Marlon Daniel and Others v The State of Trinidad & Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 13 June 2007 |
| Neutral Citation | [2007] UKPC 39 |
| Court | Privy Council |
| Docket Number | Appeal No 123 and 124 of 2005 |
| Date | 13 June 2007 |
[2007] UKPC 39
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Carswell]
In the early hours of 3 January 1994 the bodies of three people, Lalchan Sookhoo, Shamiroon Ali-Bocal and her daughter Nisha Ali-Wahab were found in a bedroom in Shamiroon's house at Quinam Road, Siparia, in which a serious fire had occurred. They had all died from the inhalation of toxic fumes from the fire. The appellants Marlon Daniel, Curtis Archibald (known as "Bush"), Anino Garcia ("Nino") and Curtis Marshall ("Earth") were jointly charged with the murder of the three victims. After a trial in the First Criminal Court, San Fernando before Volney J and a jury they were all convicted on 31 January 2001 and sentenced to death. Their appeal to the Court of Appeal (Hamel-Smith, Jones and Nelson JJA) was dismissed in a written judgment given on 12 April 2002. They have appealed with special leave as poor persons to the Privy Council.
On the evening of 2 January 1994 Lalchan and some friends enjoyed a convivial evening at Shamiroon's house, a two-storey dwelling situated inside a perimeter fence. Shamiroon carried on a chicken business at the premises and she was referred to regularly in the evidence as the "chicken lady". Lalchan's friends left in the later evening, leaving Lalchan, Shamiroon, Nisha and Nisha's baby in the house. The alarm was raised after midnight and police officers arrived, followed by firefighters, who extinguished the fire. The police officers found a live baby on or near a cistern a number of feet from the burning house. The doors of all the rooms in the house were locked. In an upstairs bedroom, the seat of the fire, one body was on the bed and two others lay across each other at the side of the bed. There were several LPG cylinders in the room, one of which had exploded and split in half. The engine of one of the vehicles parked in the compound outside was running, the lights were on and the gas tank cover was off. The fire was very intense and traces of motor oil were found in the bedroom on the carpet, underlay and fragments of clothing. In the course of his evidence at trial a forensic scientist expressed the opinion, which was supported by that of a fire officer and was not controverted, that the fire was not accidental.
On 4 January 1994 autopsies were carried out on the three bodies, identified as those of Lalchan, Shamiroon and Nisha. All were badly burned and all or parts of the limbs had been burned away. Tests done on blood samples from the bodies showed high levels of carbon haemoglobin, consistent with carbon monoxide poisoning. From the state of the blood the pathologist concluded that each had been alive when burning commenced and that death was caused by inhalation of toxic fumes. There were wounds on Nisha's left shoulder and back and "probably an incised wound" on the neck. A bra was twisted round Shamiroon's neck and two lengths of wire were found between her legs. An exhumation order was obtained on 26 October 1994 in respect of Lalchan's body and it was exhumed on 1 December 1994. It was further examined by the Chief Forensic Pathologist Professor Chandulal, who found a total of 126 shotgun pellets and plastic wadding from a shotgun cartridge in the pouch in which the body had been contained on burial. Two pellets were found impacted in the neck, one of the vertebrae of which was chipped, and a hole the same size as the pellets had been punched out in the skull. Professor Chandulal expressed the opinion that the gunshot wound would have been incapacitating and was potentially fatal.
The appellant Marlon Daniel was arrested and cautioned on 22 September 1994, when he said that he did not know anything about the matter. At Siparia police headquarters he was seen by Inspector Fredericks, who told him that he was investigating the murder, cautioned him and told him of his rights to representation. Daniel replied "I was not there, its Earth, Bush and Nino that went". He agreed to give a statement in writing and his first statement was taken at 6 pm on 23 September. That statement was largely self-exculpatory: Daniel did not admit presence at the scene, but retailed conversations which he claimed to have had with the other appellants in which they told him about their commission of the crime.
