Easter Term
[2017] UKPC 14
Privy Council Appeal
No 0089 of 2015
JUDGMENT
Phillip (Appellant) v The Director of Public
Prosecutions (Respondent) (St Christopher and Nevis)
From the Court of Appeal
of the Eastern Caribbean Supreme Court (St Christopher and Nevis)
before
Lady Hale
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
16 May 2017
Heard on 19 January 2017
|
Appellant
Paul Taylor
Jessica Jones
Amanda
Clift-Matthews
Talibah Byron
(Instructed by
Simons Muirhead & Burton LLP)
|
|
Respondent
Dane Hamilton QC
Valston M Graham,
Director of Public
Prosecutions
(Instructed by
Myers Fletcher & Gordon)
|
LORD HUGHES:
1.
The appellant was convicted in November 2008 of the murder of his
estranged wife, Shermelle. She had been killed on Friday 16 February 2007. His
appeal to the Eastern Caribbean Court of Appeal against his conviction was
dismissed on 15 March 2012. The present further appeal to the Board was lodged
on 9 October 2015, and leave to appeal was granted in March 2016 on three
grounds. Before the Board, application has been made to argue further grounds,
and to adduce fresh evidence in support of one of them.
2.
The appellant and Shermelle lived on Nevis, where both of them worked at
the Four Seasons Hotel and Resort complex. They had been separated since May
2006, and had not been in each other’s company for something like two months
before her death. She lived in the south of the island at Prospect and he at
Jessups Beach, approximately eight to nine kilometers away to the north, the
other side of Charlestown. On the evening of her death she had been going to a
retirement party. She was found dead in her car in the yard of her home,
dressed for the party. She had been killed with a knife, clearly as she was
about to leave, since the key was in the ignition, and either the violence of
the attack, or perhaps her own hand, had activated the alarm, sounding the horn
and switching on the hazard flashers. She had spoken to a friend on the
telephone at around 6.45-6.55 pm and the alarm was sounding by about 7.20-7.30.
Plainly she had been killed sometime between 6.45 and 7.30.
3.
In outline, the prosecution case against the appellant consisted of
three independent strands, together with a plainly false assertion initially
advanced by the appellant and then retracted:
(a) the appellant had
demonstrated hostility, violence and possessiveness towards Shermelle; he was
plainly resentful that she had left him;
(b) the appellant’s red
pickup truck was sighted a few yards from Shermelle’s home at about 7.20 pm and
its number noted by one of the two witnesses who saw it; there was no
legitimate reason suggested for it to be anywhere in that area;
(c) DNA matching the
deceased was found on both of the appellant’s hands after his arrest later on
the evening of the murder; he and she had not been in each other’s company for
several weeks; and
(d) to the first people
who spoke to him after the murder was known, the appellant asserted that he had
had an argument in a bar with an unknown man from St Kitts who, he believed,
would have killed Shermelle because she was an easier target than he himself
was; however, when interviewed under caution by the police after his arrest,
the appellant abandoned this assertion and, to the question whether he knew
anyone who might have had a reason to kill his wife, answered “no”.
4.
The appellant gave the police an account of his movements on the night
of the murder. It was arguably not entirely consistent with other evidence of
his movements, but in general it did not assert any positive alibi, save that
at around 7 to 7.30 pm he was either driving through Charlestown in search of
food to buy or travelling north towards Cotton Ground to visit a woman called
Tricia Williams. He did not give evidence at his trial, but told the jury from
the dock that he wished to stand on what he had said to the police.
“Bad character” evidence
5.
The principal ground of appeal, for which leave was granted by the
Board, related to the evidence adduced by the prosecution of the history of the
relationship between the appellant and Shermelle. The evidence of Shermelle’s
mother and of her friend, Yvonne Glasgow, was that the appellant had over the
years exhibited physical aggression and possessiveness towards Shermelle.
