Moses v. The State (Trinidad and Tobago) [1996] UKPC 29

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 1 of 1995Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
MosesAppellantThe State (Trinidad and Tobago)Respondent
Before
Lord MustillLord Slynn of HadleyLord SteynLord HoffmannSir Ralph GibsonDate 29 July 1996
[1]This appeal raises an important question on the law of murder, as currently practised in Trinidad and Tobago. The subject is variously described as the "felony/murder" rule, or the principle of "constructive malice". The question is whether on 29th November 1985, when Lionel Harewood was murdered, or on 17th January 1989, when Andrew Moses was convicted of being a participant in the murder, this rule or principle still formed part of the law of Trinidad and Tobago; and, if it did not what course should now be taken on his appeal to their Lordships' Board.[2]The evidence against the appellant at his trial came from two sources: persons nearby the scene and the appellant's statements to police officers, which were admitted on a voir dire after objection. This evidence, the gist of which the jury must have accepted, was to the following effect. Lionel Harewood was a drug dealer. On the morning in question Paul Isaac went to Harewood's house to "get something", but for some reason Harewood would not deal with him, so he asked the appellant, who was there with another man, to buy "the thing" for him. The appellant did so, and Isaac departed, leaving the appellant standing outside the window of Harewood's house. Less than fifteen minutes later Isaac saw three people running from the direction of the house. It was not suggested that the appellant was among them. As a result of what he was told he went to the yard of Harewood's house, where he saw him on the ground bleeding from a wound. Another witness spoke of an occasion when he was about 100 metres from Harewood's house. He heard shots, and after three or four minutes saw the accused and another man walking away from the house. Afterwards, he went to the house where he saw a pool of blood outside the bedroom door, and a little later saw Harewood lying outside in a pool of blood. Another witness also spoke of finding Harewood lying wounded, outside a house.[3]Obviously, the appellant could not have been convicted of any relevant offence on this evidence alone. The strength of the case against him lay in his statements to the police, both written and oral. The first statement was oral. According to a police officer, early in the morning after Harewood was shot he cautioned the appellant who said:- "Boss, is not me weh kill the man, is Jano Christopher Pascall, he come by me about a week before and we plan to go and rob him. He showed me a revolver. Dexter was by me. He tell me how the house located and they plan to go and take him a next day."[4]The first written statement gave an account of going with Pascall to Harewood's house:- "When we reached by the cocaine man and going in the yard we bounced up another rasta and the rasta man called me and give me $20.00 and tell me to buy a twenty stone meaning a cocaine rock for $20.00 because the man who selling does not want him in his yard, but when I was going to buy the stone the same rasta came in the yard and the man who selling ended up making noise saying `boy I don't want you in my yard' so when the man start to get on so we ended leaving the yard and we went opposite to him. The other rasta ended up going and me and Jano remained liming in the yard opposite the cocaine man ... I asked Jano if he ent buying nothing and he give me $20.00 and I leave him in the yard next door to the cocaine man and went to the cocaine man called him and asked him for a $20.00 rock. Whilst he was giving me the rock through the louvres I heard a noise to the back of the cocaine man house and the cocaine man ran to the back of the house, the back room and I hear a gun shot fire. After I heard the shot fired I was still by the louvres and I hear the cocaine man saying what is that in the back there. I looked through the louvres and I saw Jano and the cocaine man fighting up and I hear a next shot fire so I leave from by the louvres and (went) was walking away leaving the premises and on reaching a stand pipe on the track about fifty feet from the cocaine man house I heard another shot fired and I see Jano come running and I asked what he end up doing the man and he tell me he end up shooting the man. I asked what he shoot the man for and he tell me the man try to pull something and he end up shooting the man."[5]Two days later, after the officer had told the appellant that Harewood had died of gunshot wounds the appellant said:
"All you hold Jano yet? .., Leh me tell you how I really get in this. ... When Jano came by me I know he had a revolver and we did going and rob the cocaine man as planned"
