Murray v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Gopeesingh, J.A. |
| Judgment Date | 15 March 1994 |
| Neutral Citation | TT 1994 CA 8 |
| Docket Number | Crim. Appeal No. 61 of 1990 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 15 March 1994 |
Court of Appeal
Gopeesingh, J.
Crim. Appeal No. 61 of 1990
Mr. V. B. de Lima for the applicant
Mr. E. Welch for the respondent
Practice and procedure - Bail — Application for bail pending appeal — Conviction of motor manslaughter — Court not convinced that appeal would succeed — No special circumstances shown to justify grant of bail.
Criminal law - Manslaughter — Applicability of the recklessness test laid down in R. v. Lawrence 73 Cr. App. R. 1 to Trinidad and Tobago.
By summons dated and filer on August 4, 1993, the applicant seeks an order, pursuant to the provisions of section 48(2) of the Supreme Court of Judicature Act, Chapter 4:01, that he be admitted to bail pending the determination of his appeal.
The applicant was charged on a two count indictment for the common-law offences of manslaughter resulting from the negligent driving of a motor vehicle on December 21, 1983, at Scarborough in the Island of Tobago. On April 25, 1990, he was convicted before a judge and jury for the said offences and on April 30, 1990, he was sentenced to terms of imprisonment of ten (10) years with hard labour on each of the two counts. The sentence of imprisonment on the second count was, however, ordered to commence five (5) years from the date imposed, so that the applicant was ordered to serve a total of fifteen (15) years imprisonment.
The principle which governs a n application to be admitted to bail pending the determination of an appeal has been succinctly stated by Bernard, C.J., in the matter of Krishendath Sinanan and Ors. v. The State, Criml. Appeals Nos. 14-16 of 1989. At pages 26 and 27 of that judgment, the learned Chief Justice stated as follows:–
“The principle to be applied when the question of granting bail in such circumstances is to be considered is clear and is now well settled. As stated earlier a person who has already been convicted of a criminal offence, unlike one who has only been charged with one, is no longer presumed to be innocent. So that he his no right to bail but in certain circumstances way, in the discretion of the court, be granted bail. The principle to be extracted from all the cases is that the circumstances must, however, be exceptional …. The mere possibility of success can the appeal is not sufficient in itself to constitute an exceptional of special circumstance to justify the granting of bail. In the absence of any ether special circumstance, bail should be granted unless the court is convinced on the merits that the appeal will probably succeed. See R. v. Marsh 25 Cr. App. R. 49; Beechin (supra).”
I respectfully concur with the above statement of principle made by the learned Chief Justice.
The State's case (as gleaned from the summing-up), was that on the date in question both deceased (mother and child) were in a motor car. The car was being driven by the mother along the Claude Noel Highway from west to east. Intending to turn right at an intersection along that highway, the driver put on the right indicator, occupied the centre lane and eventually brought the car to a standstill, still indicating her intention to turn right. Whilst this car was at a standstill, the applicant, who was driving a Land Rover Jeep very fast along the said road in the same direction, overtook a pick-up very close behind where the car was standing and ran squarely into the back of same. The car was pushed forward some seventy feet (70ft.), across unto the southern side of the said road and east of the intersection. As a result of the impact, the car overturned unto its hood, caught fire and both mother and child were killed.
The applicant, who testified on oath at the trial, adopted a written statement which he had given the police subsequent to the date of the accident. In essence, he admitted that on the date of the accident. In essence, he admitted that on the date in question he “overtook a pick-up immediately before the accident”. However, he contended that as he was driving his vehicle from west to east along the said road, at about one hundred feet (100ft.) Ahead of him and before the intersection, he saw the vehicle (the deceased's) with its indicator lights on indicating an intention to turn right. He pulled to his extreme left, and as he reached about fifteen feet (15ft.) Away from that car, it suddenly swerved over into his path on the left side of the road causing him to rum into the rear of same, the right front of his vehicle striking the central rear portion of the car. According to the applicant, at the time of the impact the car's indicator lamp was not on.
