Daniel & Ors v. The State of Trinidad and Tobago  (Trinidad and Tobago ) [2007] UKPC 39 (13 June 2007)

Privy Council Appeal No 123 and 124 of 2005

Marlon Daniel
Curtis Archibald
Anino Garcia
Curtis Marshall								Appellants
v.

The State of Trinidad & Tobago 	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 13th June 2007

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Rodger of Earlsferry
	Baroness Hale of Richmond
	Lord Carswell
	Lord Brown of Eaton-under-Heywood
	
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		[Delivered by Lord Carswell]

1.	In the early hours of 3 January 1994 the bodies of three people, Lalchan Sookhoo, Shamiroon Ali-Bocal and her daughter Nisha Ali-Wahab were found in a bedroom in Shamiroon’s house at Quinam Road, Siparia, in which a serious fire had occurred.  They had all died from the inhalation of toxic fumes from the fire.  The appellants Marlon Daniel, Curtis Archibald (known as “Bush”), Anino Garcia (“Nino”) and Curtis Marshall (“Earth”) were jointly charged with the murder of the three victims.  After a trial in the First Criminal Court, San Fernando before Volney J and a jury they were all convicted on 31 January 2001 and sentenced to death.  Their appeal to the Court of Appeal (Hamel-Smith, Jones and Nelson JJA) was dismissed in a written judgment given on 12 April 2002.  They have appealed with special leave as poor persons to the Privy Council.

2.	On the evening of 2 January 1994 Lalchan and some friends enjoyed a convivial evening at Shamiroon’s house, a two-storey dwelling situated inside a perimeter fence.  Shamiroon carried on a chicken business at the premises and she was referred to regularly in the evidence as the “chicken lady”.  Lalchan’s friends left in the later evening, leaving Lalchan, Shamiroon, Nisha and Nisha’s baby in the house.  The alarm was raised after midnight and police officers arrived, followed by firefighters, who extinguished the fire.  The police officers found a live baby on or near a cistern a number of feet from the burning house.  The doors of all the rooms in the house were locked.  In an upstairs bedroom, the seat of the fire, one body was on the bed and two others lay across each other at the side of the bed.  There were several LPG cylinders in the room, one of which had exploded and split in half.  The engine of one of the vehicles parked in the compound outside was running, the lights were on and the gas tank cover was off.  The fire was very intense and traces of motor oil were found in the bedroom on the carpet, underlay and fragments of clothing.  In the course of his evidence at trial a forensic scientist expressed the opinion, which was supported by that of a fire officer and was not controverted, that the fire was not accidental.

3.	On 4 January 1994 autopsies were carried out on the three bodies, identified as those of Lalchan, Shamiroon and Nisha.  All were badly burned and all or parts of the limbs had been burned away.  Tests done on blood samples from the bodies showed high levels of carbon haemoglobin, consistent with carbon monoxide poisoning.  From the state of the blood the pathologist concluded that each had been alive when burning commenced and that death was caused by inhalation of toxic fumes.  There were wounds on Nisha’s left shoulder and back and “probably an incised wound” on the neck.  A bra was twisted round Shamiroon’s neck and two lengths of wire were found between her legs.  An exhumation order was obtained on 26 October 1994 in respect of Lalchan’s body and it was exhumed on 1 December 1994.  It was further examined by the Chief Forensic Pathologist Professor Chandulal, who found a total of 126 shotgun pellets and plastic wadding from a shotgun cartridge in the pouch in which the body had been contained on burial.  Two pellets were found impacted in the neck, one of the vertebrae of which was chipped, and a hole the same size as the pellets had been punched out in the skull.  Professor Chandulal expressed the opinion that the gunshot wound would have been incapacitating and was potentially fatal.

4.	The appellant Marlon Daniel was arrested and cautioned on 22 September 1994, when he said that he did not know anything about the matter.  At Siparia police headquarters he was seen by Inspector Fredericks, who told him that he was investigating the murder, cautioned him and told him of his rights to representation.  Daniel replied “I was not there, its Earth, Bush and Nino that went”.  He agreed to give a statement in writing and his first statement was taken at 6 pm on 23 September.  That statement was largely self-exculpatory: Daniel did not admit presence at the scene, but retailed conversations which he claimed to have had with the other appellants in which they told him about their commission of the crime.

5.	The following account of events that evening and the next day appears from the evidence of the prosecution witnesses.  Daniel was taken that evening to San Fernando police station, where he was seen again about 10.30 pm by Inspector Fredericks.  Insp Fredericks said that Daniel then told Superintendent Philbert and himself that he was ready to say what happened to the “chicken lady” and other people at Quinam Road.  Insp Fredericks attempted to get a justice of the peace to attend, but none was immediately available, so he commenced to take a statement under caution at 11.15 pm.  Mr Ralph Khan JP arrived about 11.25 pm while the statement was being taken.  At its conclusion Daniel wrote out the certificate and signed it.  Daniel confirmed to Mr Khan that no threats, violence or any other form of inducement were used against him.  The statement was read over to him and he signed it and also the certificate of authenticity appended by Mr Khan.

