UKPC 8
Privy Council Appeal No 0113 of 2009
Deenish Benjamin and Deochan Ganga (Appellant) v The State of Trinidad and Tobago (Respondent)
From the Court of Appeal of the Republic of Trinidad and Tobago
Dame Heather Hallett
Dame Janet Smith
JUDGMENT DELIVERED BY
13 March 2012
Heard on 9 November 2011
James Wood QC
(Instructed by Simons Muirhead & Burton)
(Instructed by Charles Russell LLP)
i) Did the trial judge fail to give appropriate directions on the matter of the appellants' confessions? In particular, should a Mushtaq (R v Mushtaq  1 WLR 1513) direction have been given?
ii) What was the effect of the judge's direction to the jury on the question of "special knowledge"?
iii) Did the trial judge fail to give appropriate directions to the jury in relation to the oral admission alleged to have been made by Benjamin?
iv) Were the trial judge's directions concerning the evidence of Roseanne Benjamin deficient? Did her evidence call for a "care" warning?
v) Should the appeals against conviction and sentence be considered by the Board or ought they to be the subject of petition to the President under section 64(2) of the Supreme Court of Judicature Act?
vi) Should the appellants be permitted to raise for the first time on the hearing before the Board, the question of their fitness to plead?
vii) Should the case be remitted to the Court of Appeal to consider the fresh evidence and the related grounds of appeal?
viii) In the event that it was concluded that there had been a material misdirection, should the proviso be applied?
ix) Is the imposition of the death penalty cruel and unusual punishment and contrary to section 5 of the Constitution of Trinidad and Tobago?
A Mushtaq direction
"35. A Mushtaq direction is only required where there is a possibility that the jury may conclude (i) that a statement was made by the defendant, (ii) the statement was true but (iii) the statement was, or may have been, induced by oppression. In the present case there was no basis upon which the jury could have reached these conclusions. The issue raised by the appellant's statement from the dock was not whether his statement under caution had been induced by violence but whether he had ever made that statement at all. The statement bore his signature. His evidence was that his signature was obtained by violence. This raised an issue that was secondary, albeit highly relevant, to the primary issue of whether he had made the statement. His case was that he had not made the statement, nor even known what was in the document to which he was forced to put his signature. In these circumstances there was no need for the judge to give the jury a direction that presupposed that the jury might conclude that the appellant had made the statement but had been induced to do so by violence.
36. Mr Knowles argued that, despite the terms of the appellant's statement from the dock, it would have been open to the jury to conclude that his statement under caution had been forced out of him by violence and that it was correct for the judge to give a direction that catered for that possibility. Their Lordships do not agree "
"The question for you to ask is whether you believe that either of the accused was forced in any way to dictate any statement or to sign any statement. If you believe that they were forced, or you think that they may have been forced in some way to sign the statement then you would have to disregard the statement. It is only if you are sure that the statement was given in the circumstances as related by the witnesses for the State, then you are to accept that the statement was made and then proceed to consider whether the statement was true."
"And at 12 midday on the 14th [July 2003] Dr. Burris performed a post mortem on the body of the deceased. So, this you may consider to be interesting in that the statements on the State's case were taken from the accused persons on the 13th, it was only on the 14th that the post mortem was conducted, and it was only on the 14th that it was certified that the deceased died from homicidal hanging. You will make of that whatever you wish. But it would seem that the police could not have known for sure that the deceased had died of a homicidal hanging until the 14th, around midday of the 14th."
Benjamin's oral admission
"The oral statement of Accused No.1, however, where he purportedly says, 'I only help hang up Sunil', that statement even by itself is sufficient for a finding of guilt since it puts him on the scene of the crime assisting in the hanging. So, again, you will therefore give to each of those statements whatever weight you wish to, which is consistent with the truth in this trial, as you find them. That is a matter solely for you. The statements are before you, you will decide whether each statement is true in whole or in part. You accept the part you find true and you reject the parts you find not true."