. After a further caution the appellant made a second written statement. In this he gave an account of a conversation two weeks before Friday, 29th November 1985, when the appellant was with the men called Dexter and Derrick:- "Jano take out a gun, a revolver from his back pocket and show me. [Dexter left to buy food and when he returned] he end up coming back with Derrick and telling Jano to show Derrick the revolver. Jano say how he hear it have a cocaine man up in the back of Malick they call Leo and he want we to go and rob him. Derrick say that the cocaine man and he is family and he have a revolver and that he have money and make him suffer in jail. So Derrick start explaining to we how the house situated. We made we plan to rob the cocaine man another day ..."[6]Later in the same statement the appellant gave an account of how Pascall had come to his home on Friday, 29th November, had told him that he "went and scope out the scene by the cocaine man", and had said to the appellant "you going?". The statement continued:- "When Jano say to me you going I know what he mean and what he was talking about. It was by the cocaine man who we had planned to rob before. I know Jano had a revolver on him and he was going to rob the cocaine man. When I heard the first shot fire I was standing by the louvres and heard Jano telling the cocaine man to lie down on he back. The man say `Oh God rasta man don't kill me. This is all ah have, take it'. Then I heard a second shot. I peeped through the louvres and I see the cocaine man on the ground and Jano over him still telling him to lie down. Then when I was leaving I heard the third shot fired and is after that Jano come and meet me and tell me that he shoot the man." That was the evidence for the prosecution. On his own behalf the appellant gave an account of events at Harewood's house substantially in accordance with his first written statement. He repudiated the oral statements and the second written statement. He had gone to the house on his own to buy cocaine, not in the company of Pascall. He was not party to, or even aware about, a plan to rob Harewood and did not see Pascall with a gun.[7]The situation revealed by the admissions was therefore of a familiar kind, where the defendant's admitted or proved presence at the scene was the consequence of a joint enterprise between himself and the person who actually committed the crime. The defendant however denies responsibility by claiming that the enterprise never extended to the act done by the co-adventurer, and that by doing it the other person stepped outside the enterprise and broke the connection between the defendant's participation and what actually happened. Although the precise formulation will vary from case to case, there are well-recognised ways of explaining to the jury the general principles governing such a situation. In the event, the direction given at the trial of the appellant was quite different. Before quoting the relevant passages, the historical background must be sketched, to explain why the direction took the shape that it did.[8]In the first place, there was the distinction between felony and misdemeanour. Throughout its long history this stubbornly defied rationalisation. Although in general the more serious crimes were classified as felonies a glance at the table of indictable offences contained in the Appendix to Archbold, Pleading, Evidence & Practice in Criminal Cases (36th Edn.) (1966) is enough to show that numerous misdemeanours outranked in gravity several of the less grave felonies. The culmination of long and sustained criticism came with the Seventh Report of the Criminal Law Revision Committee (1965), (Cmnd 2659) in which at page 3 paragraph 4 it was stated that:- "We have no doubt whatever that the distinction between felony and misdemeanour should be abolished ... The distinction has become an archaism, complicating the law unnecessarily; in our opinion there is nothing to be said for keeping it." The Committee went on to consider what consequential amendments would be required if the distinction was abolished. These included alterations or restatements of the law relating to arrest without warrant, the use of force in preventing crime or making an arrest, impeding the prosecution or apprehension of offenders, misprision of felony, and alternative verdicts. The recommendations of the Committee were embodied in a draft Bill, which was soon passed into law as the Criminal Law Act, 1967.[9]Meanwhile the distinction between felony and misdemeanour had been recognised as part of the law of Trinidad and Tobago by section 2 of the Criminal Offences Ordinance, No. 11 of 1844, which provided so far as material that:- "Every offence which, if done or committed in England, would amount to a felony or misdemeanour at common law shall, if done or committed [in Trinidad and Tobago], be taken to be a felony or misdemeanour, as the case may be ..."[10]The distinction persisted for some years after its disappearance in England. In due course however it was abolished by section 2(1)(a) and the First Schedule of the Law Revision (Miscellaneous Amendments) (No. 1) Act 1979 (hereafter the "Miscellaneous Amendments Act"). The method adopted was to amend a number of existing statutes, principally the Criminal Offences Ordinance, Ch. 4 No. 4. The crucial amendment was the addition of a new section 2A, reading as follows:- "2A.(1) All distinctions between felony and misdemeanour are hereby abolished.(2) (a) Subject to this Act, on all matters on which a distinction has previously been made between felony and misdemeanour including mode of trial, the law and practice in relation to all offences cognisable under the law of Trinidad and Tobago ... shall be the law and practice on the appointed day in relation to misdemeanour. (b) The appointed day for the purposes of paragraph (a) is the day immediately before the day of commencement of the amendments to this Act contained in the First Schedule to the Law Revision (Miscellaneous Amendments) (No. 1) Act, 1979."[11]There followed a number of provisions, also to be added to the Ordinance, which were closely modelled on the English Act of 1967, having the aim of restating or modifying the existing laws, to accommodate the disappearance of the category of felony.