6.	In the statement Daniel said that he had been told by the other three appellants that he was to go with them as the watchman on a robbery at the chicken lady’s house, this being the first crime in which he had taken part with them.  He described waiting with the others near the house, sucking oranges, until the guests left and the house went quiet.  They had made a hole in the wire of the perimeter fence, and Marshall climbed on chicken crates and entered the house through a window and admitted the others by the front door.   The statement went on in the following terms:
“They approached the room with the chicken lady daughter, with she little son.  Bush tell NINO go by the next room to see if anybody coming out; while Bush and Earth held the woman under hostage and Bush held the little baby from making noise. Bush call me from watch manning to hold the baby and I held the baby.  The two of them tie down the woman daughter and band up her mouth and hands.  I hand over the baby to NINO and continued to watch manning and I went to another side to look out.  Nino was rocking the baby from making noise and watching the mother.

Curtis Marshall and Curtis Archibald kicked the door down and Earth shoot the man in his neck with a sawed off shotgun.  The chicken lady remain in shock while Earth demanded money from the woman …”

Daniel described the robbers’ search for money and a gun, which they found but could not operate.  The statement went on:
“Earth then tell me to go and knock out the woman.  I went and knock out the woman with sawed off gun butt in she head.  Earth had sex with the two women and Bush had sex to.  Earth ask me if I want a little this and I had sex with the chicken lady too.  All this happen before I knock she out.  Afterwards Bush and Earth brought the girl in the room with she mother and Earth tell me to go and knock out the girl and I went and did it with the gun.  Earth then take brandy from the fridge and all ah we drink.  Earth then say he going to burn down the house and I told him it didn’t make sense.  Earth say the woman see they face plain, so they have to burn down the house.  We all had on mask but Earth and Nino take off their mask.   Curtis Marshall and Bush went downstairs and brought up four tank of gas and rest them in the drawing room.  Earth went downstairs and siphon gas from a van and began to sprinkle it in the drawing room and all about.  Earth say the whole house have to burn so as to get no evidence.  Earth light the house with matches and Nino and I walk downstairs and Nino had the baby and put it down on a blanket near the plucking area.  We all leave the premises together and fire began to blaze … When I knock them out the two women didn’t die they were just unconscious.”

7.	In the afternoon of 24 September Daniel was taken by police officers to the house in Quinam Road, where he pointed out the hole in the wire fence, the spot in the orange field where he said they waited and the window through which he said Earth gained access to the house.  He pointed to a bedroom, in which he said the people were and, according to Insp Fredericks, he took them to the bathroom, where he said he got the money and the gun.  Insp Fredericks then showed him a .22 Beretta pistol earlier found in Marshall’s premises, which Daniel identified as the pistol they got from the site.

8.	The prosecution evidence relating to the taking of the second statement was disputed by Daniel.  Both in the voir dire held in the absence of the jury and in the main trial Daniel deposed that on the evening of 23 September Supt Philbert had told him that Daniel’s brother Sanderson was the person they suspected of the crime, not Marlon Daniel himself.   He said that Supt Philbert and Insp Fredericks cuffed and kicked him.  Supt Philbert said that he was going to write something out about the house, that they would build up a statement corresponding with the crime.  Daniel said that he was told that if he signed it they would not charge his brother and they would pay him the day’s pay he had lost while in police custody.  He denied that Mr Khan was present at the taking of the statement or that it was read to him.   In the main trial he said that a document was produced, which the police officers told him was based on his earlier statement together with a statement made by his brother, and he was instructed to sign it in several places.  He said that he believed that if he signed it he would be allowed to leave the police station.  He denied being shown or identifying any gun.  He stated that on 27 September two officers took him to Scotia Bank, Couva, to cash a cheque, which represented money from his employers.

9.	When it was put to him in cross-examination, PC Straker denied that he had ever accompanied Daniel to a bank in Couva to cash a cheque.  Prosecuting counsel at some stage showed defence counsel a copy of an entry in a police station diary showing that PC Straker had taken Daniel to Couva to go to the Bank of Nova Scotia.  Defence counsel, according to an affidavit sworn by him in September 2006, applied to the judge to have PC Straker recalled, so that he might cross-examine him about this entry, but the judge refused on the ground that the entry was inadmissible.

10.	The day before the hearing in the Court of Appeal the prosecution produced to Daniel’s counsel a statement of complaint by Daniel on his admission to prison, to the effect that he had been beaten on 29 September 1994 while in police custody.  It was then ascertained that a prison infirmary record showed that on 1 October 1994 one M Daniel was given Panadol for myalgia.  It was put to Daniel’s counsel in the Court of Appeal that this did not help his case, since the beating complained of was after he made his confession statement on 23-4 September.  Counsel then withdrew his application to rely on this piece of evidence.

11.	On 27 September 1994 about 5.30 pm Inspector Fredericks and PC McAlpin went to the prison, where Curtis Archibald was on remand on other charges, and interviewed him.  The inspector informed him that he had information that he and other persons were involved in the deaths of Shamiroon, Nisha and Lalchan, cautioned him and told him of his right to an attorney or other representative.  Archibald said that he did not have an attorney.  He stated “Is not me alone, Marlon, Earth and Nino were there too”.  Insp Fredericks said in the voir dire, though not in the main trial, that Archibald also said words to the effect “I go tell all you”.  He agreed to make a statement in writing.  During the taking of the statement PC McAlpin was present and also, at Insp Fredericks’ request, Prison Officer O’Neil.  Insp Fredericks stated in evidence that he wrote it out at Archibald’s dictation.  It was read over to him and he signed and initialled it in several places.

