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Privy Council Appeal No. 44 of 2004 Evon Smith v. The Queen FROM Appellant Respondent

THE COURT OF APPEAL OF JAMAICA

--------------JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Delivered the 1 th N!ve"#er $%%&
-----------------Present at t e earin!"#

Lord Steyn Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Walker of Gestingthorpe
$%a&ority 'ud!(ent delivered )y Lord Hope of Craighead* ------------------

The question in this appeal is whether the offence of which the appellant was con icted was capital murder within the meaning of section !"1#"d#"ii# of the $ffences against the %erson &ct 1'()* as su+stituted +y section ! of the $ffences against the %erson "&mendment# &ct 1,,!. -t raises a short and* it has to +e said* +eguilingly simple issue of statutory interpretation. .ut it is* for the appellant* a matter of the ery greatest importance. &lthough the effect of the .oard/s decision in Watson v The Queen 0!1123 1 &C )4! is that the death sentence is no longer mandatory in 5amaica* the question whether or not this was a case of capital murder is likely to +e regarded as a significant factor when a decision is taken on the appropriate sentence for the crime of which he was con icted. & correct decision as to what section !"1#"d#"ii# means is needed if 6ustice is to +e done in his case.
1.

!. The appellant was charged with murdering 7 ette Williamson on either 14 or 1' 5uly !111* this +eing capital murder within the meaning of section !"1#"d#"ii# as it was committed in the course or
[2005] UKPC 43

furtherance of a +urglary or house+reaking. He went to trial on this charge in the 8anchester Circuit Court of the Supreme Court of 5amaica +efore 8c-ntosh 5 and a 6ury. $n 1' $cto+er !111 he was found guilty of capital murder and was sentenced to death. $n 1! 9ecem+er !11! the Court of &ppeal ":orte %* %anton 5& and Clarke 5&"&g## dismissed an appeal against his con iction. The question of statutory construction which is now +efore their Lordships/ .oard was not raised in the Court of &ppeal. ;. The case for the prosecution was that the appellant killed the deceased* with whom he had had a relationship* while she lay in +ed in her dwelling<house. He did so +y +reaking into the house through a window ne=t to the +ed and striking her repeatedly with a machete. Her +ed was immediately under the window of an upstairs +edroom. The window was made up of se eral panes of glass* four of which were missing. The gap left +y the missing panes had +een co ered with a piece of plastic and a fa+ric curtain. >arious other mem+ers of the deceased/s family were li ing in the house at the time* among whom was her nephew* 9ennis &llen. His +ed was on the other side of the room. He said that he woke during the night and saw the appellant at the window chopping the deceased. He could see the appellant/s chest* face and hands* which were inside the room. He had remo ed the curtain and pulled aside a piece of the plastic. The lower part of his +ody was hidden +y the wall. ?e=t morning the witness saw a ladder up against the wall* leaning against the window under which the deceased had +een killed. The appellant/s defence to the charge* which the 6ury re6ected* was ali+i. ). Section !"1#"d# of the $ffences against the %erson &ct* as amended* pro ides@ A2 Capital Murders

"1# Su+6ect to su+section "!# 0where two or more persons are guilty of the murder3* murder committed in the following circumstances is capital murder* that is to say B C "d# any murder committed +y a person in the course or furtherance of B "i# "ii# "iii# "i # ro++eryD +urglary or house+reakingD arson in relation to a dwelling houseD or any se=ual offence.E

2. A.urglaryE is defined in section ;, of the Larceny &ct 1,)! as follows@

A39 Burglary F ery person who in the night B "1# +reaks and enters the dwelling<house of another with intent to commit any felony thereinD or "!# +reaks out of the dwelling<house of another* ha ing B "a# entered such dwelling<house with intent to commit any felony thereinD or "+# committed any felony in such dwelling<house* shall +e guilty of felony called +urglary* and on con iction thereof B "i# where the felony committed in the dwelling< house is rape* shall +e lia+le to imprisonment for lifeD and

