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Teeluck & Anor v. The State (Trinidad and Tobago) [2005] UKPC 14 (23 March 2005)

ADVANCE COPY

Privy Council Appeal No. 36 of 2004

(1) Mark Teeluck and

(2) Jason Ellis John Appellants

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 23rd March 2005

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Present at the hearing:-

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton

Lord Walker of Gestingthorpe

Lord Carswell

[Delivered by Lord Carswell]

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1. This appeal is brought by special leave against the order of the Court of Appeal of Trinidad and Tobago (Hamel-Smith, Permanand and Jones JJA) dated 26 March 2002, whereby the court dismissed the appeals of the appellants Jason Ellis John and Mark Teeluck against their conviction on 14 July 2000 of the murder of Narvin Nandlal after a trial in the High Court of Trinidad and Tobago before Lucky J and a jury. Both appellants were found guilty on the single count on the indictment of murder and the mandatory sentence of death was imposed on each.
2. The prosecution case was as follows. On Friday 12 December 1997 Armanath Moonilal, a dealer in livestock, and his nephew Narvin Nandlal, a youth aged 19 years, were in the Palo Seco/Erin area seeking animals to purchase. About 11 am the pick-up truck in which they were travelling was stopped by a man, whom Moonilal subsequently picked out on an identification parade as the appellant Mark Teeluck. Teeluck told them that he had two bulls for sale, quoting a price. Moonilal demanded identification, to which Teeluck offered to provide a pink slip (a document in use in Trinidad and Tobago which is regularly used to furnish some evidence of identity). Teeluck left them a short while later and returned some time about 11.30 with a pink slip bearing his name and address and a straight-handled cutlass. He got into the van again and directed Moonilal to Oilfield Road, the van being stopped where a track joins the road. Teeluck asked for assistance to bring out the animals and Nandlal accompanied him along the track.
3. Moonilal waited in the van for about half an hour, and when the others had not then returned he walked along the track for about 500 feet, where he called out loudly. He heard two strange voices saying "Come here, boy", but did not hear his nephew. He started to walk back towards the van when he heard someone calling him. He looked back and saw, at a distance which he estimated at 460 feet, a man about six feet tall, who appeared to be shining with sweat. Moonilal felt that something was wrong, so instead of going to this man he returned to his van.
4. About 2.30 that afternoon Moonilal reported the matter at Santa Flora police station and produced the pink slip. He took a police officer to the track off Oilfield Road, where about 3.30 they found Nandlal's body. Other police officers later arrived and Dr Surandra Bhimsingh certified death. Subsequent post mortem examination established that the deceased had died of multiple chop wounds. The pathologist's report records five substantial wounds involving the head, face and neck, three of them on the back of the head and associated with underlying fractures of the skull.
5. That evening between 6.50 and 7.15 police officers carried out searches, authorised by warrants, of the houses of the two appellants, neither of whom was at home at the time, and removed various items. From John's house they took items of clothing and from Teeluck's they seized a cutlass, a pink slip matching the one given to Moonilal and a towel bearing dark stains which appeared to them to be blood.
6. At 11 pm the same evening Teeluck came voluntarily along with his father to the police station at Siparia, where he was seen by Corporal Celestine Phillip and other officers. Cpl Phillip told him that he was a suspect in the murder of Narvin Nandlal, to which he said "Officer, I will tell you the truth, but I ent want to talk in front meh father". His trainers, which appeared to be bloodstained, were seized.
