DPP v Nasralla

Director of Public Prosecutions v Nasralla PRIVY COUNCIL VISCOUNT DILHORNE, LORD GUEST, LORD DEVLIN, LORD UPJOHN AND LORD PEARSON 20 FEBRUARY 1967

Criminal Law — Murder — Jury — Verdict of not guilty of murder — Disagreement on verdict in respect of manslaughter — Jury discharged — Order for trial at next sitting of court on issue of manslaughter — Autrefois acquit — Whether good answer to charge of manslaughter — Jamaica Constitution — Fundamental Rights and Freedoms — Whether contravention of — Constitution of Jamaica, ss 1 (1), 13, 20 (8), 25, 26 (8); Jury Law, Cap 186 [J], ss 44, 45 (1) (3). The respondent was tried on an indictment for murder on which the jury returned a verdict of not guilty of murder, but were unable to agree on a verdict in respect of manslaughter. The trial judge thereupon discharged the jury in accordance with the provisions of s 45 of the Jury Law [J], and subsequently made an order adjourning the case for trial at the next sitting of the 299 circuit court on the issue of manslaughter. The respondent then applied to the Supreme Court under s 25 of the Constitution of Jamaica to set aside the order of the trial judge and for a declaration that he could not be tried again for the offence of manslaughter as this would be a contravention of the protective provisions contained in s 20 (8) of the Constitution which provides that “No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence.” The application was dismissed by the Supreme Court but granted on appeal to the Court of Appeal. On appeal by the Director of Public Prosecutions to Her Majesty in Council. Held: it was essential to a plea of autrefois acquit to prove that there was a verdict of acquittal of the offence alleged and not merely proof that the accused was in peril of conviction for that offence. It was necessary for the respondent if he was to succeed in the plea of autrefois acquit to establish that a verdict of acquittal of murder coupled with a disagreement on the issue of manslaughter was not a partial but a general verdict. Whilst it was once the law that a jury could not be compelled to return any verdict other than a general verdict, that rule was inconsistent with modern practice and obsolete. In the present case the jury were directed by the judge to consider both murder and manslaughter and they

evidently did so. When asked for their verdict on manslaughter they said that they or the necessary majority of them were unable to agree. They were therefore returning, as they were requested to, a partial verdict on murder and stating their inability to deliver a second partial verdict on manslaughter. There was no justification for treating the first verdict of the jury, which on the face of it was partial (being “not guilty of murder”) as general when they themselves had made it plain that they did not intend it so to be. Section 20 (8) of the Constitution was declaratory of the common law on the subject, and therefore at common law and at a second trial of the respondent on an indictment for manslaughter a plea of autrefois acquit was bound to fail. R v Charlesworth ((1861), 9 Cox, CC 44, 121 ER 786, 1 B & S 460, 31 LJMC 25, 5 LT 150, 25 JP 820, 8 JurNS 1091, 9 WR 842, 14 Digest (Repl) 346, 3353) and R v Quinn ((1952), 53 State Reports (NSW) 21) applied. Appeal allowed. Cases referred to R v Salisbury (1553), 1 Plowd 100, 75 ER 158, 15 Digest (Repl) 950, 9174 R v Shipton, Ex p DPP [1957] 1 All ER 206, n, 121 JP 78, sub nom Re Shipton, [1957] 1 WLR 259, 101 Sol Jo 148, 40 Cr App Rep 197, 45 Digest (Repl) 106, 352 R v Barron [1914] 2 KB 570, 83 LJKB 786, 78 JP 311, 30 TLR 422, 58 Sol Jo 557, 10 Cr App Rep 81, CCA, previous proceedings (1913), 24 Cox, CC 83, CCA, 14 Digest (Repl) 354, 3439 Connelly v DPP [1964] 2 All ER 401, [1964] AC 1280, [1964] 2 WLR 1145, 128 JP 418, 108 Sol Jo 356, 48 Cr App Rep 183, HL, affg SC sub nom R v Connelly, [1963] 2 All ER 510, [1964] AC 1254, [1963] 3 WLR 839, 107 Sol Jo 793, CCA, Digest 3rd Cum Supp 214, 472a R v Charlesworth (1861), 9 Cox, CC 44, 121 ER 786, 1 B & S 460, 31 LJMC 25, 5 LT 150, 25 JP 820, 8 JurNS 1091, 9 WR 842, 14 Digest (Repl) 346, 3353 R v Quinn (1952), 53 State Reports (NSW) 21 Wroth v Wiggs (1591), Cro Eliz 276, 4 Co Rep 456, 76 ER 994, 14 Digest (Repl) 382, 3731 Penryn v Corbet (1595), Cro Eliz 464 Bushell’s Case (1670), 6 State Tr 999 R v Shipley (1784), 4 DougKB 73, 21 State Tr 847, 99 ER 774, 300 sub nom R v St Asaph (Dean), 3 Term Rep 428 n, 32 Digest (Repl) 82, 1049 Devizes Corporation v Clark (1835), 3 Ad & E 507 R v Jameson [1896] 2 QB 425, 65 LJMC 218, 75 LT 77, 60 JP 662, 12 TLR 551, 18 Cox, CC 392, 15 Digest (Repl) 877, 8448 R v Bourne (1952), 36 Cr App Rep 125, CCA, 15 Digest (Repl) 900, 8685 R v Thomas [1949] 2 All ER 622, [1950] 1 KB 26, 65 TLR 586, 93 Sol Jo 695, 33 Cr App Rep 200, CCA, 14 Digest (Repl) 383, 3735 R v Baxter (1913), 9 Cr App Rep 60, CCA, 15 Digest (Repl) 930, 8906

