The Judicial Committee of the Privy Council Decisions

THE COURT OF APPEAL OF TRINIDAD

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

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Present at the hearing:-

Lord Steyn

[Orally Delivered by Lord Steyn]

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1. On 14th April 1999 the petitioner's application for leave to appeal as a poor person from the judgment of the Court of Appeal came before the Privy Council. Their Lordships granted the petitioner special leave to enter and prosecute his appeal to the Judicial Committee of the Privy Council with reasons to be given later. These they now give.

2. On 5th July 1986 Sankar Seuraj (the deceased) was shot and killed. The next day the police arrested Ashoke Papan (the petitioner) and charged him with murder. He was tried at the Port of Spain Assizes by Mr. Justice Douglin and a jury. On 1st April 1993 the jury convicted the petitioner of murder and the judge sentenced him to death. He appealed to the Court of Appeal. On 14th January 1997 the Court of Appeal dismissed the appeal against conviction.

3. The nature of the prosecution and defence cases are conveniently summarised in the judgment of the Court of Appeal delivered by Hosein J. A. and it is unnecessary to describe the shape of the case again. It is sufficient to say that at trial there was inter alia an issue of self defence. The judge directed the jury that if they accepted the oral evidence of the accused, or his evidence created a doubt, the verdict had to be not guilty.

4. At the hearing of the petition for special leave a matter was raised which had not been placed before the Court of Appeal and of which the Court of Appeal was completely unaware. It related to contact at the trial between the foreman of the jury and the deceased's father. There is now available an affidavit of Rosaline Sankaran (the sister of the petitioner) the gist of which is that during the trial she saw Evans Seuraj (the father of the deceased and a prosecution witness) approaching the foreman of the jury and speaking to him for some 12-15 minutes. Two other persons stood nearby. She informed the attorney for the accused who raised the matter with the judge. The judge summoned the advocates for the prosecution and defence, Mr. Largen (the foreman of the jury), Mr. Seuraj (the deceased's father), and Rosaline Sankaran (the petitioner's sister) to his chambers. The accused was not present. The judge questioned the petitioner's sister. She explained what she had observed. In response to the judge she confirmed that she did not hear what Mr. Seuraj and the foreman of the jury talked about. The judge then questioned the foreman. He said he had known Mr. Seuraj for 8 years. He stated "that he and Mr. Seuraj frequently had morning coffee together at a cafeteria". The foreman said that he had not discussed the case with Mr. Seuraj. In response to a question from the judge the foreman said he had not taken a bribe. Finally, Rosaline Sankaran stated that during the proceeding in the judge's chambers somebody took notes.

5. The representative of the petitioner called for the production of the notes. A handwritten document was produced which is headed "Judge’s Note". The typed version of the note reads as follows:-

"About 20 to 9, sister of the deceased told Salandy that something has happened that she saw the father of the deceased talking to 2 people outside the court and then she saw the same 2 people talking to the foreman.

She pointed out the 2 people talking to the foreman. They were nearer the first and fourth assize court. I looked through about 3 glass panes and Salandy recognised the foreman talking to the 2 people man and woman of Indian descent. I saw Kene(?) and the deceased’s father were leaning against a wall. The deceased’s father looked at me and looked across where I had been looking at the 2 people. The foreman was still talking to the 2 people.

 

Witnesses

Sister of accused, Rosalind Sankaran

Father of the deceased Evans Suraj

Foreman, Kenneth Largen."

6. This is the totality of the information about this incident which was available at the hearing before the Privy Council. Despite their best endeavours the prosecution has so far been unable to obtain further information.

7. It is, of course, clear that the judge decided not to discharge the foreman, or, more realistically, the jury. Unfortunately, it seems that the judge did not give a judgment, make findings of fact or give reasons for the exercise of his discretion. The Judge’s Note is demonstrably incorrect in a material respect ("the sister of the deceased told Salandy"); it quite possibly reveals a misunderstanding of the incident reported to the judge (the second paragraph) and, in any event, is incomplete (as to the relationship and contact between the deceased’s father and the foreman). Their Lordships note with sympathy that the Court of Appeal recorded in the judgment of 14th January 1997 that at the time of the trial the judge was ailing. However, that may be, the Judge's Note inspires no confidence that the judge examined and considered the matter properly.

8. As matters stand at present their Lordships would observe that prima facie the judge was faced with much more than a fleeting contact between the foreman of the jury and the deceased's father. If the evidence of the petitioner's sister is substantially correct, the judge's decision not to discharge the jury would on the well known principles enunciated in Reg. v. Gough [1993] AC 646 be difficult to justify. On the other hand, their Lordships appreciate that further information might be available which could put a different complexion on the case.

9. Having heard counsel on this issue, but not on other issues raised in the petition, their Lordships decided that the matter must be remitted to the Court of Appeal on the terms set out in the formal order dated 14th April 1999 of the Privy Council. Their Lordships so ordered.