The Judicial Committee of the Privy Council Decisions

Persad v. Trinidad and Tobago (Trinidad and Tobago) [2007] UKPC 51 (23 July 2007)

Privy Council Appeal No 5 of 2006

Kelvin Persad Appellant

v.

The State of Trinidad and Tobago 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 23^rd July 2007

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

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[Delivered by Lord Brown of Eaton-under-Heywood]

1. In what circumstances are out of court admissions made by one accused admissible in evidence against another? What, more particularly, are the limits of the House of Lords decision in R v Hayter [2005] 1 WLR 605 which held (by a majority of three to two) that in a joint trial of two or more defendants a jury is entitled to consider first the case in respect of one defendant (defendant A) based on his own out of court admissions and then use their findings of A's guilt and the role A played as a fact when considering the case in respect of defendant B?
2. These are the central questions now arising for consideration by the Board although it may be noted that the judgment of the Court of Appeal in Trinidad and Tobago presently under appeal itself pre-dates the decision in Hayter.
3. With that briefest of introductions it is convenient next to turn to the facts of the case before indicating the precise scope of the appeal and the basis upon which it is advanced. Their Lordships will give only a comparatively brief summary of the facts; little of the detail has any present relevance and to recount it would tend rather to obscure than to clarify the issues arising.
4. At about 5.30 pm on 6 October 1997 three men—the appellant, Patrick Wellington and Dan Kelly—went by taxi to the house of Inshan Mohammed (Inshan) and his sister-in-law Kelawatie Mohammed (Kelawatie) on Shirvan Drive, Sangre Grande, to commit a robbery. They were masked and armed with a gun and a cutlass. On arrival two of them pushed past Kelawatie's mother-in-law and went upstairs where they found Kelawatie with her baby. They demanded money and she gave them a cash pan containing about $100 in coins. One of them then threw her onto a bed and buggered her. The other then raped her. At some point during her ordeal she was tied up and gagged. A little later Inshan returned home in his pickup truck. He had been out to purchase melons for resale but, unable to do so, had been left with the cash taken for the purpose (some $2,500). Outside the house Inshan was confronted by the men and robbed of his money. The men then went back inside the house and emerged with Inshan's black stereo. Finally they were driven away in another taxi. Inshan went inside, found his sister-in-law distraught and called the police.
5. Although the three men had been masked and could not, therefore, be identified by those in the house, there was at trial an abundance of evidence identifying them as the three men involved. Both the taxi drivers knew them and both gave detailed evidence identifying them. The taxi driver who had taken them there also gave evidence of having a day or so later driven the appellant and Kelly to take a black stereo to Stephen Samuel for repair. Samuel in turn gave evidence that such a stereo had been delivered to him by the appellant for repair and that it was marked with the initials "IM". Inshan later identified it as his.
6. Whilst, however, this evidence was ample to identify the three men as the robbers, it threw no light on which of them had buggered Kelawatie and which had raped her. All she could say as to that was that it was two different men. Forensic evidence confirmed that she had been both raped and buggered but the swabs had not been analysed for DNA identification.
7. All three men were arrested and cautioned. The appellant remained silent. Wellington and Kelly, however, made written statements. Wellington's statement amounted to a full confession of both robberies (first Kelawatie, then of Inshan) and of rape. He described how the men had been hanging around together in Manzanilla, had seen the empty melon van and, realising that the driver must still have the money, had decided to rob him before he left for the market the next day. They had armed themselves and gone by taxi to the house, some fifteen minutes drive away. On arrival there Wellington said that all three of them had gone into the house and begun demanding and searching for money, Kelly prominent amongst them. As for the sexual offences, he described how Kelly (not the appellant) had buggered the girl before he himself, stimulated by the sight, had raped her. He then described how they robbed "the melon man", took the black stereo, and finally left by pre-arranged taxi.
8. Kelly's statement was to rather different effect. He said that the others had picked him up in the car and that he only learned of the intended robbery on the way there. Wellington told him to cover his face with a jersey. Only on arrival did he see the gun and only later still the cutlass. He said the other two men went inside the house for about an hour and then came back with a cash pan. Wellington then told him that they had had sex with the girl and tied her up. The three men then waited outside for the melon man to return in his van and, on his arrival, robbed him. Then the other two men went back inside and the appellant came out with the black stereo before finally they all left. He said he never knew that Wellington and the appellant were going to rape the woman. He thought they were embarked merely upon "a little robbery".
9. The three men stood trial before Volney J and a jury at Port of Spain Assizes. Each was charged with two aggravated robberies, rape and buggery. Each contested all four counts. Wellington gave evidence that he had been beaten and forced into signing his confession and had been framed. The appellant gave evidence that he had been on his own melon patch at the time and had nothing to do with this robbery. Kelly did not give evidence; his counsel, however, suggested to the police that they had procured his signature to a forced confession by prolonged torture and mistreatment.
