Chitrah Dookran and Another v The State

JurisdictionUK Non-devolved
JudgeLord Rodger of Earlsferry
Judgment Date07 March 2007
Neutral Citation[2007] UKPC 15
CourtPrivy Council
Docket NumberAppeals Nos 78 of 2005 and 79 of 2005
Date07 March 2007

[2007] UKPC 15

Privy Council

Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Appeals Nos 78 of 2005 and 79 of 2005
(1) Chitrah Dookran
(2) Malharri Dookran
Appellants
and
The State
Respondent

[Delivered by Lord Rodger of Earlsferry]

1

The appellants are Chitrah Dookran ("Chitrah") and her mother, Malharri Dookran ("Malharri"). On 3 August 2001 they were convicted at San Fernando Assizes of the murder, on or about 6 September 1997, of Chanardai Bookran-Bissoon ("Chanardai"), who was the sister of Chitrah and the daughter of Malharri. Their co-accused, Devon Cunningham, was acquitted.

2

The broad outline of the prosecution case against the appellants can be shortly stated. The prosecution contended that both the appellants had, at some stage, had a sexual relationship with a certain Majib Mohammed (also called "Grapo"). After his relationship with Chitrah came to an end, he entered into a relationship with Chanardai who had a son by him. Because of this relationship, Chitrah was jealous of Chanardai. She complained to Malharri that Chanardai was causing her pain and that she wanted to kill her. The two women then conspired to hire someone to kill Chanardai. Chitrah approached Devon Cunningham, who was staying nearby and whom she knew as "Fella", and asked him to kill Chanardai for a fee of $2000. He agreed and, at about 11 pm on 6 September 1997, Cunningham went to the Dookrans' house. The appellants took him to the bedroom where Chanardai was asleep. Cunningham then proceeded to strangle her. Awakened by her screams, Boodhanie Dookran ("Boodhanie"), another daughter of Malharri and sister of Chitrah and Chanardai, went to the bedroom and saw a man, whom she identified in court - but not at the identification parade held shortly after the murder - as Cunningham, sitting on top of Chanardai. The appellants were standing nearby. They told her not to make any noise and took her out of the room to the gallery of the house. Peeping through a space in the door, she saw the man holding Chanardai below her arm with the two appellants assisting him. They took Chanardai's body to a downstairs room at the back of the house. Malharri then came back upstairs and said she was going to call a neighbour to see what was wrong with Chanardai.

3

In the case of each of the accused there were two strands to the prosecution case: first, the eyewitness evidence of Boodhanie, and, secondly, the respective incriminating statements which they were alleged to have made to the police. At the trial the admissibility of all three of those statements was contested. Unfortunately, because the evidence at the trial was not taken down in shorthand and the only record comes from the judge's notes, there is no clear record of the precise objections taken by counsel.

4

In the case of Chitrah the Court of Appeal were able to infer that her objection was based on an allegation that her statement had been preceded by threats and promises by a police officer, WPC Villafana, whom the prosecution did not call as a witness at the trial, without giving any reason for her absence. So the allegations against her in Chitrah's evidence went uncontradicted.

5

In the case of Malharri the Court of Appeal were unable to deduce precisely what the objection was. Nevertheless, it is plain, at least, that she contended not only that she had been kept in custody without proper food for a long period before her statement was taken but also that Sergeant Dhanraj Bispath made her take off her glasses and threatened to bang her head against the wall if she did not give a statement which he would write down. She subsequently put her cross on the statement which Sergeant Bispath had written out.

6

Finally, in the case of Cunningham, he said that he had signed the certificate on his statement without knowing its contents, but induced by promises that he would be allowed to leave the police station.

7

After hearing evidence on the voire dire in the cases of Malharri and Cunningham, the judge ruled their statements to be admissible. The judge did not hold a voire dire in the case of Chitrah and her statement was admitted in evidence.

8

At the trial Cunningham gave evidence that he had been elsewhere at the time of the killing and led witnesses in support of his alibi.

