Hunte and Khan v The State (Trinidad and Tobago)
|Lord Toulson,Lord Mance,Lord Clarke,Lord Reed,Lord Sumption,Lord Neuberger,Lady Hale
|16 July 2015
| UKPC 33
|Appeal No 0088 of 2012
|16 July 2015
 UKPC 33
Appeal No 0088 of 2012
From the Court of Appeal of the Republic of Trinidad and Tobago
John Perry QC Kate O'Raghallaigh
(Instructed by Simons Muirhead & Burton)
Julian B Knowles QC Richard Thomas Amanda Clift-Matthews
(Instructed by Simons Muirhead & Burton)
>Thomas Roe QC Alexander Halban (Instructed by Charles Russell Speechlys)
Heard on 4 and 5 February 2015
(with whom Lord Mance, Lord Clarke, Lord Reed and Lord Sumption agree)
On 31 March 2008 at the Port of Spain Assizes, after a four week trial before Charles J and a jury, Timothy Hunte and Shazad Khan were convicted of the murder of Ramkhelawan Ray Charran and sentenced to the mandatory death penalty. Their appeals to the Court of Appeal of Trinidad and Tobago were dismissed. On 29 October 2012 they applied for permission to appeal to the Board. In the case of Khan the Board granted permission to appeal on a single ground. In the case of Hunte, the Board adjourned the application for permission to appeal on three grounds for an oral hearing, with the appeal to follow immediately if permission were granted. The Board has heard full argument on those grounds and it is satisfied that they raised matters which required full consideration by it. Permission to appeal on those grounds is therefore formally given.
If the appeals against conviction are unsuccessful, the appellants seek leave to appeal against sentence on the grounds that
a) it would now be unconstitutional for the sentences of death to be carried out (applying the principles established by the Board in ), and
b) the Board being seized of their appeals against conviction has jurisdiction to order commutation of the sentences in accordance with its decision in ; .
The deceased was shot and killed on 21 August 2003 at his home on Mon Plaisir Road, Charran Drive, Cunupia. He was sitting in a back room counting money. The prosecution's case was that Hunte was the killer and Khan assisted him in the commission of the crime by driving him to the scene, waiting outside for him in the car and driving him away immediately afterwards.
The murder was witnessed by a domestic employee, Nadine Maraj ("Nadine"), who was working in the kitchen when the killer entered the house. She later identified Hunte as the killer at an identification parade. Identification evidence was given by two other witnesses who were in the vicinity at the time. One was an employee of the deceased named Ivan Ahibal ("Ahibal"). The other was the deceased's brother Toolsie Sharan ("Toolsie"). Ahibal identified both appellants at identification parades, Khan as the driver of the car and Hunte as the front seat passenger. Toolsie identified Hunte at an identification parade. Ahibal and Toolsie both described seeing Hunte come from the direction of the house after they heard several loud explosions. They said that he pointed a gun at them. They retreated and Hunte then got into the car, a white Nissan B15, which was driven away. Toolsie wrote down the car's registration number.
An hour or so later the car was found by a police officer parked about one mile from where the shooting had taken place. It was examined by forensic science experts who found a fingerprint on the rear-view mirror matching those of Hunte.
On 29 October 2003 Khan was arrested and interviewed in relation to the murder. He denied involvement in it and was released. On 17 November 2003 Hunte was arrested and taken to Barataria Police Station, where he was visited by a legal attorney, Joseph Melville ("Melville"). After the attorney had left, Hunte was seen by two police officers, Sergeant Phillip and Officer Charles, who alleged that he made an oral confession to murder. Later that day Hunte signed a confession statement in the presence of those officers and a Justice of the Peace ("JP"), Winston Best.
In summary, the Prosecution's case against Hunte was based on the identification evidence of Nadine, Ahibal and Toolsie, the fingerprint in the car and the confession evidence. The case against Khan was based on the identification evidence of Ahibal.
