Rajendra Krishna v The State
| Jurisdiction | UK Non-devolved |
| Judge | SIR HENRY BROOKE |
| Judgment Date | 06 July 2011 |
| Neutral Citation | [2011] UKPC 18 |
| Court | Privy Council |
| Docket Number | Appeal No 0033 of 2010 |
| Date | 06 July 2011 |
[2011] UKPC 18
Privy Council
Lord Phillips
Lord Mance
Lord Clarke
Lord Hamilton (Scotland)
Sir Henry Brooke
Appellant
Edward Fitzgerald QC
Helen Law
(Instructed by Simons Muirhead & Burton)
Respondent
Tom Poole
(Instructed by Charles Russell LLP)
Introduction
On the evening of 26 May 1984 Mycee Jagmohan was shot dead at her home in La Fortune, Woodland during the course of an attempted burglary. On 12 January 1988 the appellant was convicted of her murder at a trial conducted in the High Court of Justice by Douglin J and a jury. He was sentenced to death, but his sentence was later commuted to one of life imprisonment. A co-accused Fazal Hosein ("Hosein") was acquitted, and a third man Krishandeth Bissoon ("Bissoon") who had accompanied them to the victim's house was the principal witness for the prosecution. On 5 October 1995 the Court of Appeal of Trinidad and Tobago (Sharma, Gopeesingh and Hosein JJA) dismissed the appellant's application for leave to appeal against conviction. He now appeals to the Board by special leave as a poor person granted on 23 June 2010.
Four issues arise for decision on this appeal:
It was common ground that the outcome of the appeal largely centred on the cogency or otherwise of the first two grounds.
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(1) Whether the way in which the judge told the jury about the reasons why he had admitted an alleged confession statement following a voire dire amounted to a material irregularity;
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(2) Whether the judge failed to direct the jury properly as to the status of Bissoon as an accomplice;
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(3) Whether the failure by the judge to direct the jury as to the effect of the appellant's good character was a material irregularity;
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(4) Whether in all the circumstances it would be appropriate to apply the proviso contained in section 44(1) of the Supreme Court of Judicature Act on the basis that the jury would have inevitably convicted the appellant even if the irregularities had not occurred.
It has not been possible to obtain a copy of the judgment of the Court of Appeal, if indeed they ever delivered a reasoned judgment. The Record contains a transcript of the proceedings in that court on 4 and 5 October 1995, at the end of which Sharma JA said that the application for leave was refused and the conviction and sentence affirmed and that "we will give our reasons a little later, but shortly." It is clear from the transcript, however, that it was not in issue before that court that the trial judge should have given an "accomplice direction" but that the court was willing to apply the proviso when upholding the conviction. Different counsel were instructed to appear for the appellant on that appeal, and it has not now been possible to contact counsel who appeared for him at the trial. Indeed, it seems likely that he is now dead. As to the other issues, the Court of Appeal does not appear to have been impressed with the first, and the "good character" issue was not raised before that court at all.
The first issue: the judge's references to his ruling on the voire dire
The first ground of appeal arose in this way. At the trial the appellant did not give evidence, but he made a short unsworn statement from the dock, the main thrust of which was to the effect that he had been asleep at home at the time the alleged murder had taken place. However, he did give evidence about what happened at the police station, both during a voire dire which was ordered when an issue arose as to the admissibility of his statements to the police, and then, after the judge had ruled that the statements were admissible, much more briefly during his unsworn statement from the dock. A great deal turned on the way the judge directed the jury about these statements during his summing up.
The evidence about what happened at the police station ran along the following lines. On the day after the murder, 27 May 1984, Hosein attended the police station and made an untrue statement about the events of the previous day. Sgt Phillip, who was in charge of the police investigation, then visited Hosein's home at about 8 pm that night, when he arrested and cautioned him and took him to the police station in San Fernando for questioning. At 3.30 am the next morning, 28 May, Bissoon was also taken to the police station for questioning. At 4.30 am the appellant was arrested and taken to the police station for questioning. His house was also searched for guns and ammunition.
