The Judicial Committee of the Privy Council Decisions

Dookran & Anor v. The State (Trinidad and Tobago) [2007] UKPC 15 (07 March 2007)

Privy Council Appeals Nos 78 of 2005 and 79 of 2005

(1) Chitrah Dookran

(2) Malharri Dookran Appellants

v.

The State Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 7th March 2007

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Rodger of Earlsferry]

1. The appellants are Chitrah Dookran ("Chitrah") and her mother, Malharri Dookran ("Malharri"). On 3 August 2001 they were convicted at San Fernando Assizes of the murder, on or about 6 September 1997, of Chanardai Bookran-Bissoon ("Chanardai"), who was the sister of Chitrah and the daughter of Malharri. Their co-accused, Devon Cunningham, was acquitted.
2. The broad outline of the prosecution case against the appellants can be shortly stated. The prosecution contended that both the appellants had, at some stage, had a sexual relationship with a certain Majib Mohammed (also called "Grapo"). After his relationship with Chitrah came to an end, he entered into a relationship with Chanardai who had a son by him. Because of this relationship, Chitrah was jealous of Chanardai. She complained to Malharri that Chanardai was causing her pain and that she wanted to kill her. The two women then conspired to hire someone to kill Chanardai. Chitrah approached Devon Cunningham, who was staying nearby and whom she knew as "Fella", and asked him to kill Chanardai for a fee of $2000. He agreed and, at about 11 pm on 6 September 1997, Cunningham went to the Dookrans' house. The appellants took him to the bedroom where Chanardai was asleep. Cunningham then proceeded to strangle her. Awakened by her screams, Boodhanie Dookran ("Boodhanie"), another daughter of Malharri and sister of Chitrah and Chanardai, went to the bedroom and saw a man, whom she identified in court - but not at the identification parade held shortly after the murder - as Cunningham, sitting on top of Chanardai. The appellants were standing nearby. They told her not to make any noise and took her out of the room to the gallery of the house. Peeping through a space in the door, she saw the man holding Chanardai below her arm with the two appellants assisting him. They took Chanardai's body to a downstairs room at the back of the house. Malharri then came back upstairs and said she was going to call a neighbour to see what was wrong with Chanardai.
3. In the case of each of the accused there were two strands to the prosecution case: first, the eyewitness evidence of Boodhanie, and, secondly, the respective incriminating statements which they were alleged to have made to the police. At the trial the admissibility of all three of those statements was contested. Unfortunately, because the evidence at the trial was not taken down in shorthand and the only record comes from the judge's notes, there is no clear record of the precise objections taken by counsel.
4. In the case of Chitrah the Court of Appeal were able to infer that her objection was based on an allegation that her statement had been preceded by threats and promises by a police officer, WPC Villafana, whom the prosecution did not call as a witness at the trial, without giving any reason for her absence. So the allegations against her in Chitrah's evidence went uncontradicted.
5. In the case of Malharri the Court of Appeal were unable to deduce precisely what the objection was. Nevertheless, it is plain, at least, that she contended not only that she had been kept in custody without proper food for a long period before her statement was taken but also that Sergeant Dhanraj Bispath made her take off her glasses and threatened to bang her head against the wall if she did not give a statement which he would write down. She subsequently put her cross on the statement which Sergeant Bispath had written out.
6. Finally, in the case of Cunningham, he said that he had signed the certificate on his statement without knowing its contents, but induced by promises that he would be allowed to leave the police station.
7. After hearing evidence on the voire dire in the cases of Malharri and Cunningham, the judge ruled their statements to be admissible. The judge did not hold a voire dire in the case of Chitrah and her statement was admitted in evidence.
8. At the trial Cunningham gave evidence that he had been elsewhere at the time of the killing and led witnesses in support of his alibi.
9. Both appellants appealed against their conviction on a number of grounds. In particular, they both applied to the Court of Appeal to be permitted to adduce additional psychiatric evidence. Chitrah also applied to be allowed to introduce fresh evidence from a clinical psychologist. For present purposes it is unnecessary to consider Chitrah's application. In the case of Malharri the fresh evidence was said to be relevant both to diminished responsibility – which is not an issue before the Board - and to the admissibility of her incriminating statement. The additional evidence indicated inter alia that Malharri was of low intelligence and had a history of being battered by her husband. The submission was that, if the judge had been aware of this, it would have played a role when he was determining whether she gave her statement voluntarily.
10. So far as diminished responsibility was concerned, under reference to the speech of Lord Bingham of Cornhill in R v Pendleton [2001] UKHL 66; [2002] 1 WLR 72, 83, and having regard to Malharri's oral evidence at the trial, the Court of Appeal rejected her application on the ground that it was not sufficiently cogent to persuade them that her conviction was unsafe. In particular, the court considered that the psychiatrist's report did not indicate how any abnormality would have affected her behaviour. Referring back to this conclusion, in relation to the admissibility of Malharri's incriminating statement the Court of Appeal held:

"Miss Chote submitted that the 'psychiatric' material was particularly significant in the context of the witness Malharri's statement. If, however, as we have found, the medical evidence was deficient, it would follow that what was contained in the report could have had no effect on the outcome of the voire dire. It is noteworthy that when Malharri was examined by the psychiatrist he made no finding as to the voluntariness of any admission she may have made to the police."

Therefore the court also rejected this basis of her application for fresh evidence to be introduced.

11. Besides her fresh evidence application, Chitrah advanced a number of other grounds of appeal. In particular, she submitted that the trial judge should have held a voire dire (ground 3) and, in any event, the prosecution had failed to disprove her allegations about threats and promises made by WPC Villafana (ground 1). The Court of Appeal upheld both these grounds of appeal but, applying the proviso, nevertheless held that there had been no miscarriage of justice and dismissed her appeal against conviction. Chitrah has appealed to the Board on the single ground that, in holding that there had been no miscarriage of justice and upholding her conviction, the Court of Appeal applied the wrong test. Applying the appropriate test, the Board should allow the appeal and quash her conviction.
12. Their Lordships find it convenient to deal with Chitrah's appeal at this stage. As Mr Blake QC, on behalf of Chitrah, and Mr Dingemans QC, on behalf of the State, agreed, once the Court of Appeal had held that Chitrah's statement should not have been admitted in evidence before the jury, the court could only sustain her conviction if it could be said that, without the evidence of that statement, a reasonable jury would inevitably have convicted Chitrah. See, for instance, Stafford v The State [1999] 1 WLR 2026, 2029-2030 per Lord Hope of Craighead.
13. In considering whether to apply the proviso, the Court of Appeal rightly drew attention to the evidence of Boodhanie who was an eye-witness to the killing. They also rightly rejected a submission – which was not renewed before the Board – that her evidence was not a sufficient basis for the jury to hold that Chitrah and her mother had been active participants in the killing of Chanardai. The Court of Appeal continued:

"The jury by their verdict were satisfied that Boodhanie's evidence was truthful. They no doubt would have taken into account the warning by the trial judge that they should approach her evidence with caution. In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice."