[12]The second item of history concerns the felony/murder rule itself. The origins, scope and moral standing of this doctrine were long the subject of controversy. They need not be reviewed here. Valuable accounts may be found in Sir James Stephen's Digest of the Criminal Law (1877), the Report of the Royal Commission on Capital Punishment (1953) (Cmd. 8932) paragraphs 72 to 121 and Appendix 7, and Professor David Lanham, Felony Murder‑Ancient and Modern, (1984) 7 Criminal Law Journal, 90. It is sufficient to say that the scope of "constructive malice" was progressively narrowed, except perhaps in its last years, and that in 1953 the Royal Commission was forced to accept (in paragraph 70 of its Report) that its present scope was not entirely clear. In the event, the Royal Commission recommended (Paragraph 111) that a convincing case could not be made out for the retention of constructive malice even in a limited form. This was one of the recommendations put into law by the momentous Homicide Act, 1957, section 1(1) of which provided that:- "Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence."[13]A decision of the Court of Criminal Appeal given a few months later made two important points about the change in the law. In R. v. Vickers [1957] 2 Q.B. 664 the appellant had broken into a dwelling-house to commit a burglary, and came upon the occupier whom he struck in a way which according to the medical evidence could have been inflicted with a moderate degree of violence, as a result of which she died. Dismissing an appeal against conviction Lord Goddard C.J. cited the new statute and continued at page 671:- "It would seem clear, therefore, that the legislature is providing that where one has a killing committed in the course or furtherance of another offence, that other offence must be ignored. What have to be considered are the circumstances of the killing, and if the killing would amount to murder by reason of the express or implied malice, then that person is guilty of capital murder. It is not enough to say he killed in the course of the felony unless the killing is done in a manner which would amount to murder ignoring the commission of felony." The second noteworthy aspect of R. v. Vickers is that it illustrates how in many cases the abolition of the felony/murder rule has left the outcome of murder trials unaltered. As the Lord Chief Justice described, the defendant had attacked the householder to prevent recognition, with blows and kicks from which she died. With or without the abolition of the felony/murder rule there was no doubt that he was guilty of murder. Although the legislation in Trinidad and Tobago followed the English precedent in abolishing the distinction between felony and misdemeanour this did not happen with the felony/murder rule, as was made quite clear by the judgment of this Board in Gransaul and Ferreira v. The Queen , delivered on 9th April 1979, a date of some importance. The case for the Crown was that the two appellants were engaged in a common enterprise to rob a van. The first appellant pointed a pistol at the driver and, according to his account, it went off by accident. Rejecting on behalf of the Board the appeals of both participants Lord Salmon said this:- "In the Court of Appeal, the first argument on behalf of the appellants was that the learned trial judge had erred in his summing up in that he had directed the jury that even if the first appellant, whilst engaged in a robbery which involved violence, had accidentally shot the driver, he would in law be guilty of murder. According to this argument, the learned judge ought to have directed the jury that if the shooting had been accidental, they should return a verdict of manslaughter. The Court of Appeal, rightly, in their Lordships' opinion, rejected that argument. In England the common law relating to murder has been amended by the Homicide Act 1957, section 1(1), which abolished `constructive malice'. In Trinidad and Tobago however the law relating to murder is still solely the common law; and the common law relating to murder is well settled. A person who commits a felony involving personal violence, does so at his own risk, and is guilty of murder if the violence results, even inadvertently, in the death of the victim. See R. v. Betts and Ridley (1931) 22 Cr.App.R. p. 148 and R. v. Jarmain [1946] K.B. 74. In the latter case, the accused, engaged in robbery, pointed a loaded and cocked pistol at a cashier who was counting the day's takings. He said in evidence that he was thinking what to do but had no intention of pressing the trigger when the gun went off and killed the cashier. Pointing a loaded pistol at a person with your finger on the trigger, in the course of committing a felony, is indubitably an act of violence. The trial judge in R. v. Jarmain directed the jury that if they accepted the facts deposed to by the accused they should find him guilty of murder. The jury convicted the accused of murder and the Court of Criminal Appeal dismissed the appeal. In both those cases the Court of Criminal Appeal relied upon D.P.P. v. Beard [1920] A.C. 479. In that case the accused raped a girl aged thirteen whilst he was drunk, and in doing so, placed his hand over her mouth in order to stop her screaming but without any intention of injuring her. He did however cause her death by suffocation, and was convicted of murder. In the Court of Criminal