Skeete v. The State (Trinidad and Tobago) [2003] UKPC 82

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 89 of 2002Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
SkeeteAppellantThe State (Trinidad and Tobago)Respondent
Before
Lord HoffmannLord Scott of FoscoteLord Rodger of EarlsferrySir Andrew LeggattSir Philip OttonDate 24 November 2003
[1]:- Lord Hoffmann Lord Scott of Foscote Lord Rodger of Earlsferry Sir Andrew Leggatt Sir Philip Otton [Delivered by Lord Rodger of Earlsferry ] Marcelle Skeete appeals by special leave against the decision of the Court of Appeal of Trinidad and Tobago dismissing his appeal against conviction for attempted murder and varying his sentence so as to add to the life sentence imposed by the judge a sentence that he be given 15 strokes with the birch. Background:[2]The basic facts are not in dispute. At about 11 pm on 20 June 1990 the appellant went round to the house of Sherry Ann Hector who, some years before, had had a child by him. Two other people, Peter Roberts and his girlfriend Idalyn Marcelle, were in the house at the time. Using a cutlass, the appellant inflicted on Sherry Ann some 25 cuts of varying depths, 20 of which were potentially fatal. Although she survived, the victim's injuries were appalling: her left hand had almost been severed and, even some five years later, she had no sight in her left eye and was unable to open her right hand. The day after the incident, at Old Grange police station, under caution the appellant gave this version of what had happened:
"Sir, I went by Sherry Ann Hector last night and I meet another man there and I call she out and tell she about it and she deny it. She then pick up a cutlass and I take it away from she and planass she and she get cut. She then start to push she self against the cutlass and say 'Ah go kill myself and let them hang you.'"
Later that day the appellant helped the police to recover the cutlass. On 22 June the appellant was cautioned and charged with attempted murder and with wounding with intent to cause grievous bodily harm.[3]At his trial the appellant was represented by counsel, a Mr Des Vignes. At the outset of the trial the appellant pleaded not guilty to both charges. The case for the prosecution was that the appellant had attacked Sherry Ann in a fit of jealousy. In particular, the prosecution led evidence from her that at the start of the attack the appellant had said to her "I will get fucking even with you". He had repeatedly chopped her and had said "I will chop your mother cunt and drink poison". He had also said that, if he could not get her, no one else would. Glenora Keith, Sherry Ann's sister, gave evidence of hearing cries for help and of seeing the appellant chopping Sherry Ann and saying that he was going to kill her and drink grammoxone, a paraquat-based weedkiller. Anthony Keith also gave evidence to the effect that the appellant had said that he would kill Sherry Ann and drink poison. The appellant had pulled out a vial from his pocket and shown it to the witness.[4]Defence counsel cross-examined Sherry Ann. Their Lordships will require to look more closely at that cross-examination in due course. In brief, however, the judge's notes indicate that the questions were designed to suggest to her that her relationship with the appellant was still continuing and that they had slept together around the time of the incident. She denied this. She accepted that the cutlass used in the incident was hers, but denied the suggestion that she had had it and had made a chop at the appellant who was "infused" and pulled it away from her. The cross-examination of Glenora Keith was very short, apparently dealing only with how she became aware of the incident and where she was when she saw it. Counsel did not cross-examine the other witness to the events, Anthony Keith, or the police officer, Acting Sergeant Moore, who gave evidence about the investigation, including what the appellant had said under caution.[5]According to the judge's notes, the appellant "elected" to give evidence on oath.

The judge recorded the start of his evidence in this way:

"Live at Canaan. Heard the evidence of State. I plead guilty to the second count of wounding with intent. (State does not accept plea.)"