Between them, these witnesses gave evidence of four incidents. First, in 2003,
Mother had seen Shermelle with a swollen arm. She had taxed the appellant with
beating her. He had wept and apologised, saying that it would not recur. Second,
in February 2006, Yvonne had received a late night telephone call from a
distressed Shermelle. She had spoken to the appellant and taxed him with
hitting his wife; he had objected that she should keep out of his affairs. The
following day Shermelle had a red and swollen ear. Third, a few days after
this, Shermelle had come to Yvonne’s home at night. They had set off to find
her mother, but had been followed for some distance by the appellant in his
car. He had forced their car to stop, rushed up, cursing, had removed the
ignition key, and had demanded that Shermelle return home with him. There had
been a row in which he accused Yvonne and Mother of interfering and damaging
the marriage. Shermelle had corrected him to say that the problem in the
marriage was that he would not stop hitting and abusing her. The appellant had
sought to justify himself by saying that Shermelle had refused to tell him
where she was going. At the end of the row he apologised and promised not to
hit her again. Then, in May 2006, Shermelle left the appellant, arriving with
some possessions at Yvonne’s home. Within a few weeks she had moved to the
rented house in Prospect where she was eventually killed. The appellant either
stayed from time to time with her there or perhaps for a short period lived
there, until about November/December when he left and she changed the locks to
exclude him. The fourth incident of which evidence was given occurred later in
December 2006 when he arrived unannounced and insisted on removing household
items to which he laid claim, including the washing machine, which he
disconnected, and even a clothes line, which he dug up. Mother spoke of his
hostility to Shermelle on this occasion, which was manifested also by seizing a
necklace which she wore and aiming to throw a bottle of water at her, until
Mother intervened.
6.
The contention of the appellant is now that this evidence was
inadmissible because it was mere evidence of propensity to aggressive
behaviour. This argument was raised for the first time before the Board. There
was neither any objection taken to the evidence at trial, nor any ground of
appeal relating to it in the Court of Appeal. Indeed, the appellant now
reinforces his inadmissibility argument by adding to it the contention that his
conviction is also unsafe because trial counsel culpably failed to take the objection
in both those courts.
7.
It is of course correct that, absent a statutory provision such as
sections 98-113 Criminal Justice Act 2003 in England and Wales, evidence which
does no more than demonstrate that the defendant is a violent person will
ordinarily be inadmissible: Makin v Attorney General for New South Wales
[1894] AC 57, as explained recently by the Board in Myers Cox and Brangman v
The Queen [2015] UKPC 40; [2016] AC 314, paras 37-41. But this was not the
present case. The present case is a typical example of evidence which is
undoubtedly admissible. The evidence was not simply (or indeed at all) that the
appellant was given to outbursts of violence or temper in general. It was that
he exhibited persistent hostility towards the deceased in particular, which he
expressed in violence to her. Born out of frustration his behaviour may have
been, but the evidence showed that he resented her leaving him and bore her
active and violent ill will. That went to support the case that it was he,
rather than some stranger, who accosted her in her own yard and killed her. It
was evidence of motive to harm the particular victim of the offence. Such
evidence has always been admissible, certainly where the identity of the killer
is the issue. It may also be admissible where the killing is admitted by the
accused but the issue is the intention with which it was done, or whether it
was provoked, but those circumstances are not this case.
8.
This commonplace principle was recognised as long ago as 1910 in R v
Ball and Ball [1911] AC 47. The issue in that case was whether it was
admissible to prove the physically affectionate relationship between the
defendants in order to support the charge of incest on the occasions indicted. But
in the course of argument Lord Atkinson offered (at p 68) an observation which
has been treated ever since as axiomatic and cited for generations in Archbold’s
Criminal Pleading (see currently the 2017 ed at 13-31):
“Surely in an ordinary prosecution
for murder you can prove previous acts or words of the accused to show that he
entertained feelings of enmity towards the deceased, and that is evidence not
merely of the malicious mind with which he killed the deceased, but of the fact
that he killed him. You can give in evidence the enmity of the accused towards
the deceased to prove that the accused took the deceased’s life. Evidence of
motive necessarily goes to prove the fact of the homicide by the accused, as
well as his ‘malice aforethought,’ in as much as it is more probable that men
are killed by those that have some motive for killing them than by those who
have not.”
9.
The same point is made by the Board in Myers at para 40:
“Mere propensity to behave badly
is to be excluded as unfair. Admission requires justification beyond such mere
propensity. An example of such justification is so-called similar fact evidence
(which was in question in Boardman, and see now Director of Public Prosecutions
v P [1991] 2 AC 447); in such a case the justification arises because the
evidence is sufficiently compelling to have real value in controverting
innocent coincidence. Another example is the kind of case where there has
been a course of violent dispute between the defendant and the victim; there
the evidence may be admissible (inter alia) to show either who was responsible
for the last (charged) occasion, or the intention with which the defendant
acted on that occasion, or to explain the reactions of the two parties. Likewise,
in a case of alleged sexual abuse, the history and nature of a relationship
said to have been abusive will often be relevant to proving a particular
incident charged, even though it also shows prior misbehaviour by the
defendant. It is impossible to catalogue every situation in which such
justification may be present. But unless it is, evidence of misbehaviour
unconnected with the offence charged is not admissible.” (Emphasis supplied)
10.