12.	The statement was in the following terms:
“Earth use to work by the Chicken Lady and Marlon to. They use to work over at the farm at Princes Town.  It was around Christmas around New Years time.  The plan was made around Christmas by Earth.  He came and told us just so one night and me Earth Curtis Marshall Marlon and Nino went by the Chicken lady and they were drinking and having fun.  They close up the house and we went in the yard and the crates were under the window.  Earth climb up on the crates and went through the window and open the door for us.  He had a home made shotgun and we went inside.  Earth tie up the young girl with some cloth and then he kick down the door in the bedroom with the chicken lady and Marlon stab the man in his back and the knife bend.  Earth then shoot the man in his neck with the shotgun.  Marlon beat up the lady and ask she for the money and she say it in the bathroom.  Earth search the bathroom and find the money in a pants.  I do know what kind of pants.  Marlon take the gun from Earth and beat the woman and the gun break.  Marlon then had sex with the chicken lady and Earth bring de daughter and threw she in the room and she mother.  Nino take up the baby and was holding it and I was stand up watching.   Earth take jewels from on the people and Earth say he go burn dowm de house and he went downstairs and bring up real gas tank and put them in the house.  He then take gas from dey car downstairs and sprinkle it in the house.  Earth take matches from the house and light the house afire.  We run out and Nino put de baby in the yard in a blanket.  Earth take the money and jewels from the house and he make a big gold chain.   Ah get $500.00 and Marlon take two big speakers and carry it.  Ah really din do nothing is Earth who organise everything.  Earth and Marlon put all the sponge in the room with the people to light it afire.  Earth take curtain too and he is the last one to leave the place.  After everything happen we went by Marlon and lime and then I went home.  We did drink beer from the people fridge.  Earth take a piece from the people house.  Question: What you mean by a piece.  Answer: Ah mean a gun a 22.  Earth keep the gun and ah hear police hold him with it after.  When the man start to bawl when Marlon stab him Earth shoot him with the home made and it had one shot.  Question: what you mean by home-made.  Answer: a home made shotgun.  That gun was ‘Biscuit’ own and police held him with that too.”

13.	The version given by Archibald on the voir dire was a denial of knowing anything about the murders.  Insp Fredericks told him if he told him something about the crime he would help him to come out of prison.  PC McAlpin told him that if he complied he would come out of jail and the three cases for which he was being held would be dismissed.  He was not cautioned or told of his constitutional rights.  Insp Fredericks wrote out a document and gave it to him to sign – he could not read or write, but could sign his name. Nothing he signed was read over to him.  O’Neil was not present until he signed the document, then he was brought in and read through it and signed it.  Archibald said that he knew PC McAlpin and trusted him and Insp Fredericks.  It was submitted on his behalf that there had been breaches of the Judges’ Rules and Archibald’s constitutional rights.

14.	The judge admitted in evidence the statements taken from Daniel and Archibald.  In relation to Daniel’s statement he ruled:
“Statement is voluntary.  Court is satisfied beyond reasonable doubt that statement was given voluntarily.  No credible evidence to support allegations of oppression, use of force, threat of force, promises or any other form of inducement, all of which allegations have been negatived by the prosecutor by evidence that the Court finds to be credible.”

In respect of Archibald’s statement the judge ruled:
“Statement will be admitted in evidence.  Accept evidence of Inspector Fredericks and Prison Officers O’Neil.  I am satisfied there was no promise as alleged and that the statement was made voluntarily.  I will not exclude for breach of the Judge’s Rules because there was no Breach of such a nature as to justify exclusion.”

15.	Archibald gave evidence before the jury in the main trial.  He denied any connection with the offence.  He recounted a version of the interview with Insp Fredericks and PC McAlpin on 27 September 1994 which was similar to that given on the voir dire.  He told McAlpin, whom he had known previously, of the unpleasantness of his life in prison.  The officers told him that if he followed their instructions and signed the document which they placed before him the three pending charges would be dismissed.  He could not read the document and it was not read over to him.  He signed it because he trusted the officers.  The three charges were in the event dismissed.

16.	The appellant Anino Garcia was seen by police officers in prison on the afternoon of 27 September 1994.  Insp Fredericks cautioned him and told him of his right to an attorney.  He said in evidence that he told Garcia that he was investigating the deaths of Shamiroon, Nisha and Lalchan and that he had information that Garcia was involved, to which Garcia replied “I was there.  I don’t know anything more”.  According to Sergeant Whitaker what he said was “I was there, I ain’t kill nobody”.  He was seen again on 30 September, where he was again told of the nature of the investigation and that he was involved.  He was cautioned and told his rights.  Garcia replied “I only put the baby outside”.  He added “There is Earth and Bush that burn down the house” or “It is Earth, Bush them that burn down the house”.  He did not make a written statement.

17.	The appellant Curtis Marshall was also seen by Insp Fredericks at the prison on 27 September 1994.  Insp Fredericks told him of his investigation and that he had information that Marshall was involved.  He cautioned him and told him of his rights.  Marshall replied “I was there, is Marlon them who shoot the man.  I have no statement to give”.  On 10 October Insp Fredericks again saw Marshall and cautioned him and told him of his rights.  He said on this occasion “Is Marlon dem who burn down the people house and take the people things”.  He again declined to give a written statement.  On 12 October 1994 PC Beam was in Siparia police station when he saw that Marshall was crying.  When he enquired what was wrong Marshall replied “Boss I was there, I just took up the child and placed it by the tank”.  PC Beam then cautioned him and he made no reply.