14. Their Lordships are content to proceed on the basis that, even in the absence of the evidence of Chitrah's statement, a reasonable jury might well have regarded Boodhanie's evidence as truthful. But that is not the test. On the contrary, the Court of Appeal were entitled to apply the proviso and uphold Chitrah's conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.
15. Although Mr Blake pointed to a range of factors which the Board should bear in mind when applying the appropriate test, their Lordships need mention only two.
16. First, on 7 September Boodhanie gave an initial statement to the police which did not implicate the appellants or their co-accused. Then, on 11 September, the police took her into custody and she was interviewed about her sister's death by different officers. She said in evidence that, while she was at the police station, an officer was threatening to beat her with a belt and that she was afraid that she would be charged. She gave a second statement to WPC Lucia Winchester. In his summing-up the judge told the jury that, when considering her evidence, they must bear in mind "that Boodhanie is a witness who some police officers in this matter, in their own view, for whatever reason, have said on oath that they treated her as a suspect." The fact that she was herself a suspect and might therefore have had a motive for putting the blame on others is a factor which any reasonable jury would have to weigh carefully in deciding whether to accept her evidence, especially if it stood alone.
17. The second factor to be taken into account is just another aspect of the same point. At the trial, when considering whether to accept Boodhanie's evidence about Chitrah's involvement in her sister's death, the jury were able to take into account her admission statement which provided powerful corroboration of that evidence. It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of Boodhanie's evidence and relied on her evidence alone to convict Chitrah. In these circumstances there is no room for applying the proviso.
18. Chitrah's appeal must accordingly be allowed. As it is now more than nine years since the events in question, Mr Dingemans did not suggest that a retrial would be appropriate. Their Lordships will accordingly simply quash her conviction.
19. This paves the way for considering Malharri's appeal. Before the Court of Appeal, like Chitrah, Malharri also advanced a number of grounds of appeal besides her application for fresh evidence to be admitted. Two of these other grounds of appeal must be noticed.
20. First, she submitted (ground 1) that there had been a miscarriage of justice, given the jury's acquittal of Devon Cunningham. In other words, she contended that the jury had acted inconsistently in convicting her but acquitting Cunningham. The Court of Appeal rejected that ground of appeal. They held that the jury could have acquitted Cunningham because Boodhanie had failed to identify him at the identification parade. In these circumstances her identification of Cunningham in court had really amounted to a dock identification to which the jury might have attached no weight. Having rejected her identification of Cunningham, "it was reasonable to reject the statement [of Cunningham] as well in light of the challenge of it, and also the fact that [Cunningham] had raised an alibi which he called witnesses to support." The jury could have had no similar doubt about Boodhanie's identification of her sister and mother.
21. Malharri's second ground of appeal was that the judge had erred in law in admitting her alleged statement to the police because the prosecution would have been unable to establish that it was voluntary in the absence of any oral evidence from WPC Rodney-Neptune in whose custody she had been for most of the time beforehand and who was present when the statement was allegedly taken by Sergeant Bispath. The Court of Appeal rejected that submission. WPC Rodney-Neptune had been out of the country at the time of the trial and her depositions were read to the jury. More importantly, the precise nature of the challenge to the admissibility of her statement had not been recorded and counsel had been unable to fill that gap. In these circumstances, which the Court of Appeal distinguished from those in the case of Chitrah, it could not be said that the State had required to lead WPC Rodney-Neptune's evidence. The evidence of the Justice of the Peace, Mr Hamid Mohammed, who gave evidence that he was present when the statement was dictated, supported the State's position that the statement was voluntary.
22. Before the Board Malharri's counsel, Mr Jennings QC, did not renew these grounds of appeal. Rather, most of his submissions were directed to an application to the Board to admit still more fresh evidence as to Malharri's mental state, this time in the form of a report from a psychologist at the Maudsley Hospital and a letter from a psychiatrist at the King's College London Institute of Psychiatry. In addition, however, he founded on the Court of Appeal's decision that the incriminating statement by Chitrah should not have been admitted at the trial. Although the judge had directed the jury that Chitrah's statement was evidence only against her and not against Malharri, nevertheless there was a substantial risk that, when considering the case against Malharri, the jury would have been influenced by the similarity of the content of her statement and the content of Chitrah's statement. Since Chitrah's statement should not have been admitted, Malharri should have been tried in a trial where the jury had not been exposed to that potentially prejudicial evidence. He supported this submission by reference to the decision of the English Court of Appeal in Paris (1992) 97 Cr App R 99. Alternatively, Mr Jennings submitted that it was not fair for Malharri's conviction to stand alone if – after the jury had acquitted Cunningham – the Board were to quash Chitrah's conviction.