For the same reasons, any application to the judge to exclude this
evidence as unfairly prejudicial under the principle in Noor Mohammed v The
King [1949] AC 182, 192 (and see -now- section 123 Evidence Act No 30 of
2011) would have been doomed to failure. There is nothing unfair about proving
that the accused has an animus against the particular victim whom he is charged
with injuring.
11.
It follows that the principal ground of appeal fails, and with it the
contention that trial counsel failed, let alone demonstrated flagrant
incompetence, in not objecting to the admission of this evidence. Trial counsel
in fact approached the evidence correctly. He argued before the jury that the
prosecution was simply trying to demonize the appellant, and that relatively
minor spats between spouses could not properly be taken as foreshadowing
murder.
12.
The Board nevertheless draws attention to the importance, where evidence
of misbehaviour other than that charged is advanced at the trial, of carefully
observing the basis on which it can be considered. Counsel on both sides, as
well as the judge, must start with Makin. The admission of evidence of
this kind must be justified. It is not enough that it is “part of the
background”. That is too easy a generalisation and fails to distinguish the
admissible from the inadmissible. If the accused has previous convictions for
violence in bar-room brawls, that might be described by some as part of the
background, but it would not make it admissible on a charge of murdering his
wife. If the accused has in the past conducted one or more extra-marital affairs,
that might be described as part of the background, but that is unlikely to be
admissible unless there is, additionally, a proper basis for saying that it is
relevant beyond simply showing that he is a bad man. Such a proper basis might
exist, but it must be demonstrated, such as, for example, good reason to
suggest that he killed his wife in order to further a fresh affair, or that he
had been encouraged by a lover to get rid of her, or to rebut untruthful
protestations by him of his deep devotion to her. Nor is the facile argument
based upon “background” improved by reference to R v Pettman (unreported,
2 May 1985), as to which the Board repeats what it said in Myers at
paras 51-55. Similarly, the easy assertion in some of the written arguments
placed before the Board that the evidence in the present case was admissible
because it “went to credibility” must be rejected. The appellant did not give
evidence, and his credibility was scarcely in issue in the trial. To the extent
that it was, because he relied on what he had said to the police, it would not
have been open to the prosecution to adduce evidence that he was, generally, an
untruthful person. The evidence of past violence to the deceased did not go to
his general credibility; it went to show that he bore her ill will and had the
motive and inclination to attack her. It was indeed relevant to whether the
allegation against him was true, but that is not “credibility”.
13.
There were times in the present trial when the general rule of Makin
was not kept as well in sight as it should have been. It was unwise of counsel
for the prosecution to assert in opening that the appellant was a man of
uncontrollable temper, for that may easily amount to an assertion of general
propensity rather than of ill-will to the particular victim; however, in the
context used it was clearly part of an outline of the case of ill-will to the
deceased. Counsel for the prosecution did, at one or two stages of his final
speech, come close to inviting the jury to try the marital rights and wrongs; it
was going too far to address the jury in terms asserting that the deceased was
a wronged wife, who received humiliation and hurt where she was entitled to
love and affection. But that passage was closely followed by an entirely proper
and emphatic observation that the history of violence in the relationship did
not make the appellant guilty, but did say something about his inclination to
use violence on his wife. The Board does not, however, agree that it was
illegitimate for counsel to advance the theory that the appellant’s state of
mind may have been that if he could not have his wife, no one else should; that
was a legitimate inference to invite the jury to draw and whether it did so or
not was for it to decide.
14.
It would also have been better if the trial judge had explicitly set out
for the jury what the possible relevance of the evidence of past aggression
was. Instead she told them that they had heard quite a lot of “background”
evidence, and that that was “not relevant to the offence as convincing you so
that you feel sure that he committed it”. But this direction was, if anything,
rather more favourable to the appellant than a focused direction on the reason
for the admission of the evidence would have been, for the latter would have
had to explain that the jury should consider whether the historical evidence
demonstrated an ill-will towards the deceased which supported the case that the
killer was the appellant rather than some unknown person.
Good character direction
15.
Mr Taylor, for the appellant, realistically did not pursue before the
Board the separate complaint that the judge ought to have given a good
character direction. No evidence of good character was adduced, nor any request
made for such a direction. Moreover, since the Board’s conclusion is that the
bad character evidence of prior aggression and violence to the deceased was
plainly admissible, there could have been no sensible good character direction
which did not have to be heavily qualified by reference to the appellant’s
proved past behaviour. That would simply have emphasised it, to his
disadvantage. The Board draws attention to the recent decision of a five judge
Court of Appeal (Criminal Division) in London in R v Hunter (Nigel)
[2015] EWCA Crim 631; [2015] 1 WLR 5367, which underlines the importance of
such directions being realistic rather than formulaic or meaningless.