18.	Neither Garcia nor Marshall gave evidence in the trial.

19.	In the course of giving the jury some general directions in the early part of his summing-up the judge included a passage (Record, pp 133-4) to which objection was taken on behalf of the appellants:
“I now come to give you some directions on evidence of confessions, but before I do so, there is a direction that I consider pertinent on this very issue of circumstantial evidence, and it relates to a presumption of the criminal law.  It is a very old presumption of the criminal law that has remained as strong as the courts.  It is as old as the hills and the court has always recognised it, and it is that the suppression or destruction of pertinent evidence is deemed a prejudicial circumstance of great weight, for as no action of a rational being is performed without a motive, it naturally leads to the inference that such evidence, if it were produced, would operate unfavourably to the party in whose power it is to produce it and who withholds it or has wilfully deprived himself of the power of producing it.
This direction is for your consideration in relation to the State’s case, that a fire was deliberately set in a house in which there were three people, four actually, one of whom, on the State’s case, was placed outside, and the other three left, and which fire consumed the bodies and the lives, if you accept the evidence of Dr Jankie, of Lalchan Sookoo, Shamiroon Ali-Bocal and also Nisha Ali-Wahab.
Amongst the most forcible of presumptive indications that may be mentioned are all attempts to pollute or disturb the current of truth and justice by the concealment, suppression, destruction or alteration of any article of real evidence, any of which acts clearly brought home to the prisoner or his agents are of a most prejudicial effect as denoting on his part a consciousness of guilt and a desire to evade the pressure of facts tending to establish it.
The presumption of criminality arising from concealment of death by the destruction or attempted destruction of human remains results from the act itself, rather than the means employed, however revolting, which means must be regarded as incidental to the fact of concealment and not as aggravating the character and tendency of the act itself.  Thus the concealment of death under bizarre circumstances has always been considered to be a point of the greatest suspicion.  This evidence, however, must be received by you with a certain degree of modification, especially here where it is that the concealment might be excited by the singular means adopted by the prisoner or prisoners.
This point of evidence is for consideration by the jury as the judges of the facts, and it is accordingly for you to judge how far it is proof of the prisoners’ guilt, each and every one of them.”

20.	The judge then commenced to deal with the confession statements and told the jury at page 134:
“In this trial, I have admitted in evidence two written statements said to have been received under caution …”

He directed them to consider whether the police, who had been accused of concocting evidence, had any evidence before the statements were taken that Lalchan had been shot.  He added at page 138:
“In the absence of any other explanation as to the source of that information which, in your adjudication, might be peculiar only to persons who were present, in the absence of any other explanation as to the source of that information, it will be open to you to find that that explanation is in relation to matters within the peculiar knowledge of the maker of that statement, and you would be entitled to act as such.”

21.	The judge described the case against Daniel and Archibald as being one of joint enterprise and gave them directions concerning the elements of a joint enterprise and participation in it.  Counsel for those appellants criticised the content of the directions as being misleading and inadequate.  It is necessary to set out at some length the material passages at pages 139-141 of the Record relating to the presence of the shotgun and the setting fire to the house:
“Now, Members of the Jury, you would know from the statements which have been read, the written statements read to you, that what the accused are saying in relation to their respective statements, if you accept that they were given, and given freely by the accused, is that they went along with others to rob.  They waited until it was safe to make an entry in the home of the deceased persons, and there and then they robbed.
In the course of that execution of that plan, if you accept, for what it is worth, the statements made in those respective statements, in the presence of the maker of those statements, a shotgun, which was to their knowledge, their respective knowledge, as stated in their statements, carried along to the robbery to carry out the plan, if you so find that that is what happened; if you find that it was foreseeable, it was within the contemplation of anyone who went participating in that plan to rob, it was in their contemplation that that gun might have been used to kill or to cause grievous bodily harm to anybody in that house, whether it be through gunshots fired or by bashing in the head of a person with the butt of that gun, if there is evidence in that statement that that took place and you, the jury, adjudicate that that must have been within the contemplation that that could have happened, then, Members of the Jury, whomsoever participated in the execution of that unlawful joint enterprise would be equally guilty with the principal offender, that is to say, the person who did the act itself.
That principal offender does not have to be identifiable.  You do not have to find as a fact who the principal offender is, because sometimes the evidence does not allow you to identify the principal offender, and in this case, when you bear in mind my directions that the statement of one accused is not evidence against another accused, you will know by the process of thought that there is no evidence in this case by which you, the jury, can identify who the principal offender is.  There is no evidence by which you can find who shot, who did anything to the women, apart from anybody who admits in their statement that they did anything to any of the persons in that house that night.  And what you also have to consider, Members of the Jury, is whether in relation to that execution of that unlawful joint enterprise, if you find as a fact that it is admitted in the statement of either of the accused men, in relation to the case against him and him alone, whether it is that you, the jury, in view of what is stated in that statement, conclude that it was well within the contemplation of those participating there that some step of the nature of the setting of fire might have been taken in order to cover up their tracks, that is, the tracks of all the persons there, by destroying evidence which could have led to their detection, if you find, Members of the Jury, on the statement of either of those two accused, a basis by which you may conclude that the setting of that house, in the circumstances of this case as you find them to be, was well within the contemplation of those persons there, for reasons given in the statement, as for example, that he might have been seen, then, Members of the Jury, if it is that the burning took place in his presence and that person who gave that statement from which you find these findings of fact does nothing to dissociate himself from that act which you attribute or which you find was within the contemplation of the joint enterprise, he does nothing to dissociate himself, by either saying, ‘Look, I am not in that.  Leave me out of this.  I am going out of this.  I have nothing to do with this.  I am going.  You all don’t do that.  I am leaving you all.  Don’t count me in.  I am against that,’ if there is nothing to suggest that, Members of the Jury, then that person is liable to be found by you to have aided and abetted the catching of that fire itself, and to be liable for what that person must have and did foresee to have been or even might have been the result of fire being set to that house with those people in it.
As such, he would be as liable for whatever happens as a result of that fire, as the person who put the fire, the flame itself, and would be equally liable to be convicted of murder if it is that you, the jury, in your judgment find as a fact that when that fire was set, it was set with the intention either to kill or to do serious bodily harm to the persons who were in that house when they were left there, which is a matter that you are entitled to find on the evidence.
So that if a secondary party, on the evidence you find must have known, even might have known, it must have crossed his mind that that fire would have resulted in the death of those people, or would have burnt them so badly as to cause them serious bodily harm and he didn’t dissociate himself with that act, he would be, as a secondary party, equally liable.”