Appeal, it was argued on behalf of the appellant that the trial judge had misdirected the jury on two points. The first point (which is the only point relevant to the present appeal) was that the learned judge should have told the jury that if they were of opinion that the violent act which was the immediate cause of death was not intentional, but only accidental, they should return a verdict of manslaughter. Lord Birkenhead, L.C., with whose speech the other seven noble and learned Lords agreed, said at p. 493: `... the prisoner killed the child by an act of violence done in the course or in the furtherance of the crime of rape, a felony involving violence. The Court [of Criminal Appeal] held that by the law of England such an act was murder. No attempt has been made in Your Lordships' House to displace this view of the law and there can be no doubt as to its soundness.' Accordingly, in their Lordships' opinion there is no substance in the first argument on behalf of the appellants."[14]It is useful now to take stock. Felony/murder was abolished in England in 1957, ten years before the distinction between felony and misdemeanour was erased by the Criminal Law Act, 1967. This statute dealt with several consequences of the change in the law, but made no mention of the felony/murder rule, for the obvious reason that it had already been abolished. The position in Trinidad and Tobago was different. Here, the legislature went straight to the abolition of felony, without first disposing of the felony/murder rule. Yet the legislation which disposed of felony said nothing about the felony/murder rule, even though this had been endorsed by this Board only a few months before. This silence left room for two interpretations of the law. First, that since the rule had not been extinguished it continued to exist. Second, that its retention had not been made the subject of a consequential amendment, and hence did not survive the abolition of felonies.[15]The second possibility that the disappearance of felony had nevertheless tacitly struck down the felony/murder rule and thereby destroyed the continuing authority of Gransaul and Ferreira does not appear to have been recognised for many years; indeed, as recently as the decision of the Court of Appeal in the present case Gransaul and Ferreira was cited as authority for upholding the felony/murder direction which is now under attack. It is therefore by no means surprising to find the trial judge giving a traditional felony/murder direction in the following terms:- "(i.)If a prisoner or an accused person in pursuance to a prearranged plan, that is to say, a plan to rob, embarks on that common enterprise to commit a robbery and he was present with the person, and his presence there was either to aid and abet, not as an innocent observer but his presence there was to aid and abet in the commission of the crime; and that person is killed in pursuance to that common plan the fact that you did not do the killing but you are a party to the common crime, the law says you are equally responsible. I shall come back to it later. (ii.)Mere presence when somebody else commits a crime does not make you a party to the crime, but if you are present and pursuant to a plan, and your presence was to assist, aiding and abetting, particularly if it was pursuant to a common plan to rob which is a crime of violence and if one of the persons that is a party to the plan whilst you are present aiding and abetting [kills], then you are equally responsible. (iii.)You have the alleged statement in which he is alleged to have said to the officer that he was shown a revolver: that there was a plan to rob and there is evidence of the witnesses that he was on the scene, if therefore you come to the conclusion that the accused, in pursuit of the pre-arranged plan to rob, embarked on a common enterprise to commit the crime of robbery on Lionel Harewood; and that he was present on that scene, aiding and abetting the commission of the crime; and that his presence there was not merely as an observer or to buy cocaine but it was in pursuance to an agreed plan, then you ought to find him guilty. If you come to the conclusion that the person who did the shooting was Jano whoever it was, and that he was outside, not accidentally, but there to render assistance, if necessary, and that that was in pursuance to this pre-arranged plan which he said, if you come to that conclusion, if [you] accept that he told the officer that and you are satisfied so that you feel sure, then find him guilty. On the other hand, if you are in doubt, then acquit him. If what he tells you here, you don't believe it or it leaves you in doubt, then you must acquit him. You don't convict a person for lying. You convict them on the strength of the case for the Prosecution. (iv.)Members of the Jury, it is simple in approaching this matter. Do you believe that there was a plan to rob from the evidence. If the answer to that is in the affirmative, then do you believe that he was part of that plan? If the answer to that is the affirmative, was he on the scene when the robbery was being carried out and that his presence there was to render assistance, if necessary, in the way of aiding and abetting, or was he there as a mere observer accidentally, or he went to purchase something and nothing else? But if you come to the conclusion he was part of the plan to rob and he was there, that his presence there when the robbery was taking place was to aid and abet and he was there in pursuit of that plan and the person who was with him there was Jano, whoever the person was in the plan; and that person did the killing or the shooting which resulted in the death of Lionel Harewood; and you are satisfied of this so that you feel sure, then you find him guilty. If you find that he was not party to any plan and you are in doubt about that, then acquit him."