7. At 11.30 pm Teeluck dictated a written statement taken after caution to Cpl Phillip, who recorded it. It was a long statement, recorded in the vernacular and written in handwriting which is somewhat difficult to decipher, in which Teeluck recounted a version of the events of that day. At the material portion he stated that he and Nandlal met John in the track, where there was a conversation about selling sheep. Teeluck then heard something like a planass (a stroke with the flat of a cutlass) or chop in the head. John asked Nandlal for money and Nandlal said that Moonilal had it. Then he produced folded notes amounting to about $200, which John took and put in his pocket. John then hit him three or four chops and asked if that was all the money, to which he replied that it was. John and Teeluck then left and appear to have tried to get Moonilal to come to them. When Moonilal failed to do so, Teeluck warned John that he had gone for the police and they left the scene. When they got home John warned Teeluck to keep quiet about what had happened. The remainder of the statement concerns their activities that evening and the spending of the money that they had taken from Nandlal.
8. The next morning Mr Phillip Copeland, a justice of the peace, was asked to come to the police station, in accordance with the usual practice in Trinidad and Tobago, to verify Teeluck's statement. Shortly after midday he was shown the statement and asked Teeluck if any threats or promises or inducements had been given to him to give the statement, to which Teeluck said that they had not. The statement was read over to the appellant, who was asked if he wished to make any alterations. Teeluck said that he did not and that the statement was true and correct and given of his own free will. Mr Copeland certified the statement and it was countersigned by the police officers and also by the appellant.
9. On Saturday 13 December 1997 about 3 am John was arrested at his home. He denied any knowledge of the murder. He was brought to Siparia police station, where at 11.50 he was again cautioned and said that he knew nothing about the murder. That afternoon his house was again searched and more clothing and a cutlass were seized.
10. On Sunday 14 December 1997 at 3 pm John was seen by ASP Victor, Cpl Celestine Phillip and Cpl Clyde Phillip. After being informed of the nature of the investigation and cautioned, he asked to see Cpl Clyde Phillip alone. When the other officers had left John said to Phillip "I chop the man behind his head but it is Mark who kill him." In consequence of this Mr Copeland was again sent for and at 3.50 pm John made a written statement. In the statement he said that he and Teeluck had been "liming" (hanging about talking) the whole week and wanted to get money for Christmas. They hatched a robbery plan together and John fetched his father's cutlass. They met the victim and at a sign from Teeluck John "planassed" him with the cutlass. The man fell down and Teeluck got $270.00 from him, which John put in his pocket. Teeluck signed to John to chop him, which John did, and as he got up Teeluck chopped him again. John chopped him some more, whereupon Teeluck said that he did not want to go to jail and decided to kill him. John called the other man, but he did not come, so they two men made off. They spent all the money that day, except for $7.00, which still remained. He had lied to the police until Sunday 14 December, when he told one of the inspectors the truth.
11. The statement was taken in the presence of Mr Copeland JP, who satisfied himself first that he gave it of his own free will. John was offered the opportunity to alter, correct or add to the statement before it was completed. It was signed by the appellant John and countersigned by the two officers present and by Mr Copeland.
12. At 6.45 pm that day John called out to Cpl Celestine Phillip in the police station and gave him $7.00 in Trinidad and Tobago currency, which he said was all the money remaining from what they took from the dead man.
13. At 9.45 pm the same day Teeluck called out to Cpl Phillip that he would tell the truth now. Mr Copeland was summoned again and in his presence a second written statement was taken from Teeluck between 10.25 pm and 11.45 pm. In the statement he recounted basically the same account as before, up to the point where John asked Nandlal for money. At that point the statement reads (Record, pages 241-2):

