Everad Nicholls v The Queen

Facts

The defendant ('N') appealed against his murder conviction and death sentence imposed on 11 June 1997 after a retrial at the High Court in Saint Vincent and The Grenadines. On 27 August 1996, in a remote part of Saint Vincent, there was a fight between two rival criminal gangs. The deceased ('V') had been injured with a cutlass and had five bullet wounds. N told the police that he had struck V with his cutlass because V had a gun and that V's gun accidentally fired in the ensuing struggle. His first trial was in February 1997 but the jury could not agree a verdict. At his second trial the prosecution's evidence contained discrepancies as to the timing of the arrival of certain witnesses on the scene of the crime. The jury were not told that it was possible that the gun, which killed V, could have been an automatic weapon. N strongly contended that the position of V's wounds was inconsistent with the prosecution's allegation that he had deliberately shot V. The prosecution invited the jury to concentrate on the multiplicity of bullet wounds. Both the prosecution and the defence led evidence which supported N's contention that after being covered in blood, he washed himself in the sea, changed his clothes and threw the soiled clothes into the sea. After his second trial, N's appeal to the Court of Appeal of the Eastern Caribbean was unsuccessful. That Court of Appeal ruled that since N's use of the cutlass did not kill V, the issues of self-defence or provocation did not arise. N submitted in his appeal to the Privy Council that: (i) the judge did not sum up the case fairly; (ii) although N did not rely on self-defence, on a realistic appraisal of the evidence the judge ought to have left the issue of self-defence to the jury; and (iii) the jury was misdirected on the burden and standard of proof.

Held

(1) The judge failed to highlight a flaw, as to the timing of a witness's arrival on the crime scene, in the prosecution's case to the jury. Furthermore, the judge should have drawn the jury's attention to the possibility that the weapon may have been an automatic and N's contention that he could not have fired the shots in the manner described by the prosecution. The failure to mention these matters was a material flaw in the summing up. There should have been expert evidence on the weapon used. A further flaw was the judge's failure to remind the jury of the witnesses who supported N's contention that he became covered in blood during a struggle with V. The judge also misdirected the jury as to N's own evidence: he got it wrong. For those reasons the conviction had to be quashed. (2) The issue of whether self-defence should have been left to the jury was not examined in the light of the previous finding. (3) The decision of the Court Appeal that the departure from the burden and standard of proof normally used had not prejudiced N, was correct. (4) Since it was an error of principle to allow the prosecution to have a second chance to make good the deficiencies in its case (see Reid v The Queen (1980) AC 343), the case would not be remitted for a further retrial.

Appeal allowed.

Comment

Successful appeal against conviction for murder in Saint Vincent because the judge's summing up was unfair and biased.

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