[16]Whilst the judge's decision to direct the jury in this way, rather than in the terms usually appropriate to a charge of murder based on continuing participation in a joint enterprise, may have been understandable the appellant now contends that it is fundamentally flawed. The submission is short and simple. It is impossible to have a principle of felony/murder if there is no such thing as a felony. To this seemingly unanswerable point the respondent offers two replies.[17]The first concentrates on the meaning of the amendments introduced by the Miscellaneous Amendments Act. Buttressed by extensive citation from texts on statutory interpretation it gives paramountcy to what is said to be the manifest intention of Parliament, albeit not manifested in words. The gist is that the draftsman proceeded by blindly copying the English Act of 1967, failing to realise that the list of consequential amendments which he was using as his model was insufficient for the purposes of Trinidad and Tobago. The omission of the felony/murder principle from the Trinidad and Tobago statute was simply a mistake, which founds no inference that the legislators meant to abolish, without even saying so, a principle of the law of murder which had only recently been stated and endorsed by this Board.[18]In their Lordships' opinion the premises as well as the conclusion of this argument are unsound. The draftsman did not blindly copy the English Act, but made several alterations to reflect local conditions and terminology. Nor is there any reason to take for granted that the legislature, having been given the opportunity to consider when the criminal law was being re-stated at the end of 1979 whether the felony/murder rule should be retained, actually decided that it should, even though it took no steps to ensure that this was done. Quite apart from this however, the argument wholly overlooks the dual effect of the new section 2A. By sub-section (1) the distinction between felony and misdemeanour was abolished. If the section had stopped there, the respondent's argument might have had a shadow of plausibility. But the section went on to provide by sub-section (2) that "... the law ... shall be the law ... applicable [on 31st December 1979] in relation to misdemeanour". Thus, when nearly six years after that date the appellant engaged in a robbery, the crime which he committed was a misdemeanour, a result which Parliament indubitably intended to bring about. This puts the respondent completely out of court unless there was at the time of the offence a principle that a death occurring in the course of any crime was ipso facto murder.[19]So the enquiry comes down to this. How could such a principle exist? Only two answers favourable to the respondent could be given. First, that the principle had always been there, although nobody had noticed it. Second, that the Board should now re-create the rule, with retrospective effect. Both propositions are hopeless. As to the first, the idea of an "all-crimes/murder" rule was discredited long before 1844. It is impossible to suggest that it nevertheless crept unobserved into the law of Trinidad and Tobago in 1844 or later by some form of legal osmosis. As to the second, their Lordships think it quite unrealistic to contemplate the creation of a new rule, harsher than that enunciated in Gransaul and Ferreira , which would set the law back to a notion of criminal responsibility regarded for centuries as indefensible.[20]Nor is the argument improved by imagining a kind of "quasi-felony/murder rule", whereby a conviction for murder might result from the occurrence of death in the course of a crime which would have been a felony if the legal concept of a felony had retained any meaning. This notion is surely fanciful. It would perpetuate, without any statutory warrant and for one sole purpose, a classification already receding into the mists of history - a classification which moreover never had any basis in reason or practicality, and which of course could not be operated at all in relation to new crimes created after the idea of a felony ceased to have any meaning.[21]It would be possible to multiply the objections to the principal argument of the respondent. There is nothing to be gained by this, for whilst acknowledging the tenacious submissions of counsel their Lordships must regard the proposition as quite unsustainable.