The Judicial Committee of the Privy Council Decisions

Huggins & Ors v. The State (Trinidad And Tobago) [2008] UKPC 30 (09 June 2008)

Privy Council Appeals No 39, 25 and 55 of 2006

Arnold Huggins, Leslie Huggins and Junior Phillip 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 9^th June 2008

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Present at the hearing:-

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Carswell

Lord Mance

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[Delivered by Lord Carswell]

1. The three appellants, Arnold Huggins, Leslie Huggins and Junior Phillip, were on 8 May 2003 convicted after a trial before Soo Hon J and a jury in the High Court at the Port of Spain Assizes of the murder on 20 February 1996 of Clint Huggins. They were each sentenced to death. Their appeals against conviction were dismissed by the Court of Appeal (Hamel-Smith, Warner and Weekes JJA) in a judgment dated 21 April 2005. The Privy Council granted the appellants leave to appeal as poor persons against conviction and sentence.
2. The grounds on which leave to appeal was granted and which were argued on behalf of the appellants before the Board were as follows:

(a) The tone and content of the closing speech of prosecuting counsel were such as to render the trial unfair – this ground was common to all three appellants.

(b) New material showed the evidence of Ackbar Khan, the justice of the peace who gave evidence relating to the taking of the confession statements made by Arnold Huggins and Junior Phillip, to be unreliable. This ground directly concerned those appellants, but it was also argued on behalf of Leslie Huggins, who did not make a statement of admission, that this defect was capable of affecting his case.

(c) On the grounds accepted by the Board in Matthew v The State [2005] 1 AC 433, it would be wrong to carry out the death sentence on the appellants.

