Strand Cinema and lime till about half past nine and I get two passes from a red skinned fellow named Chris who working there.  We went in the cinema about half past nine when the manager left.  While we were in the cinema, Johnny told me that the play going down tonight.  Before I tell him no problem, but at that point in time I was afraid. So Johnny left about 20 minutes before the show over. Before leaving he said when the show over check him by the square at the back of the jail.  When I reach the square Johnny was now crossing the road to get to the side of the square.  I called out to him and Johnny came to me and said let we go up by the office.  I and Johnny went up to the office that is Imjin security office where we work.  When we reach there Johnny call out to the officer inside and the officer opened the gate for him and closed it back and I remained on the outside of the gate. Johnny went inside the premises with Vidale. Before Johnny went inside the premises he handed me a black bag that he had with him and tell me that there is an ice pick in the bag.  As Johnny went inside and Vidale closed back the gate, Vidale asked me what me doing here.  I tell him that we just busting a lime.  Johnny and Vidale were about 10 feet away from me at that time.  Johnny with a knife in his hand then went around Vidale and locked his neck with his left hand and started to chook Vidale to the front of his body around his chest over with the knife.  Vidale had first thought it was kicks as he started laughing and wiggling up his body as if Johnny was tickling him but when Vidale started to feel real stab he started to make noise by that time Vidale had fallen on the ground with blood all over his shirt.  Johnny rest his knee on Vidale shoulder and Johnny left hand near Vidale mouth and stab Vidale about three more time until the knife break.  Johnny then asked me if I am doing nothing and he opened the gate and grabbed the black bag from my hand.  Johnny had the bag in his left hand walked and pick up Vidale hand and dragged him straight into the toilet.  When Vidale fall down before Johnny come and open the gate and take the bag from, Johnny took away the firearm from Vidale and put it in his right pocket.  I then went to the vault and I see the locks on and I tell Johnny.  Johnny then pad down Vidale two pockets and he say that the keys not there. Johnny then went into the black bag that he took from me before and took out a hammer and a chisel and went to the vault Office and started to pound.  I was watching Johnny and telling him let we go, let we go.  Johnny then tell me he aint come here for no one gun we had to open the safe.  Johnny put the hammer and chisel and went back by Vidale and tell me to go in front to see if any body coming.  I went back in the back and I see Johnny get the keys for the vault.  Johnny open the vault with the keys and I took out the firearms put them in the black bag and Johnny put the bag on his shoulder and the both of us left Imjin Security Office.  On reaching the square near the jail, Johnny told me hold the bag and at the same time he gave me a gun.  I take the gun and put it in my waist.  The both of us walk down Abercromby Street. On reaching near to Park Street a black sunny motor car stopped and some men jump out bawling police and the both of us.  They find a gun on Johnny and when they look in the black bag they see the guns.  A policeman also search me but he did not find the gun.  The police put the both of us in the back seat of the car brought us down to the station in St. Vincent Street.  When they reach the station they took us out the car and as we were coming up the step into the station I try to tell the policeman holding me that I now realised I have a gun in my waist still.  The policeman was holding my left hand and I take out the gun from me waist with my right hand to give to the policeman, but the policeman panicked and grabbed at the gun and the gun accidentally went off. When I heard the explosion I let go the gun and run up St. Vincent on to Duke Street and up Pembroke Street with the police running behind me.  They fire some shots at me and I ran into an empty building in Pembroke Street.  I went on top of the building and was heading towards Abercromby Street when the police corner me again on the roof.  I became frighten and jump off the roof of the building and fall to the ground and the police hold me and take me back to the station in St. Vincent Street.”

Later that day Mohammed was observed by a police officer to be suffering some injuries.  He was sent to the hospital and examined.  The note of the examination recorded that he was suffering from soft tissue injuries to his right shoulder, chest and mouth and a small laceration to his head, probably inflicted by a blunt instrument with mild force.

6.	On post mortem examination the deceased was found to have suffered four stab wounds to the front of the chest, penetrating the heart and lung, and six circular puncture wounds of the chest and abdomen.  The cause of death was certified to be shock and haemorrhage due to injuries.

