The Judicial Committee of the Privy Council Decisions

 


Tiwari v Trinidad and Tobago (Trinidad and Tobago) [2002] UKPC 29 (29 May 2002)

Privy Council Appeal No. 76 of 2001

Leslie Tiwari Appellant

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 29th May 2002

------------------

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hutton

Lord Millett

Lord Scott of Foscote

Sir Andrew Leggatt

[Delivered by Lord Hutton]

------------------

1. The appellant, who was the sole defendant on the indictment, was convicted on 12 April 1989 at the Port of Spain Assizes on the four counts in the indictment against him. On the first count he was convicted of the offence of raping Dhanmatie Mahabir on 30 June 1983. On the second and third counts he was convicted of two offences of robbery with aggravation and on the fourth count he was convicted of arson. On the first count of rape, he was sentenced to 30 years’ imprisonment with hard labour and was ordered to receive 20 strokes with the whip. On the second count of robbery with aggravation, he was sentenced to 10 years’ imprisonment with hard labour consecutive to the 30 years’ sentence. On the third count, also of robbery with aggravation, he was sentenced to 10 years’ imprisonment with hard labour concurrently with the sentence imposed in respect of the second count. On the fourth count of arson, he was sentenced to life imprisonment consecutive to the sentences of 30 and 10 years respectively. The result therefore was a combined sentence of 40 years’ imprisonment followed by a sentence of life imprisonment. He appealed to the Court of Appeal against conviction and his appeal was dismissed in a judgment delivered on 31 October 1996. The appellant now appeals by special leave to the Board.
The prosecution evidence at the trial
2. The two principal witnesses for the prosecution were Dhanmatie Mahabir and her mother Kallowtie Douglas. Dhanmatie Mahabir said that in the early hours of 30 June 1983 she was sleeping with her husband in their bedroom in the family home at Jerningham Junction. Her baby, her mother and her sister were sleeping in an adjacent bedroom. About 1.00 am three men rushed into the house, two of the men wore masks and the third man had a handkerchief around his mouth, and all of them had guns. The men ordered her and her husband out of their bedroom but one of the men, whom she described as “the red fella”, then forced her back into the bedroom where he raped her. A second man then came into the bedroom and raped her. Each of these two men continued to wear a mask or a handkerchief over his face whilst he committed the rape. The third man then came into her bedroom and raped her. There was light coming into the bedroom and before the third man raped her he took off his mask and she recognised him as a neighbour who lived next door. His name was Leslie Tiwari and she had known him for about five years. He had intercourse with her for about five minutes. In addition to raping her the men took jewellery and cash from her and her mother and they then set the house on fire.
3. The evidence of Kallowtie Douglas was to the same general effect. She described how the three armed men, two of them wearing masks and one with a handkerchief over his face, came into the house about 1.00 am and how they took jewellery and cash from her. She said that she did not see the rape of her daughter in another bedroom but she saw one man take her into the other bedroom, and then the second man and the third man go into that bedroom in turn after him. She said that she recognised the third man as the appellant, Leslie Tiwari. She recognised his voice which she knew because she had heard it on previous occasions beside where she lived. She had known him for about five years. At one point his mask shifted a little so she was sure that it was him.
4. A police officer gave evidence that at 7am on 30 June 1983 he went to the home of the appellant at Jerningham Junction and arrested him. It is clear from the evidence that the police did not hold any identification parade.
The defence case
5. The only evidence for the defence was given by the appellant. He said that on the night of 29/30 June 1983 he was sleeping with his common law wife, Shiroon Mohammed, in his mother’s house at Jerningham Junction. On that night he did not enter the house of Kallowtie Douglas and he did not rape Dhanmatie Mahabir.
The judgment of the Court of Appeal
6. Before the Court of Appeal the first ground of appeal was that the trial judge had erred in proceeding with the trial although the appellant was not legally represented, and in failing to provide the appellant with certain information and explanations which he ought to have been given as he was not legally represented. In support of this ground of appeal the appellant submitted that there were three omissions by the judge. The first was the omission to ask the appellant the reason why he wished to proceed although unrepresented. The second was the failure of the judge to advise the appellant of the importance of having legal representation and the third was the omission of the judge to offer the appellant a short adjournment to enable him to obtain legal representation.
7. In rejecting this ground of appeal the Court of Appeal noted that at the commencement of the trial the judge made the following entry in his notebook:

“Accused in person unrepresented. Stated that he is ready to proceed even without attorney.”