An incident, the facts of which were in dispute, took place soon after the appellant's arrival at the police station. According to the prosecution evidence Sgt Phillip had left him sitting in handcuffs on a chair at the back of the main CID office while he went to the front office. He then heard a crashing sound, and on his return to the main office he found two police officers picking the appellant off the floor, bleeding slightly from his neck. One of the officers told him that the appellant had said that he was not going back to jail and that he was going to kill himself. He had then thrown himself through the louvred windows and tried to cut his neck with a piece of broken glass. Sgt Phillip arranged for him to be taken to hospital to be treated for his injuries.
Later that day Sgt Phillip said that the appellant had asked him for a drink of water and that when he had finished it he had volunteered to describe what had happened. He then explained that they had gone to the victim's house to steal money and jewellery, but a lady had come out with a cutlass. He had fired a shot to frighten her, and had then given the gun to Hosein who had also fired a shot with it. They had then run off to the lagoon at the back of the house. When he had finished this account of the incident, he had agreed to put it in writing. Another police officer, Cpl Maharaj, had witnessed the taking of the statement. This was to the effect that when the woman saw them, Bissoon had stuffed her mouth with a handkerchief, and he had then fired the shot to frighten her. Then:
"I give [Hosein] the gun, [Hosein] the going in the house and me eh I knew who he see and [Hosein] shot and he tell me to run and eh run in the lagoon."
The statement ended with the assertion:
"I have read the above statement and I have been told that I can correct alter or add anything I wish this statement is true I have made it of my own free will."
The statement was then signed by the appellant and counter-signed by the two police officers. About an hour later a justice of the peace attended the police station at Sgt Phillip's request, and he signed an endorsement to the statement which reads:
"I read the above statement to Rajendra Krishna and I ask him [whether] the statement was correct and he said Yes. I ask him if any threats, promises and/or violence was used on him in obtaining the statement and he said No. I further asked him if the statement was a voluntary one and he said yes."
This magistrate had died before the trial took place, but Sgt Phillip attested to what had happened.
The judge directed a voire dire before he permitted the jury to hear evidence about the appellant's statements. During the voire dire the appellant said that when he was taken into the CID office Sgt Phillip and Cpl Joseph had tried to make him sign a piece of paper on the basis that if he did so he would be free to go. He read the paper and saw that it involved him in the murder and he therefore refused to sign it. Both officers then beat him in order to make him sign the paper. He tried to run away but was pushed through the louvres by Cpl Joseph. He did not say "I am not going to jail again, I am going to kill myself." Cpl Joseph then picked up a piece of glass and began cutting his throat: he could not have cut it himself because he was handcuffed.
At the hospital he had told the doctor that Cpl Joseph had cut his neck. When he was taken back to the station, Sgt Phillip said "we ain't finish with you yet". After asking him whether he had made up his mind to sign the paper, Sgt Phillip forced his thumb into the appellant's left eye. The appellant then signed the paper, but he did not do so voluntarily. He only signed it because he had been beaten on two occasions. No one asked him about the bandage on his neck when he was signing the document. When shown the statement at the trial, the appellant said that his signature did not appear on it and that he had signed a white piece of paper (which described how he had killed a woman), not the yellow piece which had been produced. In his statement from the dock he dealt with this incident more briefly, but along the same lines. He said that Sgt Phillip had pushed his thumb into his eye for about half an hour.
It was common ground that the appellant was taken to the hospital again the following day, 29 May. He had complained to another police officer (also called Cpl Joseph) about pain in his left eye. Cpl Joseph told the jury that the eye was inflamed but not swollen. On this occasion a doctor at the hospital signed a certificate to the effect that he had found the appellant to be suffering from a sub-conjunctival haematoma on the left eye, and that the injuries were consistent with blunt trauma. There was an issue at the trial as to whether this injury had been caused by the incident involving the louvred windows in the morning, or Sgt Phillip's allegedly rough treatment of him in the afternoon.
At the end of the voire dire the judge ruled that in his opinion the written statement had been made voluntarily and that it could therefore be admitted into evidence. In his summing-up to the jury he made reference to this ruling on more than one occasion, and it is from this part of his summing up that the first ground of appeal...
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