9

Both appellants appealed against their conviction on a number of grounds. In particular, they both applied to the Court of Appeal to be permitted to adduce additional psychiatric evidence. Chitrah also applied to be allowed to introduce fresh evidence from a clinical psychologist. For present purposes it is unnecessary to consider Chitrah's application. In the case of Malharri the fresh evidence was said to be relevant both to diminished responsibility – which is not an issue before the Board - and to the admissibility of her incriminating statement. The additional evidence indicated inter alia that Malharri was of low intelligence and had a history of being battered by her husband. The submission was that, if the judge had been aware of this, it would have played a role when he was determining whether she gave her statement voluntarily.

10

So far as diminished responsibility was concerned, under reference to the speech of Lord Bingham of Cornhill in R v Pendleton [2001] UKHL 66; [2002] 1 WLR 72, 83, and having regard to Malharri's oral evidence at the trial, the Court of Appeal rejected her application on the ground that it was not sufficiently cogent to persuade them that her conviction was unsafe. In particular, the court considered that the psychiatrist's report did not indicate how any abnormality would have affected her behaviour. Referring back to this conclusion, in relation to the admissibility of Malharri's incriminating statement the Court of Appeal held:

"Miss Chote submitted that the 'psychiatric' material was particularly significant in the context of the witness Malharri's statement. If, however, as we have found, the medical evidence was deficient, it would follow that what was contained in the report could have had no effect on the outcome of the voire dire. It is noteworthy that when Malharri was examined by the psychiatrist he made no finding as to the voluntariness of any admission she may have made to the police."

Therefore the court also rejected this basis of her application for fresh evidence to be introduced.

11

Besides her fresh evidence application, Chitrah advanced a number of other grounds of appeal. In particular, she submitted that the trial judge should have held a voire dire (ground 3) and, in any event, the prosecution had failed to disprove her allegations about threats and promises made by WPC Villafana (ground 1). The Court of Appeal upheld both these grounds of appeal but, applying the proviso, nevertheless held that there had been no miscarriage of justice and dismissed her appeal against conviction. Chitrah has appealed to the Board on the single ground that, in holding that there had been no miscarriage of justice and upholding her conviction, the Court of Appeal applied the wrong test. Applying the appropriate test, the Board should allow the appeal and quash her conviction.

12

Their Lordships find it convenient to deal with Chitrah's appeal at this stage. As Mr Blake QC, on behalf of Chitrah, and Mr Dingemans QC, on behalf of the State, agreed, once the Court of Appeal had held that Chitrah's statement should not have been admitted in evidence before the jury, the court could only sustain her conviction if it could be said that, without the evidence of that statement, a reasonable jury would inevitably have convicted Chitrah. See, for instance, Stafford v The State [1999] 1 WLR 2026, 2029-2030 per Lord Hope of Craighead.

13

In considering whether to apply the proviso, the Court of Appeal rightly drew attention to the evidence of Boodhanie who was an eye-witness to the killing. They also rightly rejected a submission – which was not renewed before the Board – that her evidence was not a sufficient basis for the jury to hold that Chitrah and her mother had been active participants in the killing of Chanardai. The Court of Appeal continued:

"The jury by their verdict were satisfied that Boodhanie's evidence was truthful. They no doubt would have taken into account the warning by the trial judge that they should approach her evidence with caution. In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice."

14

Their Lordships are content to proceed on the basis that, even in the absence of the evidence of Chitrah's statement, a reasonable jury might well have regarded Boodhanie's evidence as truthful. But that is not the test. On the contrary, the Court of Appeal were entitled to apply the proviso and uphold Chitrah's conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.

15

Although Mr Blake pointed to a range of factors which the Board should bear in mind when applying the appropriate test, their Lordships need mention only two.

16

First, on 7 September Boodhanie gave an initial statement to the police which did not implicate the appellants or their co-accused. Then, on 11 September, the police took her into custody and she was interviewed about her sister's death by different officers. She said in evidence that, while she was at the police station, an officer was...

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