Paria v. The State (Trinidad and Tobago) [2003] UKPC 36

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 42 of 2002

Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

Between

PariaAppellant

The State (Trinidad and Tobago)Respondent

Before

Lord Nicholls of Birkenhead

Lord Hutton

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry

Date 15 April 2003

[1]:- Lord Nicholls of Birkenhead Lord Hutton Lord Hobhouse of Woodborough Lord Scott of Foscote Lord Rodger of Earlsferry [Delivered by Lord Rodger of Earlsferry ] On 24 July 1998 in St Joseph the appellant repeatedly beat three women about the head with a piece of wood. Two of them died that day and the third died a month later. On 19 July 2000 at Port of Spain High Court, after a trial before Archie J and a jury, the appellant was convicted of the murders of the three women and sentenced to death. On 30 January 2001 the Court of Appeal dismissed his application for leave to appeal against his convictions and sentences. He now appeals to the Board, by special leave, against his convictions. He also appeals against the mandatory sentences of death imposed upon him on the ground that they infringe his constitutional rights.

[2]The judgment of the Court of Appeal contains a helpful summary of the facts on which their Lordships base much of the following narrative.

[3]Prior to the offences the appellant had been in a common law relationship with Asha Arjoon, by whom he had two children, a girl aged 4 and a boy of 18 months. The couple had lived together for some 6 years before eventually separating. In July 1998 Asha and the children were living with her mother, Sita Arjoon, while the appellant was living not far away with his father. On about 21 July there was a meeting between Asha and her parents, on the one side, and the appellant on the other, for the purpose of resolving the differences that had arisen between them. It appears that, although some of the issues were resolved, others were not.

[4]The State does not dispute that at that time the appellant's father was suffering from cancer. According to the appellant, on the evening of 24 July he saw and spoke to his father at his mother's house. In his evidence as noted by the judge, the appellant said:

"He was not looking good at all. I knew he had cancer. I was depressed about that. As a result of the conversation with my father, I was going to arrange for the children to come and spend the night with me and my father. This was at my father's request. He was sick and he wanted to see them."

The appellant said that as a result of this conversation he went to the home of Sita Arjoon where the children were. He collected his daughter and took her to see his father. He then went back to drop off his daughter at Sita Arjoon's house and to say that he would call back later to take both the children to spend the night with him and his father.

[5]When the appellant arrived, Sita Arjoon and her friend Susan Mahabir were sitting in a shed at the front of Sita's house. He asked Susan Mahabir where Asha was. It was Sita who replied to the question, however - saying that Asha was bathing at the back of the house. The appellant said that he had not been speaking to Sita because she had told him that she did not want him in her yard. There was then an unpleasant scene involving the appellant and Sita which, according to the witnesses, went on for the best part of an hour. Susan Mahabir and the appellant gave conflicting versions of what occurred.

[6]According to the evidence given by Susan Mahabir, the appellant launched into a volley of abuse directed at Sita. Sita remained silent. The appellant then picked up a stone and threw it at Sita. He missed. She took up the same stone and threw it back at him. She also missed. Thereupon the appellant directed another obscenity at Sita, picked up a piece of wood about 4 feet long and 2 inches thick, which was lying nearby, and attacked Sita with it. He struck her on the head. She tried to run into the house but he pulled her back on to the step where he continued to rain blows on her head. In the meantime Asha had come out to the front of the house. When she remonstrated with him about what he was doing to her mother, the appellant attacked her with the same piece of wood and battered her about the head until she fell senseless to the ground. Her sister Anna then remonstrated with him about what he had done to her mother and sister. As she went towards the road, the appellant followed and battered her on the head until she in her turn lay unconscious on the ground.

[7]The appellant's account in evidence was that Sita Arjoon had been the aggressor during the hour or so between his arrival at the house and his attack on her. It was Sita who abused him and his family. She taunted him with offensive remarks about his sexual practices and about his mother and sisters' promiscuity, as well as directing other insults at himself and his family. Asha intervened to say that, if he continued carrying on as he was, she would have to stop him from seeing the children. It was Sita who first threw a stone at him. She threw two or three stones: one hit him and another would have hit his son if the appellant had not blocked the stone with his hand. Eventually, after the appellant was hit, he totally lost control of himself. He seemed to be watching himself pick up the piece of wood and attack Sita and then the other two women successively. He tried to stop himself from doing it but he could not, even though he realised it was wrong.

[8]It would appear that Sita died more or less instantly and Asha shortly afterwards. Anna was taken to hospital but died about a month later. According to the pathologist's reports, all three died from fractures of the skull and injuries to the head. The issue of provocation

[9]Although the appellant had a ground of appeal relating to self-defence, Mr Nicol QC did not advance it at the hearing. Instead, his first argument was that the judge misdirected the jury as to the objective test in provocation because he failed to tell them that they had to take into account the appellant's evidence that he was depressed due to his father's illness.