In other words, all that the appellant did, to begin with, when led as a witness for the defence was to accept that he was guilty of wounding with intent to cause grievous bodily harm.[6]After the prosecutor had declined to accept this plea, the appellant said nothing more in examination-in-chief. In cross-examination by the prosecutor, however, the appellant said that he had not intended to kill Sherry Ann, but only to do grievous bodily harm. It was dark and he thought he was planassing her, beating her with the cutlass. He had no intention of chopping her. She was moving and, with no lights in the house, she got cut. He was beating her with the cutlass and had no thought of chopping her. The most he could do now was to plead to the second charge and ask for mercy. He had chopped her but had no intention of killing her.[7]In re-examination the appellant said that the victim was his lover and that they had slept together at his house the previous night. She had been at his house earlier in the evening of 20 June. When he had gone round to her house, the sliding door was locked. She had told him to hold on a minute and then had come out of the bedroom. She had said to him "Payne, I cannot accept you here tonight". When he asked her why not, she had said nothing. She tried to close the door but he had stopped her. She had stepped on the right side of the door. He saw a cutlass in her hand coming towards him. They started to wrestle with the cutlass and he overpowered her and ended up with the cutlass. He started to beat her with the cutlass and that was how she got cut.[8]The prosecutor was allowed to cross-examine the appellant further and suggested that the version he had given in re-examination was not how it had happened. The appellant said that it was and he denied that he had invaded the victim's house and chopped her.[9]The defence led no further evidence After closing speeches, but before the summing up, in the presence of the jury the trial judge asked counsel what exactly the defence was. The appellant's counsel agreed that it could not be self-defence. The judge then asked him whether the appellant was saying that the chops were accidental in the circumstances. Mr Des Vignes replied that the appellant was sort of getting out of the element of intention, but that the actus reus was there. He suggested that the appellant was maybe in his own mind seeking some kind of mitigation of his behaviour, "but I can't really say that he has put forward any defence". Prosecuting counsel then said that, at least at one stage, the appellant seemed to be saying that he was not guilty of attempted murder, but of wounding with intent to do grievous bodily harm. But at another stage, he was talking about planassing and seemed to be saying that the planass could turn into a chop. There was also the statement that the appellant was holding the cutlass and that the victim had said she was going to kill herself and started throwing herself against the cutlass. The judge, having confirmed that no issue of self-defence arose, said that he would leave it to the good sense of the jury.[10]In his summing up, after giving a number of more general directions, the judge directed the jury on attempted murder and on wounding with intent to cause grievous bodily harm. It will be necessary to look at the summing up in a little more detail below, but for the present it is sufficient to notice that the judge told the jury that the defence was somewhat confused but the appellant seemed to be saying that it was all accidental and he had no intention of killing the victim or of causing her grievous bodily harm. The judge then gave the jury directions on accident.[11]The jury found the appellant guilty of attempted murder and the judge sentenced him to life imprisonment.[12]The appellant appealed against his conviction. His appeal was not heard until 1998. In the meantime the appellant had changed his counsel. On 14 July 1998 the new counsel, a Ms Moore, made an application to the Court of Appeal for the transcript of the evidence given in the High Court to be made available so that she could see whether Mr Des Vignes had put any defence to the State witnesses. The Court of Appeal ordered that an affidavit by Mr Des Vignes should be filed within three weeks and that he should attend the Court of Appeal.[13]In his affidavit, dated 22 September 1998, Mr Des Vignes said that on the day of the trial he had been appointed by the trial judge to represent the appellant. The prosecution was ready to proceed but Mr Des Vignes was not ready since he had no instructions. The judge gave him an opportunity to read and study the depositions and to interview the appellant. He thought that the trial had begun the following day. At the date of the affidavit the proceedings were very vague in his memory, but he did remember having the opportunity to interview the appellant and to discuss the charges and the depositions with him. The appellant had elected to take the witness stand "of his own volition". At no time during the trial had the appellant complained either to the judge or to counsel that he had not had or received adequate representation or had an opportunity to give counsel instructions, or sufficient instructions.