The Judicial Committee of the Privy Council Decisions

Persad v. The State (Trinidad and Tobago) [2001] UKPC 2 (24th January, 2001)

(1) Krishna Persad                           
 (2) Ramsingh Jairam Appellant          

Delivered the 24th January 2001

[Delivered by Lord Clyde]

1. On 4 April 1985 Premraj Mahabir was driving his fiancée Cheryl Soodeen to her house in the moonlight. They stopped in a trace near Esperanza Salt House. A white Datsun pick-up van with grey spots then drew up beside them. The driver got out. He was holding a gun and he told Premraj and Cheryl to get out of their vehicle. They did so. The driver was then joined by another man from the van. The driver told Premraj to give him his wallet and then shot him twice. Cheryl was put into the van and the men drove away. They took Cheryl to a place called the Cane Weighing Yard. On the journey one of the men demanded her jewellery, took two chains from her neck and she then handed over some rings. At the Yard the men proceeded to rape Cheryl, one of them once and the other three times. One of them then shot her in the vagina and they then left her. Premraj, who had been left at Esperanza, managed to get help but later died in hospital. Cheryl was taken to hospital but was able to survive and give evidence.

2. The appellants Jairam and Persad were arrested in February the following year. They were subsequently tried for the murder of Premraj and on 19th April 1988 they were convicted and sentenced to death by hanging. They then sought to appeal. After a considerable delay their appeals were heard on 14th December 1993 and allowed on 15th December 1993. The Court of Appeal ordered a retrial.

3. The retrial commenced on 12th October 1995. Jairam and Persad applied by motion to stay the further proceedings on the ground of an abuse of process but that application was dismissed. On 2nd November 1995 they were again convicted and sentenced to death by hanging. Both were returned to death row. They again appealed. On 5th February 1998 their appeals were allowed and another retrial ordered. It is from that decision that they now appeal and the State has cross-appealed.

4. It is necessary at this stage to narrate what happened when the appeals came before the Court on 5th February 1998. It was evident that all three members of the Court had given thought to the case in advance and Sharma J.A., who presided, proceeded immediately to explain that they would have to send the case back. The point which he made at the outset was that certain information had been kept from the defence. That information concerned a police inspector Dyo Mohammed. He had played a significant part in the two cases and his evidence was of considerable importance in each of them. He had given evidence of both verbal and written admissions made by the accused. He had given evidence that he had found some jewellery at the home of the first appellant Jairam on 6th February 1986. The jewellery which he said he had recovered was produced at the trial and was identified by Cheryl as the jewellery which had been taken from her on the night of the murder.

5. The information which had not been disclosed to the defence was information which might raise a question as to the reliability of the evidence given by Dyo Mohammed. Sharma J.A. referred to what the Privy Council had done in other cases. While the reference is not specific their Lordships understand that Sharma J.A. may well have been referring at least to two cases which had been referred by their Lordships to the Court of Appeal for further consideration. One of these was an appeal by Everol Lawrence, which had come before the Court of Appeal on remit from the Privy Council and which on 21st January 1998 the Court of Appeal had remitted for retrial. Among the matters involved in that case were motions for the disclosure of material relating to charges and disciplinary proceedings against Dyo Mohammed and another person. It appears that the State had no objection to the disclosure, thus obviating the need for any immediate formal order. The other was an appeal by Dennis John, which had been referred to the Court of Appeal by the Privy Council on 2nd October 1997, the hearing in which was still pending. In that case the defence sought among other things to challenge the reliability of Dyo Mohammed and another officer on the ground of charges made against them and another person, Gowkaran Ramphalie, alleging an intent to pervert the course of justice in relation to a shooting incident in 1990 in which one Roy Sukbir had been shot and killed. There may or may not have been other cases which Sharma J.A. had in mind, but it appears that at least these may have been among them.