"ii# in any other case shall +e lia+le to imprisonment for a term not e=ceeding twenty< one years.E (. AHouse+reakingE is defined in sections )1 and )1 of the Larceny &ct as follows@ A)1. House-breaking and committing felony F ery person who B "1# +reaks and enters any dwelling<house* or any +uilding within the curtilage thereof and occupied therewith C* and commits any felony thereinD or "!# +reaks out of any such place* ha ing committed any felony therein* shall +e guilty of felony* and on con iction thereof B "a# where the felony committed in any such place is rape* shall +e lia+le to imprisonment for lifeD and "+# in any other case shall +e lia+le to imprisonment for a term not e=ceeding ten years. )1. House-breaking with intent to commit felony F ery person who* with intent to commit any felony therein B "a# enters any dwelling<house in the nightD or "+# +reaks and enters any dwelling<house* place of di ine worship* or any +uilding within the curtilage thereof C

shall +e guilty of felony* and on con iction thereof lia+le to imprisonment with hard la+our for any term not e=ceeding se en years.E 4. -t is reasona+le to assume that the use of the phrase Ain the course or furtherance ofE which introduces the list of aggra ating circumstances in section !"1#"d# of the $ffences against the %erson &ct was modelled on section 2"1# of the Homicide &ct 1,24 which listed the categories of murder that were to +e treated as capital murders in the Gnited Hingdom. &mong those categories was any murder done in the course or furtherance of theft@ section 2"1#"a# of the 1,24 &ct. -n that conte=t the meaning to +e attached to the phrase did not lea e room for dou+t. -t en isaged a situation in which there were two criminal acts@ the theft and the killing. -t was a situation in which the defendant had two criminal purposes@ to perpetrate the theft and then to kill* typically on the spur of the moment* in the course of perpetrating or in the furtherance of it. '. The cases which illustrate how section 2"1#"a# of the 1,24 &ct was applied +y the courts in the Gnited Hingdom* +efore the 1,24 &ct was repealed +y the 8urder "&+olition of 9eath %enalty# &ct 1,(2* support this analysis. -n R v Jones 01,2,3 1 I. !,1 there were two criminal acts and the defendant had two purposes* one ancillary to the other. His primary intention was to steal. Ha ing stolen the money* he then killed as he left the house in order to a oid detection. -n R v Vickers 01,243 ! I. (() too there were two criminal acts and two purposes. He entered the house with the intention of stealing. He then killed in order to a oid +eing recognised. The murder was ancillary to the theft +ecause* as Lord Goddard C5 put it at p (41* the killing was to +e attri+uted to the +urglary which he was committing. The ice in these cases* which was thought +y the Gnited Hingdom %arliament in 1,24 to 6ustify the death penalty* was that the defendant resorted to killing his ictim in the course or furtherance of committing the theft. -t was the wanton and cynical nature of the killing* the de+asing in the conte=t of a comparati ely minor criminal act of the alue that is to +e attached to human life* that was regarded as particularly reprehensi+le. ,. -n H M Advocate v Graham* 1,2' SLT 1(4* the accused was alleged to ha e sta++ed the deceased while in the act of +reaking into a pu+lic house with intent to steal from it. There was e idence that he was attempting to +reak in and steal when the fatal struggle took place. Here again there were two separate offences and a separate criminal purpose to which the killing was ancillary@ the house+reaking with intent to steal* and the killing which was said to

ha e +een done in the course or furtherance of the stealing. Lord Sorn/s directions to the 6ury at p 1(, concentrated on the need for them to +e satisfied that the accused was in the course of the theft when he did the killing. 11. -n Lamey v The Queen 01,,(3 1 WLJ ,1!* which was an appeal from a decision of the Court of &ppeal of 5amaica in a case where the appellant had +een con icted of capital murder under section !"1#"f# of the $ffences against the %erson &ct* the .oard accepted the proposition that there had to +e a dou+le intent on the part of the defendant for there to +e a con iction for murder A in the course or furtherance of an act of terrorismE. The argument in that case was that dou+le intent could not +e shown +ecause the appellant was engaged upon a single act when the murder was committed* namely his act of terrorism. There was no separate act of iolence. The argument was re6ected. &t p ,1)H<,12. Lord 5auncey of Tullichettle said that a single murder could ery well ha e a dual purpose* namely the elimination of the ictim and the terrifying there+y of a section of the pu+lic* e en if no further act of iolence was in ol ed. The important point which that case demonstrates is that* 6ust as was the case in the Gnited Hingdom under section 2"1# of the 1,24 &ct* e idence of a dual criminal purpose has to +e shown for a con iction of capital murder under section !"1#"d#. 11. &t the outset of his admira+ly lucid and concise argument 8r :itKgi++ons said that what the appellant did in this case was to commit an act of +urglary in the course of a murder* not a murder in the course of a +urglary. -n other words* his only purpose was to kill. There was only one criminal purpose* and this was not within what the statute defines as capital murder. -n their Lordships/ opinion this is a correct description of what took place. The appellant +roke into the house for the sole purpose of killing his ictim. There was no e idence that he had any other criminal intention.
1!. The description of the offences in the course or furtherance of