[14]Presumably in the light of Mr Des Vignes' affidavit, the appellant himself swore an affidavit on 4 October 1998. He said that the judge had appointed Mr Des Vignes on 1 June 1995 and the matter was adjourned until the following day. He saw Mr Des Vignes on the morning of 2 June and the matter was further adjourned until 6 June. On the evening of Saturday 3 June Mr Des Vignes went to visit him in prison but the authorities would not allow him in to see him. According to the appellant, he next spoke to counsel on the morning of 6 June but for less than 5 minutes. He had no opportunity to instruct Mr Des Vignes about his defence. He then went on to say that his defence was accident and self-defence. He also said that he had wished to call Peter Roberts and Idalyn Marcelle as witnesses but Mr Des Vignes had said he had no time for that now. During the trial counsel had advised him to plead guilty to the lesser charge and said that he would beg for him. The appellant went on to say that counsel had not challenged any evidence from any witness, had not challenged the complainant and had only asked the victim one question. The other two witnesses were not adequately cross-examined. The appellant had not given him any instructions as to what to cross-examine on since he had not had an adequate opportunity to do so.[15]The appeal was heard on 15 October 1998. Three grounds of appeal, broadly reflecting the complaints in the appellant's affidavit, had been filed the previous day. But, when giving the judgment of the Court of Appeal, refusing the appeal, Sharma JA recorded that Ms Moore, who appeared for the appellant, had indicated that, having read the notes of the trial, she could not advance anything substantial by way of appeal. She had conceded that the only verdict could have been one of guilty, that the question of self-defence never arose and that, even if it had, with the infliction of 25 chops, no jury properly directed could have come to any other verdict. She had also said that the defence of accident simply did not arise on the facts.[16]Sharma JA went on to refer to the appellant's affidavit. He said this:
"The affidavit is vague. It appears to be the words of a man who is clutching at straws and is desperate in the circumstances to implicate anybody, so as to save himself. It is clear that that affidavit lacks bona fides, but may we just say that it is becoming quite prevalent in these courts that when appellants or accused people have been found guilty, they have been coming to the Court of Appeal and casting blame on their counsel, hoping that the court will quash their conviction. While it is true to say that in the most exceptional cases, the Court will order a retrial or quash the conviction, we want to make it very clear that it is only in the rarest and most exceptional cases we will do so. We have repeatedly in the past indicated that it is a most serious allegation to make and it must be properly substantiated. We will not tolerate these allegations, especially when frivolously made, as was in this particular case. We have many judgments of this court, and in the other courts, to justify the position that we have taken in this case."
The Court of Appeal not only dismissed the appeal against conviction, but also varied the appellant's sentence to include 15 strokes of the birch. The court did not make any direction that time spent by the appellant in custody pending appeal was to count as part of his sentence of imprisonment.[17]Before their Lordships' Board counsel for the appellant, Mr Dingemans QC advanced submissions that can be grouped under four broad heads. Conduct of Counsel at the Trial[18]Mr Dingemans submitted that the appellant's statement to the police and his evidence in court raised issues as to intention to kill, intention to wound, self-defence and the causation of some of the wounds. These matters had plainly called for the proper taking of instructions, for cross-examination and for suitable submissions to the jury.[19]According to Mr Dingemans, the appellant's assertion in his affidavit that proper instructions were not taken was supported by the facts that there was only very limited cross-examination and that, after counsel's speeches, the judge was left wholly unaware of the nature of any defence being advanced by the appellant. Indeed, in the exchange between counsel and the judge prior to the summing up, Mr Des Vignes had said "I can't really say he has put forward any defence". It was not a remark that was likely to assist the appellant.[20]Mr Dingemans further submitted that, given the terms of the appellant's statement to the police, if the defence case had been properly conducted, there should have been a challenge to much of the prosecution case, including the evidence that the appellant had been uttering repeated threats to kill Sherry Ann. The failure to challenge that evidence had created an inconsistency with the appellant's evidence to the effect that he did not realise that he was chopping the victim due to the poor light and that he thought he was only planassing her. The failure to cross-examine the witnesses on the threats meant that the trial judge had given the jury directions, particularly as to intention, which were based on the premise that the victim's evidence on this crucial matter stood "accepted, as it were". This meant that the jury would have been left with little or no apparent choice but to convict the appellant.[21]In support of his submission Mr Dingemans drew the Board's attention to a number of passages in the summing-up. Among the most significant were:
"All these things that the accused is saying, you look at them to determine what his intention was. He is making it clear, isn't he, that he was out to kill her and probably kill anybody who came on the scene."