23. Even though Mr Jennings began with his application for fresh evidence, their Lordships prefer to start with his appeal as argued under the other two heads.
24. Once Chitrah's appeal has been allowed, the position is indeed that, first, the jury acquitted Malharri's co-accused, Cunningham, and, secondly, the Board have held that, since Chitrah's confession statement was not admissible, her conviction must be quashed. Even in combination, however, these two events do not of themselves mean that Malharri's conviction must be regarded as unsafe. After all, when co-defendants are tried together, it is trite that the jury must consider the case against each of them separately. So must an appeal court. Therefore, given that the evidence against each of three co-defendants may differ, there is no logical objection to a jury returning a verdict, convicting A and B of murder on the basis that they paid C to carry it out, while acquitting C of doing so. And that is, essentially, what the jury did in this case when they convicted Chitrah and Malharri but acquitted Cunningham. Equally, the mere fact that the conviction of A has to be quashed because an alleged statement by her was admitted when it should have been excluded does not mean that the conviction of B in the same trial need also be called into question. The evidence against B, which – as in the case of Malharri and Chitrah – will not include A's statement, may be significantly different and remain wholly compelling.
25. As Mr Jennings pointed out, in Paris (1992) 97 Cr App R 99 the Court of Appeal did quash Mr Paris's conviction on the basis that evidence of admissions made by his co-accused, Mr Miller, during police interviews had been wrongly admitted and must have been prejudicial to Mr Paris's case. The circumstances were very special, however, since a question posed by the jury during their deliberations indicated that they were having regard to Mr Miller's interviews when considering the position of other accused. So, even though the jury had already convicted Mr Paris before asking their question, the Court of Appeal proceeded on the basis that they would have done the same when considering Mr Paris's position. Against that unusual background, the Court of Appeal understandably held that the admission of the evidence of Mr Miller's interviews would have prejudiced Mr Paris. In the present case, by contrast, there is nothing to indicate that the jury failed to apply the careful directions of the trial judge that Chitrah's statement could not be evidence against either of her co-accused.
26. Mr Jennings emphasised that the statements of Chitrah and her mother were strikingly similar in content. He argued that, for this reason, if they accepted Chitrah's statement, the jury would have been likely to accept Malharri's. So the admission of Chitrah's statement prejudiced Malharri. But, if the jury had proceeded in that way, they would have been using the content of Chitrah's statement as corroboration of the content of Malharri's statement – in other words, they would have been using Chitrah's statement as evidence against Malharri, in defiance of the judge's directions. As they have said already, their Lordships see no reason to assume that the jury would have disregarded the judge's directions in this respect.
27. For these reasons the Board would reject the submission that, of itself, the mistaken admission of Chitrah's statement means that Malharri's conviction should also be quashed.
28. Nor do the Board accept that, if the conviction of one of three accused is otherwise safe, it can or should be quashed on the ground that convicting only one of the accused is unfair. While that was the particular way that Mr Jennings formulated his final submission, in substance he was renewing the submission made in the Court of Appeal, that in all the circumstances there is a lurking doubt about the safety of Malharri's conviction. Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ. See Archbold, Criminal Pleading Evidence and Practice (2006), paras 7-47 – 7-49. In reality, Mr Jennings was submitting that this was an exceptional case of that kind.
29. As Widgery LJ indicates, any impression of this kind is something which the judges in an appeal court will tend to form for themselves on the basis of an overall view of the specific features of the particular proceedings. As such, it is unique to those proceedings and will not be replicated in other cases.
30. In the present case a number of features give rise to concern.
