The Judicial Committee of the Privy Council Decisions

 


Bhola v. The State Rev 1 (Trinidad and Tobago) [2006] UKPC 9 (30 January 2006)

Privy Council Appeal No 26 of 2005

Vijai Bhola Appellant

v.

The State Respondent

FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

30^th January 2006, Delivered the 8^th March 2006

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hutton

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Brown of Eaton-under-Heywood]
1. On 29 October 2001 the appellant, Vijai Bhola, was convicted before Baird J and a jury of demanding money with menaces on 20 June 1995 for which he was sentenced to six years imprisonment with hard labour. On 18 December 2002 the Court of Appeal of Trinidad and Tobago (Hamel-Smith, Lucky and Kangaloo JJA) dismissed his appeal against conviction. Because the Court of Appeal made no direction under section 49(1) of the Supreme Court of Judicature Act, the appellant's time in custody (some thirteen and a half months) between conviction and appeal did not count towards his sentence. Special leave to appeal against conviction was given by the Board on 19 July 2004.
2. At the close of the hearing before the Board on 31 January 2006 their Lordships announced their decisions to dismiss the appellant's appeal against conviction but to grant him special leave to appeal against the failure to make a section 49(1) direction and to allow that appeal and direct that the time between the appellant's conviction and the determination of his appeal should count as part of his term of imprisonment which should be deemed to run as from the date of his conviction on 29 October 2001. Accordingly the appellant was to be released immediately. The Board now gives its reasons for these decisions.
3. At the time of the alleged offence the appellant was a serving police officer of twenty years' standing. He was tried together with two others, Leon Wiggins (also an experienced serving police officer) and Vishnu Hardial (Hardial) (a man with previous convictions for possessing a firearm and ammunition and larceny for which he had served a term of seven years imprisonment). All three were convicted and sentenced to six years' imprisonment with hard labour. Wiggins and the appellant (but not Hardial) appealed against their conviction to the Court of Appeal, unsuccessfully in each case. The appellant alone sought further leave to appeal to the Board.
4. The essential case for the prosecution was that the appellant, Wiggins, Hardial and a fourth man, Rajendra Singh (Rajendra) – who for some reason was not prosecuted – acted together in a joint enterprise to extract money from one Chaitlal Singh (Chaitlal) by planting what purported to be a package of cocaine (in fact flour) in his car and then threatening to prosecute him for its possession unless he paid them a substantial sum of money not to do so.
5. Chaitlal was a store manager apparently of some means. On the morning of 20 June 1995 he was lured to a shopping complex where he parked his car and went inside. As he returned to his car he saw a stranger (Hardial) getting into the front passenger seat and he was then approached by the appellant in police uniform. The appellant told Chaitlal that he had received information from the police station that Chaitlal's car contained arms and ammunition and that he had been ordered to search it. On the back seat was a brown bag containing small sealed packages. Having opened one and tasted its contents the appellant said "it's good stuff, it is real coke" and told Chaitlal that he had made "a big bust" and would get "a great promotion". Chaitlal protested that the bag was not his but belonged to the man in the front seat. Hardial, however, denied this and the appellant said that Chaitlal was "trying something". He then instructed Chaitlal to drive them to the police station.
6. On the way there they saw beside the road another police officer, Wiggins, whom Chaitlal had known for some time. The appellant told Chaitlal to stop the car and then pointed out the brown bag to Wiggins and repeated that it was a big bust and would be a big promotion for him. Wiggins then got into the car and purported to intercede on Chaitlal's behalf, telling the appellant that he knew Chaitlal and that he did not deal in drugs. On reaching the police station Wiggins told Chaitlal to drive on and to stop further along the road. He then asked Chaitlal how much money he could produce to persuade the appellant to destroy the drugs and not prosecute him. The appellant wanted $100,000 but Chaitlal said that he didn't have that sort of money although he would try and borrow some. The appellant said that he wanted the money right away and again Wiggins purported to come to Chaitlal's aid by saying that he could be trusted. Chaitlal then drove the appellant back to the police station where he dropped him off before driving on with Wiggins and Hardial to try to borrow some money from his brother-in-law. Having been unsuccessful in this, Chaitlal was told to drive to a further place where they were joined by the appellant in a police vehicle. The appellant then took Chaitlal's driving permit to ensure that he got his money (although in fact he returned it the following day) after which Wiggins directed Chaitlal to drive on to another place where they were met by Rajendra in another vehicle into which the brown bag was then transferred. After this Wiggins told Chaitlal that he should consider him a good friend because of the favour he was doing him but to make sure he got the money or it would be impossible to help him further. Rajendra later collected $35,000 from Chaitlal ($30,000 of which Chaitlal had borrowed from four different people).
7. Chaitlal reported these events to Police Sergeant (later Assistant Superintendent) Boyd on 25 June 1995.
8. At interview on 6 October 1995 the appellant denied knowing anything about the matter at all. In evidence at trial he said that on 20 June 1995 he was on foot patrol sheltering from the rain in the shopping complex when he observed a motor car parked there with a man in the front seat. He then saw another man walking towards the car whom he asked for a lift to the police station. The man (Chaitlal) agreed, saying he always liked to help the police. The appellant knew neither Chaitlal nor the man in the passenger seat (he denied this was Hardial). On the way to the police station Chaitlal saw Wiggins, who he said was his "good partner", and stopped. Wiggins was off duty at the time and going to a bar so Chaitlal offered him a lift too. The appellant was dropped off at the police station and did not see Chaitlal again. There was no search of Chaitlal's car, nothing said about arms and ammunition, no bag in the car, nothing said about drugs or about a promotion, no demand for money or anything of the kind. He accepted in cross-examination that except for the fact that it was raining he had no other reason to return to the police station and that he was only halfway through his four hour beat when he asked Chaitlal for a lift. He did not know Chaitlal and could think of no reason why he should invent this allegation against him. No evidence was adduced as to the appellant's character although in fact he was a man of entirely good character with an unblemished disciplinary record as a police officer.
9. Wiggins' evidence confirmed that on the morning in question a car stopped on the road beside him and he recognised the driver, Chaitlal, and his fellow officer, the appellant. The appellant told him that he had "just made a big bust" and when he asked the appellant what it was the appellant replied "coke". Wiggins then got into the car and as it drove on he heard Chaitlal tell the appellant that he would pay anything to get out of this fix. Wiggins said he wanted no part of the conversation and shortly afterwards he himself left the car, telling Chaitlal that he hoped he would not get himself involved in any more trouble. Under cross-examination Wiggins agreed that he had witnessed Chaitlal offering a bribe to a police officer but said that it was for the appellant to report that offence, not him. Wiggins, unlike the appellant, did give evidence of his own good character and stated that no disciplinary complaint had been made against him during his 24 years of police service. He also called a retired police inspector as a character witness on his behalf.
10. Hardial had made a confession statement on 13 September 1995. In evidence, however, he said that this statement had been beaten out of him and was untrue. He said that he knew Chaitlal and on the morning in question had asked him for a lift. He denied, however, being in the car when the appellant was alleged to have searched it or, indeed, during any of the subsequent events which Chaitlal described. Having regard to his challenge to his confession statement the prosecution was allowed to put Hardial's bad character in evidence.
11. The appellant's principal ground of appeal both before the Court of Appeal (and again before the Board) was that his counsel had failed to adduce evidence of his good character so that he never obtained from the judge's summing up the benefit of the good character direction both as to credibility and propensity to which he would otherwise have been entitled.
12. The Court of Appeal accepted that the appellant's counsel was at fault in not adducing evidence of the appellant's good character at trial. So much, indeed, was expressly accepted by Mr Guthrie QC for the State before the Board. But that of itself, of course, was not sufficient to make good this ground of appeal. As the Court of Appeal observed:

"Notwithstanding the importance of good character evidence, it does not necessarily follow that a failure to lead such evidence or even the omission by the trial judge to direct the jury on the issue in his summation when the issue is raised, will result in the conviction being set aside (see Barrow v The State [1998] AC 846 at 852)."

And a little later:

"[Although counsel was at fault], it does not necessarily follow ipso facto that there was a miscarriage of justice. Each case must depend on the particular circumstances. The question at the end of the day is whether the jury would necessarily have reached the same verdict if they had a full direction as to the appellant's good character."

13. The Court of Appeal then turned to consider the evidence bearing on that critical question: i.e. whether in any event the jury would inevitably have convicted. In concluding that they would and that accordingly "the absence of evidence of the appellant's good character did not result in any miscarriage of justice", the Court's reasoning was as follows:

"The prosecution's case depended to a great extent on the evidence of [Chaitlal]. His credibility was central to the main issue. The appellant's defence was that [Chaitlal] had fabricated the case against him. While it is true that the appellant's credibility was also equally critical, there was other strong evidence which would have had a negative effect on his credibility. The other appellant, Wiggins, admitted being in the car and was privy to the conversation between the appellant and Singh in connection with the coke that was found in his car. In fact Wiggins testified on oath that when the appellant told him that he had just made a big bust and Wiggins enquired about the nature of the bust the appellant told him that it was for coke. He further heard [Chaitlal] tell the appellant that he would pay anything to get out of that. Wiggins was obviously attempting to distance himself from any involvement in the crime. . . [I]t is quite apparent that the case against the appellant was an extremely strong one and Wiggins' evidence, apart from having an adverse effect on the appellant's credibility, boosted the case for the prosecution, premised as it was on joint enterprise. The appellant admitted his presence in the car and it is therefore unlikely that the jury, having disbelieved Wiggins that he was not a party to the crime and, by inference, having accepted that he was party to the big bust, in spite of Wiggins' good character, would have treated the appellant any differently. Significantly, Wiggins had joined the group in the car after the appellant had discovered the coke and had taken the initial steps in the commission of the offence."

