Ali v State of Trinidad and Tobago; Tiwari v Same

JurisdictionUK Non-devolved
JudgeLord Carswell
Judgment Date02 November 2005
Neutral Citation[2005] UKPC 41
CourtPrivy Council
Docket NumberAppeal No. 56 of 2004
Date02 November 2005
(1) Kumar Ali
Appellant
and
The State
Respondent
and
(2) Leslie Tiwari
Appellant
and
The State
Respondent

[2005] UKPC 41

Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

Appeal No. 56 of 2004

Appeal No. 63 of 2004

Privy Council

[Delivered by Lord Carswell]

1

The appeals before the Board raise in a rather extreme form the issue of how appellate courts should determine the date from which an unsuccessful appellant's sentence should run. Since legislative provisions and the practice of appellate courts vary in different jurisdictions, their Lordships have examined the issue in relation to these appeals in order to assist courts in adopting a principled approach to it.

2

The applicable provision in the law of Trinidad and Tobago is contained in section 49(1) of the Supreme Court of Judicature Act (cap 4:01), which reads:

"The time during which an appellant, pending the determination of his appeal, is admitted to bail, and subject to any directions which the Court of Appeal may give to the contrary to any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence, and, in the case of an appeal under this Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the Court of trial or the sentence passed by the Court of Appeal, shall, subject to any directions which may be given by the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence."

This provision mirrors that contained in section 14(3) of the English Criminal Appeal Act 1907. Their Lordships will discuss later in this judgment the changes made in the law of England and Wales by subsequent legislation. The effect in Trinidad and Tobago accordingly is that a prisoner in custody on remand awaiting trial or pending determination of an appeal does not receive credit for the time so spent, subject to contrary direction from the Court of Appeal. During that time he will be subject to a more lenient prison regime in a number of respects (as to which see Jagessar v The State (No 2) (1990) 41 WIR 373).

3

The appellant Leslie Tiwari was convicted on 12 April 1989 after a trial before Wills J and a jury on counts of rape, two charges of robbery with aggravation and arson. He was unrepresented at the trial. The judge sentenced him on the count of rape to 30 years' imprisonment with hard labour and 20 strokes of the whip, 10 years' imprisonment with hard labour on the first robbery count, to run consecutively to the sentence of 30 years, 10 years' imprisonment with hard labour on the second robbery count, concurrent with the sentence on the first robbery count, and imprisonment for life on the count of arson, to run consecutively to the other sentences.

4

Tiwari appealed to the Court of Appeal against conviction and sentence by notice dated 1 May 1989, drafted by himself. A further notice of appeal drafted by counsel was filed on 14 February 1991. It appears that a letter was written to the court by or on behalf of the appellant on 4 September 1991 complaining of the delay in having the appeal heard. The appeal was eventually heard over four days in July 1995 and judgment was reserved on 21 July 1995. Judgment was not delivered until 31 October 1996, when the appeal against conviction was dismissed. On sentence, the court (de la Bastide CJ, Sharma and Gopeesingh JJA) considered that the combination of sentences was inordinately long and ordered that they all run concurrently. De la Bastide CJ, giving the judgment of the court, added in conclusion:

"There has been an unusually long delay in the delivery of this judgment and accordingly we order that the sentences should run from the 21st July, 1995, the date on which judgment was reserved."

5

Tiwari appealed to the Privy Council against conviction and sentence, by special leave granted by order dated 15 November 2000. The major ground of appeal considered by the Board was that the trial judge had failed to advise the appellant of his right to call witnesses in his defence and if necessary to adjourn the trial in order to enable him to do so. It was represented to the Board that there were two witnesses whom he had wished to call at his trial and who could have given material evidence in his defence, a case which had not been made to the Court of Appeal. Lord Hutton, giving the judgment of the Board [2002] UKPC 29, para 32, expressed the view that it was most unsatisfactory that more than five years after the judgment of the Court of Appeal the appellant should submit for the first time that there were witnesses whom he was unable to call at his trial because of the default of the trial judge. Their Lordships considered nevertheless that it would not be right without further investigation to reject the account given in affidavits sworn by the two named persons. The Board therefore remitted the case to the Court of Appeal to investigate their evidence and consider further whether the convictions of the appellant should be quashed in the light of the Board's judgment.

6

On the issue of sentence counsel appearing for the State did not oppose an order that sentences should run from 14 February 1991, the date on which the notice of appeal settled by counsel was filed. Lord Hutton stated at para 42 of his judgment:

"Their Lordships appreciate that a convicted prisoner in custody who has served notice of appeal is given a considerable number of privileges which are withheld from a convicted prisoner who has not appealed, but it appears to their Lordships that this consideration is greatly outweighed by the fact that an appellant who has served notice of appeal and who has not been admitted to bail has lost his liberty and is confined in prison, albeit with a number of special privileges. Their Lordships also appreciate that the distinction between a convicted prisoner who appeals and one who does not is a distinction recognised by section 48(1) [of the Supreme Court of Judicature Act] and by the Prison Rules, but nevertheless section 49(1) expressly gives the Court of Appeal a discretion to direct that the time in custody after service of notice of appeal shall count as part of the term of imprisonment. In these circumstances their Lordships consider that there is much force in the appellant's submission that time that is spent in prison in Trinidad and Tobago awaiting determination of an appeal should, as in England, count as part of the term of imprisonment passed on the appellant, unless the appeal is one devoid of any merit. But their Lordships also consider that it would not be appropriate for the Board to express a concluded opinion on the point without the Court of Appeal having had an opportunity to hear submissions on the issue and to express its opinion on the matter. Therefore their Lordships will also remit the matter of the issue of the exercise of the discretion under section 49(1) in this case to the Court of Appeal for it to give that matter further consideration."

7

The Court of Appeal (Nelson, Lucky and Kangaloo JJA) heard the remitted appeal and gave judgment on 31 July 2003. After examining the material placed before it by the appellant it held that no credible evidence had been presented which would have established that the evidence of the two proposed witnesses would have been material to the case. It therefore confirmed the appellant's conviction. On the issue of sentence the court considered the changes in the English legislation since the Criminal Appeal Act 1907, which it considered was designed to cause a change of approach, but concluded that whether there should be a similar change in Trinidad and Tobago was a matter within the exclusive domain of Parliament. Nelson JA, giving the judgment of the court, stated at para 56:

"We emphasize that in substituting a sentence a Court of Appeal must necessarily apply afresh the principles of sentencing. It must take all relevant facts into consideration, the period in remand, the known conduct of the prisoner, the heinousness of the offences committed."

He went on to say at paras 68-69:

"68. In considering the exercise of our discretion we have considered the factors referred in paragraph 56 hereof. We consider it important that the appellant from as early as September 1991 has persisted in an elaborate attempt to hoodwink the appellate courts into believing that he had credible evidence that he was wrongly identified and that Wills J denied him that opportunity …

69. Further, the crimes committed by the appellant are particularly dastardly, heinous and offensive to the community's values. He has shown no remorse at any time during the remand period."

8

Nelson JA set out the conclusions of the court in paras 70 to 73:

"70. Nevertheless we must take into account that the period of remand is long. We give some credit for time served, as the first panel did. Accordingly we would direct that the period from the filing of the appeal to the date of the purported letter to the clerk of appeals dated September 4, 1991 should be treated as part of the term of imprisonment substituted by the first panel.

71. We bear in mind...

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