[22]There is however a different question to be addressed. The diligent researches of counsel have brought to light a feature of the legislation on which an alternative contention is based. What seems to have happened is this. (Their Lordships put the matter in these guarded terms because the argument was evidently devised rather late in the day; it is not referred to in the parties' printed cases; and their Lordships therefore do not have the benefit of a closer study of the course of events, such as would have been undertaken if the point had been in issue from the outset). On 24th December 1979 the Miscellaneous Amendments Act was enacted, to come into force on a day appointed by the President. The First Schedule to the Act consisted of two columns. In the left-hand column were printed the titles of the "Law to be amended", with the "Amendments to be made" set opposite in the other column. Two relevant laws were referred to in the left-hand column. The first was the Criminal Offences Ordinance, Ch. 4. No. 4. This was to be amended in particular by adding new sections 2A to 2E, abolishing the distinction between felony and misdemeanour and making consequential amendments relating to powers of arrest etc. It will be recalled that section 2A(2)(a) began with the words "Subject to this Act ...", and the layout of the Schedule shows clearly that the Act in question was the Criminal Offences Ordinance. The second law to be amended was the Offences Against the Person Ordinance, Ch 4 No. 9 to which there were made some comparatively minor alterations consequent on the abolition of felonies.[23]The next stage of the legislative process evidently involved the Law Revision Commission. This body was established under the Law Revision Act 1979, an enactment which received the Presidential assent on the same day (24th December 1979) as the Miscellaneous Amendments Act. The function of the Commission is to republish from time to time in an up-to-date form statutes which have been amended since the previous edition. The Commission has no powers to alter the substance of any written law, although it may draft a Bill for submission to Parliament for that purpose: section 17(1) and (2). It seems that the Miscellaneous Amendments Act was its first item of work (see the Second Schedule, paragraph 13, of the Law Revision Act 1979) and that preparations for it must have been in hand at the time when the Miscellaneous Amendments Act was going through Parliament. More than this is speculation, but what is striking and what forms the basis for the respondent's second argument, is that instead of the publication by the Commission of a revised form of the Criminal Offences Ordinance, containing the primary and consequential amendments relating to the abolition of felony set out in the Miscellaneous Amendments Act, there was published a separate Act entitled the Criminal Law Act, an amalgam of the principal amendments (previously identified as sections 2A to 2E) dealing with the abolition of felony and its consequences, and one entirely distinct section of earlier provenance, having no connection with felonies and misdemeanours. Presumably it was considered neater to put these changes into a separate new Act, although the simultaneous enactment of the Miscellaneous Amendments Act which contemplated a different format appears rather odd. No doubt there is an explanation which cannot be discerned from the materials before the Board.[24]At all events the respondent State now complains through counsel that by adopting this method the Commission stepped outside its powers by failing to reproduce exactly the effect of the Miscellaneous Amendments Act, with the result that the whole (or perhaps some part: their Lordships are not clear how far the submission goes) is ultra vires and ineffectual. Felony has never been collapsed into misdemeanour, and the felony/murder rule survives intact. This is a startling submission for the State to advance, since if correct it entails that although Parliament unquestionably wished to get rid of felonies it has failed to do so, with the result that during the intervening sixteen years large numbers of defendants have been indicted, arraigned, tried and sentenced on an entirely false basis. In their Lordships' opinion it is not right.[25]There is no need to linger over one variant of the argument, if indeed it was advanced at all: namely, that the Commission acted ultra vires simply by embodying the amendments in what was essentially a new Act, rather than in the Criminal Offences Ordinance. This argument must fail, in the face of section 16(f) of the Law Revision Act 1979, which empowers the Commission - "to transfer any provisions contained in any written law from that written law to any other written law to which it more properly belongs or to a separate written law".[26]A second version of the argument was to the following effect. In its original form in the Schedule to the Miscellaneous Amendments Act section 2A was expressed to be "Subject to this Act:
" i.e. to the Criminal Offences Ordinance. When the section reappeared as section 2 of the Criminal Law Act these words were still present, but had changed their meaning, since "this"
Act was now the Criminal Law Act. According to the respondent's argument, this was an illegitimate alteration in the substantive law, and therefore ineffectual.[27]Their Lordships can see that in other circumstances an argument on these lines might have some prospect of success: but not here. In the first place, although the words "subject to" are normally words of qualification, there is in fact nothing either in the consequential amendments contained in sections 2B to 2E and elsewhere which qualifies the effect of section 2A (or section 2, in the new format). It is likely that the words in question were included simply through an abundance of caution. The incorporation of the entire regime created by sections 2A to 2E in a new Act rather than an existing Act as originally planned made no difference to their effect; the substantive law was not changed; and the Law Reform Commission did not exceed its powers. Furthermore, the argument leads nowhere. Let it be assumed in favour of the respondent that the Criminal Law Act, or some part of it, was ineffectual. If so, the only consequence was that the Criminal Offences Ordinance stood amended by the Miscellaneous Amendments Act in the manner set out in the First Schedule, turning crimes except treason into misdemeanours just as effectively as if the new Act had fulfilled its intended purpose.