which the murder was committed which is set out in section !"1#"d# "ii# of the 5amaican statute does* of course* introduce a complication that was not to +e found in the 1,24 &ct. -t refers to the offences of +urglary and house+reaking. The statutory definitions of these offences* which are to +e found in sections ;, to )1 of the Larceny &ct* show that +reaking and entering does not in itself amount to either +urglary or house+reaking. So too in the Gnited Hingdom the offences of +urglary in Fnglish law and of house+reaking in Scots law are constituted not +y +reaking and entering in itself +ut +y

+reaking and entering with intent to commit theft. -n 5amaica* howe er* the necessary intent is not confined to theft. -t e=tends to the commission of Aany felonyE* and 8r :itKgi++ons accepted that murder is itself a felony. So a person who +reaks and enters a dwelling<house with intent to commit murder there is guilty of house+reaking within the meaning of section )1 or* if he does so in the night* of +urglary within the meaning of section ;,. -f he actually commits murder there he is guilty of murder* +ut he is guilty also of house+reaking within the meaning of section )1.
1;. Where a person +reaks and enters a dwelling<house to commit

the felony of murder there* the +reaking and entering is done in the course or furtherance of the murder. There is a single purpose@ to murder. The +reaking and entering is done to facilitate that purpose. .ut section !"1#"d#"ii# states that a murder is to +e treated as capital murder if it was committed in the course or furtherance of something else B that is to say* either +urglary or house+reaking. -t would not +e difficult to apply this pro ision to a case where* in the course or furtherance of an act of +urglary or house+reaking with the intention of killing person &* the defendant attacks person . and murders him. .ut it seems to their Lordships to stand the pro ision on its head to say that it applies to a case where the +urglary or house+reaking was done with the intention of killing & and & is the person who is then killed. There was only one criminal purpose throughout@ to kill &. The duality of purpose which the .oard accepted in Lamey was a necessary element for capital murder as defined in section !"1#"f#* and which is 6ust as necessary for capital murder as defined in section !"1#"d#* is a+sent in these circumstances.
1). Their Lordships agree with the minority that the legislature

could not ha e intended that an offender who +roke into a dwelling house with intent to commit the felony of arson there and then murdered the occupant in the course or furtherance of setting it on fire should +e guilty of capital murder B as he clearly would +e* in their opinion B +ut that he should not +e guilty of capital murder if he +roke into the dwelling<house to set it on fire with the intention of killing the occupant. -t is to meet that situation that the murders listed in section !"1# as capital murders include any murder committed in the course or furtherance of arson in relation to a dwelling<house. & person who +reaks into a house and sets fire to it and* as result of his act* kills someone who is in the house when it is +urning commits a capital murder under section !"1#"d#"iii#. &s the .oard/s decision in Lamey v The Queen 01,,(3 1 WLJ ,1! indicates* he has a dual purpose@ to set fire to the dwelling<house* and to use the fire to kill his ictim. The fact that it was thought necessary to deal with acts of that kind under a separate heading

supports 8r :itKgi++ons/s argument as to how section !"1#"d#"ii# should +e construed. -t does not support the meaning which is gi en to that pro ision +y the minority. 12. The minority say that the statutory purpose of section !"1#"d# "ii# is to protect persons in their homes. That is plainly so* as the offences of +urglary and house+reaking +oth relate to acts of +reaking into and entering dwelling houses. The protection of the su+section undou+tedly e=tends to those who are at risk of +eing killed +y intruders who ha e +roken into their homes for the purpose of stealing from them. .ut it does not follow that e ery murder committed within a ictim/s own home is a capital murder* nor does it follow that a capital murder is committed +y e ery person who kills after +reaking into the ictim/s dwelling house. The legislature could ha e said so if this was its intention* and in this area of the law where the right to life is in issue it had to spell out what it meant with a+solute clarity. What it did was to restrict the offence of capital murder to the categories listed in section !"1#* which require more of the intruder to qualify as a capital murderer than the act of +reaking into and entering the dwelling house with intent to commit the murder. They require a duality of purpose which is a+sent from this case. 1(. :or these reasons their Lordships will hum+ly ad ise Her 8a6esty that the appellant/s appeal against his con iction of capital murder should +e allowed* that a con iction of murder should +e su+stituted for it and that the case should +e remitted to the Supreme Court of 5amaica to determine the sentence that is appropriate for the crime of murder of which he has +een con icted. LLLLLLLLLLLLLL

Dissenting judgment y Lord Hoffman and Lord Hutton 14. We regret that we are una+le to agree with the opinion of the ma6ority of the .oard that the appellant was not guilty of capital murder within the meaning of section !"1#"d#"ii# of the $ffences &gainst the %erson &ct 1'()* as amended. 1'. The appellant stood on a ladder against the outside of the deceased/s house at night* pulled aside a curtain and a piece of plastic in a window* inserted his head and upper +ody through the window and struck the deceased a num+er of +lows with a machete as she lay in her +ed under the window.

