REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App. No. 50 & 51 of 2006 BETWEEN (1) DEENISH BENJAMIN (2) DEOCHAN GANGA Appellants AND THE STATE Respondent

PANEL: R. Hamel-Smith, J.A. S. John, J.A. P. Weekes, J.A.

APPEARANCES: Ms. Foderingham, instructed by Mr. Boodram for appellant No. 1 Mr. Alleyne-Forte and Ms. R. Ramjit for appellant No. 2 Ms. D. Seetahal SC instructed by Mr. T. Affonso for the Respondent

DATE DELIVERED: 03rd July 2008 Page 1 of 35

JUDGMENT

Delivered by P. Weekes, J.A. 1. On December 4, 2006 Deenish Benjamin and Deochan Ganga were convicted at

the San Fernando Assizes of the murder of Sunil Ganga. The judge imposed the mandatory sentence of death by hanging upon each of them. They now appeal against their convictions.

2.

The murder of Sunil Ganga (the deceased) took place on the night of July 12,

2003 at Penal where the deceased lived with his wife, Roseanne Ganga. Appellants Benjamin and Ganga, the deceaseds step cousin and cousin respectively, were the couples closest neighbours.

The Prosecution Case 3. Sometime after 10.30 pm on July 12, 2003, the deceased was in a shed beside his

house. Roseanne was in a bedroom inside when she heard a bottle break and the deceased cry out, Deenish boy, what you doing meh? and then Roseanne, run!

4.

Through creases in the front door, Roseanne was able to see the appellants hitting

the deceased with their hands. She had known, and regularly seen, both appellants for about seven years. They pulled the deceased to the back of the shed. She heard loud sounds including groaning, observed that the galvanised structure was shaking and heard footsteps.

5.

After about an hour the groaning and footsteps ceased. Roseanne emerged from

the house calling out to the deceased but received no response. She then went to the back of the shed where she observed the deceased hanging from a piece of rope tied around his neck and connected to a rafter.

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6.

At about 4.30 next morning, Roseanne went to the nearby home of her father-in-

law, Mr. Chadrabooj Ganga, and told him that she saw the deceased hanging in the shed. He testified that Roseanne said to him, Pappy Sunil hang himself. Chandabooj accompanied Roseanne to her home where he indeed saw the deceased hanging.

7.

The police were summoned. Later that morning around 7.00 Sergeant Flanders,

along with other police officers, arrived at the deceaseds home. He met and spoke with Roseanne who led him to where the deceased was hanging in the shed. He observed stains resembling blood on the deceaseds face and on the wall and also noticed that there was broken bottle on the floor. Both of the deceaseds feet were touching the ground.

8.

A statement was recorded from Roseanne that afternoon by Sergeant Flanders,

who based on information he received in that interview, arrested the appellants and took them to the police station around 3.50 pm.

9.

Inspector Phillips, one of the officers present when the appellants were arrested,

interviewed appellant Ganga on the 13 July 2003 in the presence of Sergeant Flanders. The appellant was cautioned, told of his rights and then said, I was dey but is Deenish who kill Sunil. He gave a confession statement which was recorded between 8.17 pm and 9.30 pm that night in the presence of a Justice of the Peace.

10.

In his statement, appellant Ganga said that he had been involved in a fight with

the deceased two weeks prior to the murder. On the night of the murder, he and Benjamin went to the deceaseds home. The deceased hurled a bottle at Benjamin, who pelted the bottle back at the deceased. The deceased collapsed on impact and as he did, told Roseanne to run. Benjamin then dragged the deceased to the back of the house where he placed a piece of rope around the deceaseds neck and then around a rafter. Ganga helped Benjamin to elevate the deceased. Benjamin then began to hit the deceased and at this point Ganga left.

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11.

Around 10.40 pm on the 13 July 2003, Inspector Phillip interviewed appellant

Benjamin, who after being cautioned and told of his rights, said I only help hang up Sunil. He gave a written statement in the presence of a Justice of the Peace.

12.

In his written statement, Benjamin said that upon Gangas suggestion, they both

went to the deceaseds house. After they had observed Roseanne Ganga go inside, Ganga locked Sunils neck and he then did the same. Ganga hit the deceased on his head and it began to bleed. Ganga then placed a rope around the deceaseds neck, dragged him to the back of the house and he helped appellant Ganga hang the deceased.

13.

On 14 July 2003 both appellants were charged for the murder of the deceased.

The Defence 14. The defence of both appellants was alibi and mistaken identification. Benjamin

claimed that on the night of the murder he was in another village, and Ganga stated that he was at home all night. Both appellants claimed that no Justice of the Peace was present at the police interviews and the written confessions were fabricated by the police.

Case for appellant Benjamin 15. The appellant testified but called no witnesses. He denied ever making the oral or

written statements. He claimed that Inspector Phillip beat him and burnt his left ear when he initially refused to sign some papers of which he had no knowledge. Inspector Phillip also told him that his parents were locked up and would only be released if he signed the said papers. It was in those circumstances that he signed.

