Bernard v The State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 10 May 2007 |
| Neutral Citation | [2007] UKPC 34 |
| Court | Privy Council |
| Docket Number | Appeal No 118 of 2005 |
| Date | 10 May 2007 |
[2007] UKPC 34
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Lord Carswell
Sir Christopher Rose
Privy Council
[Delivered by Lord Carswell]
The appellant Wilberforce Bernard was on 22 January 1996 convicted, after a trial at the San Fernando Assizes before John J and a jury, of the murder on 4 February 1990 of Ramnarine Saroop. The judge imposed the mandatory sentence of death. An earlier trial had commenced in March 1995, but aborted after several days and the jury was discharged. The Court of Appeal (Ibrahim, Permanand and Jones JJA) dismissed his appeal against conviction on 24 September 1997 and his petition for special leave to appeal was dismissed by the Privy Council on 22 October 1998. The President of the Republic of Trinidad and Tobago on 30 January 2004 referred the case back to the Court of Appeal, following consideration of a petition dated 3 November 1999 and a supplemental petition dated 18 June 2003. The petitions were based on allegations of unfairness in the appellant's trial, supported in part by fresh evidence. The Court of Appeal (Jones, Warner and Archie JJA) on 31 January 2005 upheld the appellant's conviction and dismissed his appeal. The Privy Council on 4 July 2005 granted him special leave to appeal as a poor person.
On 4 February 1990 at about 11 pm the deceased man Ramnarine Saroop and his family were in their house at 80 Poona Road, Whiteland, when there was a bang at the front door, which was a sliding door consisting of two glass panels. Mr Saroop's daughter Indra Seunath woke her father and went with him into the living room. She saw a man in a blue overall, with a gun in his hand, shouting "Open up! Open up! This is the police. We have a gun". He started kicking the door, which appeared to be about to give way. Ms Seunath ran to her bedroom and locked herself in. When she came out she found her father lying in his room, covered in blood. Post mortem examination confirmed that he died from shock and haemorrhage as a result of a shotgun injury. The sliding door had come off its track and was leaning against a wall. Ms Seunath said that she had a good view of the man at the door, as the porch light and living room light were on. The door, on which she saw what she variously described as a hand print or palm print, was dusted in her presence for fingerprints.
The appellant accompanied police officers to Couva police station on 22 February 1990 and was transferred to San Fernando station on 23 February. The time of his formal arrest was not established by the evidence before the Board. He was seen by Assistant Superintendent Browne on 24 February, when he was told that a fingerprint impression was traced to be his. The appellant replied after caution "I ent know nothing about that officer".
At an identification parade held on the morning of 25 February 1990 Indra Seunath picked out the appellant, stating, according to Inspector Missette, "This is one of them." The appellant claimed in evidence at trial that she merely said that he looked like one of the persons, though Ms Seunath denied that and said that she identified the appellant as the man who was at her home. The appellant said that there were persons on the parade who did not resemble him, that he stood out at the parade as the only man wearing shorts or a sleeveless T-shirt and that he was not told that he could have a lawyer, friend or relative present or that he could object to anyone forming part of the parade. He also said that when Indra Seunath came into the room Inspector Missette told her that the person who had attacked her home was on the parade within hearing distance. Both Inspector Missette and Ms Seunath denied that he had said that. Inspector Missette stated that prior to the commencement of the parade he had told the appellant that he was a suspect and that a report was investigated, to which the appellant replied "Boss I was there. I only push down the door". The appellant denied making this statement.
ASP Browne said that about 1 pm on the same day, 25 February, he was in his office when the appellant told him that he wanted to speak to him and said "I want to tell you exactly what happen". ASP Browne called in Sergeant Singh, who recorded a statement in writing from the appellant, commencing at 1.05 pm. No justice of the peace was available, but the next day the appellant was taken to the office of Mr Andrew Boodhai JP. Mr Boodhai's evidence was that the appellant identified his signature, said that the statement had been read over to him, that no promises or threats were used, that he had given the statement of his own free will and that its contents were exactly what he told the police. The appellant averred, on the other hand, that Mr Boodhai asked only if the signature on the statement was his, and that he did not say that the statement was made of his own free will. In the statement the appellant admitted being a member of the group who went to commit a robbery at the house of the deceased and seeing one of them with a gun. He said that he pushed part of the sliding door down after it had been kicked in by another of the group. He went into the house, then when he heard a gun shot he ran off with the other men.