The Court of Appeal then stated at pp 61 and 62 of the record:

“There is no reason to believe that his decision to proceed without legal representation was based on a mistake or misconception. The onus must be on the appellant to demonstrate prejudice, and this he has failed to do.

We would, however, recommend to trial judges that in future when an accused person indicates that he is willing to proceed with the trial although he is not represented, in all those cases (which would be the vast majority) in which an adjournment, if sought, would be granted for the purpose of enabling the accused to secure legal representation, they should advise the accused that it is in his own interest to be legally represented and offer to adjourn the matter for a short period to enable him to secure such representation, either privately if he has means, or by applying for legal aid. In this case, however, there is no reason to believe that the failure of the trial judge to adopt this course resulted in a miscarriage of justice.”

8. The Court of Appeal then considered the second ground of appeal, the substance of which was the alleged failure of the judge to advise the appellant of his right to call witnesses. This was the main ground of appeal advanced before the Board and their Lordships propose to return to it in a later part of this judgment.
9. The other principal ground of appeal before the Court of Appeal was that the judge had failed to give a proper Turnbull direction [R v Turnbull [1977] QB 224]. Whilst recognising that the direction fell far short of what the judgment in Turnbull required the Court of Appeal did not uphold this ground of appeal. It cited the judgment of the Board in Freemantle v R [1994] 1 WLR 1437 in which Sir Vincent Floissac stated at p 1442:

“The quality of the evidence was good enough to eliminate the danger of mistaken identification which necessitates the requisite general warning and explanation.”

The court then stated at p 73 of the record:

“The direction in this case may be considered borderline. On different facts we might have considered it inadequate, but given the evidence in this case, we hold that it passes muster, if only just. In any event even if it were inadequate, on the authority of Freemantle, we would have held that this is a proper case for the application of the proviso, having regard to the exceptionally good quality of the identification evidence. To quash this conviction because of failure to adhere to a guideline that was laid down primarily, at any rate, for cases in which the identification was of the fleeting glance variety, would be to sacrifice logic and common sense to a blind and rigid adherence to a rule that was never intended to have the absolute and universal quality characteristic of a statute. That would be swimming against the tide of such decisions as Chance and Freemantle. In the result, this ground of appeal also fails.”

10. Before the Board Mr Dingemans, for the appellant, did not pursue the ground of appeal based on the inadequacy of the Turnbull direction, and therefore their Lordships need express no opinion on the point. The Court of Appeal also rejected a number of other grounds of appeal which Mr Dingemans did not advance before the Board and therefore their Lordships need make no reference to them.
Grounds of appeal against conviction before the Board
11. Mr Dingemans advanced three grounds of appeal: (1) The failure of the magistrate at the preliminary enquiry to comply with the requirements of section 18 of the Indictable Offences (Preliminary Enquiry) Act. (2) The failure of the judge to advise the appellant of the importance of obtaining legal representation for the trial and to adjourn the trial to enable representation to be obtained. (3) The failure of the judge to advise the defendant of his right to call witnesses in support of his case and to adjourn to enable him to do so.
Ground (1)
12. Section 17 of the Indictable Offences (Preliminary Enquiry) Act provides that at the preliminary enquiry after the examination of the witnesses called on behalf of the prosecution the magistrate must ask the accused whether he wishes to give evidence. Section 18 provides:

“After the proceedings required by section 17 are completed, the magistrate shall ask the accused person if he wishes to call any witnesses. Every witness called by the accused person who testifies to any fact relevant to the case shall be heard, and his deposition shall be taken, signed, and authenticated in the same manner as the deposition of a witness for the prosecution.”

Mr Dingemans submitted that it was probable that at the preliminary enquiry the magistrate did not tell the appellant of his right to call witnesses because it is known that there was a reasonably widespread failure amongst magistrates at the time to comply with the provisions of section 18. Mr Knox, for the State, did not dispute this submission and therefore their Lordships are prepared, in the particular circumstances of this case, to assume that the magistrate did not comply with the first requirement of section 18.
13. It appears that there have been a number of conflicting decisions of courts of first instance in Trinidad and Tobago as to whether a failure to comply with the provision of section 18 renders a committal a nullity with the consequence that a subsequent conviction after trial must be quashed. The issue has been determined by the Court of Appeal in its judgment in Matthews v The State (unreported), on 1 December 2000; Court of Appeal of Trinidad and Tobago (Cr A No 99 of 1999). The court decided that a failure by a magistrate to comply with section 18 did not necessarily render a subsequent conviction after a trial a nullity. In the course of delivering the judgment of the court de la Bastide CJ stated at p 5:

“The appellant’s argument is that section 18 imposes a requirement which is mandatory and accordingly the magistrate’s failure to comply with it renders his committal of the accused a nullity. That would mean that all subsequent proceedings - the indictment, trial and conviction - would also be null and void. I note in passing that if this argument is sound, then it would not matter whether or not the objection was taken at the trial: it would have to succeed even if first taken at some stage of the appeal process.”

At p 13:

“Turning to the argument based on the language of section 18, courts no longer accept that it is possible merely by looking at the language used by the legislature, to distinguish between mandatory or imperative provisions, the penalty for breach of which is nullification, and provisions that are merely directory for breach of which the legislation is deemed to have intended a less drastic consequence. The fact of the matter is that most directions given by the legislature in statutes are in a form that is mandatory. It is now accepted that in order to determine what is the result of failure to comply with something prescribed by a statute, one has to look beyond the language and consider such matters as the consequences of the breach and the implications of nullification in the circumstances of the particular case.”

At p 14:

“It is consistent with this approach that courts should recognise as the House of Lords did in Neill and Ibrahim J in Latiff Ali, that some breaches of the procedural rules for the conduct of preliminary inquiries are less grave than others. In our view, the degree of gravity may vary not only according to which rule is broken but also according to the particular circumstances in which the breach occurs, so that different breaches of the same rule may produce different results, at least in the case of those rules which are not an essential part of due process. We consider that the requirement enshrined in section 18 is one of those, the consequences of a breach of which must be considered on a case by case basis. It is necessary therefore to look at the facts of the instant case.”

And at p 15:

“To adopt an expression of Lord Mustill, ‘we would exclaim in dismay at the vision’ of criminal proceedings which had in fact been conducted without any unfairness, being nullified and having to be repeated because of what was in essence a purely technical defect - more especially at the present time when all the stakeholders are combining in an effort to reduce delays in our criminal justice system. Happily we feel able to avoid such a situation consistently with legal principle and precedent.”

14. In his judgment de la Bastide CJ considered the decision of the House of Lords in Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220. In that case the question before the House was whether a committal was a nullity when the magistrate had received inadmissible evidence. In the course of his speech, with which the other members of the House concurred, Lord Mustill stated at pp 1230-1231:

“I think it would be impossible to maintain that all errors of this kind on the part of examining magistrates must necessarily be fatal to the committal. The situation is far removed from that which existed in cases such as Rex v Gee [1936] 2 KB 442; Rex v Phillips [1939] 1 KB 63 and Rex v Wharmby (1946) 31 Cr App R 174, where the departure from the requirements of the Indictable Offences Act 1848 (11 & 12 Vict. c. 42) was so radical as to render the indictment, and hence the resulting trial, a nullity. Whatever the current state of the law about the difference between void and voidable adjudications it could not sensibly be said that in the present case the resident magistrate’s error entailed that there was no committal at all.”

15. Their Lordships are in respectful agreement with the reasons given by de la Bastide CJ for the decision of the Court of Appeal that a failure to comply with section 18 does not necessarily render a subsequent conviction a nullity. Where at his trial the accused has had a full opportunity to call witnesses in his defence and at the conclusion of the evidence it has been proved beyond a reasonable doubt that he is guilty of the crime charged, their Lordships consider that it would not be in the interests of justice to quash the conviction on the ground that there had been a failure to comply with the requirement of section 18 at the committal hearing.
Ground (2)
16. As the Court of Appeal observed in its judgment, the judge’s note at the commencement of the trial records:

“Accused in person unrepresented. Stated that he is ready to proceed even without attorney.”

A person is entitled to conduct his own defence and Article 6.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) states:

“Everyone charged with a criminal offence has the following minimum rights …

(c) to defend himself in person or through legal assistance of his own choosing …”

Their Lordships agree with the observation of the Court of Appeal that when an accused person states that he is willing to proceed with the trial although he is not represented, the judge should advise him that it is in his own interests to be legally represented and should offer to adjourn the case for a short period to enable him to secure such representation. But their Lordships are also in agreement with the Court of Appeal that in this case the omission of the judge to give such advice cannot be regarded as leading to a miscarriage of justice.