At pages 144-5 the judge added a passage concerning continued participation and withdrawal:
“It matters not, Members of the Jury, that you are unable, on the evidence, to find as a fact who actually set that fire.  What matters is whether you are able to find that that fire was set in the presence of any of those four accused, and if so, whether at that time they, in relation to Accused Nos. 1 and 2, they were still participating in an unlawful joint enterprise, of which the setting of the fire, they would have foreseen or contemplated to be an incident of the execution of that unlawful joint enterprise.
If you so find, Members of the Jury, and you find that neither Accused No. 1 nor 2 dissociated himself from the setting of the fire, if you find that they were there, and you adjudicate in your judgment, by the process of thought, having considered all the evidence, that it must have crossed their minds that that fire, when set in their presence and to their knowledge, might -- it does not have to go so far as would have -- but might have caused serious bodily injury to any person who was left in that house, who was not rescued from that house, or that that fire so set in their presence might have consumed and killed anybody, any human being left there, and with that knowledge they did nothing to prevent it, then, Members of the Jury, it is open to you to find that they aided and abetted the setting of that fire in that house on that day, and also, Members of the Jury, would be as liable to be convicted of any offence which arose as a result of the setting of that fire.”

22.	The judge directed the jury that there was no evidence against Garcia or Marshall of participation in an unlawful joint enterprise and that the case against them must rest on aiding and abetting.  Their counsel criticised the directions as being confused and erroneous and it is again necessary to set them out in extenso:

“Presence at the scene of a crime may or may not found criminal culpability.  A person who comes upon a crime scene accidentally cannot, in the absence of some evidence of participation, be liable as a principal or secondary party.  It is the general rule of the criminal law in the case of principals in the second degree, that there must be participation in the act, and that although a man is present whilst an offence is being committed, if he takes no part in it and does not act in concert with those who commit to it, he will not be a principal in the second degree merely because he does not endeavour to prevent it or apprehend the perpetrator of the crime.
To make an abettor to a murder or homicide a principal to its commission, there are regularly two things requisite.  Firstly, he must be present and, secondly, he must be aiding and abetting.  Note that principals in the first degree are those by whom the death wound is inflicted.  Principals in the second degree are those who are present when the death wound is given, aiding and abetting, comforting and assisting the persons actually engaged in the homicidal act.  Mere presence alone will not be sufficient to make a party an aider and abettor, but it is essential that he should, by his countenance and conduct in the proceeding, being present, aid the principal if he is to be culpable.
If either of the accused sustained the principal by his presence, or if you find as a fact a bodily presence there for the purpose of encouraging and forwarding the unlawful conduct of a principal, even without doing more when the flame was lighted, and was by that presence assisting and encouraging the principal in the unlawful conduct, that would be cogent evidence of guilt of the offence imputed by the indictment.
Thus, while bodily presence is critical on the facts of this case, what matters most is knowledge of the principal offence, the ability to control the action of the principal offender, and the deliberate decision to refrain from doing so.  If then you find, Members of the Jury, that any one or more individual accused had the knowledge that fire was being deliberately set to the body of Lalchan Sookoo, of Shamiroon Ali-Bocal or of Nisha Ali Wahab or to the surroundings where those bodies were, with a basic human knowledge that fire destroys, kills or seriously injures, either with an accompanying intention to conceal the commission of a crime already committed by the destruction of evidence or with the intention to kill or cause serious bodily harm, then it will be open to you to find, in relation to any given count on the indictment to which it relates that that accused positively encouraged the commission of the offence.
Mind you, encouragement does not of necessity amount to aiding and abetting.  It may be intentional or unintentional.  A man may unwittingly encourage another, in fact, by his presence, his silence or non-interference, or he may encourage intentionally by expression, gestures or actions, or even presence coupled with any of those intended to signify approval.  In the latter case, he aids and abets; in the former, he does not.
It is no criminal offence to stand by, a mere passive observer of a crime, even of a murder.  Non-interference to prevent a crime is not itself a crime.  But the fact that a person was voluntarily and purposely present, witnessing the commission of a crime and offered no opposition to it, although he might reasonably be expected to prevent its commission and had the powers so to do, or at least to express his dissent or even walk away as an unequivocal act of his dissociation with that unlawful conduct might, under some circumstances, afford cogent evidence upon which you, the jury, would be justified in finding that such a bodily present person wilfully encouraged and so aided and abetted the commission of the crime.  That would be purely a question of fact for you, the Members of the Jury.”