"Jay end up asking meh kill him, he read lips meh, ah do so and bow mih head. Now Jay end up hitting him the chop and ask him for the money he had two something in the pocket and he hand it to Jay. Jay put it in the pocket, then ah ask him, dah all the money yuh have boy, he say yeh and ah hit him ah chop, after he end up getting up and Jay hit ah next chop, then he was braksing and ah swing the cutlass again and ah chop him again. Jay end up asking him again if that is all the money he say Fatman have the money, he say boy yuh lying and he hit him ah chop again with ah planass then he fell on the ground."

They left the scene and tried to get the other man to come, but when he failed to do so they reckoned he had gone for the police and left. Teeluck repeated his account of how they spent the evening. He admitted that he had lied at first, but said that he was now telling the truth. The statement was witnessed and verified by Mr Copeland in the same way as he had done with John's statement.

14. An identification parade was held on Monday 15 December 1997, at which Teeluck was one of the men in the line-up and Moonilal identified him as the man who had gone with Nandlal down the track. The officer in charge Inspector Nathaniel stated in evidence that before it commenced he explained its purpose to Teeluck and cautioned him. Teeluck then stated:

"Boss I begging for forgiveness. Jay told me to chop the man and I gave him two chops. We only went to rob. Jay hit him some chop and he fall down on the ground. He take two hundred and something dollars and we went to San Fernando. We did not know that the man was dead."

After the parade the inspector told Teeluck that he had been positively identified by the witness and again cautioned him. Teeluck said:

"Boss that is the man who was driving the van who I tell I had bulls to sell and who I gave the pink slip to."

15. The trial of the appellants commenced on 9 June 2000. Each was separately represented and counsel for each defendant applied for a separate trial, which the judge refused. The jury was sworn and the court commenced straight away to hold a voir dire in the absence of the jury to determine the admissibility of the confession statements, which was disputed by the appellants. A number of witnesses, including both appellants, was examined and cross-examined over a period of several days, following which on 16 June 2000 the judge ruled that the statements should be admitted in evidence. The terms of his ruling have not, however, been recorded. The trial then resumed in the presence of the jury and evidence was given before them on all issues, including the circumstances of the taking of the statements.
16. Teeluck's defence was an alibi, which the judge allowed him to put forward even though no notice of alibi had been served. He said that he had been with his girlfriend Wendy-Ann Alexis all day and was with her in Gulf City from midday until 6.30 pm, when they went to San Fernando, then to Siparia and Palo Seco. When he arrived home his father told him that the police were looking for him. That morning he had met Moonilal on the road about 10.30 and Moonilal said that he thought that he had gone for a cow. Teeluck said that did not know what he was talking about and that he must have mistaken him for a man named Joel, a drug addict who looked very like him.
17. Teeluck alleged that he was beaten and maltreated by police officers, in particular Cpl Celestine Phillip and Inspector Singh. Singh had hit him on the foot with a chair, causing bleeding on to his sneakers. He was given something to sign, but he had not dictated the contents and he could not read it. He signed the statements because he had been beaten and was frightened. He denied making any of the oral confessions attributed to him. He signed the second statement because he was deceived into doing so by a representation that there was no evidence against him and if he signed the document he could go home. He had lost his pink slip in Palo Seco in 1997 and obtained a replacement. He saw Mr Copeland only once, on 13 December 1997, when he asked him only if the signature on the statement was his.
18. At the end of his examination in chief Teeluck stated (Record, page 196):

"I have never been arrested for any matter or charged for any matter, except for this matter. The police have never arrested me for any matter."

This was not in fact true, as it has been established since that he was arrested on a previous occasion and charged with possession of drugs. He pleaded guilty to the offence and was fined the sum of $400.00. He was not, however, cross-examined about this at the murder trial.