Ground (3)

17. This ground of appeal gives rise to two separate questions. The first question is whether the judge failed to inform the appellant of his right to call witnesses in his defence and failed to take appropriate steps to enable any such witnesses to be called. The second question is whether there were any witnesses who could have given material evidence and whom the appellant wished to call.
18. In relation to the first question their Lordships observe that the duty of the judge to inform an accused of his right to call witnesses when he is unrepresented is an important one. In R v Carter (1960) 44 Cr App R 225, 230 Lord Parker of Waddington CJ stated:

“… it became imperative to ensure that this appellant, who was unrepresented, had every opportunity of putting forward his defence, calling his witnesses, and for that purpose, the court should have given him every assistance.”

The judge’s notebook shows that after he had taken a note of the defendant’s evidence he made the entry

“Case for the defence closed.”

He then entered:

“ADDRESS by the Accused.

No Address by the Prosecutor.”

Mr Dingemans submitted that the entry “Case for the defence closed” did not show that the judge had asked the appellant if he wished to call any witnesses. Mr Knox submitted, to the contrary, that the entry was a sufficient indication that the judge had asked this question and that it was most unlikely that the experienced judge would have failed to remind the appellant of his right to call witnesses. On this issue their Lordships find considerable assistance in the judgment of the Guyana Court of Appeal in State v Clarke (1976) 22 WIR 249. In that case the appellant, who had been unrepresented at his trial and who had been convicted of robbery with violence, contended on appeal that the judge had failed to inform him that he had a right to call witnesses in his defence. Delivering the judgment of the court Crane JA stated at p 251:

“The record of proceedings has enabled us to verify that throughout the hearing the accused was unrepresented by counsel, and that after the prosecution had rested its case and the accused put to his election, he made a statement from the dock. There is, however, no record that the trial judge gave him to understand that it was his right to call witnesses on his own behalf. At least, the judge did not indicate on the record, as he ought to have done, that any such right was explained or in any way intimated to the accused, and we were given to understand by counsel for the appellant that the latter would have wished to call witnesses had he been aware of his right to do so at the time.”

Crane JA then cited a passage from Archbold, Criminal Pleading, Evidence and Practice, 38th ed. (1978) setting out the duty of the judge as stated in R v Carter.
19. In the present case their Lordships consider that the entry “Case for the defence closed” is insufficient to show that the judge made it clear to the appellant that he had a right to call witnesses and that, if necessary, he would adjourn the trial to enable the witnesses to be called. Their Lordships think that the note is consistent with the judge making no reference to defence witnesses or merely asking the appellant if he had any witnesses present in court.
20. In Clarke the court considered an argument advanced by State counsel, similar to the argument advanced by Mr Knox, that it was very unlikely that the judge had failed to inform the accused of his right to call witnesses but it is clear that the court rejected this argument because it concluded its judgment by stating at p 253:

“… there ought to be no dearth of affidavit evidence, if the need for such arises in the future, to show us that the judge did in fact inform the accused of his right to call witnesses on his behalf. It is only by such means that one can ensure that there has been a fair trial and that the cause of justice has been served.

In this case, neither the “State Book” nor the original copy of the indictment had been of any help to us, and as the trial had taken place exactly one year ago, we did not think a letter from the trial judge could be of any assistance to us in the matter. We had no option, therefore, but to quash the conviction and sentence and discharge the accused.”

21. In the present case the Board is informed that the trial judge has died and, the trial having taken place 13 years ago, it appears to be clear that no affidavit or other evidence can be given that the judge did inform the appellant of his right to call witnesses. Therefore, following the decision in Clarke which was cited with approval by the Court of Appeal in the present case, their Lordships will proceed on the basis that the judge failed to make it clear to the appellant that he had a right to call witnesses.
22. Therefore their Lordships turn to consider the second question, which is whether there were any witnesses whom the appellant wished to call and who could have given material evidence on his behalf.
23. In its judgment at p 62 the Court of Appeal stated:

“The second limb of this first ground involved the complaint that the judge failed to provide the appellant with certain explanations and information which he ought to have been given as he was not legally represented. The only matter of any substance that was raised under this head was the alleged failure of the judge to advise the appellant of his right to call witnesses. Clearly, if it could be shown that the appellant had witnesses whom he wished to call, and would have called but for his ignorance of his right to do so, that would have provided a good ground for quashing the conviction. See State v Clarke (1976) 22 WIR 249. That, however, does not appear to have been the case. It was not suggested by counsel for the appellant that there were any witnesses whom the appellant wished to call; indeed, counsel expressly abandoned a separate ground of appeal which complained of a failure and/or refusal by the judge to give to the applicant the opportunity to have his witnesses testify on his behalf. The omission, therefore, if there was one, does not appear to have been productive of any unfairness.”