10. On 5 April 2000 all three men were convicted of the two robberies. In addition Wellington was convicted of rape, the appellant of buggery. Sentence was adjourned.
11. On 3 May 2000 both Wellington and the appellant were sentenced to twelve years' imprisonment with hard labour concurrently on each of the robbery counts. In addition Wellington was sentenced to fifteen years' imprisonment with hard labour (concurrently), and fifteen strokes of the birch, for rape; the appellant to ten years' imprisonment with hard labour (concurrently), and fifteen strokes of the birch, for buggery. Kelly was bound over in the sum of $5,000 to be of good behaviour for five years.
12. Wellington and the appellant appealed to the Court of Appeal (Sharma CJ, Nelson and Lucky JJA). Kelly unsurprisingly did not. On 26 July 2002 both appeals were dismissed.
13. On 25 April 2006 the Board granted the appellant special leave to appeal against his conviction and sentence for buggery.
14. The appellant's core submission upon his appeal against conviction for buggery is that there was simply no evidence admissible against him that he, as opposed to one of the other two men, committed that offence. True, there was ample evidence that the offence was committed and that he was one of the only three men who could have committed it. But, he submits, the only basis upon which the jury were directed that they could convict him was by reference to the out of court admissions of his two co-accused and these, he argues, were inadmissible against him. There was no question here of the men being jointly liable for the offences of rape and buggery, no question of joint enterprise or secondary criminal liability. Only if the jury could be sure that one particular defendant had himself committed the offence could they convict. And so indeed were the jury directed. On what basis, then, were the jury directed that they could convict the appellant of buggery? Essentially it comes to this. The jury were told that if they were sure as a result of Wellington's out of court statement that he, Wellington, was the rapist (and not, therefore, the bugger) and were sure as a result of Kelly's out of court statement (coupled with other evidence suggesting that only two of the three men actually entered the house) that Kelly had remained at all times outside the house and so could not himself have committed either of the sexual offences, then it would follow that the appellant must have committed the buggery and the jury could convict accordingly. The logic of this is, of course, plain and inescapable. What necessarily it involves, however, is the use of the two co-accuseds' out of court statements as evidence against the appellant. Neither co-accused, it is important to bear in mind, gave evidence to the jury in line with his statement. On the contrary, Wellington asserted that his admission was pure fabrication and Kelly gave no evidence at all. Is such use of out of court admissions permissible?
15. In the ordinary way, of course, out of court admissions are inadmissible against a co-accused for all purposes. They are, indeed, only admissible against the maker himself by way of an exception to the hearsay rule. That, until the decision of the House of Lords in Hayter, had been regarded as "the universal rule" (R v Spinks [1982] 1 AER 587, 589). Hayter, however, now stands as authority for "a modest adjustment" (Lord Steyn at para 25), a "modification" (Lord Brown at para 80), of that rule. How far does this modification go? In particular, does it (should it) extend to allow out of court statements by co-accused to be used as they were against the appellant here?
16. The first point to make is that Hayter concerned the joint trial of defendants "for a joint offence", there the offence of murder. Hayter's conviction was upheld on the basis that the jury, having concluded (by reference to abundant evidence admissible against all three defendants) that the first defendant (the victim's wife) was guilty of murder for having arranged for the contract killing of her husband, and (by virtue of his out of court confession to his girlfriend) that the third defendant was the killer, were entitled to use those conclusions as part of the evidence (building blocks) in the case against the second defendant (Hayter, the middleman who had engaged the killer and passed the money to him). Without the third defendant's out of court admission there would have been insufficient evidence to convict him (the third defendant) and it was accepted that if the jury could not be sure of his guilt they could not be sure of Hayter's guilt either.
17. In the present appeal, by contrast, the three defendants—so far as the counts of rape and buggery were concerned—although ostensibly being tried for a joint offence, were not ultimately said to be jointly liable on those counts. Indeed the judge, having indicated to the jury the basis on which they could convict the appellant of buggery, directed that his two co-accuseds must be acquitted of that offence (just as he directed them to acquit the appellant and Kelly of rape). By contrast, in Hayter there was simply no question of the co-defendant's admission which led to his conviction on one count, of itself, exonerating that defendant from possible conviction on another count. Clearly this is a distinction between the cases.
