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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Gordon v. The Queen (Jamaica) [2005] UKPC 48 (15 December 2005) URL: https://www.bailii.org/uk/cases/UKPC/2005/48.html Cite as: [2005] UKPC 48 |
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Gordon v. The Queen (Jamaica) [2005] UKPC 48 (15 December 2005)
ADVANCE COPY
Privy Council Appeal No. 62 of 2004
David Gordon Appellant
v.
The Queen Respondent
FROM
THE COURT OF APPEAL OF
JAMAICA
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 15th December 2005
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Carswell]
------------------
"2. – (1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say –
* * * * *
(d) any murder committed by a person in the course or furtherance of –
(i) robbery;
* * * * *
(iv) any sexual offence.
* * * * *
(2) If, in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are guilty of that murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used violence on that person in the course or furtherance of an attack on that person; but the murder shall not be capital murder in the case of any other of the persons guilty of it.
(3) Murder not falling within subsection (1) is non-capital murder."
Section 3 provided for a mandatory death sentence for capital murder, but following the decision of the Board in Watson v The Queen [2004] UKPC 34, [2005] 1 AC 472 the Jamaican legislature passed the Offences against the Person (Amendment) Act 2005 ("the 2005 Act"), whereby the death sentence is no longer mandatory but lies in the discretion of the sentencing judge. Under the transitional provisions contained in section 8 of the 2005 Act, death sentences passed before the commencement of the Act but not carried out are to be quashed and substituted by sentences passed in accordance with the provisions of that Act.
"he may not be the person who did the killing, so as to have it amount to capital murder, because it's only the person himself who did the killing who would be guilty of capital murder."
The judge went on then to say that if they considered the testimony of Mr Leon Wright they might infer that the appellant in talking to him was describing the killing at Folly Point, that he was one of the two assailants, that the girl that called out by some name referred to him and because of that he had slashed her throat. He stated at p 317 that if they found those facts he was guilty of capital murder, as being the man who raped and himself slashed the throat of the girl. Again, at p 318 he said:
" … if it is he in fact who did the killing, he is guilty of capital murder."
He returned to the subject again at the end of his directions, when he said (Record, p 360):
"But, if you find that he was with a person, the person who depending on what you make of Leon Wright's story, who told Leon Wright, the narrative that Leon Wright gave, describes the defendant – of the defendant's participation to the extent of slashing the girl's throat, it is open to you to find the ingredients of the murder, in furtherance to the sexual offence of rape, amounts to capital murder" ...Punctuation corrected)
Mr Tomlinson pointed to a passage in the judge's final directions (Record, p 363) in which he said:
"You will have to find that there was sex of her, rape followed by a killing and those were the circumstances that you find before you say guilty or not guilty of capital murder."
He submitted that this could have been taken by the jury to mean that rape of the victim followed by a killing by either man would form a sufficient foundation for a verdict of capital murder. Their Lordships consider, however, that in the context of his previous directions the judge was referring to a killing by the appellant himself and that the jury would have so understood this passage.