24. However, before their Lordships, unlike what took place in the Court of Appeal, the appellant has stated that there were two witnesses named John Flores and Trevor Abraham whom he wished to call at his trial who could have given material evidence in his defence. Two affidavits sworn by these two men respectively on 18 December 1997 and 8 December 1997 were placed before the Board. In each affidavit the deponent states that in or about July 1983 he was taken from the State prison, Port of Spain, in company with the other deponent and was brought to the Chaguanas Magistrate’s Court where he was pointed out by two women. On a later date, together with the other deponent, he was taken to the Chaguanas Police Station where he was again pointed out by the same two women. On this later date each deponent was told by the police that the two women had reported that they, the two deponents, together with Leslie Tiwari, had broken into their home at Jerningham Junction and robbed and raped Dhanmatie Mahabir and robbed Kallowtie Douglas and then burnt their house in June 1983. Neither man was charged with these offences and police investigation revealed that at the time of these offences each deponent was in custody in the State prison.
25. Mr Dingemans submitted that if these two men had been called at the trial their evidence would have been relevant and would have given support to the appellant’s case that he had been wrongly identified by Dhanmatie Mahabir and her mother. Their evidence would have shown that the two women were unreliable witnesses on the issue of identification because they were prepared to identify two men as their attackers who could not have been in their home on the night of 29/30 June 1983. Therefore their evidence would have raised a substantial doubt as to the reliability of their evidence that the appellant was the third man who raped Dhanmatie Mahabir.
26. Mr Knox submitted that this evidence would have been irrelevant and inadmissible at the trial. He argued that (if it had occurred) there was a distinction between the purported identification of Flores and Abraham as the first two intruders who were unknown to the two women and the identification of the appellant by Dhanmatie Mahabir because she said that she recognised him as her next door neighbour, whom she had known for the past five years, when he removed his mask before he raped her. Mr Knox submitted that there was an important distinction between the identification of an attacker who was unknown to the victim and the identification as an attacker of a person who was well-known to the victim and whom she recognised when she saw him for a considerable period of time in good light.
27. There is a distinction between identification evidence in respect of a person unknown to the victim and identification evidence in respect of a person well-known to the victim whom she recognises. But in both types of case it is necessary to be alert to the danger of an unreliable identification: see R v Turnbull [1977] QB 224, 228H, R v Bentley [1991] Crim LR 620 and Beckford v The Queen (1993) Cr App R 409, 413. Archbold, Criminal Pleading, Evidence and Practice (2002 ed) p 1307 para 14-19 states:

“The fact that recognition may be more reliable than identification of a stranger does not absolve a judge from reminding the jury that mistakes in recognition of close relatives and friends are sometimes made.”

Part of the judge’s note of the evidence of Dhanmatie Mahabir when cross-examined by the appellant is as follows:

“I never attended an identification parade. I have seen the red man since. I saw him at Chaguanas Court. The mask was dark with eye and mouth cut out. I am not lying. I did see you that night. I never attended any identification parade.”

The note is not entirely clear, but the words “I am not lying” suggest that the appellant was putting to her that she was deliberately giving false evidence against him and had not just made an innocent mistake. It is not clear whether her evidence that “I never attended an identification parade” refers to a parade to identify the appellant or to a parade to identify one or both of the other two men. But it is significant that, according to the note, she says that subsequent to the offence she saw “the red man” at Chaguanas Court which is where Flores and Abraham say that she and her mother pointed them out to the police. It may also be significant that Flores and Abraham say that the police told them that the women had “reported” that they, together with Leslie Tiwari, broke into their home, as this may suggest that the women claimed to know their identities and named them to the police as being the other two men before they pointed them out at the Chaguanas Court. But whether or not the appellant put to Dhanmatie Mahabir in cross-examination that she was deliberately lying to incriminate him, their Lordships consider that the appellant would have been entitled to put to her and her mother in cross-examination that they had wrongly identified the two men to the police, because affirmative answers would have lessened their reliability as witnesses in the eyes of the jury.
28. The general rule has been that a defendant cannot call evidence to contradict answers given in cross-examination as to credit by a witness for the prosecution, but the rule is subject to exceptions and Cross & Tapper on Evidence 9th Ed state at p 308:

“… there are now signs of a more liberal approach to rebuttal, certainly in criminal cases. A modern example is R v Busby where it was suggested that a police witness for the prosecution had fabricated an oral confession and threatened a potential witness for the defence so as to prevent him from testifying. Both allegations were denied by the police officer, and the defence proposed to call the man who had been threatened to rebut the denial of a threat. The judge refused to permit rebuttal applying the traditional collateral matter rule, but the Court of Appeal quashed the conviction on the basis that the defence should have been allowed to rebut the denial because it went to a fact in issue.”

29. In a number of cases the Court of Appeal has held that where there is one central issue before the jury and the prosecution case depends on the evidence of a witness in relation to that issue, whose credibility is attacked by the defence, there is no real distinction between a question going to credit and a question going to the issue in the case: see R v Marsh (1985) 83 Cr App R 165, R v Funderburk [1991] 1 WLR 587, and R v Nagrecha [1997] 2 Cr App R 401. Thus Cross & Tapper on Evidence state at p 313:

“Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point. If the only issue is consent and the only witness is the complainant, the conclusion that the complaint is not worthy of credit must be decisive of the issue.”

This statement relates to the issue of consent, but it is applicable also to a case such as the present one where the only issue for the jury was whether they should accept the evidence of Dhanmatie Mahabir and her mother or the evidence of the appellant. The proper approach to the question whether the defendant should be permitted to call evidence to rebut a denial made by the complainant was stated by Rose LJ in R v Nagrecha at pp 409-410 as follows:

“In our judgment, the answer to this appeal is, in the light of the authorities to which we have referred, that the judge ought to have permitted the defence to lead evidence from Mr Lee in the light of the complainant’s denial in cross-examination. Such evidence went not merely to credit, but to the heart of the case, in that it bore on the crucial issue as to whether or not there had been any indecent assault. As to that matter, only the complainant and the appellant were able to give evidence. In our judgment, that being so, the learned judge ought to have permitted the evidence to be called because it might well have led the jury to take a different view of the complainant’s evidence.”

30. Therefore their Lordships consider that the evidence of Flores and Abraham would have been admissible if Dhanmatie Mahabir and her mother had denied that they had made an erroneous identification of them as being two of the men who had entered their house in the early morning of 30 June 1983. This conclusion finds support in the commentary of Professor John Smith in the Criminal Law Review on R v Castle [1989] Crim LR 567 where the Court of Appeal held that the prosecution could corroborate the evidence of an identifying witness by proof that a co-accused, identified by the same witness as being a participant in the same offence, had pleaded guilty to that offence. Professor Smith commented:

“The matter may be tested by considering the position if it had been proved that the victim was wrong in his identification of the other offender. That fact, surely, would have been admissible to attack the alleged identification of the present defendant: ‘If he mistakenly identified X, how can you be sure that his identification of Y was correct?’ The converse must also be true.”

31. The reason why counsel for the appellant did not suggest to the Court of Appeal that there were witnesses whom the appellant wished to call is explained, after a waiver of privilege by the appellant, in a letter dated 31 October 2000 to the respondent’s solicitors in London, Charles Russell, from Mr R L Maharaj, who was counsel who appeared on behalf of the appellant before the Court of Appeal. He states in that letter:

“In respect of the ground of appeal dealing with the alleged irregularity in the appellant failing to have his witnesses testify on his behalf, the appellant and/or his father, notwithstanding requests made by me, did not produce any statements from these alleged witnesses. There was therefore the absence of any proposed evidence to support this ground before the Court of Appeal.”