And later:
"Now in cross-examination [counsel] didn't challenge any of these things. So this evidence of Sherry Ann stands accepted, as it were. If the accused had a case that he didn't do these things or he didn't intend to chop her or he didn't say these words which Sherry Ann said he said, then [counsel] would have put it to her that the accused didn't say what you say that he did … but [counsel] didn't really put anything to contradict what Sherry Ann said."
[22]Mr Dingemans went on to submit that the appellant's position, that he had been given inadequate advice, was evidenced by his attempt, in his examination-in-chief, to plead guilty to the lesser count - a plea inconsistent with his later evidence and with his statement to the police. This inconsistency would have prejudiced the appellant's case on intention. Any offer to plead guilty to the lesser charge should have been made before the trial began or, in any event, in the absence of the jury. Mr Des Vignes had tendered no satisfactory explanation for what had occurred.[23]Mr Dingemans submitted that Mr Des Vignes had further erred by ignoring the appellant's instruction to call Peter Roberts and Idalyn Marcelle as witnesses for the defence. They had been present in the house at the time of the incident, and the victim said that she had run into their room during the attack. The State had not called them and their evidence might have been favourable to the appellant. The possibility that these witnesses might have affected the outcome of the trial was real and not to be discounted.[24]Taking these aspects together, Mr Dingemans submitted that the failures of counsel had been so extreme as to result in a denial of due process to the appellant. The approach which an appeal court should take in a case like the present had been identified by the Chief

Justice in Bethel (Christopher) v State (No 2) (2000) 59 WIR 451, 459-460:

"In Solomon v The State (1999) 57 WIR 324, this court considered the difference in the language of the English provision as compared with ours and we came to the conclusion that there was no substantial difference in the effect of both provisions. Subject therefore to any direction which the Privy Council may give us when it gives its decision in Boodram, we consider that when the conduct of a case by counsel forms the ground of appeal, we too ought to focus on the impact which the faulty conduct of the case has had on the trial and the verdict rather than attempt to rate counsel's conduct of the case according to some scale of ineptitude. There is, however, one important proviso which we would attach to this approach. It is conceivable that counsel's misconduct may have become so extreme as to result in a denial of due process to his client. In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance for, whenever a person is convicted, without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed. It is not difficult to give hypothetical examples of how such a situation might occur. An obvious example would be if the accused had the misfortune to be represented by counsel whose judgment was proved to have been impaired by senility, drugs or some mental disease. Another example, closer to the facts of this case, is if counsel conducted the defence without having taken his client's instructions. This is simply another application of the basic principle that, if there is a fundamental flaw in the conduct of a trial, the conviction which results from it cannot be allowed in any circumstances to stand. One case in which this court recognised and applied that principle was Seepersad v The State (unreported) in which it was held that a summing-up was so flawed that it rendered the trial unfair and that therefore no question of applying the proviso arose. A lynching is an abomination to be condemned and at all costs prevented, not just because of the possibility that the victim may not be guilty, but because it is a denial of the link between law and justice which is an essential pillar of what we call 'civilization'."