6. The principal concern of the Court of Appeal was that the defence had not been told that there might be a question about the reliability of the Inspector’s evidence. But Sharma J.A. went on to say that quite apart from the matter of the non-disclosure to the defence of the information the Court was "a little concerned about the admissibility of the gun". This related to a chapter of evidence given by a witness Yussuf Mohammed to the effect that he had on one day, which he could not remember, gone into a van, which he said was a van which the first appellant Jairam used to drive and had found a gun between two bucket seats in the van. Bullets had been recovered from the body of the deceased and casings had been found at the site of the incident. But the gun was not produced as an exhibit and there was no evidence to establish any connection between the bullets, or the casings, and the gun. As the trial judge explained to the jury, there was no evidence that the gun was the murder weapon. He told them that it went to show that the accused Jairam "had a gun at one time or the other". The Court of Appeal did not formally determine the matter of the admissibility of the evidence about the gun but they were plainly concerned about it. Having explained these two points of concern Sharma J.A. stated that they would have to send the case back, and added "I don’t think there can be any dispute about that, can there?" At that Mr. Pantor, who appeared for the State, replied "No, my Lord". The transcript does not record the complete sentence which followed but it appears that the State accepted that a further trial was necessary.

7. Sharma J.A. then proceeded to explain that the Inspector should be subjected to severe scrutiny and he pointed out that the relevance of the matter of the gun should be properly argued before the judge, and also that consideration should be given to the way in which the verbal admissions were treated. Here it appears that he was reminding the parties that the admissibility of oral statements by an accused could be challenged as not having been voluntarily given even where the making of an admission is denied, and he accordingly advised that in such circumstances a voir dire ought to be held. He then commented upon a concern raised by Mr Pantor about a possible defect in the summing-up and upon a ground of appeal raised by Mr Allum appearing for the appellant Jairam relating to the time which had passed between the date of the incident and the date of the discovery of the jewellery. He also expressed the anxiety which the Court felt to secure that the judge was adequately assisted and the accused obtained a fair trial.

8. Their Lordships can understand that particularly with the precedent of the case of Lawrence, in which Mr Pantor had appeared for the State and Mr Allum had appeared for Lawrence, the Court of Appeal may well have considered that the only course open was to hold a retrial. But however it came about their Lordships are of the view that the court moved too quickly and that they erred in denying the appellants the opportunity to have their appeals heard. The initiative which the court took is the more understandable in light of the evident acquiescence by the parties’ attorneys, and in particular by Mr. Pantor who appeared for the State. But they did not clearly distinguish the two distinct questions which had to be considered, namely, first, was the conviction safe, and second, if it was not safe, should there or should there not be a further trial. The second question of course only arises if the conviction is to be quashed. It may be that they saw the problem simply as one issue, the necessity for securing a fair trial for the two men. But the determination of the consequence of setting aside the conviction and sentence is a distinct and separate exercise from the decision to set aside and it is governed by distinct considerations. The decision to quash a conviction should not be influenced by considerations of the propriety of allowing a new trial. What is missing from the hearing on 5th February 1998 is any discussion of the propriety of ordering a new trial. Their Lordships are thus without any guidance from the Court as to the reasons why a new trial was ordered.

9. The State now contends in its cross-appeal that in treating the appeals in the way which has been described, the Appeal Court exceeded its statutory jurisdiction. They had heard no argument on the merits. Indeed they said that they were not hearing the matter. They did not expressly find that there had been a miscarriage of justice. They simply remitted the case back, as they said, "in limine", without any full consideration of it. Their Lordships are not persuaded that there is here any excess of jurisdiction. The members of the Court had all formed the view from the papers which they had read that there was no need for what Sharma J.A. referred to as a "forensic exercise". He stated that they had all gone through the case very meticulously. Rightly or wrongly the Court must have decided that there had been a miscarriage of justice, although, in the absence of any formal judgment setting out the reasons, it was not expressed in so many words. Indeed in stressing the importance of the accused having a fair trial Sharma J.A. may be understood to have been indicating that the trial had not been fair. The Court had the power to quash the conviction and sentence and to order a new trial. Their Lordships’ concern is not with any excess of jurisdiction but rather with the way in which the jurisdiction was exercised.