At the trial, Hunte's counsel objected to the admission of the confession evidence and the judge held a voir dire. Hunte denied making the oral confession and said that the written confession statement was a story fabricated by the police which he was induced to sign by a combination of physical mistreatment, threats and inducements. It was further submitted that the circumstances surrounding the obtaining of the alleged confession evidence involved serious police misconduct in other respects. On the voir dire evidence was given by a number of police officers, Hunte and Melville. The JP had in the meantime died. The judge ruled that the evidence was admissible. Before the jury, Hunte gave evidence denying that he had been present at the scene. He and Melville also gave evidence regarding events in the police station similar to that which they gave on the voir dire. Khan did not give evidence and his counsel elected not to make any closing speech to the jury.
Hunte's grounds of appeal are that for a combination of reasons the judge ought not to have admitted the confession evidence. Khan's ground of appeal is that the judge failed to direct the jury properly on the subject of joint enterprise and secondary liability.
As developed in argument, the essence of Khan's complaint was that on the evidence a properly directed jury could have concluded that Khan was party to a conspiracy to rob rather than a conspiracy to murder, but the judge's directions failed to allow for that possibility.
On the voir dire the judge received conflicting accounts of the circumstances leading to the disputed confession evidence. Melville said that he arrived at the police station on 17 November 2003 sometime after 3 pm and asked at the charge room desk to see Hunte. The police prevaricated and he was told by an officer named Jacob (or so he believed) that Hunte did not wish to see him. Melville challenged the officer to make a note of the incident in the police station diary, because he intended to make a formal complaint. As a result of his persistence, after a time Melville was taken to see Hunte in a room where several police officers were present. He asked to see Hunte in private, but this request was refused. He was told that the police feared that if Hunte were left with Melville on his own he might escape through a window. Melville suggested that he speak to Hunte in his cell, which could be locked, but the police were not prepared to go along with that idea. They insisted that any discussion between Melville and Hunte must be in the presence of police officers. In those circumstances Melville had a short whispered conversation with Hunte, after which he told the police that Hunte had nothing to say orally or in writing and was not prepared to give a statement. Before leaving the police station Melville told Hunte not to sign anything other than a fingerprint form. He also gave the police his telephone number to call in the event of any further development.
The main police witnesses on the voir dire were Sergeant Phillip and Officer Charles. Phillip said that Melville specifically asked to see Hunte in the presence of police officers. He described it as an unusual request. He had made no mention of it in his deposition before the magistrates' court, and he said that he could not find his pocket diary, which he must have mislaid. He asserted that a note was made about it in the police station report diary, which he read at the time and at a later date about which he could not be specific, but the document was not available.
Melville's evidence followed that of the police witnesses. Perhaps wisely, counsel for the prosecution did not attempt to put to him the inherently improbable suggestion that it was he who asked to see Hunte in the presence of police officers. The line taken in cross-examination was to elicit Melville's agreement that, within the constraints imposed on him by the police, he was able to inform Hunte of his right not to say anything, or to stand on an identification parade, and able to advise Hunte to exercise those rights.
Sometime later Phillip and Charles took Hunte to the Homicide Office at the police station. Although Melville had left his telephone number and asked to be called if there was any further development, he was not informed. According to the police, Hunte was cautioned and immediately stated:
"Officer, I want to come clean. I was running from the police and Roshan tell me he going to link me up to go abroad and then he tell me he want me to shoot a man for him. The day before the thing happened, Roshan and the driver Richard carry me down Cunupia and Roshan show me an Indian man driving a big white car. The man was driving out the street he was living in. Roshan show me the house where the man live. The next day I went down by Roshan and me and the driver Richard went down by the man in a white B15. Richard was the driver. Richard stopped by the house and I drop out and I see a woman. I ask the woman where the man who does drive the white car and she carry me in a room and I see the man sitting by a desk. I fire four to five shots and the man – I shoot four to five shots and the man falls. I went and I take up about $6,000 and I walk out of the house."
According to the police, Hunte was told that he might be charged and was again cautioned. He...
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