The Board had approved this passage in Boodram v The State [2001] UKPC 20 .[25]Mr Dingemans argued that in the present case the situation had been exacerbated by the effective abandonment of the appellant's appeal before the Court of Appeal. As a result that court had not had to consider the issues. The combined effect of the conduct of his trial counsel and of his counsel on appeal had been effectively to deny the appellant due process.[26]Applying the law as laid down in Bethel v The State (No 2) , their Lordships are quite unable accept these submissions, even though they were advanced with skill and determination. In the Court of Appeal Sharma JA, who is, of course, very familiar with local conditions, rejected the appellant's affidavit about the instructions to counsel as lacking bona fides and as typical of what he saw as a prevalent abuse of the appeal procedures. That may well be right. But their Lordships need not, and do not, go that far. They proceed on the basis that, for example, in relation to the dates when Mr Des Vignes was instructed, came to court, tried to see the appellant in the prison and saw him before the trial, the information in the appellant's affidavit may well be accurate – and preferable to Mr Des Vignes' understandably vague recollection. They are also prepared to accept that any interview between the appellant and Mr Des Vignes before the trial would have been relatively brief. Since they are unfamiliar with the conditions under which those, such as Mr de Vignes, who are appointed at short notice to act for defendants, have to prepare the defence, their Lordships would not feel it right to criticise counsel simply because of the length of an interview. What matters is whether Mr Des Vignes had an adequate opportunity to obtain the appellant's instructions on the issues in the case. He said that he did; the appellant says that he did not. It is by no means unusual, even in the absence of bad faith, to find that recollections of such interviews between counsel and client differ, especially some years after the event. An external check is therefore desirable. In this case the only available check is what happened at the trial.[27]As their Lordships have explained, the victim, Sherry Ann, gave evidence on behalf of the State. The appellant gave evidence later, after the State case was closed. In cross-examining Sherry Ann, Mr Des Vignes first asked about the sliding door at her house and obtained the reply that it was closed. In his evidence the appellant said that the sliding door was locked. Counsel also asked the victim questions that were designed to suggest that the sexual relationship between her and the appellant was still continuing around the time of the incident. That was also the position that the appellant took in re-examination. Mr Des Vignes asked the victim a question which elicited the answer that she owned the cutlass used to inflict the wounds. He then put it to her that she had the cutlass and made a chop at the defendant. In his statement to the police the appellant said that she picked up a cutlass. In re-examination he said that he saw her coming towards him with a cutlass in her hand. Counsel also asked whether the appellant was "infused" and pulled the cutlass away from the victim. In his statement the appellant said that he took the cutlass away from her. In re-examination he said that they started to wrestle, he overpowered her and ended up with the cutlass. Counsel also suggested that the victim had male company on the evening in question and that the man had run away when she attacked the appellant. In his statement the appellant said he had met another man at her house. While he is not recorded as saying in re-examination that there was another man in the house, he did say that the victim had told him to hold on a minute, had come out of the bedroom and had told him she could not accept him there that night. These circumstances would seem designed to suggest that she was with another man at the time.[28]The questions that their Lordships have identified in the cross-examination of the victim are all intended to put to her points that correspond to elements in the account that the appellant later gave in re-examination. Certain, but not all, of them also correspond to what the appellant had told the police. Their Lordships readily conclude that Mr Des Vignes could not have put the questions that he did to Sherry Ann unless he had indeed taken the appellant's instructions on his version of the night's events and had read the deposition of Acting Sergeant Moore. As the respondent said succinctly in his case, before the Board, "the fundamental problem in this case was not that counsel failed to take proper instructions, but that there was no serious defence on which to give instructions". For these reasons this ground of appeal must be rejected.[29]Even though the substance of the account that the appellant was to give later was put to the victim, it would also have been preferable for counsel to challenge the evidence of the victim and of the other witnesses to the effect that the appellant had been threatening to kill her and then take poison. But there can be no real doubt that the witnesses would have rejected any such challenge to that evidence. In the end, therefore, the jury would have been left with the two rival accounts. Given the weight of the evidence, there is no reason to believe that cross-examination on this point would have led the jury to reject the witnesses' evidence about the incident. So, subject to the question of its impact on the judge's summing up discussed below, their Lordships would not regard any failure by counsel in this regard as having had any material bearing on the outcome of the trial.