Appeal Appeal from a judgment of the Court of Appeal of Jamaica (D UFFUS, P, LEWIS and HENRIQUES, JJA) (1965), 9 WIR 15, allowing an appeal from the judgment of the Supreme Court of Jamaica (COOLS-LARTIGUE, DOUGLAS and SHELLEY, JJ). Sub nom Ex parte Nasralla (1963), 6 WIR 305. J G LeQuesne, QC, and Christopher French (instructed by Charles Russell & Co) for the appellant Davide Coore, QC (Jamaica) and M R Hickman (instructed by Alban Gould Baker & Co) for the respondent LORD DEVLIN delivered the judgment of the Board: On 9 October 1962, the respondent shot and killed Gilbert Gillespie, whom as an escaping felon he was attempting to arrest. On 4 February 1963, he was arraigned before SMALL, J, and a jury of twelve in the Kingston circuit court upon an indictment charging him with murder. By a well-established rule of the common law which the industry of counsel has shown to have originated in R v Salisbury ((1553), 1 Plowd 100, 75 ER 158, 15 Digest (Repl) 950, 9174), it is open to a jury, if they are not satisfied of the prisoner’s guilt on a charge of murder, to convict of manslaughter. The procedure to be followed in Jamaica on the application of this rule is laid down in the Jury Law, s 44. This provides that a unanimous verdict is necessary for the conviction or acquittal of any person for murder; and that after the lapse of one hour from the retirement of the jury a verdict of a majority of not less than 9 to 3 of conviction or acquittal of manslaughter may be received. SMALL, J, in his summing-up left the two issues of murder and manslaughter to the jury and they retired at 2.27 pm on 11 February. Shortly before 3 pm they returned to court and after the foreman had stated that they had arrived at their verdict, he was asked the following questions: ‘The Registrar: On the charge of murder, are you unanimous? A. Yes, Sir. Q. Do you find the accused guilty or not guilty of murder? A. Not guilty of murder. Q. On the charge of manslaughter, are you unanimous? A. No.’ The learned judge told the jury that a majority verdict could not be received under one hour, and that they must retire again. They returned at 4.05 pm when they were asked the following questions: ‘The registrar: Mr Foreman, please stand. On the charge of manslaughter, have your arrived at a verdict?