16.

The appellant admitted that he had been in a fight with the deceased in 2002, but

said that they had subsequently resolved their issues.

Case for appellant Ganga 17. The appellant testified but called no witnesses. He denied making the oral

admission. He also denied ever giving a written confession to the police and claimed that Page 4 of 35

he had been beaten into signing his name on a piece of paper. The police wrote his name, and he was told to copy it onto the statement they had produced. Up until that point, he was given nothing to eat, and was never cautioned or told of his rights.

18.

He testified that he was on good terms with the deceased.

THE APPEAL

19.

The grounds, save one on behalf of appellant Benjamin, are common to both

appellants. Counsel for appellant Benjamin adopted the submissions of appellant Gangas counsel. We shall first deal with the common grounds as they were argued by Mr. Alleyne-Forte on behalf of appellant Ganga.

Ground 1 The learned trial judge failed to give the jury any or any proper directions on lies as corroboration, thereby rendering the verdict of guilty against appellant Ganga unsafe .

20.

Counsel for the appellant found fault with the following direction in the summing

up with respect to lies told by the appellant:

In relation to any part of the evidence, if you conclude that the accused deliberately told a lie, you should consider that the mere fact that an accused tells a lie is not in itself evidence of guilt, this is because the law recognizes that an accused may lie for reasons which have nothing to do with guilt, for example to bolster a genuine defence, or out of panic. In relation to any piece of evidence of either accused that you should consider to be a lie, you should consider whether there is any innocent explanation for the lie. If there is, then take no notice of it. If however you are sure that there is no innocent explanation for the lie, in that situation his lie may be regarded by you as evidence supporting the prosecution case. [emphasis added] 21. Mr. Alleyne-Forte submitted that the above highlighted portion was an improper

direction on lies of an accused as it may have led the jury to conclude that the lack of an innocent explanation for such lies necessarily meant that they may be viewed as evidence Page 5 of 35

corroborative of guilt. While counsel agreed that the need for a Lucas direction did not arise, he took the position that the judge, having embarked on the course of giving a general direction on lies, was obliged to identify for the jury what evidence was capable of amounting to corroboration, followed by a direction that the lie must relate to a material issue for it to constitute corroborative evidence.

22.

It is well established that where lies told by the defendant are relied upon by the

prosecution or may be relied upon by the jury as corroboration where that is required, or as support for identification evidence, the judge should give a direction along the lines indicated in Lucas (1981) 73 Cr.App.R. 159, 162. That is to the effect that the lie must be deliberate and must relate to a material issue. The jury must be satisfied that there is no innocent motive for the lie and should be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour. In regard to corroboration, the lie must be established by evidence other than that of the witness who is to be corroborated.

23.

Clearly a Lucas direction was not given in the instant case, and as Ms. Seetahal

pointed out, none was needed. Further the judge did not identify any specific lie to the jury that they should regard as supporting the prosecutions case, and indeed this was the correct approach as the issue of lies as corroboration was never a live one in the circumstances of the instant case. The lie related only to credibility issues, and a Lucas direction was not triggered merely because a general direction on lies was given.

24.

The following was the direction given by the trial judge after recounting that

during cross-examination appellant Ganga had admitted that he had been convicted of the offence of possession of marijuana about a year prior to the instant case, contrary to what he had said in his earlier evidence that he had never before been to court. You have heard that this accused has a bad character in the sense that he has a criminal convictionYou may also use the evidence of the accuseds bad character in the following way: If you think it right, you may take into it into account when deciding whether or not the accuseds overall evidence to you was truthful. This is because a person with a bad character may be less likely to tell Page 6 of 35

the truth, but it does not follow that he is incapable of doing so. You must decide to what extent, if at all, his character helps you when judging his evidence.

25.

In the context of this credibility direction, albeit modified, a Lucas direction was

clearly not necessary. In Goodway [1993] 4 All E.R. 894, it was held that a Lucas direction should be given to a jury whenever a lie told by an accused is relied on by the prosecution or may be used by the jury to support evidence of guilt, as opposed merely to reflecting on his own credibility. In Richens (1994) 98 Cr.App.R. 43, 51, Lord Chief Justice Taylor (who had also delivered the leading judgment in Goodway) said:

"... the need for a warning along the lines indicated [in Lucas] is the same in all cases where the jury are invited to regard, or there is a danger they may regard lies told by the defendant, or evasive or discreditable conduct by him, as probative of his guilt of the offence in question." 26. Similar sentiments were echoed by Kennedy L.J. in Burge and Pegg (1996) 1 Cr.