3. The murder victim Clint Huggins was at the time of his death in protective custody, as he was to be one of the main witnesses in a case in which Dole Chadee, Joey Ramiah and others were charged with murder. Arnold and Leslie Huggins were cousins of Clint Huggins and Junior Phillip was a neighbour and close friend of Leslie Huggins. On Sunday 18 February 1996 Clint Huggins decided to leave protective custody and visit his family at Leslie Huggins' home in order to take part in the carnival celebrations, which took place that week.
4. The prosecution case was that Leslie Huggins visited Joey Ramiah (a relation by marriage) in prison, where he was awaiting trial, and Ramiah offered him $3 million to kill Clint Huggins. The three appellants entered into a joint enterprise to carry out the murder. Clint Huggins arrived at Leslie's house early on 18 February, spent the day with him and stayed in his house overnight. The following day Swarsatee Maharaj, known as "Satee", who lived with Leslie Huggins, overheard a conversation between Leslie and his uncle Simon Ragunanan, in which Leslie asked Simon "How we going to do this?", to which Simon replied "We'll go to Matura for Arnold, he has a gun."
5. A group consisting of Leslie, Junior, Satee, Clint and Simon spent the evening of Monday 19 February in Sangre Grande at the carnival celebrations. About 11 pm Leslie told Satee that Arnold was going to shoot Clint in the crowd, but shortly afterwards she heard Junior say that it could not be done that night because of the number of people about. Clint was seen with Leslie and Junior on separate occasions that evening by PC Thompson and Inspector Lloyd. Haile Selassie Amoroso was with them that night when Clint was lying on the bonnet of a car, apparently intoxicated, and Leslie said "This is the right time to take him out". Nothing happened, however, and the group returned to Leslie's house.
6. Early in the morning of Shrove Tuesday 20 February the group, consisting of Arnold, Leslie, Junior, Clint, Satee and Simon left for Port of Spain to celebrate J'Ouvert. They travelled in two cars, a Laurel and a Lancer, which were registered in Leslie's name but had been paid for by Satee. The cars stopped on the Uriah Butler Highway. According to Satee's account Arnold shot Clint twice with a long gun, then Leslie drove the Laurel at him and knocked him on to a chain link fence. Leslie produced a knife and stabbed Clint several times, then Junior hit him on the head with a piece of wood. The Laurel car was set on fire with Clint's body inside and the group made off in the Lancer. At the Valencia Bridge Leslie Huggins threw away the knife and the keys to the Laurel car. Along the Valencia Stretch Leslie and Junior threw their jerseys and sneakers out of the window. They returned to Leslie's home and cleaned up. Leslie told Junior, Satee and Simon that if questioned about Clint's death they should say that he had borrowed the Laurel to go to buy cigarettes and had never returned.
7. About 10 am on 20 February Leslie, Junior and Satee met Vishwanath Jawahir, known as "Sharkey". Leslie told him that they had burnt the Laurel for insurance and asked him to go to the scene to see if it had burnt out completely. Sharkey did so, but as there were police officers present he did not go too close. He reported to Leslie, who paid him $100. Later that evening Leslie told Satee that he would collect the reward from his uncle Joey and bury it at the back of the house.
8. The police discovered the burnt car and Clint's body and set up an investigation. A post mortem examination revealed that he had died from shock and haemorrhage from multiple stab wounds, other penetrating wounds and extensive burns. Shotgun pellets were removed from the body.
9. On that day Leslie, Junior and Satee were questioned by the police. All made statements giving an account in line with the prepared story and the police took no further action at the time. There was no evidence of any further development in connection with the murder until on 3 November 1999 Junior Phillip contacted the police and asked to speak to them. There was a conflict of evidence about his purpose in doing so. Sergeant Moses testified that Phillip did so because he wanted to be a State witness about the murder, whereas Phillip's version was that he only wished to give the police some information in his possession and that the suggestion of his becoming a State witness came from them. The prosecution case was that on 4 November Phillip made an oral confession of involvement in Clint Huggins' murder, although Phillip in his evidence denied making this statement. He then made a written statement on 6 November, in which he gave a detailed account of the murder. He made an admission of taking part himself in the assault on the victim by striking him three times on the head with the butt of the gun with which he had been shot. The admissibility of this statement was challenged and a voir dire was held, following which the judge admitted both statements in evidence.
10. On 8 November 1999 Phillip went with police officers to the Valencia Bridge and there pointed out the place at which he said Arnold Huggins had thrown the knife and gun used for killing Clint Huggins. He then took them to the Valencia Stretch, where he said that Leslie "and them" threw a pair of pants and sneakers from the car. Both places were searched, but nothing material was found.
11. On 11 November 1999 Satee, who by this time was living with Junior Phillip, was arrested. She made a statement implicating the appellants in the murder. She made further statements on 2 December 1999 and 27 September 2000. On the latter date she was granted immunity from prosecution. She gave evidence at the trial in accordance with her statements, though much play was made of inconsistencies in her evidence and it was claimed by the defence that she had for her own motives falsely implicated the appellants.
12. Arnold and Leslie Huggins were arrested on 12 November 1999. Leslie made no admissions, but Arnold made a statement in which he admitted being present and having a gun in his hand, but claimed that it went off by accident. The admission of this statement was challenged and the judge held a voir dire, at the end of which she admitted the statement in evidence.
13. Arnold's statement was taken by Assistant Superintendent of Police Quashie, in the presence of Sergeant Dick and Mr Ackbar Khan, the justice of the peace who was called in by the police. Mr Khan stated that on arrival he saw Arnold, who asked to speak to him privately and then told him that he was sorry for what he had done. Mr Khan asked him if any threats or promises had been made to him, to which Arnold said No. Arnold did not relate to him any form of ill-treatment by the police.
14. Mr Khan said that Arnold was cautioned and that the statement was then taken by ASP Quashie at his dictation. In cross-examination in the voir dire no suggestion of impropriety or ill-treatment by the police was made to any of the witnesses. The only matter put to Mr Khan was a suggestion that he was mistaken in his evidence about Arnold saying that he was sorry for what he had done. Arnold did not give evidence in the voir dire, nor did his counsel address the judge with any submission that the oral or written statement should be excluded. The judge admitted both.
15. When he came to give evidence in the main trial Arnold Huggins put forward an alibi for the time of the murder and denied having taken part. This time he stated in his evidence that he had been repeatedly beaten in order to induce him to make the written statement. He gave a detailed description of being slapped on the neck and struck on the head, then beaten on the soles of his feet with a broken piece of a pool cue and in the belly with a gun butt wrapped in a wet towel. This ill-treatment was carried out by two officers whom he could not name and who were not present in court at the trial. He was given very little to eat and refused the opportunity to make a telephone call. He claimed that he had made the written statement in order to bring the questioning and beating to an end. Although the words dictated were from his own lips and he signed and initialled the statement, the content was based on the matters which the police officers had kept putting to him. He said that he was at no stage cautioned or told of his rights. Arnold denied having made the oral statement about being sorry described by Mr Khan.
16. In the voir dire relating to the statement made by Junior Phillip, his counsel put various matters to the prosecution witnesses, that the statement was obtained from him by a trick. It was claimed that he had been falsely promised immunity from prosecution and that the statement was a document which he should sign for that purpose. It was put to Mr Khan, who deposed that he witnessed the taking of the statement, that he as part of the deception had passed himself off as a justice of the peace from the Department of the Director of Public Prosecutions who was there for the purpose of the grant of immunity. It was suggested that Phillip was denied a telephone call or any representation, that he was not informed of his rights or given proper food and that the statement was obtained in breach of the Judges' Rules. Not surprisingly, the prosecution witnesses denied all these allegations and Phillip did not give evidence in the voir dire. Equally unsurprisingly, the judge thereupon rejected the suggestions put to the witnesses, found that the statement had been properly taken and admitted it in evidence.
17. In the main trial the prosecution witnesses were cross-examined on the same lines. Phillip then gave an account in evidence of the signing of the document which corresponded with the version put to the police officers and Mr Khan. He averred that he had gone to the police in the first instance in order to volunteer some information and not to obtain immunity, but that the question of immunity was raised by Sergeant Moses, to whom he spoke, and he was told that he would require it. He claimed that he was convinced by Mr Khan that he had to sign and initial the document in order to obtain immunity for himself and his family, and because he did not or could not read it he did not verify the contents of the document. He also denied any connection with the murder and put forward an alibi defence.
18. After the defence counsel had addressed the jury, prosecuting counsel Mr Rajbansie (who in accordance with the practice in Trinidad and Tobago had the last word) closed the prosecution case to the jury in regrettably vigorous and hyperbolic terms. At the close of his address defence counsel presented a number of complaints about its content. These were repeated and amplified by counsel for the appellants before the Board, and may be summarised under several heads:

attacking the character of the defendants;

making disparaging and belittling remarks about witnesses and counsel;

accusing one counsel of being party to concocting his client's case and coaching him in his evidence;

misrepresenting the defence case and parts of the evidence in material respects;

personally vouching for the correctness of the prosecution case and telling the jury of the importance of convicting the defendants.

19. Since it formed a substantial part of the appellants' case that this made the trial so unfair that the convictions should be set aside, it is unhappily necessary to set out in a little detail some of the parts of counsel's remarks of which complaint was made. Mr Rajbansie made disparaging remarks about the "fresh water Yankee accent" of Arnold Huggins' mother Merle Huggins, who gave evidence on her son's behalf. He stated at one point that Arnold's counsel Mr Brook turned red in the face and shuffled his papers when he saw a document put in evidence, and made remarks about his "antecedents", implying that he was not familiar with Trinidadian customs. He accused the defence of having a concocted story for Arnold and the implication was clear from his remarks that Arnold's lawyers had been party to the process of concoction. Of Arnold's evidence, which he referred to as a "script" and described as a "parrot recital", he said at one stage:

"You know something, I hope he has a publisher, I really do. Because you see that lucid imagination it wasn't only concocted by him, you know he had assistance to write that piece of fiction, that novel."

He suggested to the jury that Arnold's use of certain words in his evidence was not typical of Trinidadian usage and was an indication that someone from a different background (by which he obviously mean Mr Brook) had written the script for him to use in his "parrot recital". Mr Rajbansie went on to accuse Mr Brook in terms of giving Arnold a cue when he asked him questions in examination-in-chief in order to guide him through a prepared story.