Sighting the red pickup
16.
Malva Rawlins and her daughter Aquilla gave evidence that they walked
past the deceased’s home at around 7.15 on their way to choir practice. Both
said that her car was in her yard with its hazard lights flashing and its horn
blowing. Both said that a little way on they also passed a red pickup, parked
with its nose into a side-track. Both gave evidence, to which the prosecution
attempted to attach some significance, that the deceased’s dog, which usually
barked at disturbances, was not barking. Thus far their evidence was similar. Aquilla
gave evidence of additional observations. She said that the deceased’s car had
been moving from side to side and that she heard, indistinctly, a woman’s
voice. She also said that she recognised the red pickup as that of the
appellant (whom both the witnesses knew) and she gave its number.
17.
Counsel for the defence elected to challenge this evidence by exposing
the differences between the two women. He also suggested that it was improbable
that the appellant should park his pickup in an obvious place if he were bent
on murder, moreover in a place from which he would have to reverse out. And,
most of all, he relied (at no little length) on the fact that Aquilla had said
that she could see by street lights and also by the lights from the house of a
Mr Fyfield, whereas Fyfield himself said, in a single unexplored answer, that
his own lights were not on that night.
18.
It was contended before the Board that counsel culpably failed to cross
examine Aquilla by suggesting the possibility of honest error, and likewise
failed to develop the defence case on that basis. It is correct that counsel
had described Aquilla’s evidence about the lights in the Fyfield house as a
lie, but taken overall his submissions to the jury were simply that her
evidence “fails”, or could not be “trusted”, and that neither her evidence nor
that of her mother could be “accepted”. He reminded the jury that counsel for
the prosecution had said that Aquilla saw more than her mother, and he
summarised his submission as follows: “… my suggestion to you is that Aquilla imagine
(sic) more than her mother”. It may be that different advocates would have
approached the witnesses differently. Some might have elected to pursue the
possibility of innocent mistake, for example, as Mr Taylor suggested, by cross
examination on Aquilla’s knowledge of the registration number and its visibility
on the night in question. But counsel’s approach was perfectly permissible. There
is nothing approaching the kind of flagrant incompetence which can, very
occasionally, render a conviction unsafe. Since Aquilla was saying that she
knew the vehicle and recognised it, cross examination of the kind now suggested
might have carried no little risk of eliciting greater detail of her
familiarity with it. The jury was left in no doubt that the evidence was said
to be unreliable, especially because of the contradiction by Fyfield about the
lights on his house. It may well be that the jury was not, in the end,
impressed by this discrepancy, particularly given that everyone agreed that
there was other (street) lighting in the place concerned. But the issue of her
reliability was squarely before the jury, which saw her and had the opportunity
to assess her evidence that she recognised a vehicle known to her.
19.
In summing up, the judge essentially recounted the evidence of the
witnesses, including Malva and Aquilla Rawlins, largely without comment. She
did not separately summarise the evidence of Mr Fyfield, which was largely
uncontroversial narration of helping when the victim was found, and thus did
not refer to his evidence about his house lights. That was an error of
omission. But the emphasis laid by counsel on his lighting evidence had been
such that it is quite impossible that the jury could have failed to have the
point in mind. Right at the end of the summing up, the judge reviewed the
principal arguments which had been put to the jury by counsel, and thus
adverted to the defence suggestion that “Aquilla is not a witness to believe,
basically”. Thereupon, she correctly reminded the jury that the assessment of
credibility was a matter entirely for it. She did not, separately, invite the
jury to consider also the possibility of innocent mistake. Given the way the
evidence had emerged and the line which had been taken with the witnesses, that
was not a material error. There was, probably for prudent reason, very little
evidence about Aquilla’s familiarity with the vehicle, and none about the
number of similar red pickups which may or may not have been available on this
very small island.
Fresh evidence
20.
Some eight or nine months after leave to appeal to the Board had been
sought and obtained, the appellant tendered for the first time fresh evidence
which he applied to the Board to admit. It consisted of statements from the
appellant himself and from his two sisters, Ilena and Bonnilyn, together with a
report from a well-known English expert in forensic science including DNA
analysis.
21.