10. The Judicial Committee accordingly find themselves in a delicate situation. Both the accused and the State have appealed against the course taken by the Court of Appeal. Two issues arise, namely should the convictions, or indeed one or other or both of them, be quashed, and secondly, if one or other or both are to be quashed, should there be a new trial. It was argued that the State had a strong case against both men and their Lordships were invited by counsel for the State to take the bold course of restoring the convictions. The point was forcefully made that at least in the case of Jairam there was evidence other than that of Dyo Mohammed which could support the prosecution’s case against him. Indeed it might be that the case could be made out even without reliance on the evidence of Dyo Mohammed. On the other hand counsel for the appellants were able to point to various considerations which could well prompt some anxiety about the safety of the convictions. Moreover, albeit without having allowed the arguments to be presented the Court of Appeal were obviously of the view that the convictions could not stand, and their view was evidently based upon a careful reading of the papers and the ground for their anxiety went beyond the matter of the possible unreliability of Dyo Mohammed. The appellants sought to have the quashing of the conviction and sentence maintained but argued that no order should have been made for a new trial.

11. Their Lordships have given careful thought to the question whether they should themselves determine the substance of each of the two appeals here and now, but they have come to the view that on balance it would not be appropriate for them to do so. Questions such as whether there has been a miscarriage of justice, or whether the proviso should be applied in particular circumstances, or whether there should or should not be in particular circumstances a new trial are primarily matters for the local court to determine. The charges against the two men are very serious ones. The accused are entitled to have their cases heard in full before the Court of Appeal. Their Lordships are very conscious of the long length of time during which the accused have been exposed to successive agonies of uncertainty and are reluctant to prolong any such uncertainty. They recognise that there is at least a possibility that no more material may emerge than that which has been deployed before them. But they have reached the view that, since the Court of Appeal expressly did not hear the appeals when they came before them, it would be preferable to have the Court of Appeal hear the appeals now rather than for their Lordships to form a concluded view without the assistance which the local court may be able to give. Having proceeded to make the order which they did without hearing argument and without, as it seems, giving separate consideration to the distinct issues of the safety of the conviction and the propriety of a new trial in the circumstances of this particular case, the Court of Appeal went wrong. Their Lordships observe indeed that no mention was made in the discussion before the Court of Appeal of what seems to them to be a serious defect in the summing up, namely the direction on felony murder, although that formed one of the stated grounds of appeal. They consider that in the unusual circumstances which have arisen it would be proper for the appeals to be heard in full by the Court of Appeal.

12. In these circumstances it is strictly unnecessary to discuss the various matters which have been canvassed before their Lordships. But it may be helpful for some indication to be given of some of the issues which have been raised and the points which the Appeal Court may wish particularly to consider.

13. The principal matter which was raised by the Appeal Court on 5th February 1998 was the failure by the prosecution to disclose information to the defence about the possible unreliability of Dyo Mohammed. That the prosecution may have a duty to disclose to the defence information bearing on the reliability of a witness for the prosecution is not in doubt. Such a duty is founded upon the necessity to secure the fairness of the trial. But in the present case the State contends that in the circumstances there was no duty upon the prosecution to disclose to the defence anything relating to the reliability of Dyo Mohammed. The question comes to be one of ascertaining whether or not there was material relevant to that matter which could properly form the subject of a cross-examination directed to challenging his reliability.