23.	After the jury had deliberated for some time they sought additional instructions on aiding and abetting.  The judge brought them back to court and gave them some further directions, in the course of which he said:
“Do you find that the effect of the responses said to have been made by Accused No. 3 was to accept the truth of the accusation?  Did he thereby acknowledge the truth of the facts by which he was confronted?  If you find that he was admitting a presence, this will be evidence which you may properly consider in the context of the forensic evidence derived from the scene of the crime.  Did he acknowledge an involvement in the killings, but denied killing anyone?  Did he acknowledge the presence of at least two other persons whom he named as also being there present, and who in his own knowing, burned down the house?  Did he, in the context of that scene, save the baby by putting it outside?  And if so, is he acknowledging by so doing an understanding in his own mind that the baby might have perished if not removed to safe haven outside?  Might he not have realised that harm might have also befallen one or more or even all of the deceased if they too were not also taken outside?  Was he in a position to do something to prevent other persons there present from burning in the house, knowing full well that the deceased might have perished in the flames?  Or, did he have knowledge that persons were already, to his mind, killed or hurt by others and the house to his knowledge being burned in order to conceal the crime by destruction of evidence?”

24.	A discrete point arose concerning the conflict between Archibald’s evidence relating to the presence of Prison Officer O’Neil and that of the prosecution witnesses.  The judge stated that if the jury found that Archibald was lying on this point, they were entitled to ask why, adding “And you are entitled to draw your conclusions accordingly”.

25.	The judgment of the Court of Appeal was given by Hamel-Smith JA.  The appellants relied on a large number of multifarious arguments, most of which were not pursued before the Board.  The court examined the judge’s summing-up and the arguments presented on behalf of the appellants and concluded that the jury had received adequate directions on joint enterprise and aiding and abetting.  They considered that the act of removing the baby from the building might be regarded as withdrawal from or dissociation from the enterprise, though they considered it a weak inference and that it was far-fetched to consider it as an act of benevolence and nothing more.  Rather it could be regarded as showing appreciation that the other occupants of the house were going to die.  They considered that no jury properly directed would  have concluded that either Garcia or Marshall was an innocent bystander who simply saved the life of the baby.

26.	The Court of Appeal were critical of the judge’s statement about a presumption of criminality arising from the attempted concealment of the death of the deceased persons.  They regarded his statement of the law as incorrect, but considered that he had made it sufficiently clear that there was no burden of proof on the appellants.  They did not consider that a direction on the lines of that discussed in R v Lucas [1981] QB 720 was required in respect of Archibald’s evidence about the presence of Prison Officer O’Neil.  Nor was such a direction required in respect of Daniel’s evidence.  Finally, they did not consider that the judge erred in failing to afford Archibald the benefit of a good character direction.

27.	The major argument presented by Mr Dingemans QC on behalf of Daniel was that his confession statement made on 23-4 September 1994 should have been excluded by the judge because of non-disclosure.  He submitted that if there had been timeous disclosure of the diary entry showing that PC Straker had taken Daniel to the Bank in Couva, defence counsel could have made more effective use of it to show that Straker was either mistaken or lying, which could have cast some doubt on the reliability of the whole of the police evidence about the circumstances in which the statement was taken.  He argued that prosecuting counsel should have appreciated that the entry required to be disclosed, since it revealed such an unusual state of affairs.  Their Lordships do not find it possible to accept these arguments.  The point did not become obviously material until PC Straker denied in cross-examination that he taken Daniel to the bank, and counsel properly disclosed the document to the defence.  The judge was wrong in refusing to permit defence counsel to put it to Straker in some fashion.  But their Lordships do not consider that the impact of this upon the totality of the prosecution evidence relating to the making of the statement would have been such as to cause a judge to exclude it.

28.	The second non-disclosure complained of was that of the prison infirmary records concerning Daniel’s complaint made on 1 October 1994 relating to his alleged maltreatment on 29 September.  It is to be noted that Daniel had given his attorney instructions before the hearing of his appeal to write a letter seeking a copy of his statement of complaint to the prison officer, so it may be that the existence of such a document was known at the time of trial: see Daniel’s affidavit sworn on 15 January 2002 (Record, p 630) and the discussion in the Court of Appeal (Record, pp 634-43).   Their Lordships do not in any event consider that production of the prison records (which were before the Board) would have had sufficient weight to cause the statement to be ruled out.

29.	It was also submitted on behalf of Daniel that the judge had been in error in telling the jury that he had admitted his statement.  Counsel relied on the decision of the Board in Mitchell v The Queen [1998] AC 695, but the matters discussed before the jury were very different in that case – in Lord Steyn’s words, counsel for the defendant “blurted out in graphic detail” the case which would be presented – and the judge’s disclosure to them that he admitted the statement was bound to be much more prejudicial.  In the present case the jury were out of court when defence counsel outlined the complaints of maltreatment and inducement which Daniel would make and the judge merely said during his summing-up that he admitted in evidence two written statements.  Although their Lordships consider that a trial judge should not ordinarily refer to his having admitted a disputed statement, they do not consider that the judge’s reference in the present case was materially prejudicial to Daniel.