32. Their Lordships recognise that it is most unsatisfactory that more than five years after the judgment of the Court of Appeal the appellant should submit for the first time on appeal to the Board that there were witnesses whom he was unable to call at his trial because of the default of the trial judge. Moreover when an appellant seeks at such a late stage to rely on the evidence of witnesses whom he did not call at his trial an appellate court must take careful account of the possibility that such evidence is not worthy of credit. Nevertheless the Board consider that it would not be right without further investigation to reject the account given by John Flores and Trevor Abraham, because in a letter which he claims to have written to the Court of Appeal on 4 September 1991 (but of which there appears to be no trace in the records of the Court of Appeal) the appellant stated:

“The said Judge Aeneas Wills also denied me my right to have three key witnesses of mine present, replying that he did not see the names of such witnesses cited in the book. However I wish to bring to Your Lord’s attention that the witnesses Mukesh Mahabir, John Flores, and Trevor Abraham, were cited by me on the previous hearing which was presided over by the Hon Clebert Brooks, who did record such names in the book. Judge Clebert Brooks further asked the prosecutor to do all within his power to have such witnesses cited and be present.”

There appears to be some corroboration of this claim by Mr R L Maharaj because in a further letter to Charles Russell dated 14 November 2000 he wrote:

“Further to your letter in this matter I seem to recall that the names of the witnesses were given to me and that they were the names which he said were given to Brooks J.”

33. Therefore their Lordships will remit the case to the Court of Appeal for that court to investigate whether Dhanmatie Mahabir and her mother reported to the police that John Flores and Trevor Abraham had been two of the men who entered their house on the night of 29/30 June 1983 and/or identified them to the police at Chaguanas Magistrate’s Court or Chaguanas Police Station and whether Flores and Abraham had been in custody in prison on that night and, if so, to consider further whether the convictions of the appellant should be quashed in the light of the present judgment of the Board.
Appeal against sentence
34. The appellant was sentenced on 12 April 1989. In addition to his appeal against conviction the appellant also appealed to the Court of Appeal against sentence. It appears probable that he personally served a notice of appeal within the stipulated period of 21 days from the date of his conviction, but a copy of this notice of appeal is not included in the record before the Board. A further notice of appeal was signed by counsel and served on 14 February 1991. In his letter to Charles Russell dated 31 October 2000 Mr R L Maharaj states that those representing the appellant experienced difficulties in having his appeal listed and that he (Mr Maharaj) made frequent representations in writing to the Clerk of Appeals for the appeal to be listed urgently.
35. The appeal did not come on for hearing before the Court of Appeal until July 1995. The Court of Appeal reserved judgment on 21 July 1995 and delivered its judgment on 31 October 1996. In its judgment after dismissing the appeal against conviction the court held that in combination the sentences were inordinately long and ordered that all the sentences should run concurrently.
36. Section 49(1) of the Supreme Court of Judicature Act provides:

“The time during which an appellant, pending the determination of his appeal, is admitted to bail and subject to any directions which the Court of Appeal may give to the contrary on any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions which may be given by the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and if he is not in custody, as from the day on which he is received into prison under the sentence.”

The position in England is different because section 29 of the Criminal Appeal Act 1968 provides:

“(1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.

(2) Where the Court of Appeal give a contrary direction under subsection (1) above, they shall state their reasons for doing so …”

Therefore, although in Trinidad and Tobago the statute provides that the time spent in custody pending the determination of an appeal will not count as part of the term of imprisonment under the sentence, the Court of Appeal has a discretionary power to direct to the contrary. In the present case the Court of Appeal did give a direction to the contrary and stated:

“There has been an unusually long delay in the delivery of this judgment and accordingly we order that the sentences should run from 21 July 1995, the date on which judgment was reserved.”

37. However Mr Dingemans submitted that it was not due to any fault on the part of the appellant that the hearing of his appeal had been so long delayed and that his counsel had made every effort to have the appeal heard. He further submitted that, save in exceptional cases as where there was no arguable ground of appeal, it was contrary to the interests of justice that the bringing of an appeal by a convicted person should result, in effect, in an increase in the time he spent in prison following his conviction and that it would be right for the Court of Appeal to exercise its discretion to bring about the result which is achieved in England by section 29 of the 1968 Act. Therefore he submitted that the Court of Appeal should have ordered that the sentences should run from 12 April 1989 or from 21 days thereafter in order to stop the delay of six years in the hearing of the appeal from, in effect, adding six years to the combined sentence imposed by the trial judge.
38. Mr Knox informed the Board that he was instructed that the State did not resist the argument that the Court of Appeal should have ordered the sentences to run from 14 February 1991.
39. The operation of section 49(1) was considered by the Court of Appeal in Jagessar v The State (No. 2) (1990) 41 WIR 373 where the appellants had each been sentenced to two years imprisonment and a period of 13 months elapsed between the filing of their notices of appeal against conviction and delivery of judgment dismissing the appeals. In that case the court declined to exercise the discretion give by the subsection. The court set out section 48(1) of the Supreme Court of Judicature Act which provides:

“An appellant who is not admitted to bail shall, pending the determination of his appeal, be treated in like manner as prisoners awaiting trial.”