19. John's defence was also an alibi, which the judge allowed him to put forward, though no notice of alibi had been served. He said in evidence to the jury that he had left home about 11.15 on the morning of 12 December 1997 and travelled to Siparia, where he arrived after midday. He spent most of the day with a friend named Arlene, accompanied for much of the time by two other girls. (He said in evidence that Arlene had died in an accident before trial.) The four stayed together until the middle of the afternoon, having something to eat in KFC. Arlene went home for a time, then rejoined John after 5 pm. They stayed together in Siparia until the evening and walked home some time around 8 pm. When he arrived home his mother told him that the police were looking for him.
20. The police arrived at his house at 3 am on 13 December to arrest him. He went with them to CID Siparia, where he said that he was stripped naked, slapped by police officers, handcuffed to an iron rail and deprived of sleep. Later that day he was taken home, still handcuffed. A search was carried out at his house and articles of clothing and a straight-handled cutlass were removed. On the way back to the station he was slapped again by Inspector Singh. At the station he was handcuffed again to the rail and slapped by Cpl Celestine Phillip. The first food he received was when his brother brought him something to eat later the same day.
21. John stated that on Sunday 14 December he was taken to a room in which he was left along with Cpl Clyde Phillip. He denied having asked to speak to him alone and also denied making any admissions to him. Phillip slapped him in the face a number of times and punched him in the stomach when he refused to admit the killing. Cpl Celestine Phillip came into the room with a number of sheets and told him to sign and date them. He was told that if he did so he would be allowed to go home, "because they had nothing on me". He was given a book with a text from which he had to write something, then he signed the document as instructed. The justice of the peace was not there. He never handed $7.00 to Cpl Celestine Phillip or told him that it was all that was left of the money Teeluck took from the dead man.
22. Mr Copeland had given evidence in the voir dire, but was unable to do so at the main trial, because in the intervening time he had suffered a stroke and was unfit to attend court. The judge allowed his evidence to be given by having his deposition at the magistrates' court read to the jury, no objection being taken by counsel for either defendant. The content of that deposition differed from his evidence given on the voir dire, in respect of the identity of the person who read over Teeluck's first written statement to him.
23. The prosecution was permitted by the judge to adduce rebutting evidence, because John had given no notice of alibi. Lisa Blake was called to say that she had met John in Gulf City at 5 pm on 12 December 1997 and was in the company of John and his girlfriend Chrissie Toussaint until approximately 8 pm in Gulf City. She then went to San Fernando and eventually home to Siparia. It appeared from her evidence that John may have been with Chrissie and herself after they left Gulf City, but it is not entirely clear. She said that John had given her a total of $120.00 in Gulf City to buy food and drinks.
24. During the course of his examination in chief John said (Record, page 209):

"When I was taken from CID I was handcuffed. Both hands were handcuffed. Both handcuffs remained on. When I reached home I was embarrassed. It was the first time I was under arrest."

At the time of his trial John had no convictions recorded against him and his evidence that he had never been arrested was not controverted.

25. The trial judge summed up to the jury on 14 July 2000. The jury went out at 12.30 pm and returned at 2.15 pm with a verdict of guilty against each defendant. The defendants both appealed to the Court of Appeal on a number of grounds and on 26 March 2002 the court gave a written judgment dismissing both appeals. In the Court of Appeal the appellants advanced a number of objections to the content of the judge's summing up to the jury, but only three of these have formed the grounds of appeal to the Privy Council, and their Lordships do not find it necessary to rehearse the others. The three which formed the subject of argument before the Board were (i) the lack of a good character direction (ii) the judge's direction about the evidence of the absent witness Mr Phillip Copeland and (iii) the judge's misdirection about the towel seized from Teeluck's house.
26. It is convenient to deal first with the second and third of these grounds, then to return to the issue of the good character direction. In relation to Mr Copeland's evidence the judge said to the jury (Record, page 265)

"But I will tell you now, in assessing evidence you have to see the witnesses, their demeanour and conduct, but you haven't had that opportunity with respect to Mr Phillip Copeland. It does not mean that you disregard the deposition, but you give it the weight you deem fit, bearing in mind that he has not come, not of his own volition, … he could not, but you read the deposition and give it such weight it deserves having regard to the other testimony which you may accept as credible, it is open to you to do that."

Later at pages 293-294 he said:

"… the question of weight of the deposition is a matter for you … unlike all the other witnesses, Mr Copeland was too ill to come, he couldn't testify, he's had a stroke. He was cross-examined in the Lower Court. He was not fully tested here, so you didn't have the opportunity like with the others of seeing him testify, his demeanour, his conduct, his answers; but nevertheless, you just don't throw his deposition aside because of that, it is part of the evidence, and it is open to you to decide in the light of all the circumstances, when I say circumstances, the evidence you have heard, what weight it would carry."