[28]For these reasons their Lordships conclude that the abolition of the distinction between felonies and misdemeanours was effective, and the direction of the learned judge in accordance with the felony/murder rule, understandable as it was in the circumstances, contained a fundamental flaw.[29]This is not necessarily the end of the appeal, for as shown by R. v. Vickers , there are 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, and in such cases the proviso to section 44(1) of the Supreme Court of Judicature Act (C:4:01) may properly be applied. In the present case this was the course urged upon the Board by the respondent. Their Lordships cannot however accept that on the evidence of the appellant's confession alone, where he said no more than that he had seen Pascall with a gun (not said to have been loaded) a considerable time before the incident, the jury must if properly directed inevitably have come to the same conclusion as they did in a context where issues of intent had not been laid before them.[30]The conviction must therefore be quashed. It was however submitted for the respondent that the Board could and should substitute a verdict of manslaughter by exercising its powers under section 45(2) of the Supreme Court of Judicature Act and article 2 of the Trinidad and Tobago Appeals to Judicial Committee Order 1976, S.I. 1976/1915. At first sight this proposal is more compelling, for whatever the jury might have made of a charge of murder after an orthodox direction on intent and joint venture, an alternative verdict of manslaughter, if the option had been left, would have been a very real possibility: although the recently reported decision of the Court of Appeal in England in R. v. Perman [1996] 1 Cr. App. R. 24, which Mr. Strachan very properly brought to the attention of the Board after the close of the argument, could have proved a formidable obstacle. In the present case however, the idea is misconceived. The question whether an appellate court should use the proviso to uphold the verdict which the jury actually returned is quite different from the issue whether the court should substitute a verdict which the jury did not return. The former is a question of assessing the evidence; the latter involves an assessment of the verdict. (See R. v. Deacon [1973] 1 W.L.R. 696) and Archbold, Criminal Pleading, Evidence & Practice, 43rd Edn., (1995) para. 7-119. Section 45(2) of the Supreme Court of Judicature Act reads as follows:- "Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence ..."[31]In a case such as the present, where an incorrect direction was given, the right approach must be to assume that the jury understood the direction and reached the verdict of guilty in the light of it; and then to deduce from putting the two together what findings of fact lie behind the verdict. Here, the jury were instructed to look for a common design to rob. If they found this, the appellant was guilty of murder. The verdict shows that they "must have been satisfied" that the appellant was party to a scheme to rob. But that is all that they must have been satisfied about. They may well have been satisfied of more, but the verdict cannot be penetrated so far.[32]In these circumstances the Board is constrained to accept that in the particular circumstances of this case a verdict of guilty of manslaughter is, for very different reasons, no more available as a substituted verdict than a verdict of murder could be upheld by the use of the proviso.[33]There remains the question of robbery. As already said, it is plain from the verdict, read with the direction, that the jury must at least have been satisfied that the appellant's admission of participation in the robbery was true. Can the Board at least recognise the criminality of his conduct by finding him guilty of robbery? Plainly not. Section 45(2) applies only when the jury could have found the appellant guilty "on the indictment" of the lesser offence which it is desired to substitute. The jury could have found the appellant guilty of manslaughter, since the indictment for murder operates as a tacit indictment for the lesser offence. But this is not so for robbery, and since the indictment did not include a count of robbery (no doubt in pursuance of the guidance given by the Board in Gransaul and Ferreira , at page 5) the Board has no power to convict the appellant of the crime which he undoubtedly committed. Nor, apparently, is there an indictment for robbery in reserve, on which he might even after this great lapse of time be put on trial.[34]It is impossible to regard these conclusions with any satisfaction. The appellant has been in custody for a period of eleven years, part of it under sentence of death, in consequence of a verdict reached after a fundamental misdirection. Yet there are two serious crimes of which he might have been found guilty, which the jury never had an opportunity to consider, an omission which it is now impossible to put right. All that can be done is to repeat for future guidance that, as R. v. Vickers demonstrates, the giving of a felony/murder direction need not inevitably lead to the quashing of a conviction.[35]In this particular case however that is the result. Their Lordships accordingly allow the appeal.