7.	At trial Mohammed’s primary defence was one of alibi.  He denied that he was the man who had been stopped at 1.30 a.m. on Abercromby Street and who had subsequently made an unsuccessful attempt to escape after shooting at Ramirez.  He had been at home asleep on the night of 21-22 June 1994 until wakened by police officers at about 3 a.m.  He was then taken to the police station and asked to make a witness statement. Having demurred, he had then been beaten, threatened and intimidated into signing the statement.  The statement was untrue, since he had had nothing to do with the raid on Imjin. At the trial a voir dire was held, but the trial judge ruled the statement admissible.  Mohammed himself gave sworn evidence and called witnesses to corroborate his alibi.

8.	Richardson also contended at trial that he had been beaten, threatened and intimidated into signing his statement. Following a voir dire this statement also was ruled admissible. He also gave sworn evidence, to very much the same effect as the statement save in one significant respect.  He insisted that he had never named Mohammed as the killer of the deceased. The killer was a former employee of Imjin Security named Junior Steele, known to him as Robert.  The appellant Mohammed had not been involved.  

9.	The trial took place before the decision of the Board in Moses v The State [1997] AC 53, and the felony murder rule was understandably assumed by the trial judge and counsel to be part of the law of Trinidad and Tobago.  At the outset of her closing speech to the jury, prosecuting counsel rested the State’s case squarely on the rule.  In his direction to the jury the trial judge summarised the effect of the rule very clearly:

	“Now the State has invoked a rule in aid of its case that if the accused is guilty, the rule being what has been described initially as the murder felony rule which means nothing more than where two or more people are involved in a serious crime involving violence, one of them does an act, in the course of, and in furtherance of that serious crime then all are guilty of murder if death ensues."

Later in his direction he said:

“ . . . if you accept that either of those two accused and the evidence is both were walking down St. Vincent Street and the evidence is that both of them were in possession of firearms, certainly [Richardson], in possession of ALB1953 Smith and Wesson point 3 revolver and that the other man whom it is alleged is Mohammed . . ., was carrying a bag with some nine guns which have all been identified as belonging to and coming from the premises or missing from the premises of Imjin Security Services on the morning of the 22nd when a check was made . . ., then it is open to you to say, you need not, that they were the persons who robbed and, therefore, they are the persons who must have been involved in the death of Vidale, who on the evidence was the sole officer on duty on the premises at the time . . . Now, if a robbery was committed and (sic) any person who was a party to that robbery would be guilty of the act done by the other in furtherance of that robbery.”

10.	The Court of Appeal held, inevitably in the light of Moses v The State, that this was a misdirection.  The court however pointed out that, as recognised by the Board in Moses v The State at p. 67, such a misdirection did not necessarily invalidate a conviction.  There were many situations where a conviction after a felony murder direction could just as well have been reached if the judge had chosen to explain the law in orthodox terms of intent.  The court accordingly considered the evidence to decide whether, if the jury had been properly directed on the issue of intent, they would have returned the same verdict.  The court held that they would.  Having referred to the observation and apprehension of the appellants the court said:

	“Each had participated in the stealing and intended disposition of the arms and ammunition.  It is quite clear that they went to those premises that night to steal the firearms.  They must have known that the firearms were in that safe for they worked on those premises.  They also must have known that there would have been an armed sentry guarding the safe and its contents and that he was trained in the use of firearms.  They would also have been aware that it is only employees who would have been permitted by the armed sentry to enter the premises and to go to where he was.  It is also quite clear that the robbery could not have been committed unless the armed sentry was forcibly disabled and rendered incapable of resisting the execution of the plan.  They had to overcome him first before the robbery could have been carried out.  There could not have been any other plan and there would have been no other intent than to kill or cause him grievous bodily harm.  There was no other method by which they could gain access to the contents of the vault once the sentry was there with his revolver.