[10]Section 4B of the Offences against the Person Act, the terms of which are in all material respects identical with those of section 3 of the English Homicide Act 1957, provides:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

When an issue of provocation arises, the section requires the jury to consider two questions: first, whether the defendant was in fact provoked to lose his self-control (the subjective test) and, secondly, if so, whether the provocation was enough to make a reasonable man do as he did (the objective test). As the authorities stand at present, there is a conflict between two decisions as to how the second question should be approached, one a decision of the Board sitting as the court of final appeal from Hong Kong and the other a decision of the House of Lords.

[11]In Luc Thiet Thuan v The Queen

[1997] AC 131

the defendant suffered from brain damage which rendered him prone to respond to minor provocation by losing his self-control and acting explosively. The relevant terms of the Hong Kong legislation were again similar to section 3 of the Homicide Act. The majority of the Board held that the reasonable (or ordinary) man was a person who shared such of the individual characteristics of the defendant as the jury might consider would affect the gravity of the provocation to him but who had the power of self-control to be expected of an ordinary man, woman or young person, as the case might be. They also held that there was no basis upon which individual characteristics of the defendant other than age and sex, which had the effect of reducing his powers of self-control below that to be expected of an ordinary person, could be attributed to the ordinary person for the purposes of the objective test.

[12]In R v Smith (Morgan)

[2001] 1 AC 146

the House of Lords declined to follow the Board's decision in Luc Thiet Thuan . In Smith the defendant stabbed an old friend to death after an evening of drinking and recriminations. The defendant called medical evidence to show that he was suffering from clinical depression which could reduce his threshold for erupting into violence. The trial judge gave a direction to the jury which was in accordance with the decision in Luc Thiet Thuan (although it does not appear to have been cited to him). He told them that, if they considered that the accused might have been suffering from a depressive illness, they should decide whether a man suffering from such an illness, but with a reasonable man's powers of self-control, might have responded to the deceased's behaviour by stabbing him to death. The fact that the depressive illness might have reduced the defendant's own powers of self-control was "neither here nor there" and should not be taken into account. By a majority, the House of Lords held that this was a misdirection. All the particular characteristics of the defendant were to be taken into account in deciding both whether he was in fact provoked and whether the objective test was satisfied. So, in determining whether the provocation in question was enough to make a reasonable man do as the defendant did, the jury had to ask themselves whether the degree of self-control exercised by the defendant was that which an ordinary person with the same characteristics would have exercised. The jury should therefore have been told that they were entitled to take account of the effect of the defendant's depression when deciding the question whether he had measured up to the standard required of an ordinary man.

[13]In order to dispose of this appeal their Lordships do not require to decide whether Luc Thiet Thuan or Smith should be followed since, on either approach, the appellant's argument on provocation must fail.

[14]In relation to provocation the judge's principal direction to the jury was in these terms:

"Now, in determining whether the accused was or may have been provoked, you will have to consider two questions. First of all, may something that was said or done, or a combination of both, have provoked the accused, that is to say, caused him suddenly and temporarily to lose his self-control? Secondly, may what was said and done, or both, have been such as to cause a reasonable and sober person of the accused's age and sex to do as he did? Now, if your answer to the first question is that you are sure that he was not provoked, that is, that he wasn't caused by the words and/or actions to lose his self-control, then that's the end of it, the Prosecution will have disproved provocation and providing they have made you sure of the ingredients of the offence of murder, you do not need to go on to the second question, your verdict will be, guilty of murder. If, however, you find that he was or may have been provoked so as to lose his self-control, then you must turn to the second question, which is: Might a reasonable and sober person of his age and sex, subjected to the type of provocation which this accused was subjected to, might he have done what the accused did? Now, in considering that question, you are to regard that hypothetical, reasonable person as someone who has the degree of self-control which one would expect of the ordinary citizen, who is sober, who is of the defendant's age and sex, and therefore, would deal with conflict or provocation with a maturity appropriate for his age and sex."

[15]Mr Nicol submitted that the judge's direction on the objective test was defective because he failed to direct the jury, in accordance with Smith , that, in considering whether the provocation was enough to make a reasonable man do as the defendant did, they should take into account any particular characteristic of the defendant. More precisely, he should have directed them to consider the appellant's evidence that he was depressed because of his father's cancer. Linked to this were the factors that his father wanted to see the children and that Asha warned him that she would have to stop the appellant from seeing them - which would mean that his seriously ill father would be unable to see them. Mr Nicol submitted that, if the jury had been directed that they should take this characteristic into consideration, they might have concluded that the prosecution had failed to prove beyond a reasonable doubt that a reasonable man with that particular characteristic would not have reacted as the defendant did.