The following account of events that evening and the next day appears from the evidence of the prosecution witnesses. Daniel was taken that evening to San Fernando police station, where he was seen again about 10.30 pm by Inspector Fredericks. Insp Fredericks said that Daniel then told Superintendent Philbert and himself that he was ready to say what happened to the "chicken lady" and other people at Quinam Road. Insp Fredericks attempted to get a justice of the peace to attend, but none was immediately available, so he commenced to take a statement under caution at 11.15 pm. Mr Ralph Khan JP arrived about 11.25 pm while the statement was being taken. At its conclusion Daniel wrote out the certificate and signed it. Daniel confirmed to Mr Khan that no threats, violence or any other form of inducement were used against him. The statement was read over to him and he signed it and also the certificate of authenticity appended by Mr Khan.
In the statement Daniel said that he had been told by the other three appellants that he was to go with them as the watchman on a robbery at the chicken lady's house, this being the first crime in which he had taken part with them. He described waiting with the others near the house, sucking oranges, until the guests left and the house went quiet. They had made a hole in the wire of the perimeter fence, and Marshall climbed on chicken crates and entered the house through a window and admitted the others by the front door. The statement went on in the following terms:
"They approached the room with the chicken lady daughter, with she little son. Bush tell NINO go by the next room to see if anybody coming out; while Bush and Earth held the woman under hostage and Bush held the little baby from making noise. Bush call me from watch manning to hold the baby and I held the baby. The two of them tie down the woman daughter and band up her mouth and hands. I hand over the baby to NINO and continued to watch manning and I went to another side to look out. Nino was rocking the baby from making noise and watching the mother.
Curtis Marshall and Curtis Archibald kicked the door down and Earth shoot the man in his neck with a sawed off shotgun. The chicken lady remain in shock while Earth demanded money from the woman …"
Daniel described the robbers' search for money and a gun, which they found but could not operate. The statement went on:
"Earth then tell me to go and knock out the woman. I went and knock out the woman with sawed off gun butt in she head. Earth had sex with the two women and Bush had sex to. Earth ask me if I want a little this and I had sex with the chicken lady too. All this happen before I knock she out. Afterwards Bush and Earth brought the girl in the room with she mother and Earth tell me to go and knock out the girl and I went and did it with the gun. Earth then take brandy from the fridge and all ah we drink. Earth then say he going to burn down the house and I told him it didn't make sense. Earth say the woman see they face plain, so they have to burn down the house. We all had on mask but Earth and Nino take off their mask. Curtis Marshall and Bush went downstairs and brought up four tank of gas and rest them in the drawing room. Earth went downstairs and siphon gas from a van and began to sprinkle it in the drawing room and all about. Earth say the whole house have to burn so as to get no evidence. Earth light the house with matches and Nino and I walk downstairs and Nino had the baby and put it down on a blanket near the plucking area. We all leave the premises together and fire began to blaze … When I knock them out the two women didn't die they were just unconscious."
In the afternoon of 24 September Daniel was taken by police officers to the house in Quinam Road, where he pointed out the hole in the wire fence, the spot in the orange field where he said they waited and the window through which he said Earth gained access to the house. He pointed to a bedroom, in which he said the people were and, according to Insp Fredericks, he took them to the bathroom, where he said he got the money and the gun. Insp Fredericks then showed him a .22 Beretta pistol earlier found in Marshall's premises, which Daniel identified as the pistol they got from the site.
The prosecution evidence relating to the taking of the second statement was disputed by Daniel. Both in the voir dire held in the absence of the jury and in the main trial Daniel deposed that on the evening of 23 September Supt Philbert had told him that Daniel's brother Sanderson was the person they suspected of the crime, not Marlon Daniel himself. He said that Supt Philbert and Insp Fredericks cuffed and kicked him. Supt Philbert said that he was going to write something out about the house, that they would build up a statement corresponding with the crime. Daniel said that he was told that if he signed it they would not charge his brother and they would pay him the day's pay he had lost while in police custody. He denied that Mr Khan was present at the taking of the statement or that it was read to him. In the main trial he said that a document was produced, which the police officers told him was based on his earlier statement together with a statement made by his brother, and he was...
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