30.	Mr Dingemans also pointed out that the judge’s remarks in his summing-up about the extent of the police knowledge of the fact that Lalchan had been shot may have misled the jury, since, he submitted, the police may have already have been in possession of this knowledge from information received from some source not the subject of evidence at trial.  Their Lordships consider that this is altogether too speculative.  It is apparent that the information did not come from any of the other appellants, no other person is said to have been party to the offences, and it would have to be supposed that one of the perpetrators told some other person about it and that person passed on the information to the police.  Moreover, a contrary indication is that the exhumation order was not sought until after both Daniel and Archibald had made their confession statements.

31.	Counsel also submitted that the judge’s directions to the jury on joint enterprise were defective and that his remarks about the presumption of criminality from concealment of evidence were wrong and prejudicial.  Their Lordships will discuss these issues in relation to all the appellants later in this judgment.

32.	Mr Guthrie QC advanced a number of arguments on behalf of Archibald, in addition to those complaints of misdirection or inadequate direction which were common to all the appellants.  He submitted that Archibald on his own account had not been cautioned, in breach of Rule II of the Judges’ Rules.  Insp Fredericks specifically deposed, however, that he had cautioned him on first meeting him on 27 September 1994 and told him of his rights, and that he repeated this when commencing to take his written statement.  The jury were quite entitled to accept the inspector’s evidence on this point in preference to Archibald’s.  Counsel also submitted that the judge should have excluded the statement for lack of proper authentication, as provided for by paragraph 6 of the administrative directions contained in Appendix B to the Judges’ Rules.  That paragraph provides that the authentication should be carried out by “a senior police officer or by some responsible member of the community”.  Prison Officer O’Neil was present during the taking of the statement and signed it as a witness, though he did not append the proper certificate.  This met to some extent the requirements of the direction, which are aimed at having some independent and responsible person ensure that such statements are made voluntarily.  Their Lordships do not consider that the failure to comply fully with paragraph 6 should have caused the judge to exclude the statement.

33.	Mr Guthrie submitted that a major concern about the admission of Archibald’s statement was his vulnerability.  He could not read or write, apart from being able to sign his name, and was more dependent than a literate person on receiving a sufficient explanation of his rights and a clear understanding of any statement recorded.  In particular, he submitted that when he said that he did not have an attorney he should have been afforded an opportunity to obtain legal advice, if his constitutional right was to be effectively accorded to him: cf Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240, 247, per Lord Keith of Kinkel.  Moreover, he knew and trusted PC McAlpin (who had died before trial and so his evidence could not be received).  It was therefore not sufficiently clearly established that the statement was voluntary.

34.	Their Lordships have given careful consideration and due weight to these persuasively presented submissions.  They are not willing to formulate subsidiary rules governing the affording to a suspect being questioned of his constitutional rights.  The judge is required to satisfy himself that he is told of his right to retain and instruct a legal adviser.  How that is to be done is a question of fact, depending on the circumstances of the case and the suspect, and it is for the judge to determine.  In the present case the judge was entitled to hold that Archibald had been afforded his rights.  He was also entitled to hold that if the police had not fully complied with the requirements of the Judges’ Rules, the statement should nevertheless be admitted as a voluntary statement.

35.	The judge suggested to the jury that if they found that Archibald had lied about O’Neil’s presence they were entitled to draw their conclusions accordingly.  He did not give them a Lucas direction about the various reasons why a defendant might tell a lie, and Mr Guthrie submitted that this was prejudicial to Archibald.  The context of the remark, however, was that such a lie might tend to show that he made the impugned statement, not that he was guilty of the offences charged.  It might have been preferable if the judge had given even a brief Lucas direction, but it was not in their Lordships’ judgment capable of causing serious prejudice to the appellant.

36.	The judge did not give a good character direction, but could not be faulted for this, since no evidence of Archibald’s good character was given and a judge needs to be very circumspect in these circumstances about raising the issue: see the discussion in Teeluck v State of Trinidad and Tobago [2005] UKPC 14, [2005] 1 WLR 2421, 2430-2, paras 31 et seq.  It was further submitted, again in reliance on Teeluck, that it was a serious dereliction of duty on the part of counsel then acting for him not to ensure that the necessary evidence of good character was put in and that this made the verdict unsafe.  Their Lordships are not prepared to accept this submission.  Counsel may have had sufficient tactical reasons in his mind not to take this course, possibly fearing that to have the jury told that Archibald, though technically of good character, since he had never been convicted, was in prison awaiting trial on three charges of fairly serious crimes, would only have discredited him in the eyes of the jury.  It has not been possible, despite strenuous efforts on the part of Archibald’s legal advisers, to ascertain the reasons why counsel did not propound evidence of good character, and in these circumstances their Lordships are not willing to conclude that he committed the type of error which would require the conviction to be set aside as unsafe.

37.	The main thrust of the submissions on behalf of Garcia and Marshall was twofold: first, that the judge’s directions on secondary parties were confused and misleading, a submission made on behalf of all four appellants, and, secondly, that the oral admissions made by Garcia and Marshall were insufficient to fix them with liability and the judge should have ruled in respect of each that there was no case to go to the jury.