20. He said that the defence was no more than just a smokescreen and accused defence counsel resorting to scandal, bacchanal, aggression and tactics designed to cause a drama and intimidate witnesses. He categorised the defence case as ludicrous and a desperate grasping for straws. He accused the defendants of making serious allegations against the prosecution witnesses, throwing mud, pelting it around and hoping that it would stick. That, he said, demonstrated the depth to which the defendants were willing to sink.
21. In the course of his closing speech Mr Rajbansie spoke in laudatory terms of Mr Ackbar Khan and of ASP Quashie, Inspector Khan and the other officers from the Homicide Bureau of Investigation. It was suggested by the appellants' counsel that the tone and thrust of his address were such that he was vouching personally for the correctness of the prosecution case and that he wrongly emphasised the importance of convicting the defendants.
22. When Mr Rajbansie concluded his speech counsel for the defendants joined in a complaint to the judge about it. They focused particularly on the imputations upon Arnold's counsel and on a number of places in which Mr Rajbansie had misstated the case being made for the defence. After protracted discussion the judge took the somewhat unusual course, in advance of commencing her summing-up, of giving the jury directions about points on which prosecuting counsel had described the defence case incorrectly. She covered these points in some detail, at the close of which defence counsel expressed themselves as satisfied. There followed discussion with counsel on issues to be addressed in the summing-up. There was then further cross-examination of Satee, with the leave of the judge, on a matter which had arisen, after which the judge summed up to the jury in terms which have not been criticised by any of the appellants. The jury retired at 3.20 pm and at 5.35 pm brought in unanimous verdicts of guilty against all three defendants, upon whom the judge proceeded to impose the mandatory death sentence.
23. Between the time of the appellants' conviction and the date on which their appeal was heard by the Court of Appeal another event occurred upon which the first and third appellants sought to rely. The appellants sought to adduce documents relating to this and its aftermath as constituting material which the Board should consider in the interests of justice. Their Lordships received and considered these documents de bene esse, but did not rule finally on their reception. In January 2004 the trial took place of three defendants, Nazim Christian, Cordell John and Jason Augustine before Weekes J, as she then was. On 15 January the judge gave a ruling that the statements made by them were inadmissible and, there being no other evidence probative of their guilt, she directed the jury to find them not guilty. She commenced her ruling by declaring that she found the evidence on the voir dire to be "alarming, troubling and cause for great concern". In respect of the first two defendants she held that the unsatisfactory features and inconsistencies in the police evidence were such that the prosecution had failed to prove beyond reasonable doubt that the statements were voluntarily given as retailed by their witnesses.
24. In respect of the third defendant Jason Augustine the judge expressed serious doubts about the credibility of the police witnesses. His statement had been witnessed and a certificate given by the same justice of the peace as in the present case, Mr Ackbar Khan. This took place on 5 November 1999, at a time when Junior Phillip was also in the Homicide Office and the day before he made his statement in the present case. Corporal Perreira recorded the statement and said that he asked the defendant some questions at the end, recording the questions and answers on the statement sheet. The second question recorded was "Earlier on you spoke about a knife, in the presence of the JP, but before starting the statement. Do you wish to tell us anything about that knife now?" The recorded answer was "Yes. It was kind of long, like a short cutlass, and Nazim was the only person with it. I saw him with it before going for the car." In cross-examination Corporal Perreira admitted that Augustine never said these things which he had recorded and that there was no mention of a knife before the statement was recorded. He averred that the reference to the knife had taken place during the recording of the statement, but the judge plainly doubted the veracity of this. Mr Khan and Acting Sergeant Dick had given evidence about the questions and answers and signed the statement as witnesses. The judge expressed the view that this would at the very least have been a case of "extreme professional incompetence and negligence" for them to sign off things that did not happen. She further stated that he must have failed to notice the injuries which she found to have been sustained by Augustine, which one would have expected him to observe and record. She commented that "there was something rotten in Homicide that day" and directed the prosecution to bring her comments to the attention of the DPP and the Commissioner of Police. An investigation was held, in the course of which Mr Khan was interviewed and stated "My job is to listen and not get involved in the statement. If I observe something wrong in the statement I will inform the officers in charge." He was asked if he wished to make a statement in writing and refused. The DPP directed that there be no prosecution of Corporal Perreira, on the basis of insufficiency of evidence.
25. In the Court of Appeal the appellants relied on a number of grounds which were not in issue before the Board. Weekes JA, as she had become, although she was a member of the court, did not refer to the Augustine case, and she is not recorded as having expressed any reservations about Mr Khan. The issue of the reliability of Mr Khan's evidence accordingly formed no part of the matters considered by the Court of Appeal.
26. The court considered the detailed complaints made on behalf of the appellants about the conduct of prosecuting counsel. They agreed that he had made some errors, for example, when he said that Arnold claimed that the police had concocted his statement. They took the view, however, that the trial judge had corrected these errors satisfactorily. They went on to say in the judgment of the court given by Hamel-Smith JA:

"This however, is not to condone the inaccuracies in the address; they are of great concern to the Court and while care must be taken in preparing one's address, particularly prosecuting counsel, we do not think that given the errors complained of that the fairness of the trial was at risk. Counsel was present at the trial and has expressed his perception of the tone and manner of speech of prosecuting counsel. It may well be that prosecuting counsel was somewhat high spirited in his address and overplayed the dramatics but we think that the trial judge was there to prevent any unfairness and took adequate steps to correct any major errors that might have occurred.

Counsel, for example, complained about what could be considered picong meted out to Merle concerning her Yankee accent. Counsel's exposure to local culture may be limited but any jury would have understood the context in which such remarks were made. On another note, to suggest that prosecuting counsel was targeting counsel's British ancestry when he made observations about Arnold's choice of words to describe certain events is to take matters a bit far. The observations did suggest assistance in preparing his evidence but that was merely to show that Arnold could not be considered a reliable witness, particularly given the unusual vocabulary used by him."

They concluded that there was no miscarriage of justice, refused leave to appeal and affirmed the convictions and sentences.

27. It was not in dispute in the argument presented to the Board that the function of prosecuting counsel is to act as a minister of justice, concerned with the fairness of the trial as well as presentation of his case, and that he should not act merely as an advocate striving to secure a result for a client. He should bear in mind in doing so the dignity, seriousness and justness of judicial proceedings: Boucher v The Queen (1954) 111 Can CC 263, 270, per Rand J. The underlying reason is to ensure that the defendant is fairly tried, which constitutes an overriding requirement: Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, 2241, para 10, per Lord Bingham of Cornhill.
28. The proper approach of an appellate court to complaints of conduct conducing to unfairness of the trial is well exemplified by Randall v The Queen. The report of the case sets out in extenso a litany of what the respondent's counsel on appeal accepted was badgering, bullying and browbeating behaviour (para 26 of the report) and the Board termed insulting and overbearing conduct (para 15). Consideration of the instances set out in the report confirms that counsel's behaviour must have hampered defence counsel very considerably in his presentation of the appellant's case and the examination of witnesses. The approach to be taken was set out by Lord Bingham of Cornhill at paras 28-29 of the judgment of the Board:

"28 While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

29 The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant's trial as to deny him the substance of a fair trial. The Board reluctantly concludes that there were. Prosecuting counsel conducted himself as no minister of justice should conduct himself. The trial judge failed to exert the authority vested in him to control the proceedings and enforce proper standards of behaviour. Regrettably, he allowed himself to be overborne and allowed his antipathy to both the appellant and his counsel to be only too manifest. While none of the appellant's complaints taken on its own would support a successful appeal, taken together they leave the Board with no choice but to quash the appellant's convictions. It cannot be sure that the matters of which complaint is made, taken together, did not inhibit the presentation of the defence case and distract the attention of the jury from the crucial issues they had to decide."

29. Some assistance may be obtained from a brief consideration of examples of other cases where the Board has allowed appeals on this ground. In Mohamed v The State [1999] 1 WLR 552, prosecuting counsel had made a closing speech when he was not entitled to do so, had repeatedly urged the jury to convict and had informed them of his view that the defendant was plainly guilty. He made emotional appeals for sympathy for the deceased and his family and filled his speech with inflammatory passages. The Board regarded the speech as "wholly improper" (page 564, per Lord Steyn). Counsel had failed to show proper detachment and the judge made only "perfunctory" attempts to restrain him. The Board came to the conclusion, reversing the Court of Appeal of Trinidad and Tobago, that they could not be satisfied that the jury would inevitably have found the appellant guilty if the misconduct had not occurred, and so they could not apply the proviso and uphold the conviction. It may be observed, however, as appears from the extract which has been quoted from Randall v The Queen, that once it is established that the trial was unfair, a conviction will now be set aside notwithstanding the strength of the prosecution case. What the appellate court should do is to determine the fairness of the trial by weighing up the seriousness of the irregularities, in the manner set out in Bernard v The State [2007] UKPC 34, [2007] 2 Cr App R 22, paras 28-30. As the Board stated at para 29 of that case:

"If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt."