27. Counsel for the appellants submitted that these directions were inadequate. They argued that the judge should have directed the jury much more fully about the handicap which the inability to cross-examine the witness placed upon the defence and possible lines of cross-examination which the appellants had lost: cf R v McCoy 10 December 1999, Court of Appeal, at para 25, per Laws LJ. He should then have suggested to them that they might think it appropriate to give his testimony considerably less weight in consequence. Apart from the discrepancy over who read Teeluck's first written statement to him, there are conflicts of evidence at a number of points between the appellants' account of the interrogation and Mr Copeland's deposition, which could have been put to him. This objection was not set out in terms in any of the grounds in the notice of appeal of either appellant, but Permanand JA (with whose judgment the other members of the Court of Appeal agreed) said in discussion of Ground 8 advanced on behalf of Teeluck (page 399 of the Record):

"The trial Judge gave the usual caution to the jury directing them that they did not have the opportunity to see Copeland's demeanour and hear his viva voce evidence before them, but that he was cross examined at the Magistrate's court. The Judge adequately directed the jury that the question of the weight to be attached to his evidence was a matter entirely for them."

28. Their Lordships agree with this conclusion of the Court of Appeal. A judge's direction to the jury has to be tailored to the individual circumstances in every case when a deposition or a written statement is admitted in pace of the oral evidence of the maker, and in some cases it may be desirable to give a more stringent warning about the possible frailties of the evidence and the degree of disadvantage accruing from the defendant's inability to cross-examine the witness. In the present case police witnesses were present on each occasion when Mr Copeland saw either appellant and matters in conflict could be put to them. Moreover, Mr Copeland was cross-examined both when he made his deposition and on the voir dire, and on neither occasion was there any question or answer which indicated that a more searching cross-examination would have assisted either appellant at trial. One might also observe that the opportunity for counsel to comment on the conflicts of evidence may well have conferred more advantage on the appellants than the opportunity to engage in further cross-examination of Mr Copeland.
29. Counsel for Teeluck in his printed case linked with this direction the fact that in the course of his directions to the jury the judge incorrectly told them that the question of voluntariness was for the jury and that they should consider all the circumstances to see if the confessions were voluntary. Undoubtedly this was an error of law, for it was for the judge to determine whether the confession statements were voluntary. He no doubt considered this issue in deciding at the conclusion of the voir dire that they should be admitted in evidence before the jury. Their Lordships are unable to see, however, how this imposed any disadvantage on either appellant. It merely imposed another burden on the prosecution, to satisfy the jury not only that the content of the statements was true – as to which the judge correctly directed the jury – but also that those statements were voluntarily made, an issue which had already been decided by him against the appellants. Their Lordships accordingly do not consider that the second of the grounds of appeal advanced before them has been made out.
30. On the evening of 12 December 1997 police officers took from Teeluck's house, among other items, a towel which appeared to them to bear bloodstains. Subsequent forensic examination did not, however, detect bloodstains on any item but Teeluck's trainers. The judge stated in the course of his summing up (Record, page 265):

"And an inference, for example, is that you recall blood was found on the shoe and on a towel but the report says it was insufficient to properly analyze it, so you cannot say it is the blood of Narvin Nandlal. The inference there will be, well, it may or may not be, so you give the inference in favour not of the accused, in favour of it not being Narvin Nandlal's."

He said later (Record, page 288):

"[Celestine Phillip] … seized articles … including a white towel with blood stains. Now, these were analyzed and they indicated there was not sufficient blood. So you heard the warning earlier on, you just cannot go and presume whose it was, but it had these stains …"

These were factual misdirections, but the judge at the same time went far to neutralising them by giving a warning not to rely on the finding of the stains on the towel. The Court of Appeal dealt shortly with the point (Record, page 398), when Permanand JA said that the trial judge adequately directed the jury that they ought not to draw adverse inferences against the appellant and that there was no prejudice to him. Applying the regular principles and considering the evidence and the course of the trial as a whole, their Lordships are satisfied that if the facts had been correctly stated it would not have affected the outcome and the jury would have reached the same conclusions. They therefore do not consider that there is any substance in ground (iii).

