Tiwari v State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 29 May 2002 |
| Neutral Citation | [2002] UKPC 29 |
| Court | Privy Council |
| Docket Number | Appeal No. 76 of 2001 |
| Date | 29 May 2002 |
[2002] UKPC 29
Privy Council
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hutton
Lord Millett
Lord Scott of Foscote
Sir Andrew Leggatt
[Delivered by Lord Hutton]
The appellant, who was the sole defendant on the indictment, was convicted on 12 April 1989 at the Port of Spain Assizes on the four counts in the indictment against him. On the first count he was convicted of the offence of raping Dhanmatie Mahabir on 30 June 1983. On the second and third counts he was convicted of two offences of robbery with aggravation and on the fourth count he was convicted of arson. On the first count of rape, he was sentenced to 30 years' imprisonment with hard labour and was ordered to receive 20 strokes with the whip. On the second count of robbery with aggravation, he was sentenced to 10 years' imprisonment with hard labour consecutive to the 30 years' sentence. On the third count, also of robbery with aggravation, he was sentenced to 10 years' imprisonment with hard labour concurrently with the sentence imposed in respect of the second count. On the fourth count of arson, he was sentenced to life imprisonment consecutive to the sentences of 30 and 10 years respectively. The result therefore was a combined sentence of 40 years' imprisonment followed by a sentence of life imprisonment. He appealed to the Court of Appeal against conviction and his appeal was dismissed in a judgment delivered on 31 October 1996. The appellant now appeals by special leave to the Board.
The prosecution evidence at the trial
The two principal witnesses for the prosecution were Dhanmatie Mahabir and her mother Kallowtie Douglas. Dhanmatie Mahabir said that in the early hours of 30 June 1983 she was sleeping with her husband in their bedroom in the family home at Jerningham Junction. Her baby, her mother and her sister were sleeping in an adjacent bedroom. About 1.00 am three men rushed into the house, two of the men wore masks and the third man had a handkerchief around his mouth, and all of them had guns. The men ordered her and her husband out of their bedroom but one of the men, whom she described as "the red fella", then forced her back into the bedroom where he raped her. A second man then came into the bedroom and raped her. Each of these two men continued to wear a mask or a handkerchief over his face whilst he committed the rape. The third man then came into her bedroom and raped her. There was light coming into the bedroom and before the third man raped her he took off his mask and she recognised him as a neighbour who lived next door. His name was Leslie Tiwari and she had known him for about five years. He had intercourse with her for about five minutes. In addition to raping her the men took jewellery and cash from her and her mother and they then set the house on fire.
The evidence of Kallowtie Douglas was to the same general effect. She described how the three armed men, two of them wearing masks and one with a handkerchief over his face, came into the house about 1.00 am and how they took jewellery and cash from her. She said that she did not see the rape of her daughter in another bedroom but she saw one man take her into the other bedroom, and then the second man and the third man go into that bedroom in turn after him. She said that she recognised the third man as the appellant, Leslie Tiwari. She recognised his voice which she knew because she had heard it on previous occasions beside where she lived. She had known him for about five years. At one point his mask shifted a little so she was sure that it was him.
A police officer gave evidence that at 7am on 30 June 1983 he went to the home of the appellant at Jerningham Junction and arrested him. It is clear from the evidence that the police did not hold any identification parade.
The defence case
The only evidence for the defence was given by the appellant. He said that on the night of 29/30 June 1983 he was sleeping with his common law wife, Shiroon Mohammed, in his mother's house at Jerningham Junction. On that night he did not enter the house of Kallowtie Douglas and he did not rape Dhanmatie Mahabir.
The judgment of the Court of Appeal
Before the Court of Appeal the first ground of appeal was that the trial judge had erred in proceeding with the trial although the appellant was not legally represented, and in failing to provide the appellant with certain information and explanations which he ought to have been given as he was not legally represented. In support of this ground of appeal the appellant submitted that there were three omissions by the judge. The first was the omission to ask the appellant the reason why he wished to proceed although unrepresented. The second was the failure of the judge to advise the appellant of the importance of having legal representation and the third was the omission of the judge to offer the appellant a short adjournment to enable him to obtain legal representation.