In their Lordships' view there is really no basis for criticising the Court of Appeal's approach either to the law or to the evidence.

The law

14. Subsequent to the Court of Appeal's decision the Board has several times had to consider the correct approach to take in cases where, whether through counsel's failure or that of the trial judge, no good character direction has been given although plainly the appellant was entitled to it. Amongst the Board's more recent decisions (all in 2005) are Balson v The State [2005] UKPC 6, Brown (Uriah) v The Queen, [2006] 1 AC 1, and Jagdeo Singh v State of Trinidad and Tobago [2006] 1 WLR 146. In Balson's case the Board said, at para 38:

"[T]heir Lordships are of the opinion that a good character direction would have made no difference to the result in this case. The only question was whether it was the appellant who murdered the deceased or whether she was killed by an intruder. All the circumstantial evidence pointed to the conclusion that the appellant was the murderer. There was no evidence to suggest that anyone else was in the house that night who could have killed her or that anyone else had a motive for doing so. In these circumstances the issues about the appellant's propensity to violent conduct and his credibility, as to which a good character reference might have been of assistance, are wholly outweighed by the nature and coherence of the circumstantial evidence."

15. In Brown's case too, a motor manslaughter case, the appeal was dismissed and there too, as here, the appellant was an experienced police officer. As the Board observed [2006] 1 AC 1, para 38:

"[The jury] had the advantage of seeing and hearing [the appellant] when he gave evidence and of forming their judgment about his apparent credibility from his testimony and his demeanour. They also had the evidence of the eyewitness Mr McKennon and were able similarly to judge his credibility. Their Lordships do not wish in any way to minimise the importance of good character or of the proper direction being given by trial judges. They do consider, however, that in a case of the present type such a direction will be of less significance in assisting the jury to come to a correct conclusion than in other types of prosecution."

16. In Jagdeo Singh's case [2006] 1 WLR 146, where the appellant was a practising lawyer convicted of corruption, the judge had omitted from the good character direction to the jury the credibility limb. Lord Bingham of Cornhill, giving the judgment of the Board, said at para 25:

"The omission of a good character direction on credibility is not necessarily fatal to the fairness of the trial or to the safety of a conviction. Much may turn on the nature of and issues in a case, and on the other available evidence. The ends of justice are not on the whole well served by the laying down of hard, inflexible rules from which no departure may ever be tolerated. This was accordingly a case where, depending on the circumstances, the 'proviso' in section 44(1) of the Supreme Court of Judicature Act might have been applicable. In considering whether it was, the Court of Appeal was right to consider whether, properly directed, the jury would 'inevitably' (Woolmington v Director of Public Prosecutions [1935] AC 462, 483) or 'without doubt' (Stirland v Director of Public Prosecutions [1944] AC 315, 321) have convicted."

In the event the Board concluded at para 26:

"It was not a straightforward case. It cannot be said that, properly directed on the appellant's credibility, the jury would inevitably or without doubt have convicted."

17. The appellant relies heavily on the series of propositions set out in paragraph 33 of the Board's judgment in Teeluck v The State of Trinidad and Tobago [2005] 1 WLR 2421 and certainly it is right to say, as paragraph 33(iv) of Teeluck's case does, that "where credibility is in issue, a good character direction is always relevant". But the trilogy of cases examined above suggests that the statement in paragraph 33(ii) of Teeluck's case, that the direction "will have some value and will therefore be capable of having some effect in every case in which it is appropriate [to give it and that if] it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial," needs to be applied with some caution. In Teeluck's case itself, of course, the appellant's credibility was said to be "a crucial issue" to the extent that the Board was unable to conclude "that the verdict of any reasonable jury would inevitably have been the same if [the direction] had been given" (paragraph 40). So too in Jagdeo Singh's case [2006] 1 WLR 146. But the Board reached a different conclusion in Balson's case [2005] UKPC 6 and in Brown's case [2006] 1 AC 1 and their Lordships have no doubt that the Court of Appeal were right to have done so in the present case too. The cases where plainly the outcome of the trial would not have been affected by a good character direction may not after all be so "rare".