	“The injuries found by the pathologist were apparently caused by two different kinds of instruments. Four of the injuries were stab wounds that penetrated the heart and lungs.  These were apparently caused by a knife.  The other six injuries were circular puncture wounds that penetrated the lung, abdomen and liver. These wounds were apparently caused by a different instrument, for example, an ice pick.  In his statement, appellant Mohammed made mention of a knife and an ice pick but no mention was made of any one person using both instruments to murder the deceased.  There was also the fact that blood was found on the clothing of appellant Mohammed that matched the blood type of the deceased. It is reasonable to conclude, therefore, that both appellants used physical violence on the deceased, each using a separate instrument and the deceased met his death from those injuries.  In any event, even if one of the appellants alone had committed the murder, he could not have achieved that objective without the presence of the other who was there at the very least to render assistance, if necessary.  His presence on these facts could not have been innocent.  The fact that both of them were found in separate possession of the stolen goods so shortly in time and space after the theft and having regard to the nature of the goods and special facts of this case, the presumption arises that they were the thieves and not receivers.  One gave an explanation to account for his possession;  the other raised an alibi.  The jury’s verdict indicated that they rejected both.  They, by their statements to the police, placed themselves in the premises at the time of the murder and it is quite clear from all the facts that they went there with a pre-arranged plan to murder or cause grievous bodily harm to the deceased to enable them to commit the robbery.  If properly directed, the jury, in our opinion, would have returned the same verdict as they had.  For these reasons we conclude that there is no substance in this ground of appeal.”

	The court accordingly applied the proviso to section 44 of the Supreme Court of Judicature Act which provides:

“(1)	The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that . . . on any ground there was a miscarriage of justice . . . 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”.

11.	Both appellants relied on the judge’s acknowledged misdirection of the jury to submit that on the facts of this case the proviso to section 44 could not properly be applied.  They accepted that the jury must, on the direction given, be taken to have made findings against each appellant.  They must have found that the appellants jointly participated in the robbery or theft of firearms from Imjin Security.  They must have found that Mohammed was present at the relevant time and that it was he who was stopped, who tried to escape and who was again apprehended.  They must have rejected Mohammed’s alibi and must have found that he, and not Junior Steele, was Richardson’s companion at the material time.  They must have found that the fatal wound was inflicted by one or other or both of the appellants during their visit to Imjin Security.  (Although it remained a possibility, there was no evidence to support the presence of a third robber.) On the judge’s direction, those findings were enough to support the jury’s verdicts.  But (they submitted) had the inapplicability of the felony murder rule been recognised at the trial, the jury should, following R v Powell (Anthony);  R v English [1999] 1 AC 1, have been directed to consider a series of questions and to do so in respect of each defendant separately.  The substance of those questions, however expressed, would have been:

	(1)	Is this defendant shown to have been party to a joint enterprise to rob or steal from Imjin Security?

	(2)	Is this defendant shown himself to have inflicted the fatal wound with the intent to kill the deceased or at least cause him very serious harm?

	(3)	If this defendant is not shown himself to have inflicted the fatal wound, is he shown to have foreseen as a real possibility that, in the course of the joint enterprise to rob, the other defendant (or another robber) might fatally wound the deceased?

	(4)	Is this defendant shown to have known that a lethal weapon was being carried by another defendant or robber?

Even accepting that the jury answered the first question adversely to each appellant, they cannot have considered or answered the other three questions because they were never invited to do so and the felony murder rule obviated the need for them to do so.  Likewise the rule made irrelevant any need to make a distinction between murder and manslaughter.  Thus the judge did not direct the jury to consider the case of each defendant separately.  There was no exploration of the evidence to show whether the injuries sustained by the deceased had been inflicted by one appellant or the other or both.  The pathologist who carried out the post mortem examination was not called.  There was no evidence whether the circular puncture wounds could have been caused by the ice pick, although there was evidence that no blood was found on the ice pick.  There was no attempt to investigate what either defendant foresaw as the possible or likely outcome of the enterprise.  The conclusions expressed by the Court of Appeal in the passage quoted above were conclusions which the jury might very well have reached had the course of the evidence not been determined and the summing-up not framed by reference to the felony murder rule, but it is rarely open to a court of appeal to reach original findings of fact on evidence never explored before the jury, and this case was not one in which the proviso could be properly applied.