The foreman: Yes, sir. Q. Is your verdict unanimous? A. No, Sir. Q. How are you divided? A. Four for acquittal. Q. Just tell me how you are divided? A. Eight to four.’ 301 The learned judge told the jury that he could not accept that verdict and asked them to retire again. They returned at 5.17 pm when the foreman said that they were still of the same mind. The learned judge, being satisfied that there was no reasonable probability that the jury would arrive at a verdict on manslaughter, discharged them in accordance with s 45 (1) of the Jury Law. The indictment was endorsed as follows: ‘Verdict: Not guilty of murder. Not agreed on manslaughter—Divided 8 to 4.’ Section 45 (3) of the Jury Law provides that whenever a jury has been discharged the judge may adjourn the case for trial at the same or a future sitting of the circuit court. On 25 February the prosecution applied to SMALL, J, for an order adjourning the trial on the issue of manslaughter. The defence opposed the application on the ground that at any further trial the plea of autrefois acquit would be bound to succeed. The learned judge granted the application and made the following order: ‘In accordance with s 45 (3) (A), Cap 186 the court adjourns the case for trial at the next sitting of the circuit court on the issue of manslaughter. Accused allowed bail in £500. Surety £500 to appear on 17 April 1963.’ SMALL, J, made this order after hearing argument and after having apparently formed the view that the plea of autrefois acquit was bad or at any rate that it was not certain that it would succeed. This, of course, did not conclude that matter, and it was open to the defence to enter and argue the plea at the further trial. They preferred, however, to seek relief from the Supreme Court under a provision of the Constitution of Jamaica which is part of Ch III entitled “Fundamental Rights and Freedoms.” The chapter opens with an introductory section (s 13) reciting that “every person in Jamaica is entitled to the fundamental rights and freedoms of the individual”; and then, having specified them generally, goes on to provide that the subsequent provisions of the chapter shall have effect for the purpose of protecting them. Section 20, which bears the marginal note “Provisions to secure protection of law,” provides by sub-s 8 as follows: ‘No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence.’

Section 25 provides that any person alleging that any of the protective provisions has been, is being, or is likely to be contravened in relation to him may apply to the Supreme Court for redress. The respondent’s application under s 25 of the Constitution was heard by the Supreme Court and dismissed on 5 January 1963. The respondent appealed to the Court of Appeal and on 11 June 1965, his appeal was allowed. On 1 November 1965, the Director of Public Prosecutions was granted leave to appeal to Her Majesty in Council and now asks, as appellant, that the judgment of the Supreme Court should be restored. It is convenient to deal in the first instance with a point raised by the respondent that, whatever view be taken of the substance of the matter, the form of SMALL, J’s order is wrong. The respondent argues on the authority of R v Shipton ([1957] 1 All ER 206, n, 121 JP 78, sub nom Re Shipton, [1957] 1 WLR 259, 101 Sol Jo 148, 40 Cr App Rep 197, 45 Digest (Repl) 106, 352) that by the verdict of the jury proceedings on the indictment on which he had been tried were brought to an end. In R v Shipton ([1957] 1 All ER 206, n, 121 JP 78, sub nom Re Shipton, [1957] 1 WLR 259, 101 Sol Jo 148, 40 Cr App Rep 197, 45 Digest (Repl) 106, 352) the accused was tried at assizes on an indictment containing one count charging him with manslaughter. The jury acquitted him of manslaughter but were unable to agree about a possible alternative verdict of dangerous driving. The assize judge directed that the accused should be re-tried on the issue of dangerous driving before the next quarter sessions. A court of quarter sessions has jurisdiction to try the offence of dangerous driving, but not the offence of manslaughter. 302 The recorder at quarter sessions refused jurisdiction and the divisional court held that he was right to do so. There is no procedure in criminal law for the trial of an issue; an accused must be tried on indictment. As GODDARD, CJ, said, the recorder had no jurisdiction to try an indictment for manslaughter. He thought it was a pity that the assize judge had not given leave to the prosecution to prefer a voluntary bill indicting the accused for dangerous driving, though he expressed no view as to whether on such a bill the accused would have been able to plead autrefois acquit. If SMALL, J’s, order is to be read as directing the trial of an issue apart from an indictment it is plainly wrong. But whereas in R v Shipton ([1957] 1 All ER 206, n, 121 JP 78, sub nom Re Shipton, [1957] 1 WLR 259, 101 Sol Jo 148, 40 Cr App Rep 197, 45 Digest (Repl) 106, 352) the court of quarter sessions had no jurisdiction to entertain an indictment for manslaughter, the Kingston circuit court had jurisdiction to try an indictment for murder and for manslaughter. Autrefois acquit is not a ground for quashing an indictment; and it can be argued that the circuit court on the further trial would be obliged to proceed on the indictment, leaving it to the defence to enter a plea of autrefois acquit. That plea would be bound to succeed to the extent that it would be a good answer to the charge of murder. Whether or not it would be a good answer to the charge of manslaughter raises the point of substance which is now before the Board. Alternatively, it