30. In Benedetto v The Queen [2003] UKPC 27, [2003] 1 WLR 1545 the Board was of the view that some parts of the prosecutor's address to the jury crossed the boundary of robust but respectful speech, in that it was "xenophobic, inflammatory and [sought] to make use of inadmissible and irrelevant material" (para 55). Again, the judge appears to have done nothing to dispel the unfairness caused. The Board did not decide whether it would have set the conviction aside on that ground on its own, concluding on another ground that the conviction was unsafe, but the degree of unfairness reinforced the decision to allow the appeal.
31. The last example is Ramdhanie v State of Trinidad and Tobago [2005] UKPC 47, [2006] 1 WLR 796. In that case prosecuting counsel in his closing speech not only described defence counsel's arguments in a series of pejorative and abusive epithets (set out in para 34), but made inappropriate comments about the basis on which a witness had come to court and unfounded suggestions about her appearance and dress designed to give rise to inferences about her honesty. He made gratuitous unpleasant remarks about the background of defence counsel and insinuations of impropriety against one of them. At para 26 of its judgment the Board considered that the speech

"not only included (a) passages in which counsel in effect told the jury or strongly implied that there was incriminating material which had not been put before them, but that it also contained (b) emotive and unjustified comments on the defence case and evidence or on defence counsel and (c) a number of passages where counsel improperly vouched for the soundness of the prosecution's case."

The judge summed up in an accurate and comprehensive manner, but introduced no specific caveat regarding any aspect of prosecuting counsel's speech, stating on the contrary that he was entitled to put forward his views. The Board considered that there was a material irregularity and unfairness in the trial process and set aside the appellants' convictions.