"In our view, when the question of oral admission arises, judges must give a robust direction pointing out the heavy burden that is cast on the State, in order to secure a conviction on oral admission alone and directing their attention to the inherent dangers of such evidence and how difficult it is to disprove."
The necessary direction in relation to Roseanne Ganga's evidence
" you may conclude that when Roseanne first spoke to her father-in-law and Sgt. Flanders, she did not say that she saw the accused persons. So those are what you may consider to be weaknesses in her identification evidence
"Now in relation to that particular statement where she is saying that she heard the deceased say, 'Deenish boy, what you doing meh.' You must be satisfied that Roseanne did not concoct or distort this statement to the State's advantage or to the Accused No. 1's disadvantage, and that she did not give this statement in evidence out of any malice or ill-will towards him
It was put to her by Mr Alleyne-Forte that she did not tell Officer Flanders when she first spoke to him in the morning that it was Deochan, and she said, 'Yes' she did. She said that when she got to her father's-in-law house it (sic) about 4.30 am and it was put to her by Mr Alleyne-Forte that: 'You told your father-in-law, "Pappy, Sunil heng himself'. And she said that that is not true, she told her father-in-law that she saw Sunil hanging.
Now, you will recall that Mr Chadrabooj Ganga said in evidence that when Roseanne came to his home at about 5 o'clock in the morning of the 13th, she told him, 'Pappy, Sunil heng himself." Also, you would recall that Sgt. Flanders stated that when he spoke to her at 7.00 am. that morning she told him she had gone to bed and when she awoke she saw the deceased hanging. If you accept the evidence of Mr Ganga or Sgt. Flanders, then you may consider that such evidence reflects negatively on Roseanne's credibility. One would reasonably have expected her it's a matter for you, but one would reasonably have expected her, that when she first spoke to them to have told them, the truth. At the end of the day, taking those things into consideration, you will give to her evidence whatever weight you see fit."
"The problem as to how to deal with evidence of a cell confession is not new. There has long been an obligation on judges to warn a jury about the special need for caution in cases which are analogous to those of accomplices. These include cases where the witness's evidence may have been tainted by an improper motive: R v Spenser  AC 128, 134E per Lord Hailsham LC; Archbold 2002, paras 4-404m, 4-404o. It has been held by the Supreme Court of Canada that a warning was necessary in a case where evidence was given by two prison informants who had a strong motivation to lie and who had approached the police when they perceived that some benefit could be exchanged for their testimony: Bevan and Griffith v The Queen (1993) 82 CCC (3d) 310. The High Court of Australia has held that it would only be in exceptional cases that a prison informer would not fall into the category of witnesses about whom a warning should be given by the trial judge of the dangers of convicting on evidence which is potentially unreliable: R v Pollitt (1992) 174 CLR 558 "
Section 64(2) of the Supreme Court of Judicature Act 1964
"The President on the advice of the Minister on the consideration of any petition for the exercise of the President's power of pardon having reference to the conviction of a person on indictment or to the sentence, other than sentence of death, passed on a person so convicted, may at any time
(a) refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or
(b) if he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court for their opinion thereon, and the Court shall consider the point so referred and furnish the President with their opinion thereon accordingly."
Should the appellants be permitted to raise the question of their fitness to plead and, if so, should the case be remitted to the Court of Appeal for consideration of this and related issues?
"The primary psychiatric disorder is mild learning disability. This is also referred to in diagnostic terms as mental retardation. It is only possible to make this diagnosis by considering the psychiatric, social and developmental history in conjunction with the psychological findings of Dr Green. The learning disability, in diagnostic terms is mild but this terminology refers to comparison with other people with learning disability.
Mr Benjamin has convincing evidence of cognitive impairment on psychological testing. The diagnosis is supported by the history of him needing significant support with all but the simple activities of daily living, his description of only really undertaking work that was simple and with a high degree of instruction and supervision. His capacity to use normal, everyday speech and manage his own self-care in basic terms is entirely compatible with the diagnosis of mild learning disability and explains why the impairment would not be obviously apparent.