1,. -t is important to o+ser e that in 5amaica the offences of +urglary and house+reaking are committed under sections ;, and )1 of the Larceny &ct where a person +reaks and enters a dwelling< house in the night Awith intent to commit any felony thereinE. Therefore in the present case where the appellant +roke and entered the deceased/s house with intent to commit the felony of murdering her he was clearly guilty of +urglary and house+reaking. -t is an essential ingredient of those offences that the defendant had the intent not only of +reaking and entering +ut also of committing a felony in the house* in this case the felony of murder. Therefore when* immediately after +reaking and entering the house* he carried out the intention with which he had entered of killing the deceased* we are of the opinion that he committed a murder Ain the course of +urglary or house+reakingE. !1. The ma6ority summarise the argument of 8r :itKgi++on for the appellant in this way "at para 11 a+o e#@ Awhat the appellant did in this case was to commit an act of +urglary in the course of a murder* not a murder in the course of a +urglary. -n other words* his only purpose was to kill. There was only one criminal purpose* and this was not within what the statute defines as capital murder.E The ma6ority then state that in their opinion@ Athis is a correct description of what took place. The appellant +roke into the house for the sole purpose of killing his ictim. There was no e idence that he had any other criminal intention.E We are una+le* with respect* to accept this analysis. .urglary is committed +y entry into a dwelling<house with the intention of committing a felony therein. The +urglar remains a +urglar from the moment he enters until* at the ery earliest* his felonious intention ha e clearly +een completed or a+andoned. The fact that the intention which characterised his entry as +urglary was an intention to commit a murder cannot mean* as a matter of law or logic* that he was not a +urglar when he committed the actual murder. $n the contrary* it represented the accomplishment of the ery purpose for which he entered. -f he was a +urglar when he killed* it seems to us right to descri+e the killing as ha ing +een in the course of a +urglary. $n the other hand* it seems to us wrong to say that the +urglary was in the course of a murder. He was a +urglar +oth +efore and pro+a+ly after he was a murderer. -f a man +reaks into a dwelling<house to steal or to rape the fact that his purpose is to commit one or other of these offences does not mean that the theft or

rape is not committed in the course of a +urglary. Similarly* in our opinion* a man who +reaks into a dwelling<house to murder commits a murder in the course of a +urglary* and although it may +e said that he has only one o erall intention* in law he has the necessary intention to constitute +urglary and the necessary intention to constitute murder. !1. -f a person sets fire to a dwelling<house in order to kill the occupant he is* in our opinion* guilty of a capital murder under section !"1#"d#"iii#. ?o dou+t his main purpose and intent is to kill* +ut he also has the purpose and intent of committing arson and he cannot escape guilt of capital murder +y arguing that he committed an act of arson in the course of murder* not a murder in the course of arson. We consider that* 6ust as a person who sets a house on fire with the intention of killing the occupant commits a murder in the course of arson* so also a person who +reaks into a house with the intent of killing the occupant and then kills her commits a murder in the course of +urglary and house+reaking. &nd 6ust as section !"1# "d#"iii# is not confined to a person who sets a house on fire without the intent to kill +ut su+sequently murders the occupant* so also section !"1#"d#"ii# is not confined to an intruder who +reaks into a house to steal without the intent to kill* +ut su+sequently murders the occupant in the house. We are una+le to agree with the iew that arson was specifically dealt with in a separate su+paragraph "iii# in order to permit the construction of su+ paragraph "ii# which the ma6ority adopt. -n our opinion the draftsman simply set out ro++ery* +urglary or house+reaking* arson and se=ual offences in separate su+paragraphs +ecause they are separate offences. !!. We are further of opinion that a consideration of section 2"1#"a# of the Fnglish Homicide &ct 1,24 does not assist in the consideration of section !"1#"d#"ii#. The wording of section 2"1#"a# is much narrower than the wording of section !"1#"d#"ii#. The Fnglish su+paragraph makes murder a capital murder where it is done in the course or furtherance of theft whereas the 5amaican su+ paragraph constitutes murder a capital murder where it is done in the course of +urglary or house+reaking* which includes +reaking and entering a house with intent to commit murder. !;. -n our opinion the purpose of section !"1#"d#"ii# is to protect citiKens from +eing murdered in their own homes +y intruders who +reak in at night and to deter offenders from committing such murders. We consider that the legislature could not ha e intended that an intruder who +roke into a house* which he +elie ed to +e unoccupied* for the purpose of stealing therein and then* coming