The appellant claimed, both in the voir dire and in the main trial, that he had been kept handcuffed to a railing in the CID office in San Fernando station from shortly after his arrival there until 25 February. He had only one meal between 22 and 25 February, no toilet or washing facilities and nowhere to sleep. On 25 February he was assured by Inspector Trevor Raymond that he could assist him and that he would not trick him in any way, but they had some documents that they wished him to sign, as they had nothing on which to charge him, and that if he signed them he would be free to return home. Sgt Singh then came in and produced some papers, which the appellant signed, not knowing what was in them and without reading them.
The appellant averred in his evidence at trial that he had been at his brother's "birthnight" party from 8 pm until 3 am on the night of 4-5 February 1990 and had not gone anywhere else that night. It is to be noted that at a later stage, when the appellant's petition was lodged, he changed his story and said that he had been drunk and went in a car to the scene with other men, thinking that they were going to another party. He was "partially drunk" and asleep in the car until after the murder had taken place. He maintained that he had not gone near the broken door or touched it.
One of the main pillars of the prosecution case was the fingerprint evidence. As presented at the trial in January 1996 this was straightforward. WPC Wells on 5 February 1990 dusted the glass panel of the sliding door for fingerprints and found some impressions both on the outside and on the inside. She marked a circle round certain impressions, which were photographed by PC McLean in her presence. He developed the film and produced prints of a palm impression and a finger impression. The prints which he made were given by him to WPC Wells and identified by her in court. He also gave copies to Assistant Superintendent Andrews, a fingerprint expert with the police. ASP Andrews compared these photographs with the appellant's fingerprints recorded on a fingerprint slip on 26 February 1990 by Sgt Singh. He prepared a comparison montage of enlarged photographs of a fingerprint from the door and that of the appellant's left ring finger. He identified the photographs in court and gave his opinion that one of the prints on the glass door matched in 16 ridge characteristics the print made by the appellant's left ring finger.
The fingerprint evidence was rather less clear at the aborted first trial. Mr Ravi Rajcoomar, an experienced advocate who was then representing the appellant, cross-examined the witnesses in some detail about the fingerprints and palm prints and the linking of the photographs produced with the taking of the prints. Their Lordships do not propose to rehearse the details of the evidence given on this occasion, as it is sufficient to say that in consequence of Mr Rajcoomar's cross-examination the trial judge directed the jury (Record, p 123) to disregard the fingerprint slip on which the appellant's fingerprints had been taken, which may have left an unbridgeable gap in the proof of the fingerprint evidence.
A charge of murder was originally laid against the appellant, Dexter Cox, Ronnie Edmund Richins and Clifton Wiseman. At the conclusion of the preliminary inquiry the magistrate acceded to the submission of counsel for Wiseman that an insufficient prima facie case had been made out against him and he was discharged. The trial of the other three accused commenced on 17 March 1995 and aborted on 24 March when it was discovered that a juror was disqualified and the jury was discharged. The resumed trial commenced on 4 January 1996. In the course of the trial the judge ruled Cox's confession inadmissible, as he had doubts about its voluntariness, and as this was the only evidence linking him with the crime he was acquitted by direction. At the conclusion of the trial Richins was found not guilty, but the appellant was convicted. The sole evidence linking Richins with the crime was his written confession statement, which he claimed was not made by him but was presented to him for signature by the police. It follows that the jury must have felt some doubt about the authenticity of the statement when acquitting Richins.
The resumed trial was due to open on 3 January 1996. The appellant had engaged Mr Subhas Panday to represent him, but on the morning of trial Mr Panday excused himself from appearing for...
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