might be argued that the circuit court on a further trial could properly have amended the indictment by adding a count for manslaughter and proceeding to trial on that count only. Their Lordships think it unnecessary to pronounce on the validity of these arguments. To obtain redress under Cap III of the Constitution the applicant has to show that his fundamental rights have been or are likely to be infringed, and he cannot show this if his whole case rests on a procedural fault that could easily be put right. The respondent has appreciated this and accordingly in his claim for redress has asked not only that the order of SMALL, J, should be set aside, but for a declaration that he cannot again be tried for the offence of manslaughter on a voluntary bill of indictment. This raises the substance of the matter. Their Lordships think that the most convenient, if not the only correct, way of dealing with this sort of situation is by a voluntary bill; and they will consider this case on the assumption that this is what would have been done. Their Lordships must, however, notice briefly a point taken by the appellant which, if sound, would require them to deal with the validity of SMALL, J’s order. It is argued that the order was properly made under s 45 (3) of the Jury Law and that by virtue of s 26 (8) of the Constitution (which their Lordships will later consider more fully) an order so made cannot be treated as a contravention of the Constitution. This argument was rejected—their Lordships think rightly—in both courts below. As was said in the judgment of the Supreme Court, s 45 (3) is procedural only. An order made under it cannot diminish the substantive rights which the accused is given by the Constitution nor affect the efficacy of any plea that it opens to him on a further trial. Their Lordships can now leave procedural points and consider the terms of s 20 (8) of the Constitution. All the judges below have treated it as declaring or intended to declare the common law on the subject. Their Lordships agree. It is unnecessary to resort to implication for this intendment, since the Constitution itself expressly ensures it. Whereas the general rule, as is to be expected in a Constitution and as is here embodied in s 2, is that the provisions of the Constitution should prevail over other law, an exception is made in Cap III. This chapter, as their Lordships have already noted, proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from 303 the rights which at the coming into force of the Constitution the individual enjoyed. Accordingly, s 26 (8) in Cap III provides as follows: ‘Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.’

Notwithstanding that “law” is in s 1 (1) of the Constitution defined as “including any instrument having the force of law and any unwritten rule of law,” the respondent has argued that “law” in s 26 (8) is confined to enacted law and excludes the common law, so that if on its true construction s 20 (8) expresses the law on autrefois differently from the common law, s 20 (8) must prevail. In their Lordships’ opinion this argument clearly fails and was rightly rejected by LEWIS, JA, in the Court of Appeal. Thus the question to be determined by the Board and which was in effect determined by both courts below is whether at common law and at a second trial of the respondent on an indictment for manslaughter a plea of autrefois acquit would succeed. On the face of it it would appear that such a plea is bound to fail. Obviously, what is fundamental to autrefois acquit is a verdict of acquittal of the offence charged. In the verd