The Judicial Committee of the Privy Council Decisions

 


Maharaj v. The State (Trinidad and Tobago) [2008] UKPC 28 ( 8 May 2008)

Privy Council Petition No 5 of 2008

Teerathraj Maharaj Petitioner

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

 3^rd April 2008, Delivered the 8^th May 2008

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Present at the hearing:-

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Rodger of Earlsferry]

1. The petitioner, Teerathraj Maharaj, was convicted of one count of attempted sexual intercourse with a female under 14 and of six counts of sexual intercourse with a female under 14 at the Port of Spain Assizes on 5 August 2004. He was sentenced to five years imprisonment with hard labour on the attempt and to 15 years imprisonment with hard labour on the further six counts, the sentences to run concurrently.
2. He appealed against both conviction and sentence. On 3 March 2005 the Court of Appeal (John, Archie and Weekes JJA) refused both appeals and said "We will reduce our reasons into writing and have them available within the shortest possible period."
3. At the hearing before the Board on 3 April 2008 counsel for the State confirmed that, in actual fact, no reasons in writing were ever produced and, despite a number of requests, it was still unclear whether the Court of Appeal would ever produce those reasons. In fact, a few days after the hearing of the application for special leave to appeal, the Board received a copy of written reasons delivered by Weekes JA. The Board will return to those reasons after dealing with the application on the basis on which it was argued.
4. In the situation as it was at the hearing, Mr Letman submitted that the Board should grant the appeal on the ground of the failure of the Court of Appeal to produce the reasons for refusing the petitioner's appeal. Their Lordships cannot stress sufficiently how seriously they take that failure, for which no explanation is forthcoming. They trust that nothing similar will occur again. Nevertheless, it cannot be the case that, if a conviction were otherwise sound, it would have to be quashed simply because of the failure of the Court of Appeal to give their reasons for dismissing an appeal against that conviction. Here, if the Board considered that there might be merit in the appeal, it would grant special leave to appeal and would, in due course, give a reasoned judgment allowing or dismissing the appeal. That would, in substance, remedy the failure by the Court of Appeal.
5. The Board did not have a copy of the transcript of the proceedings at the trial, but it did have a transcript of the summing-up of Holdip J, as well as a transcript of the hearing before the Court of Appeal. This material was sufficient to allow the Board to judge whether special leave to appeal should be given. Their Lordships were satisfied that it should not and now, exceptionally, give a brief written indication of their reasons.
6. The petitioner advanced two grounds.
7. One of the crucial issues for the jury to determine was whether, as the virtual complainant said in evidence, sexual intercourse had taken place. The prosecution led medical evidence to the effect that there was a tear in her hymen which was consistent with penetration by a blunt object, such as an erect penis. The petitioner contended, however, that in his summing-up the trial judge had, in effect, withdrawn from the jury the issue of whether intercourse had taken place. While saying that this was one of the findings which the jury must make, he had added "it ought not to be much of a problem". Later he had said "I dare say that sexual intercourse may have taken place". He had also said that, if the members of the jury did not feel, at the end of the day, that they believed the doctor, then that was their domain – the implication being that, if they believed the doctor, they would find that intercourse had taken place.
8. The Board sees no merit in these complaints. While, in theory, some blunt instrument, other than an erect penis, might have caused the damage to the virtual complainant's hymen, no other possibility was put to her in cross-examination. So it is not surprising that the judge felt that the jury might readily conclude that intercourse had taken place. The judge made it quite clear to the jury, however, on more than one occasion, that it was up to them whether they accepted the doctor's evidence and whether they were satisfied that intercourse had taken place. In these circumstances, there is no merit in this ground of appeal.
9. The second ground of appeal was that the judge did not give the jury a full Turnbull direction on identification. Again, the Board is satisfied that the point is wholly without merit. The virtual complainant is the stepdaughter of the petitioner. It appears that she did not stay with her mother and the appellant all of the time. But the contention for the State was that the appellant had attempted to have intercourse with her at his house during the evening of 29 June 1998 and had had intercourse with her on the following six evenings. His position, supported by his wife, was that he had been out driving his taxi on the evenings in question. It was not suggested that any other man had been present in the house on those evenings. So the challenge to the virtual complainant's evidence was not so much that she was mistaken in her identification of the petitioner as her assailant, as that she had fabricated the accusation against him.
10. In his summing-up the trial judge reminded the jury of the point put to the virtual complainant, that it would have been dark in the room and so difficult for her to see. She had replied that the light was on in the kitchen and reflected into the bedroom. He also reminded the jurors that she had said that, from 1996 to 1998, she would see the petitioner almost every day. The judge told the jury that, in these circumstances, it was up to them to decide whether they had any doubts about the virtual complainant's identification of the petitioner. If the jury accepted her evidence that these incidents had occurred on seven consecutive evenings, then it seems utterly inconceivable that she could have been mistaken about the identity of the man who came into her bed on those evenings. In that situation – especially since it was not suggested that any other man had been in the house - their Lordships are satisfied that the directions on identification were quite adequate.
11. For these reasons the Board takes the view that it is not arguable that the conviction is unsafe. The application for special leave to appeal against the conviction must accordingly be dismissed.
12. As their Lordships have mentioned already, they have now received the written reasons of the Court of Appeal. As they anticipated from the transcript of the hearing, the reasons which the Court of Appeal gave for refusing the appeal are really essentially the same as the reasons for which the Board has thought it right to dismiss the application for special leave.
13. The petitioner also sought leave to appeal against sentence on the ground that a direction should have been given that the time spent in custody pending his appeal should count towards serving his sentence. In the light of the decision of the Board in Ali and Tiwari v State of Trinidad and Tobago [2005] UKPC 41; [2006] 1 WLR 269, counsel for the State did not oppose that application. The hearing of the petition will be treated as the appeal against sentence and the Board accordingly directs that all the time spent in custody since the appellant's conviction should count as part of his term of imprisonment.