[30]In considering Mr Dingemans' other criticisms of counsel, their Lordships bear in mind that there is all the difference in the world between the hearing before the Board and the circumstances of a trial, especially this particular trial, in the High Court. Before the Board Mr Dingemans was able to draw out various issues from the evidence and from the appellant's affidavit, in particular the defences of accident and self-defence. He was then able to elaborate on their possible significance, in an ordered and rational manner. But, as is obvious from the notes of the evidence, counsel at the trial was in a very different position. Plainly, the appellant was by no means clear in his own mind what version of events he wanted to put forward. In cross-examination he first said that he intended only to do grievous bodily harm. Then he said that he was planassing the victim, rather than intending to chop her. Because she was moving and it was dark, she got cut. This might suggest accident. Then he went back to saying he chopped her but had no intention to kill her. In re-examination he said that she attacked him and he overpowered her and got the cutlass from her. This is presumably the basis for any suggestion of self-defence. He then said that, after getting the cutlass, he started to beat her and that was how she got cut.[31]Faced with these confused and inconsistent versions of events in the appellant's evidence, Mr Des Vignes was in an unenviable position. More particularly, their Lordships see no reason to believe that, at an earlier stage when interviewed by Mr Des Vignes, the appellant would have given any kind of clear or coherent instructions on these various issues that should have formed the basis for counsel's conduct of the case. On the contrary, it appears to them that in the difficult circumstances of this case counsel quite properly proceeded on one, relatively coherent, version which the appellant duly gave in re-examination. But in other parts of his evidence the appellant introduced elements that were inconsistent not only with his basic account in re-examination but with one another. Counsel might perhaps have been expected to make something of these other elements if they had been of any substance. But there was obviously no merit in any defence of self-defence, given the nature of the victim's wounds. As counsel rightly perceived, the nature of the wounds also precluded any tenable defence of accident. He would accordingly have been entitled to take the view that pursuing those issues would simply have risked making an already difficult and confused situation even worse. In these circumstances their Lordships reject the contention that Mr Des Vignes failed in his duty to put forward the defence case.[32]At the start of his evidence the appellant offered to plead guilty to wounding with intent to do grievous bodily harm. What he said thereafter in evidence was confused, but running through it there was at least one strain to the effect that, however the incident might have started, he had never intended to kill the victim, but just to chop her. That was consistent with the appellant's offer to plead guilty to the second charge. Admittedly, the plea was inconsistent with any suggestion that the wounds had been inflicted when the appellant was defending himself and with any suggestion that he had intended merely to beat the victim, rather than to cut her. But, as their Lordships have explained, these elements were themselves difficult to reconcile with the version which Mr Des Vignes had put to the victim in cross-examination and which must have been based on the appellant's instructions to him. Mr Dingemans said that, on any view, the plea should not have been offered in front of the jury. That may well be to take too narrow a view. Even though the prosecution did not accept the plea, admitting, and offering to plead to, the lesser offence might have been a useful – and certainly not unprecedented - tactic in trying to persuade the jury that they should not convict the appellant of the more serious charge of attempted murder. Which was, in reality, the most that the defence could hope to achieve, given the evidence against the appellant. If – as seems likely – some such thinking lay behind counsel's decision to lead the appellant to offer this plea in evidence, then again their Lordships would not condemn his approach. They have therefore detected no miscarriage of justice in this respect.[33]The criticism of counsel's failure to call Peter Roberts and Idalyn Marcelle as witnesses does not even get off the ground since there is nothing to show what their evidence would have been, far less that it would have supported the defence case.[34]For these reasons their Lordships reject the appellant's ground of appeal relating to the performance of counsel at the trial. Their Lordships postpone consideration of the criticism of counsel at the appeal until after they have considered the criticisms made of the trial judge's conduct of the trial. Conduct of the Judge[35]Mr Dingemans criticised the trial judge's summing up and his general attitude towards the defence. As their Lordships have explained, before beginning his summing up, the judge prompted an exchange, in the presence of the jury, in which he enquired as to the nature of the appellant's defence. Then, in the course of summarising the evidence, the judge told the jury that the defence was confused. Having reminded the jury of the evidence of the victim, he said that the appellant's counsel had not challenged any part of her evidence (save that it was put to her that she had come at the appellant with the weapon). If the appellant had had a case that he did not do or say these things, then Mr Des Vignes would have put it to her. Accordingly her evidence "stands accepted". He reiterated that point in relation to the evidence of the two witnesses who had been present. Accordingly, Mr Dingemans submitted, the defences of accident and self-defence were never properly and fairly aired before the jury.[36]Under reference to these passages, Mr Dingemans also submitted that the trial judge had made a number of comments which effectively conveyed to the jury that they had nothing to discuss, that the prosecution's case was fully made out and that their verdict would be inevitable. In that connexion he also criticised the following passages:
"It seems to me that a man who chopped a woman, as the accused did, and accompanied those chops by several declarations of 'I am going to kill you' or words to that effect, could not be merely doing something merely preparatory to killing her. To me it seems to be a substantial step towards the commission of the crime of murder. That is just my view, it is a matter for you to determine."