When dealing with a diagnostic category that is defined in part by a cut-off on a psychological test there can be situations where the diagnosis is contentious. In my view the impairment described in the history, observed at interview and results of psychological testing mean that this diagnosis can be made with relative certainty.
Mr Benjamin's fitness to plead and stand trial at the time of the alleged offence is an issue that can be relatively easily considered as learning disability is a stable state and his learning disability or intellectual impairment will be unaffected by the time that has passed since the original trial. I have considered separate criteria relating to fitness to plead and stand trial:
[Dr Latham then considered each of these criteria viz. (i) Understanding the charges; (ii) Deciding whether to plead guilty or not; (iii) Exercising his right to challenge jurors; (iv) Instructing solicitors and counsel; (vi) Giving evidence in his own defence. He then expressed his view on the appellant's fitness to plead.]
In summary, when considering these criteria as a whole it is unlikely that Mr Benjamin is and was fit to plead and stand trial."
" the level of understanding he had of the contents of the statement is likely to be very limited. Again, there is dispute as to whether Mr Benjamin dictated the confession or whether he was merely asked to approve a statement written by someone else. Irrespective of whether Mr Benjamin was capable of producing the statement of his own volition it is very unlikely that he was able to understand it in detail or even if he could whether he can be assumed to have made a decision to sign the statement in an informed way. In other words, his intellectual impairment means that he was extremely vulnerable to misunderstanding the process of making a statement and that statement is therefore of questionable reliability. In place of the usual intellectual and cognitive processes for making decisions about this kind of issue, Mr Benjamin may be more influenced by fear, by suggestions from other people and a willingness to do what is being suggested or encouraged. In other words the statement cannot be truly his."
"Whilst Mr Benjamin describes some rudimentary understanding of the Court process, I am not convinced that he has an ability to fully comprehend the nature of the trial against him and would have significant difficulty in instructing his legal team as to his defence, not least because Mr Benjamin has significant difficulties in reading and writing."
"The primary psychiatric disorder is mild learning disability. This term is preferred to the diagnostic category of mental retardation. The diagnosis is made with a combination of the findings of Dr Green, the description of school performance, subsequent academic achievements and the degree of social impairment. The degree of learning disability in diagnostic terms would be mild. The clinical picture is that Mr Ganga, whilst having a general ability to use everyday speech and to provide his own self-care has intellectual impairment becoming most pronounced or apparent in academic or work settings.
The difficulties with emotional regulation and behavioural control are similar in nature to those that would be seen in the general population but are more pronounced."
"What is clear however is that whilst the intellectual impairment on its own cannot be said to make the confession unreliable it is a psychiatric risk factor for this and the confession being made in the absence of any advocate increases the risk of this being unreliable. If Mr Ganga was subject to particularly oppressive interviewing styles including threats then his vulnerability to making unreliable statements would have been magnified."
"It is my opinion that Mr Ganga's damage to his cognitive functioning, along with his low IQ and almost certain learning disability, will have made it very difficult for him to understand the process of a trial and to properly instruct his legal representatives. The fact that Mr Ganga can neither read nor write will also have compromised his ability in these regards."
"Production of fresh evidence in these circumstances and an application that it be received will always call for the closest and most careful scrutiny. The Board is anxious to make clear that it should not be assumed that even highly persuasive evidence produced for the first time at the final appeal stage will be admitted."
"44. (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."
"The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: see Woolmington v Director of Public Prosecutions  AC 462, 482-483, per Viscount Sankey LC. In Stirland v Director of Public Prosecutions  AC 315, 321 Viscount Simon LC said that the provision assumed: 'a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.' As he explained later on the same page, where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility. Where the verdict is criticised on the ground of a misdirection such as that in the present case, and no question has been raised about the admission of inadmissible evidence, the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence."
Is the imposition of the death penalty cruel and unusual punishment and contrary to section 5 of the Constitution of Trinidad and Tobago?