38.	The concepts of joint enterprise and aiding and abetting cannot be placed into watertight compartments.  A defendant may have joined an enterprise to commit one crime, only to find that his companions went beyond what he had contemplated and so in committing a different crime were acting outside the bounds of the joint enterprise.  He may nevertheless have remained with them and lent assistance or encouragement to them in the commission of the new crime, which would make him a secondary party as an aider and abettor.  The judge may have failed to appreciate this in categorising the appellants’ participation exclusively as members of a joint enterprise in the case of Daniel and Archibald and as aiders and abettors in the case of Garcia and Marshall.  This did not operate to their disadvantage, however, and if his directions were sufficient on the content of each concept and there was evidence on which they could properly so find, the jury were entitled to find the appellants guilty on the basis ascribed to each by the judge.

39.	The essence of the case against Daniel and Archibald, as formulated by the judge in his summing-up, was that they must have known that the shotgun was being carried and therefore contemplated the possible use of violence, amounting at least to grievous bodily harm, against the victims in the course of the robbery.  Such violence was in fact employed, both in the shooting of Lalchan and in the clubbing of Shamiroon and Nisha with the gun butt.  The fact that the victims in the event died, as Hamel-Smith JA described it pithily, “by bonfire rather than by gunfire” did not necessarily take the case out of the joint enterprise in which violence was contemplated.  The judge directed the jury that if they were satisfied of the correctness of these propositions they were entitled to find these two appellants guilty of murder.

40.	Their Lordships consider that the case was sufficiently put before the jury, notwithstanding the vigorous criticism of the summing-up by counsel for Daniel and Archibald.  They accept that the judge’s directions were not without their imperfections, but have concluded that, taking the summing-up as a whole, the jury had the issues sufficiently placed before them.  The jury were entitled to find that these appellants must have known of the presence of a sawn-off shotgun and contemplated the use of violence in the course of the robbery.  They were also entitled to take the view, which the judge indicated was open to them, that such violence might extend to eliminating the witnesses in order to cover their tracks.  The fact that this took the form of burning down the house with the occupants inside does not in their Lordships’ opinion make a difference sufficient to take that action outside the type of violence contemplated and authorised by these appellants and so outside the scope of the joint enterprise: cf R v Powell [1999] 1 AC 1, 30, per Lord Hutton.  There was no evidence on which it could have been found that Daniel or Archibald withdrew or dissociated himself from the enterprise and that issue does not arise in the case of either.

41.	The judge might possibly have left the case of Garcia and Marshall to the jury on the basis of joint enterprise as well as aiding and abetting – just as he might well have left an alternative case of aiding and abetting against Daniel and Archibald.  He opted to confine it, however, to aiding and abetting and the jury’s decision has to be considered on that basis.  Mr Blake QC for Garcia and Marshall was also critical of the content of the judge’s summing-up on secondary participation, but his main theme was that the jury were not entitled to infer aiding and abetting from the appellants’ oral statements and that the judge failed to give them sufficient directions on that issue.

42.	It was submitted that the oral statements were incapable of bearing a meaning from which it could be inferred that these appellants had been inside the house giving assistance or encouragement to the others.  Their Lordships cannot agree.  In their opinion it was quite open to the jury to construe them as meaning that they were inside the house and took the baby outside, as both claimed to have done.  There was accordingly a case to go to the jury on aiding and abetting, and the judge quite correctly rejected the submission of no case.

43.	Their Lordships regard the judge’s directions on aiding and abetting and the inferences which the jury might draw from the oral statements as sufficient.  They do not accept that he was bound to give them the type of special direction discussed in such cases as McGreevy v Director of Public Prosecutions [1973] 1 WLR 276 and Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209 in the context of circumstantial evidence.  This type of direction is to the effect that the jury must be satisfied that every possible inference but the guilty one can be ruled out before they can accept that guilty inference.  It is normally sufficient, as in a case of circumstantial evidence, to direct the jury that they must be satisfied beyond reasonable doubt of the defendant’s guilt, and it is a matter for the trial judge whether the facts are such as to make a special direction necessary.  Their Lordships do not consider that the judge was in error in failing to give such a direction in the present case.

44.	It may have been a tenable inference that by taking the baby outside whichever appellant did so was attempting to dissociate himself from the killing of the occupants.  It was also a quite legitimate inference that by doing so the person who took the baby out knew of the risk to it and was taking part in the plan to eliminate possible witnesses, removing the child who could not present such a danger.  In their Lordships’ view the jury were entitled to conclude from the admissions made by Garcia and Marshall that they did not withdraw but aided and abetted the others in the murder of the three victims.  The threefold requirement of presence, knowledge and encouragement (cf R v Clarkson [1971] 1 WLR 1402) is satisfied.

45.	Their Lordships agree with the strictures of the Court of Appeal in paragraph 31 of their judgment about the judge’s direction concerning a presumption of law arising from the concealment of evidence.  On the facts of the case, however, it was not merely a tenable inference, but an extremely strong one, that the house was set on fire, with the occupants unconscious inside and the doors locked, for the very purpose of concealing the offences which had been committed within.  If the judge had confined himself to describing this possible inference and leaving it to the jury, he could not have been faulted.  Their Lordships do not consider, however, that the appellants were seriously prejudiced by his misstatement of the law.

46.	The appellants’ appeals against conviction will accordingly be dismissed.

47.	It was not in dispute between the parties that the mandatory sentence of death should be set aside, on the grounds set out in Matthew v State of Trinidad and Tobago [2005] 1 AC 433.  Following this decision, their Lordships will substitute in each case a sentence of life imprisonment.