12.	In a cogent and well-judged response on behalf of the State to these submissions, Mr. Dingemans relied on the obvious strength of the prosecution case against both appellants and on the findings which, even on the direction given, the jury must be taken to have made.  He submitted that the Court of Appeal was fully entitled to reach the conclusions expressed in the first of the paragraphs quoted above from its judgment, if not in the second.  He supported the Court of Appeal’s conclusion that a jury, even if properly directed in accordance with the current law, would inevitably have convicted both appellants.

13.	The Board was referred to Stafford v The State (Note) [1999] 1 WLR 2026, Johnson v The State [1999] 1 WLR 2000 and Sooklal v The State [1999] 1 WLR 2011, although all counsel recognised the inappropriateness of arguing from the facts of one case to the facts of another when the judgment whether a substantial miscarriage of justice has actually occurred will always depend on the particular facts and circumstances of a given case.  The Board was rightly reminded that it does not routinely review applications of the proviso and will only approach the matter afresh if satisfied that the appellate court from which the appeal lies has adopted a wrong approach:  see Lee Chun-Chuen v The Queen [1963] AC 220 at 231.

14.	The integrity of jury trial depends on the conscientious discharge of their respective functions by the judge and the jury.  The jury’s task, as they are always instructed, is to resolve the relevant issues of fact between the parties, to decide what happened.  The judge’s task is to direct the jury on the legal issues with reference to which they must decide the facts.  The jury return their verdict or verdicts in response to that direction. Where a trial is conducted on a misunderstanding of the law governing the case, two consequences are likely to follow.  The first is that evidence will not be given of facts reasonably regarded as irrelevant under the law as it is wrongly supposed to be but relevant under the law as it is.  The second is that the judge, of course unintentionally, fails to identify the issues which it is necessary for the jury to consider.  These consequences are not necessarily fatal.  In Sooklal v The State, for example, the evidence was so clear and unambiguous that even on a correct legal direction the same verdict would inevitably have followed.  But, as recognised by the Board in Johnson v The State at pp. 2008-9, an appellate court must be very circumspect in accepting that the proviso can be applied where the judge has misdirected the jury in a fundamental respect and where, as a result, important questions relevant to the jury’s verdict have never been considered by the jury at all.  The defendant in a jury trial is ordinarily entitled to the jury’s decision, properly directed, on the facts, and a lacuna in the jury’s factual consideration cannot be filled by findings of an appellate court, unless these are inevitable.

15.	The Board recognises the strength of the case against these appellants, as the Court of Appeal did, and accepts (as counsel for the appellants did) that several of the conclusions expressed by the Court of Appeal could scarcely be controverted.  But the Board finds no answer to the central thrust of the appellants’ argument.  The felony murder rule made it unnecessary for the jury to consider the roles of the respective appellants and their foresight of what was likely or liable to occur.  On a correct application of the law these matters were crucial to the liability of each appellant, whether as principal or accessory.  The belief of an appellate court, however strong, that the appellants must have been guilty cannot in this case be substituted for a finding by the jury that they were.  In the opinion of the Board the Court of Appeal fell into error in purporting to decide matters never in issue before the jury, and this was not a case in which it could properly be held, on the facts proved or taken to be proved in evidence, that no substantial miscarriage of justice had actually occurred.  For this reason the Board has decided to allow both appeals, quash the convictions and remit the cases to the Court of Appeal for that court to consider whether, despite the lapse of time since 1994, a retrial should be ordered.

16.	This conclusion makes it unnecessary to consider in any detail the ancillary arguments advanced on behalf of the appellants.  Complaint was made that the trial judge had wrongly directed the jury that a burden of proof on a balance of probabilities lay on a person found in possession of goods shown to have been recently stolen.  Complaint was also made that the judge, although reminding the jury of Mohammed’s allegations of assault and intimidation, had failed to direct the jury to consider whether his statement was voluntary when considering what weight to attach to it.  Reliance was placed on Chan Wei Keung v The Queen [1967[ 2 AC 160.  The Board sees force in these criticisms but is not persuaded that, standing alone, they could afford adequate ground for allowing either appeal.  The Board need not address other grounds advanced in argument save to observe that it does not regard as justified the substantive criticisms made of trial counsel representing Mohammed.