The facts

18. The case against the appellant was in truth a very strong one, particularly once Wiggins had given his evidence. As the appellant's counsel accepted in argument before the Court of Appeal, Wiggins' evidence was "strong evidence, powerful evidence. . . .when you have a co-defendant who gives evidence to exonerate himself that implicates a co-defendant, strong evidence. It is in a way stronger than prosecution evidence, isn't it?"
19. In truth Wiggins' evidence here damned the appellant and yet not a word of it did the appellant challenge in cross-examination. It provided the clearest possible confirmation of certain critical elements of Chaitlal's story: the reference to "a big bust" and "coke" and Chaitlal trying to bribe the appellant to escape prosecution. Add to this the appellant's bizarre account of approaching a total stranger for a lift back to the police station for no good reason when only halfway through his beat and his inability to suggest any possible explanation for Chaitlal having invented his whole detailed account of the plot and it is difficult to see how a good character direction could conceivably have made a difference. Of course the prosecution's case could have been made stronger still, for example by calling one of those from whom Chaitlal had to borrow money. But the absence of such evidence can hardly be represented, despite counsel's best efforts, as a weakness in the case against the appellant.
20. The appellant submits that the jury would have been struck by the contrast between on the one hand the eliciting of Wiggins' good character and the judge's direction in that regard and on the other hand the lack of any such evidence and direction in his own case. There might have been some force in this point—although no less striking a contrast existed between the appellant's position as a serving police officer (whose basic good character the jury might be expected to assume) and that of Hardial whom the jury knew to be a man of bad character and were directed accordingly—had Wiggins in fact been acquitted. As, however, the Court of Appeal also pointed out, that was not the case: Wiggins, despite having entered the plot later than the appellant and played an apparently smaller part in it, was nevertheless convicted despite the benefit of a full good character direction. Having convicted Wiggins the jury could not logically have acquitted the appellant.
21. The appellant's only answer to this apparently conclusive point is that perhaps after all Wiggins was lying to try to bolster an innocent case and maybe Wiggins too would have benefited from the appellant as well as him receiving a good character direction. This argument, advanced with understandable diffidence and for the first time before the Board, their Lordships find unconvincing.
22. The Board must touch briefly on one other ground of the appeal against conviction, the appellant's complaint that the prosecution failed to disclose to him at trial that Chaitlal had complained of another similar offence being committed against him of money being extorted by menaces. This other alleged offence, it now appears, was indeed strikingly similar. It too concerned two police officers acting in concert with Hardial and Rajendra and once again it successfully extracted from Chaitlal a large sum of money, $34,000. The two police officers, moreover, were from the self same police station as the appellant and Wiggins. This other offence occurred, said Chaitlal, on 31 May 1995 (some three weeks before the present offence) and was reported (also to Police Sergeant Boyd) on 19 July 1995 (some three weeks after the present offence was reported).
23. Quite why this other allegation was not formally disclosed to the appellant and his co-defendants is not entirely clear. Plainly, however, it cannot have involved the intentional withholding of material and potentially helpful evidence. In the first place the full facts were obviously known to one of the three accused, Hardial, who was the subject of both allegations, and it is difficult to suppose that it was not known also to the appellant and Wiggins, fellow officers from the same station as the two other accused police officers. Secondly and no less importantly, evidence of this other allegation (the proceedings in relation to which apparently stand adjourned), so far from being capable of exploitation in the accused's favour, could only if deployed have multiplied their difficulties. The jury must inevitably have concluded that, following an apparently successful first use of this scheme to extort money by two fellow officers, the appellant and Wiggins were encouraged to follow suit in the belief that their offences too would be both profitable and unreported.
24. There is accordingly nothing in this ground of appeal either, whether taken alone or in conjunction with the lack of a good character direction. The appeal against conviction fails.
25. It remains to consider the appeal against sentence which the Board can deal with altogether more briefly. This appeal concerns the proper approach to section 49(1) of the Supreme Court of Judicature Act in Trinidad and Tobago and involved no more than the straightforward application of the Board's very recent decision in Ali v State of Trinidad and Tobago (Practice Note) [2006] 1 WLR 269. It is quite unnecessary to rehearse here the substance of that decision or, indeed, set out again the terms of section 49(1). Suffice it to say that this appellant's appeal to the Court of Appeal could not possibly have been characterised as frivolous or time-wasting and no basis whatever has been suggested for that court properly to have withheld the direction necessary under section 49 to ensure that the appellant was not penalised as to his time in custody through having exercised his right of appeal. The appeal to the Board on this issue was in truth here irresistible and it is to the State's credit that Mr Guthrie was in the event instructed not to resist it. The Board accordingly made the order indicated at the outset of this judgment. In the result the appellant stands convicted but has now served his sentence.