Greene v The State

JurisdictionTrinidad & Tobago
JudgeJohn, J.A.
Judgment Date30 January 2006
Neutral CitationTT 2006 CA 2
Docket NumberCriminal Appeal No. 28 of 2004
CourtCourt of Appeal (Trinidad and Tobago)
Date30 January 2006

Court of Appeal

Hamel-Smith, J.A.; John, J.A.; Archie, J.A.

Criminal Appeal No. 28 of 2004

The State

Mr. P. Elder, S.C. for the appellant.

Ms. D. Seetahal for the respondent.

Criminal law - Manslaughter — Appeal against conviction — Verdict — No verdict was given on the murder charge — Judge told the jury that manslaughter was an alternative verdict — Judge made it clear to the jury how they were to consider the verdict — Failure of the clerk to ask whether there was unanimity on the question of murder did not invalidate the trial Verdict of manslaughter was properly received — Direction to jury of self defence and manslaughter — Judge tied evidence to the law — Effect of the summation was to put forward the appellant's defence — Trial judge dealt appropriately with inconsistencies — Appeal dismissed — Conviction and sentence affirmed.

John, J.A.

On April 08, 2004 at the Port of Spain Assizes the appellant was convicted of manslaughter after a trial for murder and sentenced to a term of ten years imprisonment. On October 18, 2005 we granted him leave to appeal and treated the application for leave as the hearing of the appeal.


The relevant facts and circumstances are as follows: The appellant is a member of the Trinidad and Tobago Police Service holding the rank of Constable. On Friday April 14, 1995 (Good Friday) the appellant, together with Police Constable Yorke, was dispatched on foot patrol in the Matelot district. They were both then attached to the Matelot Police Station. At about 9:45p.m. they returned to the station with a prisoner against whom they were going to prefer a charge of ‘possession of marijuana’. The appellant reported to his senior officer Corporal Morris that there was ‘drug-play’ in the district and he needed assistance. Corporal Morris detailed Police Constable Campbell to join the appellant and Constable Yorke. Constable Yorke and the appellant were issued with SLRs whilst Constable Campbell had a revolver.


Later that evening there was an altercation between the appellant and the deceased during which the appellant shot the deceased. The appellant's defence was that he was acting in self-defence.


The post mortem report showed that the deceased sustained a circular perforating wound on the right buttock fold, 37.0 cm above the ground level of 1.0 cm diameter which passed through the muscles and came out in front of the thigh at nearly the same level causing an extensive lacerated wound of 23 x 12 cm. According to the report, death was due to shock and haemorrhage as a result of the injuries.

The Appeal

Six grounds of appeal were filed on behalf of the appellant.

Ground 1

The verdict of manslaughter is void. The indictment was only for murder and thus before the jury could have delivered a verdict for the lesser offence of manslaughter they first had to unanimously agree on the offence of murder. In this case the jury did not give any verdict on the murder.


The question that arises for the court's consideration is whether the verdict of guilty of manslaughter was properly received by the trial judge and if not, what consequences would flow from that. Counsel for the appellant referred the court to section 19(1) of the Jury Act Chap. 6:53 which provides that a person can only be convicted or acquitted of the crimes of murder and treason by the unanimous verdict of a jury of twelve persons. She also referred to section 30(2) of the Criminal Procedure Act, Chap. 12:02 which provides that:

“On an indictment for murder a person found not guilty of murder may be found guilty —

  • (a) of manslaughter

  • (b) ……

  • (c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty.”


In his summation the trial judge left the two issues of murder and manslaughter to the jury. The jury retired at 1:30p.m. and returned to court at 3:50p.m. On their return the following exchange took place:

The Clerk: Mr. Foreman, please stand.

Mr. Foreman have you and all the other members of the jury arrived at a verdict upon which you all agree in respect of the accused Mihiset Greene?

Mr. Foreman: Yes, we have.

The Clerk: What is your verdict?

Mr. Foreman: Guilty.

The Court: Now, what has happened, Mr. Prosecutor and Mr. Hinds is that we have the situation where the Privy Council ruled that where there is a conviction for murder as in this case, there is…

Yes, Mr. Foreman?