[16]Their Lordships are unable to accept this submission, given the evidence in this case. It is important to recall that in Smith there was psychiatric evidence that the defendant was suffering from clinical depression which made him less able to control his reactions. In that situation his mental illness could properly be termed a "characteristic". In the present case, by contrast, the appellant said no more than that he was depressed about his father having cancer. There was nothing to suggest that this was other than an entirely normal and natural reaction to that unfortunate situation. In the absence of any evidence that his reaction was pathological, their Lordships consider that it does not constitute a "characteristic" within the ambit of Smith .

[17]Mr Nicol submitted, however, that, even if his depressed state were not a "characteristic" of the appellant, it was none the less a relevant factor personal to him which the jury required to take into account in applying the objective test: R v Smith (Morgan)

[2001] 1 AC 146

, 156A–B per Lord Slynn of Hadley; 163B–C per Lord Hoffmann and 177F–H per Lord Clyde. Here the judge's directions failed to make it clear to the jury that, if there was a factor relating to the appellant which they thought relevant to the degree of self-control that the ordinary man could be expected to exercise, they should take this into account.

[18]Their Lordships are unable to accept this alternative submission. However the appellant's reaction to his father's illness may fall to be classified, there was quite simply no evidence before the jury that it affected the way that the appellant reacted when he killed the three women. It would therefore have been sheer speculation on their part if the jury had taken account of this factor in relation to either the subjective or the objective test. Not surprisingly and entirely properly, therefore, defence counsel made no reference to it in his closing speech to the jury. Equally, in these circumstances the fact that the judge made no mention of the matter in his directions on provocation is not a ground for criticising him, far less for holding that he misdirected the jury. The judge rightly directed them to take account of everything that was said and/or done over a period of time and to ask themselves what effect, in their opinion, it would have had on a reasonable person. When summarising the position towards the end of his summing up the judge made it clear that the jury had to consider all the circumstances:

"The second question is, if you find, in fact, that he was provoked so that he lost his self-control, then you must ask yourself, "would a reasonable man, in the circumstances in which the accused found himself , having been provoked and lost his self-control, would he have done as the accused did?"

(emphasis added) Their Lordships consider that the directions which the judge summarised in this passage gave the jury proper guidance as to how they should go about applying the objective test to the evidence before them. This is so, whether the test is construed according to Luc Thiet Thuan or Smith . Their Lordships must therefore reject this ground of appeal. The direction as to good character

[19]Where there is evidence of the good character of a defendant, the judge should give the jury a direction both as to the relevance of that evidence to the defendant's credibility ("the first limb") and as to the likelihood of his having committed the offence charged ("the second limb"): R v Vye

[1993] 1 WLR 471

and R v Aziz

[1996] AC 41

, 50. In Vye Lord Taylor of Gosforth CJ surveyed the topic and commented on a number of practical situations that could confront judges. In doing so, he observed obiter ,

[1993] 1 WLR 471

, 477, that a direction under the second limb on the defendant's lack of propensity to offend would be of little help to the jury in a case where the defendant raised the defence of provocation. He added:

"The defendant's argument that he has never stooped to murder before would be countered by the fact that he had never stooped to manslaughter before either. Nevertheless, there might well be a residual argument that what was in issue was intent and he had never shown any intent to use murderous violence in the past."

Whatever force such a comment might have in any particular case, it is clear, not least from the second sentence in the passage, that the Lord Chief Justice was not intending to state that the second limb direction could never be of relevance to the issue of whether the defendant was provoked to lose his self-control. In any event Langton v The State (unreported) Privy Council Appeal No 35 of 1999, 15 May 2000 shows that a direction under the second limb may have a part to play in a case like the present. The defendant was tried for murder and relied on the defence of provocation. The judge did not give any good character direction. The defendant was convicted of murder and his appeal came to this Board which quashed the conviction and substituted a verdict of manslaughter. The Board observed inter alia that the jury should have been reminded that a man of good character might be unlikely to indulge in very serious violence without first being provoked.

[20]In the present case the appellant was a man of good character with no previous criminal convictions and he gave evidence to this effect. In his summing up the judge gave the first limb of the good character direction but did not give the second limb. He said:

"And you may have regard, since it was raised by counsel for the Defence, to what you know of the character of the witness. Now on the issue of character, might I make an observation at this stage. The accused had said in evidence that he had no previous convictions at the time of this incident. And counsel also elicited from Susan that he was a cool fella, whom she regarded as a son. In fact, Marlon Peters confirms that he had known this defendant for about seven years and that he was a cool guy. So, of course, one of the purposes of that would have been to suggest to you that this was a person who would be a credible witness. Of course, it is a factor which you are entitled to take into account in deciding whether you believe him."