Mr Dingemans suggested that this was too heavy a comment and that the judge should not have expressed his personal view. "As I said, I do not think you will have any difficulty in this case in determining that issue" (the distinction between a preparatory act and the taking of a substantial step towards commission of the offence). And later, in relation to the lesser count:
"Now, just in case, and I doubt this will occur here, but I have to give you the directions on it. Just in case you find that he wounded her but did not have the intention to cause her grievous bodily harm …"
And finally, at the end of the summing up:
"So there you have it, Mr Foreman, members of the jury. I dare say it will not be a very difficult case for your consideration, but I've had to go through the whole thing."
[37]Mr Dingemans submitted that, while a trial judge is entitled to comment adversely on issues raised during the trial, he must be careful not to undermine the trial process. Here the judge's comments were such as to render the summing up fundamentally unbalanced and flawed to such an extent that the Board should set aside the conviction.[38]In evaluating these criticisms their Lordships again begin by recalling that this was a trial in which the appellant's evidence was both confused and confusing. It was therefore only prudent for the judge to ask for counsel's assistance in identifying the live issues. The question of self-defence was quickly and rightly eliminated. Mr Des Vignes gave a realistic assessment of the accused's overall position and prosecuting counsel analysed the issues accurately. The judge then said he would leave matters to the good sense of the jury. In their Lordships' view it would have been preferable if this discussion between the judge and counsel had taken place in the absence of the jury. But it seems more than likely that what counsel said in the discussion reflected, in broad measure at least, their underlying position when addressing the jury. After all, the judge was experiencing these difficulties after hearing counsel. In all probability the jurors were equally puzzled as to what exactly the appellant's defence was. That being so, even supposing that they heard and understood them, these exchanges would have done little or nothing to alter the jurors' subsequent consideration of the appellant's case in the light of the judge's summing up.[39]In that summing up the trial judge gave careful, indeed elaborate, directions on the law. His directions on attempted murder can in fact be criticised for concentrating unduly on the distinction between an act that constitutes an attempt and an act that is merely preparatory – an issue that did not arise in this case. But he also paid particular attention to the requirement for the prosecution to prove an unequivocal intention to kill, rather than to cause grievous bodily harm. This was the heart of the real issue that the jury had to determine when deciding to convict of one count rather than the other. The judge concluded his directions on the two offences by indicating the constituent elements of unlawful wounding. He also emphasised that the burden of proof was upon the prosecution.[40]Importantly, the judge gave directions on accident that properly reflected the law. Admittedly, any defence of accident was made more difficult by defence counsel's failure to cross-examine the witnesses about the alleged threats to kill. Counsel can be criticised for that. But their Lordships see no reason to criticise the comments which the judge made on the state of the evidence where it had not been challenged. It is important to notice, moreover, that at a later stage in his summing up he carefully recounted the appellant's evidence on which any such defence rested. So, despite counsel's failure to cross-examine, the appellant's position was fully explained to them. All in all, the trial judge did the best he could in what those involved at the time recognised were difficult circumstances.[41]So far as the judge's other comments are concerned, those relating to the distinction between mere preparation and attempting to commit an offence were simply irrelevant to any live issue in the case. While it would have been better if the judge had not made them, they were not prejudicial to the jury's consideration of the actual issues before them. The judge's comment that he doubted if the jury would be concerned with distinguishing between wounding and wounding with intent was justified – once the jury had eliminated the defence of accident on which he gave proper directions elsewhere. Some of the judge's other comments might have been better omitted, particularly his comment to the effect that it would not be a very difficult case for the jury's consideration. These comments have to be seen, however, in the context of the summing up as a whole. Having read and re-read it, their Lordships are satisfied that it was not fundamentally unbalanced. On the contrary, in summarising the evidence, the judge was at pains to place the appellant's position before the jury and to tell them how to approach the issues, including accident, that his evidence might be thought to raise. In that setting his adverse comments