31. Their Lordships therefore turn to the matter which formed the substance of the most of the arguments placed before them, the question of good character directions. The judge did not give a good character direction in respect of either appellant. In the Court of Appeal counsel then appearing for Teeluck withdrew the ground of appeal relating to this issue, on the ground that the appellant's character had not been sufficiently raised in the evidence for it to become an issue in the case. For the same reason the Court of Appeal (Record, pages 403-4) held that it had not been sufficiently raised in relation to John.
32. Both appellants made the case before the Board that the judge should have given a good character direction, the evidence set out in paragraphs 18 and 24 of this judgment having been given in the course of the trial. In the alternative, it is submitted on behalf of each that the omission to bring out the appellants' character and to ensure that a proper direction was given by the judge was incompetence on the part of counsel of such a degree that the verdicts should not stand.
33. The principles to be applied regarding good character directions have been much more clearly settled by a number of decisions in recent years, and what might have been properly regarded at one time as a question of discretion for the trial judge has crystallised into an obligation as a matter of law. There is already quite a substantial body of case-law on the various aspects of the application of the principles, not all of which is relevant to the present appeals. Their Lordships consider that the principles which are material to the issues now before them can conveniently be encapsulated in the following series of propositions:

(i) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit the circumstances of the case: Thompson v The Queen [1998] AC 811, following R v Aziz [1996] AC 41 and R v Vye [1993] 1 WLR 471.

(ii) The direction should be given as a matter of course, not of discretion. It will have some value and will therefore be capable of having some effect in every case in which it is appropriate for such a direction to be given: R v Fulcher [1995] 2 Cr App R 251, 260. If it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial: R v Kamar The Times, 14 May 1999.

(iii) The standard direction should contain two limbs, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged.

(iv) Where credibility is in issue, a good character direction is always relevant: Berry v The Queen [1992] 2 AC 364, 381; Barrow v The State [1998] AC 846, 850; Sealey and Headley v The State [2002] UKPC 52, para 34.

(v) The defendant's good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross-examination of prosecution witnesses: Barrow v The State [1998] AC 846, 852, following Thompson v The Queen [1998] AC 811, 844. . It is a necessary part of counsel's duty to his client to ensure that a good character direction is obtained where the defendant is entitled to it and likely to benefit from it. The duty of raising the issue is to be discharged by the defence, not by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v The Queen, ibid.

34. When they come to apply these principles to the appeal of Mark Teeluck, their Lordships consider that the case is clear. Teeluck said in evidence that he had never been arrested or charged. This was untrue, as he had pleaded guilty to a drugs offence. He had put his character in issue by this statement and the conviction could have been proved against him, no doubt to his detriment in the eyes of the jury. This was not done, and if the judge had elected to give a good character direction the most that he would properly have been entitled to was the second limb relating to propensity. The amount of assistance which would have been afforded to the appellant from such a direction must in the circumstances of the case have been debatable. The matter is put beyond doubt, however, by the fact that the giving of this evidence was not in their Lordships' view sufficient to raise the issue distinctly. They accordingly consider that the judge was not under a duty to raise the issue and there was no misdirection. Nor do they consider that there was a dereliction of duty on the part of Teeluck's counsel which would require the conviction to be regarded as unsafe. If he had raised the question with the judge in the absence of the jury whether a good character direction should be given, it is in their Lordships' view unlikely that he would have given a credibility direction in modified terms, and to raise the matter would simply have brought out Teeluck's falsehood in his evidence. The prosecution case against Teeluck was one of great strength overall, and their Lordships consider that the conviction was quite safe. They therefore dismiss Teeluck's appeal.
35. The case presented on behalf of John raises rather more difficult issues. He said in evidence, in the context of his embarrassment at being brought home in handcuffs, that it was the first time that he had been under arrest. That appears to have been correct, for it was not in dispute that he had no convictions. For the reasons which they have given in respect of Teeluck's appeal, however, their Lordships consider that this was insufficient to raise the issue and that the judge was not at fault in omitting a good character direction.
36. That does not, however, end the matter. His counsel could and should have ensured that the issue was raised so that John could obtain the benefit of the good character direction to which he was entitled. It was clearly material in the trial, for his credibility was of material importance in the issue of the conflict between his evidence and that given on behalf of the prosecution in relation to his treatment in police custody and the making of the confession statements attributed to him. Their Lordships received and considered two statements on the issue. One was from John himself, who stated that before his trial he informed his attorney that he had never previously been convicted of any offence. The second was a letter dated 3 July 2003 from Dr Kenneth O'Brien, who appeared for John at his trial. In that letter he accepted that he had been informed by John that he had never been arrested before. He did not specifically inform him that he had never been convicted of any offence and Dr O'Brien did not specifically ask him, though the implication does seem fairly clear that he had not, and this was confirmed to him by Anthony John, the appellant's brother.
37. Dr O'Brien further stated in that letter that he advised the appellant to raise the question of his good character in his evidence in chief to demonstrate his lack of familiarity with the treatment he received in police custody and his lack of complaint about it to the magistrates' court on arraignment. He continued:

"I did not raised [sic] further Mr John's good character because the case of Sealey and Headley v The State had not been determined at the date of my address to the Court at the conclusion of the trial. Further, I was influenced in my view at the time that given that the death sentence is mandatory on being found guilty of murder it would be unlikely to influence the case."

It has to be said that counsel laboured under a couple of unfortunate misapprehensions. In the first place, it had been made clear in Barrow v The State [1998] AC 846, decided over two years before the trial, that the practice in Trinidad should follow the practice approved by the House of Lords in R v Aziz [1996] AC 41, that a good character direction is essential for a fair trial, certainly where the credibility of the defendant is a central question. Secondly, it appears that Dr O'Brien regarded his client's good character as relevant only to mitigation in the matter of sentence. Their Lordships have to regard his reasons as mistaken and inadequate and his failure to bring out the appellant's good character and ensure that the judge gave an appropriate direction to the jury – in addition to addressing them himself on the issue – as a serious departure from the standard to be expected of defence counsel.

38. It should now be regarded as established law that in some circumstances the mistakes or omissions of counsel will be a sufficient ground to set aside a verdict of guilty as unsafe. Their Lordships feel obliged, however, to issue a reminder of the remarks made by the Board in Bethel v The State (1998) 55 WIR 394, 397 that ordinarily they will not even entertain a ground of appeal based upon allegations of incompetence by counsel when raised for the first time before the Board. In the present case they are prepared to do so because of the importance of the issue to the appellant John and because, on account of the frankness of his former counsel in furnishing information, they are in a good position to determine the issue without having to deal with any conflicts of fact.
39. In Sealey and Headley v The State [2002] UKPC 52 at paragraph 30 their Lordships stated, citing R v Clinton [1993] 1 WLR 1181 and R v Kamar The Times, 14 May 1999:

"Whilst it is only in exceptional cases that the conduct of defence counsel can afford a basis for a successful appeal against conviction, there are some circumstances in which the failure of defence counsel to discharge a duty, such as the duty to raise the issue of good character, which lies on counsel ... can lead to the conclusion that a conviction is unsafe and that there has been a miscarriage of justice ..."

There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client. Apart from such cases, which it is to be hoped are extremely rare, the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict rather than attempting to rate counsel's conduct of the case according to some scale of ineptitude: see Boodram v The State [2002] 1 Cr App R 103 at para 39; Balson v The State [2005] UKPC 2; and cf Anderson v HM Advocate 1996 JC 29.

40. Their Lordships are of opinion that this case falls into the exceptional category of those where the omissions of counsel had such an effect on the trial and verdict that it cannot be said with sufficient certainty that the conviction was safe. The prosecution case against John depended entirely on the oral and written confessions attributed to him, the authenticity and reliability of which he strongly contested. His credibility in making his allegations against the police was a crucial issue in the trial. That being so, it was vital for him to have the benefit, to which he was in law entitled, of both limbs of a good character direction from the judge. Their Lordships do not find it possible to speculate about the view which the jury might have taken if such a direction had been duly given. They cannot hold, however, that the verdict of any reasonable jury would inevitably have been the same if it had been given. That is sufficient to make the conviction unsafe.
41. Their Lordships will accordingly allow the appeal of the appellant Jason Ellis John, quash the conviction and remit the matter to the Court of Appeal to determine the issue of whether a new trial should be ordered.