[21]Before the Court of Appeal the appellant submitted that there had been a miscarriage of justice due to the trial judge's failure to give a direction under the second limb. It is important to notice that the Court of Appeal characterised the major issue in the case as being whether, when he killed the three women, the appellant was out of control as a result of the provocation to which he had been subjected. The relevance of the evidence of good character therefore was that it would suggest that the appellant was unlikely to have committed such barbaric acts unless he had lost his self-control. That being so, the Court of Appeal applied the decision of the Board in Langton and held that a propensity direction had been necessary: "if none was given, this would amount to a misdirection".

[22]The Court of Appeal then examined the passage in the judge's summing up where he dealt with good character. They noted that he had referred to the appellant's own evidence that he was of good character and also to the evidence of two witnesses that he was a "cool fella". By that the Court of Appeal understood the witnesses to mean that they regarded the appellant as a person of equable temperament, "which perhaps in the context of this case may well have counted for more than his previous clean record". The Court of Appeal went on to examine another part of the judge's summing up where he dealt with the prosecution's point that there was evidence that, after the killings, the appellant had stopped to warn Rajkumar Persad to say nothing about what had happened. This was said to be indicative that the appellant was not out of control.

The judge added:

"On the other hand, you will want to consider what you know, what you have heard from the witnesses about the defendant and his cool disposition. This appears to be so out of character that the defence is saying, 'well, this man must have flipped'."

Although again the judge had not mentioned the appellant's clean record, the Court of Appeal considered that the telling point in this particular case was not so much that, at the age of 24, the appellant had no previous convictions but that he was regarded by those who knew him and who had no bias in his favour as "a cool fella". That characteristic had previously been mentioned by the judge in association with his clean record and so the two might well have been linked in the jury's mind. In these circumstances the Court of Appeal did not consider that the appellant had suffered any prejudice as a result of the judge's failure to give the jury a specific propensity direction.

[23]The trial judge and the judges in the Court of Appeal are in a better position than the members of the Board to interpret the words "a cool fella". Their Lordships accordingly defer to their understanding of what the witnesses meant. On that basis the judge was indeed right to direct the jury that they should take that evidence into account when considering whether the appellant "must have flipped". But, unlike the Court of Appeal, their Lordships do not consider that, by giving that direction, the judge had given a direction that can be equated with the proper direction under the second limb. While useful and appropriate, the direction which he gave could not and did not fill the gap left by the omission of the propensity direction. In other words the jury should have been told to consider not only the evidence that the appellant was of an equable temperament but also, and in addition, the evidence that he had not previously offended. Both points could have been relevant to the jury's consideration of whether the appellant would have done what he did unless he had been provoked. It follows that there was a misdirection in relation to what the Court of Appeal identified as "the major issue in the case".

[24]On behalf of the State Mr Knox submitted that, if they reached that view, their Lordships should go on to apply the proviso in section 44(1) of the Supreme Court of Judicature Act 1962. He argued that the appellant had carried out consecutive ferocious attacks on three women and the jury would inevitably have convicted the appellant of murder on the view that, even if he had been provoked, the provocation was not enough to make an ordinary man react in this barbaric way. So any misdirection on the subjective issue was, in effect, irrelevant and, in terms of section 44(1), "no substantial miscarriage of justice [had] actually occurred". Their Lordships appreciate the force of the submission, but they have come to the view that they should not accede to it. They recall not only that this is a capital case but also that the jury were out considering their verdict for two and three-quarter hours, including a period when they returned for further directions on the difference between murder and manslaughter. That is a long period by local standards and it is plain that there must have been at least some issues which the jury did not find straightforward. There is no way of knowing what those issues were or of discovering the ultimate course of the jury's reasoning. In these circumstances, and given the importance of the issue to which the misdirection relates, their Lordships are unable to affirm that no substantial miscarriage of justice has occurred.

[25]For these reasons the appeal against the convictions must be allowed. Ordinarily, in such a case the Board would have remitted the case to the Court of Appeal to decide whether to quash the convictions and order a new trial or to substitute verdicts of manslaughter for the verdicts of murder. In this case, however, Mr Knox informed the Board that, if the appeal were allowed, the State would not seek a new trial. Their Lordships therefore substitute verdicts of manslaughter on each of the three counts for the verdicts of murder. The appeal against the sentences of death becomes academic. Their Lordships remit the case to the Court of Appeal to impose the appropriate sentence in respect of the convictions of manslaughter.

Cited in 1 later judgment

Maye v. The Queen (Jamaica) 2008