In rejecting this ground of appeal the Court of Appeal noted that at the commencement of the trial the judge made the following entry in his notebook:
"Accused in person unrepresented. Stated that he is ready to proceed even without attorney."
The Court of Appeal then stated at pp 61 and 62 of the record:
"There is no reason to believe that his decision to proceed without legal representation was based on a mistake or misconception. The onus must be on the appellant to demonstrate prejudice, and this he has failed to do.
We would, however, recommend to trial judges that in future when an accused person indicates that he is willing to proceed with the trial although he is not represented, in all those cases (which would be the vast majority) in which an adjournment, if sought, would be granted for the purpose of enabling the accused to secure legal representation, they should advise the accused that it is in his own interest to be legally represented and offer to adjourn the matter for a short period to enable him to secure such representation, either privately if he has means, or by applying for legal aid. In this case, however, there is no reason to believe that the failure of the trial judge to adopt this course resulted in a miscarriage of justice."
The Court of Appeal then considered the second ground of appeal, the substance of which was the alleged failure of the judge to advise the appellant of his right to call witnesses. This was the main ground of appeal advanced before the Board and their Lordships propose to return to it in a later part of this judgment.
The other principal ground of appeal before the Court of Appeal was that the judge had failed to give a proper Turnbull direction [ R v Turnbull [1977] QB 224]. Whilst recognising that the direction fell far short of what the judgment in Turnbull required the Court of Appeal did not uphold this ground of appeal. It cited the judgment of the Board in Freemantle v R [1994] 1 WLR 1437 in which Sir Vincent Floissac stated at p 1442:
"The quality of the evidence was good enough to eliminate the danger of mistaken identification which necessitates the requisite general warning and explanation."
The court then stated at p 73 of the record:
"The direction in this case may be considered borderline. On different facts we might have considered it inadequate, but given the evidence in this case, we hold that it passes muster, if only just. In any event even if it were inadequate, on the authority of Freemantle, we would have held that this is a proper case for the application of the proviso, having regard to the exceptionally good quality of the identification evidence. To quash this conviction because of failure to adhere to a guideline that was laid down primarily, at any rate, for cases in which the identification was of the fleeting glance variety, would be to sacrifice logic and common sense to a blind and rigid adherence to a rule that was never intended to have the absolute and universal quality characteristic of a statute. That would be swimming against the tide of such decisions as Chance and Freemantle. In the result, this ground of appeal also fails."
Before the Board Mr Dingemans, for the appellant, did not pursue the ground of appeal based on the inadequacy of the Turnbull direction, and therefore their Lordships need express no opinion on the point. The Court of Appeal also rejected a number of other grounds of appeal which Mr Dingemans did not advance before the Board and therefore their Lordships need make no reference to them.
Grounds of appeal against conviction before the Board
Mr Dingemans advanced three grounds of appeal: (1) The failure of the magistrate at the preliminary enquiry to comply with the requirements of section 18 of the Indictable Offences (Preliminary Enquiry) Act. (2) The failure of the judge to advise the appellant of the importance of obtaining legal representation for the trial and to adjourn the trial to enable representation to be obtained. (3) The failure of the judge to advise the defendant of his right to call witnesses in support of his case and to adjourn to enable him to do so.
Ground (1)
Section 17 of the Indictable Offences (Preliminary Enquiry) Act provides that at the preliminary enquiry after the examination of the witnesses called on behalf of the prosecution the magistrate must ask the accused whether he wishes to give evidence. Section 18 provides:
"After the proceedings required by section 17 are completed, the magistrate shall ask the accused person if he wishes to call any witnesses. Every witness called by the accused person who testifies to any fact relevant to the case shall be heard, and his deposition shall be taken, signed, and authenticated in the same manner as the deposition of a witness for the...
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