Nimrod Miguel v The State (Trinidad and Tobago)

For joint enterprise and violent arrestable offence murder, the jury must be satisfied that the accused remained engaged in the common enterprise when the killing occurred. Withdrawal is fact-sensitive. Where practicable and reasonable, it requires timely communication giving unequivocal notice of abandonment. Conduct before and after the killing may be relevant. Breach of the Judges’ Rules 1965 does not automatically exclude a statement: fairness governs, with voluntariness the major factor. A Mushtaq direction is required only where the jury might find that the defendant made a true statement induced by oppression. It is unnecessary where the issue is whether the statement was made at all. Under section 6 of the Constitution of the Republic of Trinidad and Tobago Act 1976, a rule repealed before later legislation cannot be reinstated as an existing law. The mandatory death sentence was therefore unconstitutional.

The appellant was convicted of murder before Brook J and a jury on 30 January 2008 and sentenced to death. The prosecution relied on violent arrestable offence murder and joint enterprise. The defence alleged withdrawal, challenged the admission of a written statement and disputed the judge’s directions concerning the statement. The Court of Appeal of Trinidad and Tobago dismissed the appeal on 27 February 2009. The Privy Council considered four grounds against conviction and whether the mandatory death sentence imposed under the 1997 statutory provision was compatible with the Constitution. The central questions were whether the directions on withdrawal and confession evidence were adequate, whether the statement was fairly admitted despite a breach of the Judges’ Rules, and whether the 1997 enactment was saved as an existing law.

The Board, in the judgment delivered by Lord Clarke, dismissed the appeal against conviction and allowed the appeal against sentence.

1. Withdrawal. The judge’s directions correctly treated withdrawal as relevant to both joint enterprise and violent arrestable offence murder. To break the chain of causation and responsibility, withdrawal depends on the circumstances of each case and, where practicable and reasonable, requires timely communication giving unequivocal notice to those continuing the common purpose. The jury were entitled to consider the appellant’s conduct after the shooting, including leaving in the stolen car and assisting with its number plates. There was no misdirection. (paras 21–30)
2. Admission of the statement. The breach of Rule V(d) of the Judges’ Rules 1965 did not require automatic exclusion. Applying the fairness principles in Peart v The Queen [2006] UKPC 5, the judge had to decide whether admission was fair, with voluntariness as the major factor. He applied the correct principles, and his decision was neither erroneous in principle nor plainly wrong. The Court of Appeal could not properly interfere, and no question under the proviso arose.
3. Confession directions. A Mushtaq direction is required only where the jury might find that the defendant made a true statement which was or might have been induced by oppression or other circumstances rendering it unreliable. Following the explanation in Wizzard v The Queen [2007] UKPC 21, no such direction was required where the issue was whether the appellant had made the statement at all. The judge’s directions sufficiently required the jury to be sure that the interview and statement were made, to construe any admissions and to be sure that they were true. The appeal against conviction therefore failed.
4. Sentence. It was common ground, consistently with Matthew v State of Trinidad and Tobago [2005] 1 AC 433, that the mandatory death sentence was cruel and unusual punishment and inconsistent with the constitutional protections. The 1997 provision was not saved by section 6. The felony murder rule had ceased to exist in 1979, as explained in Moses v The State [1997] AC 53. The 1997 enactment therefore neither constituted an existing law nor altered one within section 6. The mandatory death sentence was quashed and the question of sentence was remitted to the appropriate court in Trinidad and Tobago.

• Privy Council. In [2011] UKPC 14, the appeal against conviction was dismissed and the appeal against sentence was allowed. The mandatory death sentence was quashed and the question of sentence remitted.
• Court of Appeal of Trinidad and Tobago. The appellant’s appeal was dismissed on 27 February 2009 by Hamel-Smith, John and Weekes JAA.
• High Court of Trinidad and Tobago. Before Brook J and a jury, the appellant was convicted of murder on 30 January 2008 and sentenced to death.