14. Previous misconduct or bad character are among the matters which may legitimately be raised in cross-examination with a view to questioning the reliability of any witness. Police officers are in no special category in this regard. But there must be a solid basis for any questions put in cross-examination for this purpose. The court retains a discretion in the allowing or refusing such questions to be asked, and as was observed by Lord Lane C.J. in Reg. v. Edwards [1991] 1 WLR 207, 216 "it is impossible and would be unwise to lay down hard and fast rules as to how the court should exercise its discretion". But it can be affirmed that the alleged misconduct must be misconduct by the witness himself and the misconduct must not be a matter of speculation or doubt, but of probability. Thus it is not proper to raise matters which are merely matters of complaint about the behaviour of the witness where those complaints have not been considered and determined by the appropriate authority established to adjudicate upon complaints. Far less is it proper to question the witness about charges which have been made against him and which have not yet been tried. On the other hand where there has been some finding in the past that a police officer has been guilty of malpractice in a way which may bear upon the reliability of his evidence regarding his behaviour in the instant case, then it may be admissible to challenge his reliability by reference to such a past incident.

15. These principles apply in particular in relation to questions about evidence which a police officer has given in past trials. The mere fact that the officer has given evidence in a past case and the accused has been acquitted is far from sufficient to form the basis for an attack on reliability. The acquittal would at least have to be linked to a rejection of the officer’s evidence. In many cases it may be difficult to determine with precision why a jury has returned a verdict of acquittal. It could be that the defence case has raised a sufficient doubt in their minds, without any necessary disbelief of the evidence of the police officer. On the other hand if there is clear evidence to show that the officer has lied in the witness box, or that he has fabricated some piece of evidence, or committed some other malpractice, then in a subsequent case such conduct may be raised by way of challenge to his reliability. Examples of that can be found in the cases of Reg. v. Dandy (unreported), 12th November 1987 and Reg. v. Jones (unreported), 25th June 1987 both discussed in Edwards, at p. 219.

16. Behind all this is the necessity of securing a fair trial for the accused person consistently with fairness to a witness. It is not fair for a witness to be assailed with unproven allegations of misconduct or with mere suspicions of past malpractice. Nor is it acceptable for the time of the court to be taken up with matters extrinsic to the case in hand nor for the jury to be distracted from the issue before them by inquiries into uncertain and unresolved issues about the earlier conduct of a witness. The investigation of a witness’s reliability in the course of cross-examination must be kept within bounds. It cannot be allowed to degenerate into a ranging and speculative inquiry into any or all of the occasions on which the witness has given evidence in the past. It is not to be expected that records must be kept of every occasion on which a police officer has given evidence and the accused has been acquitted (see Reg. v. Guney [1998] 2 Cr.App.R. 242, 258). Indeed the admission of evidence upon matters collateral to the issue in the trial is generally to be discouraged.

17. It appears to their Lordships that there may well be material which could constitute proper material for cross-examination by the defence on the reliability of Dyo Mohammed. But the matter is open for argument. The Court of Appeal were aware that the inspector had figured in the case of Dennis John. After being charged on 17th May 1993 with conspiring to pervert the course of justice in relation to the shooting of Roy Sukbir, Dyo Mohammed was suspended on 1st June 1993. The charges were dismissed on 20th April 1995, but he was not reinstated until 8th November 1995. That was some six days after the conclusion of the second trial of the appellants. On 2nd October 1997 special leave was granted by their Lordships, the petition was treated as the hearing of the appeal and the case was remitted to the Court of Appeal with an express indication that the questions relating to the three witnesses should be investigated as far as possible with the assistance of the State. Their Lordships were aware at that stage that the charges against Dyo Mohammed and the others had been dismissed, but there still appeared to be grounds for questioning the reliability of his evidence and the matter deserved further inquiry. That investigation was still pending when the appeal by the present appellants came before the Court on 5th February. The Court of Appeal later heard the case of Dennis John and on 31st July 1998 refused his appeal. In the course of the judgment delivered by de la Bastide C.J. the dismissal of the charges against Dyo Mohammed and his fellow officer was noted and it was said that the Court was "not aware of any other complaints having been made against these two policemen and nothing else has ever been proven against them either in disciplinary proceedings or in Court". The Appeal Court was satisfied that none of the material which the defence complained had not been available to them could have been used to attack the credibility of Dyo Mohammed. It may then be that in so far as the Appeal Court were concerned on 5th February 1998 about the non-disclosure of the material which the defence wished to found upon in the Dennis John case, their concern may have been misplaced. But the point may still be open for argument.