Mr. Foreman: Sorry, Sir, guilty of manslaughter.

The Court: Guilty of manslaughter? Is that so, members of the jury?

Mr. Foreman: Yes.

(General consensus from the other members of the jury)


Counsel submitted that having regard to the provisions of the Jury Act a person indicted for murder could only be convicted or acquitted on the unanimous verdict of the jury. Unanimity, she submitted, is determined only when the jury in open court announced a verdict of guilty or not guilty (emphasis). Without an equivocal statement by the jury, she submitted, the accused cannot be convicted or acquitted of murder. If they are not unanimous one way or the other then the accused has to face a retrial. She referred to Gammage v. The Queen [[1969] 122 CLR 444] in particular the judgment of Kitto J at page 452, R v. Saunders [[1987] 2 All E.R. 793] and Stanton v. The Queen [[2003] H.C.A. 29].


In Saunders, the appellant was charged with murder. The jury made it clear that although they were agreed upon manslaughter a majority of them could not agree upon murder. The trial judge permitted them to return a verdict of guilty of manslaughter and discharged them from returning a verdict of murder. Before the Court of Appeal, counsel for the appellant submitted that the jury could not have validly returned a verdict of manslaughter, since they had not first acquitted the appellant of murder, therefore the trial had ended without a valid verdict. He argued that such a trial was no trial at all and, relying on R v. Rose [[1982] 2 All E.R. 731], the court was entitled to order a retrial or a venire de novo. The appeal was dismissed and he appealed to the House of Lords.


Lord Ackner delivered the opinion of the Board. He referred to section 6(2) of the Criminal Law Act 1967 which provides that:

“On an indictment for murder a person found not guilty of murder may be found guilty — (a) of manslaughter, or of causing grievous bodily harm with intent to do so; or (b) of any offence of which he may be found guilty under an enactment specifically so providing, or under section 4(2) of this Act; or (c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty; but may not be found guilty of any offence not included above.” He (End of page 4 of 44) further said: “Section 6(2) of the Act did not take away the powers of the common-law that existed before the Act. The section provided specifically for a particular situation, namely where the jury had acquitted of murder. It made it clear that such an acquittal did not necessarily bring the trial to an end. Where the judge had properly directed the jury to consider an available lesser offence, then, for the trial to be fully concluded, the jury had to bring in a verdict on the lesser offence. If they failed to agree then they would have to be discharged and a new trial could then properly be ordered limited to the lesser offence. The section was thus giving effect to the Privy Council decision in DPP v. Nasralla [1967] 2 A.C. 238.


Lord Ackner went on to say:

“In a trial on an indictment for murder, where manslaughter is a possible verdict, the jury's task is first to consider whether or not they are satisfied that the accused is guilty of murder. It is only when they have made the positive determination that the accused is not guilty of murder that they should then proceed to consider the lesser offence of manslaughter. However, there is no legal principle which prevents this impediment to considering the lesser offence being removed by judicial intervention, namely by discharging the jury from the obligation of returning a verdict on the major offence, if the justice of the case so requires.”


The essence of Lord Ackner's statement is that although section 6(2)(a) applies to a person found not guilty of murder, that person can still, under the common law irrespective of subsection (2), be found guilty of manslaughter as an alternative verdict, where the jury are unable to agree and are discharged by the judge from returning a verdict on the charge of murder.


In Stanton v. The Queen, the appellant was convicted of the wilful murder of his wife whom he shot at close range with a shotgun. The central issue at the trial was intent and although the trial judge emphasized that the practical choice for the jury was between verdicts of wilful murder and manslaughter, four possible verdicts were left open on the facts: wilful murder, murder, manslaughter and not guilty.


After the jury had deliberated for some four hours a question was communicated to the judge:

“If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do twelve people have to agree to move down to manslaughter?”


The trial judge discussed the question with counsel in the absence of the jury. Counsel agreed that the answer to the question was “very straightforward” and it was that the members of the jury must unanimously agree with respect to the charge brought before they could proceed to consider alternative verdicts. The members of the jury were then brought into court, the question was repeated, and the trial judge said: “Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the...

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