Practice and Procedure


PUBLISHED November 25, 2003

Unsuccessful appeal against conviction for attempted murder where the appellant failed to establish that the conduct of either the trial judge or the appellant's counsel at trial or on appeal rendered his conviction unsafe. However the appeal against sentence was allowed since the Court of Appeal of Trinidad and Tobago did not have the power to vary the sentence imposed by the trial judge.Appeal from the decision of the Court of Appeal of Trinidad and Tobago dismissing an appeal against conviction for attempted murder and varying the sentence imposed by the trial judge. The appellant ('M') inflicted 25 cuts on his ex-girlfriend ('the victim') using a cutlass. He was charged with attempted murder and wounding with intent to cause grievous bodily harm. Initially he pleaded not guilty to both charges. At trial the prosecution case was that M had attacked the victim in a fit of jealousy. The prosecution led evidence that he had threatened to harm the victim and then drink poison. M voluntarily gave evidence on oath and, in examination-in-chief, purported to plead guilty to the wounding charge. The prosecution declined to accept the plea. In re-examination M said that he had wrestled the cutlass from the victim and started to beat her with it. M denied that he had invaded the victim's house and attacked her. After closing speeches, but before the beginning of his summing up, the trial judge prompted an exchange, in the presence of the jury, in which he enquired as to the nature of M's defence. Having confirmed that no issue of self-defence arose, the trial judge said that he would leave it to the good sense of the jury. In summing up he told the jury that M seemed to be saying that it was all accidental and that he had no intention of killing the victim or causing grievous bodily harm. The jury found M guilty of attempted murder. He was sentenced to life imprisonment and the trial judge declared that he was not to be released from custody until 20 years from the date of sentence. M appealed to the Court of Appeal of Trinidad and Tobago against his conviction only. In an affidavit he complained of the conduct of his trial counsel ('V') and alleged that he had had no opportunity to instruct trial counsel about his defence of accident and self-defence. M's appeal counsel felt unable to support that ground before the Court of Appeal and conceded that the only verdict could have been one of guilty. The Court of Appeal viewed M's affidavit as lacking good faith. It dismissed the appeal and varied M's sentence to include 15 strokes of the birch. M's grounds of appeal before the Privy Council were that: (i) the conduct of his counsel at trial and on appeal had denied him due process; (ii) the judge's summing up and general attitude towards the defence rendered the verdict unsafe; and (iii) the Court of Appeal should have given a direction that the time M spent in custody pending the determination of his appeal should count as part of the term of imprisonment under his sentence.HELD: (1) V could not have put the questions to the victim that he did at trial unless he had taken M's instructions on his version of events and read the deposition of the police officer who gave evidence about the investigation. There was no real reason to believe that cross-examination of the victim and other witnesses, to the effect that M had been threatening to kill the victim and take poison, would have led the jury to reject the witnesses' evidence about the incident. There was obviously no merit in any defence of self-defence and the nature of the victim's wounds precluded any tenable defence of accident. In those circumstances V did not fail in his duty to put forward the defence case. There was no miscarriage of justice arising from M's attempt to plead guilty to the wounding charge. Accordingly there was no substance in M's ground of appeal relating to the performance of his counsel at trial. (2) It would have been preferable for the discussion between the trial judge and counsel, as to the live issues, to have taken place in the absence of the jury. However the discussion would have done little or nothing to alter the jurors' subsequent consideration of M's case in light of the trial judge's summing up. In that summing up, the trial judge gave careful directions on the law. 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. (3) Since the grounds of appeal relating to criticisms of the trial counsel and the trial judge were rejected, the ground of appeal relating to the conduct of appeal counsel had to be rejected. (4) The verdict of guilty could not be regarded as unsafe. The appeal against conviction was dismissed. (5) The Court of Appeal had no power to vary M's sentence. The appeal against sentence was therefore allowed and the order for corporal punishment was quashed. (6) For the purpose of considering M's release, the 20 years was to run from the date when the trial judge's declaration was made in order to do substantial justice to M in circumstances where, through no fault of his own, his appeal was not determined until almost three years after he had begun serving his sentence.Judgment accordingly.

[2003] UKPC 82