18. The appellants have however raised a further point before their Lordships under reference to evidence given by Dyo Mohammed in a trial known as the Cunupia murder trial in 1993. In that case one defendant, Dolores Ali, was released after the trial judge excluded on the ground of oppression a written statement which she was alleged to have given to Dyo Mohammed. In relation to the two other accused in that trial, Dennis Sookraj and Ossie King, Dyo Mohammed had some involvement in the taking of statements from them which included admissions of guilt. Both of these accused were acquitted by the jury. In relation to one of these two the alleged admission was the only evidence against him. Their Lordships were taken carefully through newspaper cuttings containing some report of the course of the trial. The details are obviously hard to trace from such a source and there may be room for debate whether the allegations which the defence would wish to advance in respect of Dyo Mohammed’s conduct in the context of that trial are admissible. But there may well appear to have been material which the defence in the present appeal could have used at the trial if they had known of the possibility. Their Lordships were also informed that there had been some investigation into the standards of police behaviour in Trinidad and Tobago conducted by Scotland Yard in about 1993 which may contain relevant material. Their Lordships are unaware if there is anything relevant in the case of Everad Lawrence which was sent for retrial.

19. There is one further matter which was raised in relation to Dyo Mohammed. When he gave his evidence at the second trial in October 1995 he was in fact suspended from duty. That was not disclosed to the accused. When he came to give evidence he introduced himself with a degree of reticence as "Police Inspector attached to the Police Service. Presently unattached". It appears that in fact he was about to be reinstated, the delay from the date of the dismissal of the charges against him being due to administrative reasons. He subsequently won an award of damages for malicious prosecution and he has also been promoted. The appellants however point to a lack of frankness when he gave his evidence and seek to use that in support of their desire to challenge his credibility.

20. The matter of the failure to disclose information bearing on the reliability or credibility of Dyo Mohammed is however only one element in the appeals which the appellants seek to present. Quite apart from the failure to disclose the information to the defence there was the question of the admissibility of the evidence about the gun. In the view of their Lordships the use which was made of this evidence by the trial judge, even although he sought to minimise the significance of the evidence, was improper and prejudicial. Counsel for the State sought to justify the evidence but their Lordships’ view is that it should not have been admitted.

21. There was also the point which was raised by the Appeal Court to the effect that there may have been room for a voir dire on the verbal admissions, a point not picked up at the time. It was accepted by counsel for the State before their Lordships that the point was a sound one. The effect of that will require to be considered. Linked with that is a further question whether Dyo Mohammed informed Persad of his constitutional rights. It appears unlikely that he did so before the verbal statements were made. There is also a question about his failure to advise Persad of his right to see a lawyer. The existence of the right was affirmed in Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240. In light particularly of Persad’s young age it was all the more necessary for him to be fully advised of his rights at the earliest stage.

22. Further, although it was not mentioned by the Court of Appeal, the grounds of appeal raised the criticism of the summing up that the judge had given a direction on felony murder and that he had erred in law in that respect. Counsel for the State accepted that there was misdirection on this matter. The point is of critical importance for the appellant Persad, since it was Jairam who was said to have had the gun and to have shot the deceased. It seems to their Lordships that there was no proper direction given to the jury on the crucial matter of intention, and that is a serious defect in the summing up so far at least as Persad is concerned. This does not appear to have been a case where it could be affirmed with any confidence in the circumstances that the man who did not have the gun knew or expected that the other was going to use it to kill. While they may both have been robbers it was not evident that they were both murderers.

23. Their Lordships have some difficulty in seeing that there was room here for invoking the proviso at the very least in the case of Persad. Whether he contemplated that a gun would be used was a question never pursued in the evidence. At least in his case it may well be difficult to say that the jury would inevitably have convicted him of murder. The decision in the case of Johnson v The State [1999] 1 WLR 2000 can be invoked to support the point. The position in the case of Jairam will have to depend upon the view which the Court of Appeal take about the other points which may be presented on his behalf. But it is right that the Appeal Court should have the opportunity to adjudicate upon these questions.