18. A yet clearer difference between this case and Hayter, however, emerges by reference to Kelly's statement. This, whilst obviously incriminating Kelly in respect of the robbery counts, was purely exculpatory with regard to the sexual offending. To this extent it plainly tended to implicate the appellant and, as such, "ought strictly and for all purposes to be excluded from the jury's consideration of the case against [the appellant]" (Lord Brown in Hayter para 85, explaining why, not being an admission against interest, this part of the statement is "materially less likely to be true," there being "a real risk that [the maker] will have had his own motives, and not merely a wish to clear his conscience, for casting blame [elsewhere]").
19. It is accordingly unnecessary to decide what the position would have been had only Wellington and the appellant been involved in the present case. Whether in those circumstances Wellington's conviction for rape, based upon his own out of court confession to that offence, would have been admissible against the appellant on the buggery count, can safely be left for another day.
20. The Board therefore regard the present case as falling outside the Hayter principle: quite simply Kelly's statement should not have been regarded as evidence admissible against the appellant for any purpose.
21. That is sufficient to dispose of this appeal against conviction. The jury should have been told to ignore Kelly's out of court statement for all purposes in considering the case against the appellant. In that event, even assuming that the jury could have been sure of Wellington's guilt on the rape count on the basis of his own out of court admission and could therefore have excluded him as a candidate for conviction on the buggery count, there was no evidence enabling the jury to be sure as between the appellant and Kelly who had committed that offence and the judge ought properly to have directed the acquittal of both.
22. Before leaving this part of the appeal, their Lordships would comment briefly on one other feature of the out of court admissions in this case which did not arise in Hayter: Wellington's reference in his statement to all three men entering the house and, more significantly still, to Kelly (rather than the appellant) having committed the buggery offence. If, consistently with Hayter, it is right in any particular case to allow an out of court admission to be used in evidence against a co-accused, their Lordships are in no doubt that the jury must be directed to have regard too to any part of the statement which could be understood to assist that co-accused's defence.
23. Mr Dingemans QC advanced as alternative grounds of appeal against conviction the submission that the Hayter modification to the absolute prohibition against the use of out of court admissions as evidence against co-accused should not apply in Trinidad and Tobago, first because, so he suggests, the decision in Hayter was founded materially upon the enactment of section 74 of the Police and Criminal Evidence Act 1984 ("PACE") which has no counterpart in Trinidad and Tobago; alternatively, because Hayter is persuasive authority only in Trinidad and Tobago and the reasoning of the minority is to be preferred.
24. Their Lordships are wholly unpersuaded by either limb of this submission. Section 74 of PACE can be seen rather to have informed and reinforced the reasoning of the majority in Hayter than to have constituted its essential underpinning. And the Board takes the view that the considerations which led the House to adopt the decision in Hayter for the law of England and Wales, apply equally in Trinidad and Tobago. It is noteworthy that both the trial judge and the Court of Appeal in Trinidad and Tobago misapplied the law regarding the use of out of court statements before even the decision in Hayter was arrived at. With the benefit of that decision and a recognition of the safeguards it prescribes for the limited exception which it makes to the general rule, it may be hoped that fewer such mistakes will occur in future.
25. Since the appellant's conviction for buggery must be set aside, so too will be his concurrent ten year sentence for that offence and, the particular part of the buggery sentence in fact under appeal, the order that he be whipped. This, the state now concedes, was an unlawful sentence: there is no jurisdiction to order corporal punishment for buggery (although there is for aggravated robbery). Most regrettably this point was not taken before the Court of Appeal and in the event the sentence was carried out on 3 December 2002.
26. A final point arises with regard to the date from which the appellant's twelve year robbery sentence should start to run. Under section 49(1) of Trinidad and Tobago's Supreme Court of Judicature Act, unless the Court of Appeal direct otherwise, the time spent by an appellant in custody between his giving notice of appeal and the determination of the appeal does not count towards his sentence. The date of the notice of appeal here is unknown but is likely to have been within two weeks (the prescribed time for appeal) of sentence being passed on 3 May 2000 (a sentence which itself expressly took into account that the accused had already spent two years and seven months in custody on remand). The appeal was dismissed on 26 July 2002 (some two years and two months after the likely date of appeal) and, consistently with the Court of Appeal's practice of that time, no direction was given under section 49(1). Having regard to the Board's decision in Ali v State of Trinidad and Tobago (Practice Note) [2006] 1 WLR 269, it is now plain that such a direction should have been given. Their Lordships accordingly grant additional special leave to the appellant to appeal in this particular respect against his sentence for the robbery offences and, consistently with the Board's order in Ali, direct that the time between the appellant's sentence and the determination of his appeal shall count as part of the term of his imprisonment which should be deemed to run from the date of sentence.