The court then stated that the Prison Rules (C11, No 5) prescribed the manner in which prisoners awaiting trial were to be treated and in the judgment set out a number of those rules from which it is apparent that such prisoners are given a considerable number of privileges not afforded to convicted prisoners who have not appealed, such as the privileges of wearing their own clothing, ordering food for themselves, being permitted a number of visits by relatives and friends, being allowed to see their own doctor and being permitted to receive books and newspapers. The court then stated at p 384:

“We take the view that the case of Mr Jagessar and Mr Nandlal has had to be looked at against the background of both sections 48(1) and 49(1) of the Act and the Prison Rules. Since at the time when their appeals were determined they were persons who (up to then) had fallen within section 48(1) and further since they were applicants for leave (see sections 43(b) and 50) they became (to all intents and purposes) persons in custody who were specially treated as appellants for the purpose of sentence. Moreover, since up to that time, they were in custody pending the determination of their appeals and were up to then being treated as prisoners awaiting trial (section 48(1)) they could not, in our view, be said to be serving their sentence during this period.

Rule 301 of the Prison Rules seems to reinforce the view just expressed. This rule reads:

‘The time served by a convicted prisoner before entering an appeal against conviction or sentence shall be taken into account in computing the length of his sentence should such sentence be confirmed by the appellate court.’ [emphasis supplied]”

40. Referring to the contention advanced on behalf of the appellants the court stated at p 385:

“… if again this contention is correct, it surely provides a vehicle for convicted persons to hang their matters out for as long as possible while remaining in remand enjoying the facilities and privileges not afforded a de facto prisoner by resort to various forms of process in court, eg constitutional motions, judicial review, up to the highest level (a practice which is not unknown in this jurisdiction and with which the courts here are all too well familiar).”

41. The judgment of the court also stated that it considered that it was only in exceptional circumstances that it should exercise the discretion given to it by section 49(1) to direct that the time spent in custody as an appellant should count as part of the term of imprisonment. The court stated at p 387a:

“We do not consider that either Mr Jagessar’s or Mr Nandlal’s case is so exceptional as to warrant a departure from the normal approach in these courts. Indeed, we consider that any relaxation beyond this could give rise to public perception (and this point was stressed upon us heavily by the Director of Public Prosecutions) that because of the office which Mr Jagessar held, he and Mr Nandlal were being treated differently from others whose mitigating circumstances were far more compelling.”

And at p 387g:

“We repeat that the course which we adopted in the instant matter has been the approach of this court from time immemorial when exercising its powers under section 49(1). The subsection has been invoked on all occasions against the background of section 48(1) and the Prison Rules and the powers of the court have always been exercised against the background of each particular case and the redeeming features thereof. As we said in the instant case there were, in our view, no redeeming features whatsoever.”

42. Their Lordships appreciate that a convicted prisoner in custody who has served notice of appeal is given a considerable number of privileges which are withheld from a convicted prisoner who has not appealed, but it appears to their Lordships that this consideration is greatly outweighed by the fact that an appellant who has served notice of appeal and who has not been admitted to bail has lost his liberty and is confined in prison, albeit with a number of special privileges. Their Lordships also appreciate that the distinction between a convicted prisoner who appeals and one who does not is a distinction recognised by section 48(1) and by the Prison Rules, but nevertheless section 49(1) expressly gives the Court of Appeal a discretion to direct that the time in custody after service of notice of appeal shall count as part of the term of imprisonment. In these circumstances their Lordships consider that there is much force in the appellant’s submission that time that is spent in prison in Trinidad and Tobago awaiting determination of an appeal should, as in England, count as part of the term of imprisonment passed on the appellant, unless the appeal is one devoid of any merit. But their Lordships also consider that it would not be appropriate for the Board to express a concluded opinion on the point without the Court of Appeal having had an opportunity to hear submissions on the issue and to express its opinion on the matter. Therefore their Lordships will also remit the matter of the issue of the exercise of the discretion under section 49(1) in this case to the Court of Appeal for it to give that matter further consideration.