24. The final question is whether the Court should have ordered a new trial. Again their Lordships wish to enable the Court of Appeal to form their view on this matter. It is primarily a question of the circumstances of each case whether or not a new trial should be ordered. Decided cases can provide some guidance by way of illustration. In Barrow v The State [1998] AC 846, a new trial was regarded as inappropriate where some nine years had passed since the date of the murder and the appellant had already undergone two trials. A similar situation was found to exist in Charles v The State [2000] AC 384. In the present case, so far as this issue is concerned, there may be no significant distinction to be made between the two appellants. First there is the fact that some fifteen years have now passed from the date of the incident. In a case where the critical issue is that of identification such a period of time will necessarily make it difficult to exercise a genuinely direct assessment. Witnesses may well be relying on their recollection of the evidence which they have already given rather than on any immediate memory of the events about which they are speaking. One particular feature of the evidence which was stressed by counsel for Persad was that while Persad said that he had had a scar on his face at the date on which the incident occurred, a fact which was supported by independent medical evidence, Cheryl stated that neither of her assailants had a scar on his face and she would have noticed it if there had been one. It may be that the circumstances were such as to explain a failure to notice such a thing. Cheryl evidently gave a description which fitted Persad a week after the incident and was also able to say that clothes recovered from Persad looked like the clothes which one of the men wore on the night in question, although she evidently did not give any material description which fitted Jairam before she identified him in an identification parade after his arrest. A question has also been raised about the possibility that Cheryl had an opportunity to see Jairam before the identification parade on which he appeared. But however all that may be, investigation of such matters will be more delicate after such a passage of time.

25. Secondly, in addition to the passage of time, it is right to take account of the fact that what is now proposed is a third trial. While not in itself a conclusive consideration, the strain and uncertainty which attends such a process is a significant factor. Thirdly, there is the fact that both accused have been in prison for the whole period since their arrest, already some fourteen years ago. More significantly, they have each served long periods on death row with the constant possibility of imminent execution. The first period was some five and a half years. The second was for about two and a quarter years. A further special feature of each case was that in January 1994, after their successful appeals to the Court of Appeal in the previous month and while they were again awaiting trial, they were each told that by warrant of the President their sentences had been commuted to sentences of life imprisonment and they were removed to another prison as life prisoners. Some days later the warrants were revoked and they were again held on remand. Jairam later sought to challenge the constitutionality of the revocation of the commutation but his application was unsuccessful.

26. It is argued that this was a serious case. It was a case of murder and no doubt the use of firearms may be seen as too prevalent an activity and one that requires to be strenuously discouraged. The fact that the law has already brought two prosecutions in this case may go some way to show the determination of the State to oppose such violent behaviour. On the other hand there are some areas of possible uncertainty about the case. There has been no explanation of the ten month interval which elapsed before the appellants were arrested, and, for what it is worth, the curiosity of the scar which may well be thought to have been proved to have existed on Persad’s face and which Cheryl said she did not see remains unexplained. There are other particular aspects of the case which might give rise to anxiety, such as the identification of the clothing which Persad was said to have been wearing, including an issue as to whether his jersey had short sleeves or whether the sleeves had been cut off.

27. On this aspect of the case their Lordships have the very greatest reservations whether a new trial would be appropriate. But that is only a matter which may arise after a determination has been made on the merits of the appeals. And the question of any new trial is not relevant to the determination of the safety of the convictions. It may be that some points of distinction between the safety of the convictions may fall to be made between the two cases and that is a further matter which it is open to the Court of Appeal to consider.

28. For the foregoing reasons their Lordships have decided that the proper course is to allow the appeals by the appellants and the cross-appeal by the State and thereafter to remit the case to the Court of Appeal to hear the appeals on the grounds stated together with such further grounds as the parties may wish to present.