If credible, the evidence of the appellant’s sisters would be of
dramatic effect. The appellant had been told of his wife’s death during the
evening by two workmates. He had collapsed and been taken to hospital. The
police found him in the emergency ward and arrested him there. Having been
taken to the police station, his hands were swabbed, which examination revealed
DNA matching the deceased; a random match was extremely unlikely. Now, it is
asserted by his two sisters that they were both in the hospital with the
appellant when the officer in the case, Corporal Caines, arrived to see him. They
assert that they both saw that Caines, who had come from recovering the
deceased from her car, was noticeably contaminated with blood. More, they
assert that Ilena protested strongly to Caines that he could not deal with the
appellant in that condition, because she was concerned about contamination.
Clearly, if credible, these assertions would be highly relevant to the
possibility of accidental transfer to the appellant of the DNA of the deceased.
22.
The Board refused to admit this evidence. It was quite satisfied that it
was not credible. Possible contamination by Caines was the principal live issue
at the trial in relation to the DNA evidence. He was cross examined at considerable
length on the subject. None of the facts now asserted by the appellant’s
sisters was touched upon. But Ilena says in her recent statement that she told
trial counsel all about it only a week or so after the arrest. It is
inconceivable that if she had done so, the point would not have been the
centrepiece of the appellant’s case. Ilena is, and was at the time, a serving
police officer with around 20 years’ service, over five of them in the CID. She
outranked Caines. She very clearly, on her own evidence, understood the
significance of what she now says she saw. There could be no possible reason
for not advancing her evidence at the trial if it were what she was then
saying. It is simply not credible that she would have permitted the trial to
continue without her assertions being advanced, and her evidence called. Even
supposing that that possibility could be contemplated, it is even less credible
that when the appellant was convicted, there was not the strongest possible
protest at trial counsel’s failure to use damning material. Still less is it
believable that when an appeal against conviction was mounted and heard the
family should allow trial counsel to continue to act, and once more to ignore
potentially vital evidence. Far from what would be expected occurring, the
present statements were made for the first time late in 2016, eight years after
the trial. It might be added that the statement of Ilena also purports to
provide the appellant with an alibi because she asserts that he arrived at the
family home at about the same time as she did, shortly after 7 pm, that is to
say more or less at the time of the murder, and did not go out for something
like an hour. That that too should appear only at this juncture is a plain
indication that it is not credible. Moreover, the timing of Ilena’s arrival
home, and thus of the appellant’s, is directly contradicted by the evidence,
given at trial and then no doubt seen as of little importance, of the taxi
driver who delivered Ilena and who gave the time as an hour and a half later. There
are other differences between the accounts of Ilena and Bonnilyn which are also
difficult to explain if both are truthful, even given the passage of time, but
the foregoing matters are more than enough to demonstrate that the fresh
evidence tendered satisfies neither the requirement that it be apparently
credible nor the requirement that adequate explanation be given for it not
having been adduced at trial.
23.
The appellant’s own statement also asserts that he gave factual
instructions to trial counsel. As well as supporting the assertion that Ilena
protested to Caines at the hospital that he was covered in blood, and that
counsel was told of it, the appellant now claims that he gave instructions on
some of the past incidents, which he says he denies, and even that he told
counsel that Mr Fyfield was himself the owner of a red pickup similar to his
own. All these plainly important pieces of information, the appellant says that
counsel simply ignored. There could be no reason for counsel not using this
kind of information. It is not credible that he was given it, and the
remarkable lateness of the claim that he was only serves to underline that
conclusion.
24.
The expert report now tendered is not, of course, incredible. To the
extent that it comments on the risks of contamination assuming the facts as
stated by the two sisters, it is accurate but irrelevant once their evidence is
rejected. To the extent that it otherwise considers the risks of possible
contamination, it is, whilst hypothetical, no doubt broadly accurate, but it
would not provide grounds for allowing the appeal and quashing the conviction. Most
of it is common sense. The expert rejects the possibilities that the DNA of the
deceased could have persisted from the time the appellant and the deceased were
last together and/or that it could have derived from items in his possession
which she had previously handled, and/or that there was laboratory
contamination. That leaves possible contamination via the police. The
possibilities of contamination by this route were strongly advanced at the
trial, via the cross examination of both Caines and the forensic scientist
called by the prosecution, and fully explored. They were there for the jury to
assess. Nor is there any reasonable explanation advanced for the failure to put
forward further expert evidence, which would clearly have been available, at
the time or in the ensuing eight years since the trial. Nor, in any event, did
the trial depend entirely on the DNA evidence, powerful though that undoubtedly
was. The combination of the other three factors set out at paragraph 3 above,
each independent of the other, was telling.
Conclusion
25.
For all the foregoing reasons, the Board will humbly advise Her Majesty
that this appeal should be dismissed.