31. First, while the jury's acquittal of Cunningham is logically consistent with their conviction of Malharri, as the Court of Appeal themselves recognised in the passage quoted at para 20 above, it does indicate that the jury rejected not only Boodhanie's identification of Cunningham as the killer, but also the evidence of his alleged confession statement to the police. Indeed, the Court of Appeal thought that it would have been reasonable for the jury to do so. The police officers involved in Cunningham's statement (Sergeant Dennis Housend and Acting Superintendent Dawson Victor) were not the same as the officers involved in taking the statements of Chitrah (Sergeant Dinanath Ramkissoon and WPC Villafana) or Malharri (Sergeant Dhanraj Bispath and WPC Rodney-Fortune). Nevertheless, the officers who were involved in taking the various statements were active participants in the inquiry as a whole and, to that extent, were not independent. For example, Sergeant Ramkissoon was the officer who read over Cunningham's statement - which had been recorded earlier in the absence of a Justice of the Peace - when a Justice of the Peace, Hamid Mohammed, was brought in to authenticate it. Mr Mohammed was the Justice of the Peace who had been present earlier when Malharri's statement was taken and, on that occasion, it was Acting Superintendent Victor who had taken him to the room where she was with Sergeant Bispath. Similarly, at the outset of the inquiry Sergeant Bispath had attended the crime scene along with Sergeant Housend. Earlier on the day when he took Malharri's statement, Sergeant Bispath had spoken to Sergeant Ramkissoon who was to be involved in taking Chitrah's statement. All of these contacts would no doubt be normal in such an investigation, especially in a relatively small police station, and their Lordships do not suggest otherwise. Nevertheless, they do mean that the circumstances of the taking of Malharri's statement are not entirely insulated from the circumstances in which the statements by her co-accused were taken – and those statements are both under something of a cloud.
32. In that connexion, their Lordships notice that the trial judge was at considerable pains to emphasise the care with which the jury should approach Malharri's alleged statement: "There are different ways you might know, different ways to skin a cat, if I may put it quite bluntly for you…. I am not telling you to reject the statement because I can't. You are the judges of the facts. But I can tell you, and I alert you to the circumstances in which it is open to you to say that 'I cannot rely on this document.'" The tone of his remarks suggests that the judge himself may have been concerned because the statement was taken from Malharri, an older woman, late at night (starting at 11.45 pm) when, on any view, she had been at the police station since at least 10 o'clock that morning.
33. Without taking any account of the additional evidence sought to be introduced before the Board about Malharri's intelligence, their Lordships note that at the trial the defence psychiatrist, Dr Hari Maharaj, spoke of her "educational submission" and of her "low intellectual function". The Court of Appeal referred to passages in Dr Maharaj's report, which had been ordered before the trial, alluding to "a history of being battered by her husband" and to her "low educational level". Malharri was, of course, illiterate. All these are factors which might have made her more vulnerable and susceptible to any pressures deriving from the situation in which she found herself before her alleged statement was taken.
34. While evidence was led from the Justice of the Peace, Mr Mohammed, that he was present when Sergeant Bispath took the alleged statement from Malharri, his independence and credibility were challenged. It was pointed out, for instance, that he was a former policeman who knew at least two of the officers involved with the statements, Sergeant Ramkissoon and Sergeant Housend. It is therefore unfortunate that WPC Rodney-Fortune, who was present at the time, was not available to give evidence and to be cross-examined at the trial. It is also unfortunate that she was not available to give evidence about what had happened at about 10 pm, when Sergeant Bispath went to the photography room where Malharri and WPC Rodney-Fortune were. Counsel for Malharri suggested to Sergeant Bispath, in line with Malharri's evidence, that he had then taken her to an adjoining room where he told her to remove her spectacles and threatened her. WPC Rodney-Fortune might well have been able to say, at least, whether Sergeant Bispath and Malharri left the photography room, as Malharri said.
35. Finally, the factors which might affect the credibility of Boodhanie's statement to the police and of her evidence apply as much in the case of Malharri as in the case of the other accused.
36. The Board accept that many of the factors which they have mentioned were before the jury who none the less convicted Malharri. Nevertheless, when those factors are considered in the light of the acquittal of Cunningham and the fact that the allegations about the taking of Chitrah's statement went uncontradicted, for the reasons which they have set out, having considered all the circumstances, their Lordships cannot avoid a residual feeling of unease about whether justice has been done in Malharri's case and so about the safety of her conviction. For that reason, and without going into the question of the additional evidence which Mr Jennings sought to introduce, their Lordships have come to the conclusion that Malharri's appeal should also be allowed and her conviction quashed.