to the jury, even when viewed in their least favourable light, did not go beyond what was acceptable. In short, nothing in the summing up rendered the verdict unsafe. On the contrary, it gave the jury the guidance they needed to reach a proper verdict. Conduct of counsel at the appeal[42]Since their Lordships have rejected the grounds of appeal relating to the criticisms of both the trial counsel and the trial judge, it follows that they must also reject the ground of appeal relating to the conduct of counsel before the Court of Appeal who, after studying the transcript, felt unable to support the appeal. So there is no basis for saying that, taken singly or together, the proceedings in the High Court or in the Court of Appeal constituted a denial of due process. Proviso[43]Their Lordships think it right to indicate that, even if they had been persuaded that there was substance in any of the grounds of appeal advanced by Mr Dingemans, they would have taken the view that there had been no substantial miscarriage of justice. The prosecution case was formidable. The evidence showed that the appellant had subjected the victim to a ferocious and sustained attack with a cutlass. This was demonstrated by the number and depth of the wounds, and not least by the fact that the victim was blinded and her hand nearly severed. The distribution of the wounds, principally about the arms and head, indicated that the victim was trying to defend herself. These features bore out the clear evidence of the witnesses as to the nature of the appellant's attack on the victim. Their evidence as to the expressions that the appellant uttered showed a clear intent to kill and, apart from the evidence of the appellant - which the jury clearly rejected - there was nothing to contradict that evidence. In the circumstances the defences of accidental impalement and self-defence were utterly untenable. Their Lordships are therefore satisfied that the verdict of guilty to the first count cannot be regarded as unsafe: indeed it was inevitable. They would accordingly have applied the proviso in section 44 of the Supreme Court of Judicature Act 1962 and would have dismissed the appeal against conviction. Sentence[44]The appellant appealed only against conviction and not against sentence. Accordingly, as the respondent accepted, in terms of section 44(1) and (2) of the Supreme Court of Judicature Act 1962, the Court of Appeal had no power to vary the sentence or to quash it and substitute a different sentence. Moreover, the presiding judge in the Court of Appeal did not indicate that the court was considering passing a sentence of corporal punishment in addition to the life sentence. Counsel for the appellant was given no opportunity to address the court on the subject. Their Lordships therefore allow the appeal against sentence and quash the order for corporal punishment. Time Spent[45]Section 49(1) of the Supreme Court of Judicature Act 1962 provides:
"The time during which an appellant pending the determination of his appeal, is admitted to bail, and subject to any directions which the Court of Appeal may give to the contrary on any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions which may be given by the Court of Appeal be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence."
Thus in Trinidad and Tobago time spent in custody pending the determination of an appeal will not generally count as part of the term of imprisonment under the sentence, but the court may give a direction to the contrary. Mr Dingemans submitted that in this case the Court of Appeal should have given such a direction. He referred to the decision of the Board in Tiwari v The State [2002] UKPC 29 .[46]For the purposes of this appeal it is not necessary to decide any general issue. The matter can be disposed of by reference to the particular circumstances of this case. When passing sentence the trial

judge said:

"You will serve a term of life imprisonment with a declaration that you be not released from custody until 20 years from today. So ordered."
There are two separate elements in what the judge said, the sentence of life imprisonment and the declaration as to release. In terms of section 49(1) the sentence of life imprisonment will run from the date of the determination of the appeal to the Court of Appeal since there was no direction to the contrary. The declaration that the appellant be not released from custody until 20 years "from today" is not, however, to be regarded for these purposes as part of the sentence but as a separate, free-standing decision which is not caught by section 49(1). For the purpose of considering release, the 20 years will accordingly continue to run from 7 June 1995, when the trial judge's declaration was made. That conclusion does substantial justice in a case where, through no apparent fault of the appellant, his appeal was not determined until almost three years after he had begun serving his sentence. Summary[47]The appeal against conviction is dismissed. The appeal against sentence is allowed: the order for corporal punishment is quashed and the 20-year sentence of imprisonment will run from 7 June 1995.

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