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upon the occupier* killed him or her* should +e guilty of capital murder* +ut that a person who +roke into a house with the e=press purpose of killing the occupant and did so should not +e guilty of capital murder. The ma6ority are disposed to accept that section !"1#"d#"ii# applies if a person +reaks into a house with the intention of killing & and kills .* and accept that the su+section e=tends to those who are at risk of +eing killed +y intruders who ha e +roken into their homes for the purpose of stealing. .ut it is difficult to see why the legislature would think that the intruder who +reaks in with the e=press purpose of killing the occupier should +e regarded as less heinous and should not +e punished with equal se erity. !). -n the course of their su+missions counsel referred to three decisions of appellate courts in the Gnited States in relation to the statutory offence of felony<murder. The offences took place in three different states and the wording of the statutes in the three states appears to +e slightly different +ut the statutes pro ided* in essence* that murder committed in the course of a num+er of specified felonies* including +urglary* constituted a felony<murder. -n the three cases the appellants unlawfully entered a dwelling<house with intent* not to steal* +ut to attack the occupier and carried out a murder. -n each appeal it was argued that the felony<murder rule did not apply +ecause* apart from the murder* there was no independent underlying felony which had to e=ist for the rule to apply. &s the cases related to the felony<murder rule and the wording of the &merican statutes differed from the wording of the 5amaican statutes* the decisions are not of direct rele ance* +ut we consider that two of the decisions gi e support to the argument ad anced on +ehalf of the Crown and that the third case is distinguisha+le +ecause of the wording of the rele ant statute.
!2. -n !eo"#e v Mi##er !,4 ?F!d'2 01,4;3 "Court of &ppeals of

?ew 7ork# and $#ango v %nited &tates ;4; &.!d''2 01,443 "9istrict of Colum+ia Court of &ppeals# the argument of the respecti e appellants was re6ected* it +eing stated in Mi##er at page ''* and followed in $#ango' that@ AC the Legislature* in enacting the +urglary and felony< murder statutes* did not e=clude from the definition of +urglary* a +urglary +ased upon the attempt to assault* +ut intended that the definition +e Msatisfied if the intruder/s intent* e=isting at the time of the unlawful entry or remaining* is to commit any crime/.E -n each case the appellate court emphasised that the intention of the legislature was to protect persons in their homes.

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!(. -n !arker v &tate o( Arkansas !,! &rk. )!1 "1,'4# "Supreme Court of &rkansas# the appeal succeeded* +ut in that case the &rkansas statute referred to a death caused Ain the course of and in furtherance ofE a +urglary* and the decision was +ased on the words Aand in furtherance ofE. The prosecution relied on decisions in Mi##er and $#ango +ut the court distinguished those cases +y reference to the different wording of the &rkansas Statute and stated* at p )!4@ ASimply put* the state has not ad anced any con incing argument as to how the murder committed after the +urglary could +e in the course of and in furtherance of the +urglary* +oth of which are elements required +y our statutes. M-f we can* we gi e legislation a construction to affect legislati e intent C Howe er* this is a criminal statute which must +e strictly construed with dou+t +eing resol ed in fa our of the accused/. )na"" v* &tate* !'; &rk. ;)(* (4( S.W. !d 4!, "1,')#. -n strictly construing our statutes* as we must do* it is apparent that in order to constitute capital felony murder* the murder must +e in the course of* and in furtherance of the +urglary* which is not the case +efore us.E
!4. :or the reasons which we ha e gi en we would ha e hum+ly

ad ised Her 8a6esty that the appeal against the con iction of capital murder should +e dismissed +ut that* pursuant to the decision of the .oard in Watson v The Queen 0!1123 1 &C )4!* the sentence of death which was imposed on the appellant should +e set aside and that his case should +e remitted to the Supreme Court of 5amaica to decide what sentence should +e imposed for the crime of which the appellant was con icted in this case.

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