32. As appears from the judgments in the cases just cited, their Lordships strongly deplore behaviour of this nature by prosecuting counsel. They should observe proper standards of decorum and courtesy in their conduct of the case, their treatment of the witnesses and the presentation of their addresses to the jury, as should all counsel in a trial. They should take care not to misrepresent the evidence given on either side or the case being made on behalf of the defence. They are of course entitled to make out as effectively as they can the prosecution case against the defendant, that he is guilty of the crime charged, for that is their proper function in an adversarial system. They have to be careful, however, not to allow vigour in presentation of the prosecution case to trespass into the area of unfairness by indulging in the type of behaviour exemplified by the cases which their Lordships have cited. Regrettably prosecuting counsel in the present case overstepped the mark on a number of occasions, and it would have been preferable if the judge had pulled him up earlier and made it clear that such behaviour was unacceptable. The issue is whether his departure from propriety was of such a nature as to deprive the appellants of a fair trial.
33. Following the complaints from defence counsel, the judge wisely took the opportunity to correct the misstatements of prosecuting counsel about a number of matters, in particular concerning the case being made by the defendants. She also warned the jury to disregard his remarks about the importance of a conviction. This was done in a separate segment of the trial, so that it had maximum impact and it could not become submerged in the content of a long and detailed summing-up. The Court of Appeal took the view, rightly in their Lordships' opinion, that the corrective statement by the judge removed a good deal of the potential unfairness.
34. The Court of Appeal were prepared to accept the tone and content of Mr Rajbansie's remarks to which their Lordships have earlier referred. They described him as "somewhat high spirited in his address" and overplaying the dramatics, but considered that the judge had taken adequate steps to correct any major errors. Their Lordships feel more doubtful about the impact of counsel's more extreme comments, which the judge did not specifically mention in her corrective directions, though she did warn them to decide the case only on the evidence and to set aside their emotions in coming to a decision. They are influenced by the fact that the Court of Appeal, with their knowledge of local conditions and culture, were of opinion that those remarks would not influence a jury in Trinidad to an extent which would make a trial unfair. Applying the standard in Randall v The Queen, their Lordships have concluded that counsel's departure from good practice, although very reprehensible, falls short of being so gross, persistent or prejudicial as to require them to condemn the trial as unfair. The convictions accordingly should not be regarded as unsafe on this ground.
35. Their Lordships now turn to the effect of the new material about the judge's criticism of Mr Ackbar Khan in the trial of Jason Augustine. The appellants' counsel submitted that this should be taken into account, as it concerned an event which had not occurred at the time of trial and it was in the interests of justice that it should be considered, relying on the remark of Leggatt LJ in R v Williams and Smith [1995] 1 Cr App R 74, that the court will not shut its eyes to discreditable cases of misconduct merely because they took place afterwards. This issue arose in an acute form in appeals from convictions dependent on the evidence of officers of the West Midlands Regional Crime Squad. In R v Edwards (1991) 93 Cr App R 48 the Court of Appeal allowed an appeal by the appellant, who had been convicted largely on the evidence given by officers of that squad. Material was brought before the Court of Appeal which showed that evidence given in other cases by officers involved in Edwards' case had plainly been misbelieved, resulting in acquittals, and that those officers had been discredited as witnesses of truth. The court allowed the appeals in both Edwards and Williams and Smith on this ground, holding that the officers could have been cross-examined if the new material had been available at trial and that the convictions were unsafe.
36. It is important to look critically at the probable use which could have been made of such material if it had been available at the appellants' trial. It would have gone to the credit of Mr Khan, who could have been cross-examined about his signing the certificate in Augustine's case. There was no judicial determination or finding in those or any other proceedings concerning Mr Khan's acts or omissions, and it is not possible to say now what answer he would have given. If, as appears probable from his answer to the investigating officer, he had averred that he simply recorded what was done and said in his presence and that Corporal Perreira must have been mistaken or become confused about what was said at what time, it may not have been possible to put the matter further.
37. It was submitted that faced with this the judge might not have admitted the confession statements or the jury might have felt that the prosecution case was no longer proved beyond reasonable doubt. One must consider the impact of such material in the context of the whole case. The case against the appellants centred upon the testimony of Satee, supported by other evidence, which the jury must have accepted in order to convict. It is suggested that they may have been reinforced in accepting her evidence by the content of the confessions of Arnold Huggins and Junior Phillip, upon which more doubt could have been cast by the fresh material. Such a conclusion must be considerably speculative. The account given by both appellants of the circumstances in which they signed the statements is a great deal less than convincing. Arnold Huggins said that he was beaten by two unnamed officers, who disappeared from the case and left it to others to take the statement. He then dictated the statement from material which he had been told by the police was their case against him, but he did not reproduce it all, giving a version in which he claimed that the gun went off by accident. Junior Phillip claimed that he went to the police to give information and was told by them that he needed immunity from prosecution to protect himself and his family. This makes very little sense, and the police case that he himself came to them with the object of obtaining immunity from prosecution appears far more probable. Unless the material had been used in the voir dire, the judge would have inevitably admitted the statements, and even if it had been used and the appellants had given evidence at that stage, it is highly questionable whether she would have ruled them out. Given the strength of the prosecution case, the prospect that the material would have caused the jury to reach a different conclusion on these appellants' guilt is highly questionable. Leslie Huggins did not make any statement, so the same considerations do not apply. His attempt to rely on R v Paris (1993) 97 Cr App R 99 in support of the proposition that when the confession statement of a co-defendant which implicates another has been wrongly admitted the latter's conviction is unsafe was somewhat forlorn, in the light of the remarks of the Board about that case in Dookran v The State [2007] UKHL 15, para 25, and Mr Clegg QC eventually abandoned that ground. Their Lordships consider that the new material, if taken into consideration, does not make the conviction of any of the appellants unsafe. Their Lordships accordingly dismiss the appeals against conviction.
38. It was not in dispute that the effect of the Board's decision in Matthews v State of Trinidad and Tobago [2004] UKPC 33, [2005] 1 AC 433 is that it would be unfair in the circumstances for the sentences of death now to be carried out. Their Lordships will therefore allow the appeals against sentence, set aside the sentences of death and substitute sentences of imprisonment for life.