Persad v State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood |
| Judgment Date | 23 July 2007 |
| Neutral Citation | [2007] UKPC 51 |
| Court | Privy Council |
| Docket Number | Appeal No 5 of 2006 |
| Date | 23 July 2007 |
[2007] UKPC 51
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
[Delivered by Lord Brown of Eaton-under-Heywood]
In what circumstances are out of court admissions made by one accused admissible in evidence against another? What, more particularly, are the limits of the House of Lords decision in R v Hayter [2005] 1 WLR 605 which held (by a majority of three to two) that in a joint trial of two or more defendants a jury is entitled to consider first the case in respect of one defendant (defendant A) based on his own out of court admissions and then use their findings of A's guilt and the role A played as a fact when considering the case in respect of defendant B?
These are the central questions now arising for consideration by the Board although it may be noted that the judgment of the Court of Appeal in Trinidad and Tobago presently under appeal itself pre-dates the decision in Hayter.
With that briefest of introductions it is convenient next to turn to the facts of the case before indicating the precise scope of the appeal and the basis upon which it is advanced. Their Lordships will give only a comparatively brief summary of the facts; little of the detail has any present relevance and to recount it would tend rather to obscure than to clarify the issues arising.
At about 5.30 pm on 6 October 1997 three men—the appellant, Patrick Wellington and Dan Kelly—went by taxi to the house of Inshan Mohammed (Inshan) and his sister-in-law Kelawatie Mohammed (Kelawatie) on Shirvan Drive, Sangre Grande, to commit a robbery. They were masked and armed with a gun and a cutlass. On arrival two of them pushed past Kelawatie's mother-in-law and went upstairs where they found Kelawatie with her baby. They demanded money and she gave them a cash pan containing about $100 in coins. One of them then threw her onto a bed and buggered her. The other then raped her. At some point during her ordeal she was tied up and gagged. A little later Inshan returned home in his pickup truck. He had been out to purchase melons for resale but, unable to do so, had been left with the cash taken for the purpose (some $2,500). Outside the house Inshan was confronted by the men and robbed of his money. The men then went back inside the house and emerged with Inshan's black stereo. Finally they were driven away in another taxi. Inshan went inside, found his sister-in-law distraught and called the police.
Although the three men had been masked and could not, therefore, be identified by those in the house, there was at trial an abundance of evidence identifying them as the three men involved. Both the taxi drivers knew them and both gave detailed evidence identifying them. The taxi driver who had taken them there also gave evidence of having a day or so later driven the appellant and Kelly to take a black stereo to Stephen Samuel for repair. Samuel in turn gave evidence that such a stereo had been delivered to him by the appellant for repair and that it was marked with the initials "IM". Inshan later identified it as his.
Whilst, however, this evidence was ample to identify the three men as the robbers, it threw no light on which of them had buggered Kelawatie and which had raped her. All she could say as to that was that it was two different men. Forensic evidence confirmed that she had been both raped and buggered but the swabs had not been analysed for DNA identification.
All three men were arrested and cautioned. The appellant remained silent. Wellington and Kelly, however, made written statements. Wellington's statement amounted to a full confession of both robberies (first Kelawatie, then of Inshan) and of rape. He described how the men had been hanging around together in Manzanilla, had seen the empty melon van and, realising that the driver must still have the money, had decided to rob him before he left for the market the next day. They had armed themselves and gone by taxi to the house, some fifteen minutes drive away. On arrival there Wellington said that all three of them had gone into the house and begun demanding and searching for money, Kelly prominent amongst them. As for the sexual offences, he described how Kelly (not the appellant) had buggered the girl before he himself, stimulated by the sight, had raped her. He then described how they robbed "the melon man", took the black stereo, and finally left by pre-arranged taxi.
Kelly's statement was to rather different effect. He said that the others had picked him up in the car and that he only learned of the intended robbery on the way there. Wellington told him to cover his face with a jersey. Only on arrival did he see the gun and only later still the cutlass. He said the other two men went inside the house for about an hour and then came back with a cash pan. Wellington then told him that they had had sex with the girl and tied her up. The three men then waited outside for the melon man to return in his van and, on his arrival, robbed him. Then the other two men went back inside and the appellant came out with the black stereo before finally they all left. He said he never knew that Wellington and the appellant were going to rape the woman. He thought they were embarked merely upon "a little robbery".
The three men stood trial before Volney J and a jury at Port of Spain Assizes. Each was charged with two aggravated robberies, rape and buggery. Each contested all four counts. Wellington gave evidence that he had been beaten and forced into signing his confession and had been framed. The appellant gave evidence that he had been on his own melon patch at the time and had nothing to do with this robbery. Kelly did not give evidence; his counsel, however, suggested to the police that they had procured his signature to a forced confession by prolonged torture and mistreatment.
On 5 April 2000 all three men were convicted of the two robberies. In addition Wellington was convicted of rape, the appellant of buggery. Sentence was adjourned.
On 3 May 2000 both Wellington and the appellant were sentenced to twelve years' imprisonment with hard labour concurrently on each of the robbery counts. In addition Wellington was sentenced to fifteen years' imprisonment with hard labour (concurrently), and fifteen strokes of the birch, for rape; the appellant to ten years' imprisonment with hard labour (concurrently), and fifteen strokes of the birch, for buggery. Kelly was bound over in the sum of $5,000 to be of good behaviour for five years.
Wellington and the appellant appealed to the Court of Appeal (Sharma CJ, Nelson and Lucky JJA). Kelly unsurprisingly did not. On 26 July 2002 both appeals...
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