Benjamin and Ganga v The State

JurisdictionUK Non-devolved
JudgeLord Kerr
Judgment Date13 March 2012
Neutral Citation[2012] UKPC 8
Date13 March 2012
Docket NumberAppeal No 0113 of 2009
CourtPrivy Council
Deenish Benjamin and Deochan Ganga
(Appellant)
and
The State of Trinidad and Tobago
(Respondent)

[2012] UKPC 8

Before

Lord Kerr

Lord Clarke

Lord Wilson

Dame Heather Hallett

Dame Janet Smith

Appeal No 0113 of 2009

Privy Council

Appellant

James Wood QC

John Jones

(Instructed by Simons Muirhead & Burton)

Respondent

Howard Stevens

(Instructed by Charles Russell LLP)

Heard on 9 November 2011

Lord Kerr
Introduction
1

On 4 December 2006 Deenish Benjamin and Deochan Ganga were convicted of the murder of Sunil Ganga at San Fernando Assizes following a trial before Lalla J and a jury. The mandatory sentence of death was imposed on both. Appeals against their convictions were dismissed by the Court of Appeal for Trinidad and Tobago on 3 July 2008. They now appeal to this court against their conviction and sentence.

Facts
2

Sunil Ganga died on the night of 12 July 2003. He was a married man. His wife was Roseanne. She gave evidence against the appellants. Deenish Benjamin was the step-cousin of Sunil. Deochan Ganga was his cousin. They both lived next door to Sunil and Roseanne.

3

Mrs Ganga testified that she and her husband had returned home at about 10.30 pm on the night of 12 July. She had entered their home, while her husband went to a shed in the garden. She heard what she thought was a bottle breaking and her husband crying out, "Deenish boy, what you doing, meh?" and then, "Roseanne, run." According to her evidence, Mrs Ganga did not run. She stayed in the house, looking out through cracks in the door. She claimed that she saw and recognised the appellants. She had known and regularly seen Benjamin and Ganga over the previous seven years. According to her, they were striking her husband. She saw them pull him to the back of the shed. Then she heard loud sounds and groaning. She saw the shed, which was made of galvanised steel, shaking. After this she heard footsteps.

4

She said that an hour or thereabouts passed before the noises ceased. Mrs Ganga then left the house. She claimed that she found her husband, hanging from a rope which had been tied to a rafter in the shed. He was dead. A broken bottle was on the ground. There was blood on her husband's face and on the walls.

5

It was not until 4.30 am, some five hours later, that Roseanne Ganga went to the home of her father-in-law, Chadrabooj Ganga to tell him that his son was dead. There is a dispute between them as to what she told him. He gave evidence that she said, "Pappy, Sunil hang himself." Mrs Ganga claimed that she said to her father-in-law that his son was hanged. It is not in dispute, however, that at the time that she told him of his son's death, Mrs Ganga did not mention the appellants' presence at the scene where he died.

6

After learning of his son's death, Chadrabooj Ganga accompanied his daughter-in-law to her home and there he found his son, hanging from the rope. The police were summoned. They arrived later that morning, at about 7.00 am. A Sergeant Flanders spoke to Roseanne Ganga. She took him to the shed where the deceased's body was still hanging. The sergeant noted stains resembling blood on the deceased's face and on the wall. He also noticed that there was a broken bottle on the floor. Both of the deceased's feet were touching the ground.

7

Sergeant Flanders interviewed Mrs Ganga at 7.10 am. She did not tell him about the two appellants at that time. But she did tell him that she had gone to bed on the night of 12 July and that when she got up at around 4.30 am she did not see the deceased in bed next to her. It was then that she went outside and saw him hanging in the shed. This account differed significantly from her evidence on trial. In her evidence she claimed that she had started to " bawl" when she saw the shed shaking and continued to "bawl" for some time. Then after the noises of groaning and footsteps ceased she went outside, calling out to the deceased. Getting no response she went to the back of the shed and saw the deceased hanging. She did not suggest that she had gone to bed at any time between her return to the house at 10.30 pm and the discovery of her husband's body.

8

On the afternoon of 13 July Mrs Ganga went to the police station and Sergeant Flanders there recorded a statement from her. In that statement she named the two appellants and gave an account of what they had done to her husband. As a result they were both arrested the same afternoon.

9

Inspector Phillip interviewed Deochan Ganga later that evening. After caution he said, "I was deh but is Deenish who kill Sunil." Between 8.17 and 9.30 pm a written statement from him was recorded. A justice of the peace was present. The statement was signed by Ganga. In it he recounted how he had been involved in a fight with the deceased some two weeks previously. On the night of Sunil's death he and Benjamin had gone to the deceased's home. According to Deochan, Sunil had thrown a bottle at Benjamin who threw it back. This struck Sunil and caused him to fall. It was at that point that the deceased cried out. Deochan claimed that Benjamin then dragged the deceased into the shed and tied the rope around his neck. Ganga helped him to lift him up. He asserted that he had left the scene as Benjamin started to hit the deceased.

10

Later that evening Benjamin was interviewed by Inspector Phillip. After being cautioned he said, "I only help hang up Sunil". He also made a written statement in the presence of a justice of the peace. In it he admitted going to the deceased's house and, when he encountered Sunil, he placed him in a headlock. Benjamin claimed that Ganga struck Sunil on the head and placed a rope around his neck. He said that Deochan then dragged Sunil into the shed. Benjamin repeated in his written confession the admission that he had helped Ganga to hang Sunil.

11

On their trial the appellants applied to have their confession statements excluded and a voire dire hearing was held. They gave evidence, denying that they had made the oral and written confessions attributed to them. Benjamin, who can neither read nor write, claimed that Inspector Phillip had obtained his signature to the statement by beating him and burning his left ear, and by telling him that his parents had been locked up and would only be released if he signed the statement. Ganga also claimed that he had been forced into signing his statement by beatings. He said that he had been given nothing to eat and that he had not been cautioned at any time. Both denied that a justice of the peace was present when they signed their statements.

12

The judge heard evidence from Sergeant Flanders that he had been present with Inspector Phillip during the interviews of the appellants; that the appropriate cautions had been given; and that food provided by Ganga's sister had been given to the appellants at the police station. Inspector Phillip testified that he had not beaten the appellants. Two other police officers stated that they had been present while Benjamin and Ganga dictated their statements. The two justices of the peace gave evidence that they witnessed the statements being signed by the appellants. The judge ruled that they had not been coerced in any way and had made the admissions contained in their oral and written statements. The statements were admitted in evidence.

The issues
13

No fewer than nine issues were raised on the appeal before the Board. They can be summarised as follows:

i) Did the trial judge fail to give appropriate directions on the matter of the appellants' confessions? In particular, should a ( R v Mushtaq Mushtaq [2005] 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
14

A Mushtaq direction is one which instructs the jury that if they consider that written or oral statements were, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. In Barry Wizzard v The Queen [2007] UKPC 21, Lord Phillips, giving the judgment of the Board, said this about a Mushtaq direction at paras 35 and 36:

"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...

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