Although four grounds were filed in support of the instant application, attorney for the applicant did not pursue the fourth ground. Attorney indicated to the court that he accepted that the directions complained of thereunder related to the alternative offence for which the applicant could have been convicted, namely, dangerous driving, pursuant to the provisions of section 80 of the Motor Vehicles and Road Traffic Act, Chapter 48:50.
The grounds pursued read as follows:–
“1. The learned trial judge failed to direct the jury that before they could find the appellant guilty it was necessary for the prosecution to establish that the appellant was driving in a reckless manner.
2. The learned trial judge omitted to direct the jury as to the meaning of the term ‘recklessness’, as laid down in the guidelines set down by Diplock, J. in the case of R. v. Lawrence (HOL) 73 Cr. App. R. 1.
3. The learned trial judge failed to direct the jury that in order to constitute the offence of manslaughter the risk of death being caused by the manner of the appellant's driving must ne very high.”
In support of the above grounds, attorney for the applicant referred to the last paragraph in the judgment of Lord Roskill, at page 225, in the case of R. v. Seymour (1983) 77 Cr. App. R. 215, where it was said:
“I would therefore answer the certified questions as follows: ‘Where manslaughter is charged and the result of the reckless driving of the defendant on a public highway, the trial judge should give the jury the direction suggested in R. v. Lawrence but it is appropriate also to point out that in order to constitute the offence manslaughter the risk of death being caused by the manner of the defendant's driving must be very high.’”
Attorney contended that the offences have allegedly been committed in December, 1993 and the trial having taken place in April, 1990, the learned judge would have been obliged to direct the jury along the line suggested by Lord Diplock in R. v. Lawrence (1981) 73 Cr. App. R. 1. However, attorney submitted, on a perusal of the summing-up, nowhere can it be found that a direction even similar to that suggested in Lawrence, was given. Attorney pointed out that throughout the summing-up, the learned trial judge used the term “negligence” and seldom used the term “reckless”; and even where the latter term was used, no amplification of the meaning of that expression was given. Consequently. Attorney submitted, since, in accordance with the direction of this court in Mandata Singh v. The State Crim. App. No. 66 of 1988, there are at least two factors which point to the existence of exceptional circumstances in favour of the applicant namely:–
“1) the real possibility of success of the appeal: and
2) the intervening period between conviction and the hearing of the appeal, and the cause of the delay”;
bail should be granted to the applicant pending the hearing of this appeal, the applicant having, in effect, already served a five year term of imprisonment and there being little prospect of the appeal being heard shortly.
On the other hand, in essence, state attorney, who opposed the grant of bail to the applicant, agreed that the “recklessness test” laid down by Lord Diplock in R. v. Lawrence (supra), is the test along the lines of which directions should be given in our jurisdiction on a common-law charge of motor manslaughter. He contended, however, that the directions propounded in Bateman (1925) 15 Cr. App. R. 8, and approved by the House of Lords in Andrews v. Director of Public Prosecutions (1937) 26 Cr. App. R. 34 envisaged the necessity of proof of a greater degree of fault on the part of an accused than that adumbrated by Lord Diplock in Lawrence (supra). Since, therefore, the directions given to the jury in the instant matter were in consonance with that laid down in those earlier cases, the directions were in fact really more favourable to the applicant than that to which he was entitled under R. v. Lawrence (supra). Accordingly, attorney submitted, the applicant cannot complain.
In R. v. Lawrence (1981) 73 Cr. App. R. 1, the appellant had been charged with causing death by reckless driving, contrary to section 1 of the Road Traffic Act 1972, as substituted by section 20(1) of the Criminal Law Act 1977. He was convicted of the said offence by the Crown Court. On the question of recklessness the judge had directed the jury as follows:–
“‘recklessness’ requires foresight of the possible consequences coupled with an unreasonable willingness to risk them. If I can elaborate that slightly, a driver is guilty of driving recklessly if he deliberately disregards an obligation to drive with due care and attention or in indifferent as to whether or not he does so and thereby creates a risk of an accident which a person driving with due care and attention would not create.”
On a request by the jury, after retirement for more than three hours, for further guidance on the definition of reckless driving, the judge repeated his previous direction and added:
“Whether a driver achieves that standard of driving which a prudent and careful driver would, itself, is a question for you, and when you consider that, members of the jury,...
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