App. R. 163, 172:

a Lucas direction is not required in every case in which a defendant gives evidence, even if he gives evidence about a number of matters, and the jury may conclude in relation to some matters at least that he has been telling lies. The warning is only required if there is a danger that they may regard that conclusion as probative of his guilt of the offence which they are considering. 27. In the instant case therefore, was the jury in danger of concluding that the said lie

corroborated the appellants guilt as Mr. Alleyne-Forte suggested? We do not think they were. The following passage contained in Burge and Pegg at page 172 is instructive in this regard:

Adapting words used by Professor Birch in the Criminal Law Review [1994] Crim.L.R. 683, our view is that the direction on lies approved in Goodway comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused: in effect, using it as an implied admission of guilt. Normally prosecuting counsel will have identified and sought to prove a particular lie on a material issue which is alleged to be explicable only on the basis of a consciousness of guilt on the defendant's part. This is, as Professor Birch says, a very specific prosecution tactic, quite distinct from the run Page 7 of 35

of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that in so far as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false. 28. Much had been made by Mr. Alleyne-Forte of the lie told by appellant Ganga

with respect to his previous conviction and the related court appearance, but we are inclined to the view that this contention became futile upon recognition that the particular lie did not relate to a material issue relied on by the prosecution at trial in the first place. The prosecution did not adopt the tactic to which Professor Birch referred in Burge and Pegg at page 172 above, and there was no reason for the judge to think that the jury would themselves approach the evidence given by the appellant in that way. Therefore Mr. Alleyne-Fortes submission that the impugned directions seemed to have been in keeping with the fourth circumstance set out in Burge and Pegg at page 172 in which a Lucas direction may be required accordingly fails. The said fourth circumstance is to the effect that where although the prosecution have not adopted the approach to which we have just referred, [i.e. where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved] the judge reasonably envisages that there is a real danger that the jury may do so. [emphasis added].

29.

Kennedy L.J. highlighted the difficulty of an argument succeeding on this fourth

circumstance at page 174 of Burge and Pegg thus:

a judge would be wise always, before speeches and summing-up in circumstance number four, and perhaps also in other circumstances, to consider with counsel whether, in the instant case, such a direction is in fact required, and, if so, how it should be formulated. If the matter is dealt with in that way, this court will be very slow to interfere with the exercise of the judge's discretion. Further, the judge should, of course, be assisted by counsel in identifying cases where a direction is called for. In particular, this court is unlikely to be persuaded, in cases allegedly falling under number four above, that there was a real danger that the jury would treat a particular lie as evidence of guilt if defence counsel at the trial has not alerted the judge to that danger and asked him to consider whether a direction should be given to meet it. Page 8 of 35

30.

We have no indication that defence counsel at trial raised the issue of how the

judge should treat with the appellants lie, if at all, in his summing up. In our view, this could easily be attributable to the fact that counsel himself perceived no real danger that the jury may have concluded that the said lie was supportive of the appellant having murdered the deceased, and thus envisaged no need to raise the matter. Further, the failure of the trial judge to enquire of counsel whether a Lucas direction was required to be given was ameliorated by the judges subsequent directions on lies as a whole with which we are unable to find fault. We are satisfied that the learned trial judges general direction on this issue was not only apt, but adequate, and nothing further needed to be said, save to specifically direct the jury that appellant Gangas lie was to be viewed only in relation to his credibility, and as well, this latter direction cannot be criticised.

For these reasons, this ground must fail.

31.

Ground 3 relates to this ground. For convenience we shall now deal with it.

Ground 3 The learned trial judge wrongly embarked on a material irregularity by ordering appellant Ganga to be called as a witness other than upon his own application after he was put to election in accordance with law, gave his evidence-in-chief, was cross examined by the Prosecution and had closed his case. The violation was particularly prejudicial as it may have, without legal safeguard, exposed appellant Ganga to the danger alluded to in ground 1 above. The irregularity violated the provisions of s.13 (1) (a) of the Evidence Act Chap. 7:02 and was such that the appellant was deprived of a fair trial.

32.

During his cross-examination, appellant Ganga gave evidence that he never

attended court prior to the instant matter, such evidence being suggestive of his good character. The appellants case was closed. The following day the prosecution successfully applied for the appellant to be recalled so that he could be cross-examined as

Page 9 of 35

to his previous conviction for possession of marijuana. It was this recall that Mr. AlleyneForte objected to on the ground of material irregularity.

33.

We think we can briefly dispose of this complaint having regard first of all, to

section 13 (1) (a) of the Evidence Act Chap. 7:02 which counsel cited in support of his contention that the appellant was not called as a witness upon his own application when he was further cross examined as to his previous conviction. Counsels submission was gravely misconceived. This section speaks to the situation in which an accused, in the first instance, can only be called to give evidence at trial upon his own application. It does not deal with a witness who has already given evidence, and who may thereafter be recalled.

34.

Counsel must be cognizant of the fundamental principle inherent in the trial

process, that a defendant, once he has made himself a witness, is liable like any other witness, to be recalled for the purpose of answering such questions as the judge permits to be put to him: R v. Seigley (1911) 6 Cr. App. R. 106, CCA.

35.

That being said, the only issue that remains is whether the trial judge unfairly

exercised his discretion to recall the appellant in the instant case. To answer this question we examine the cases of Seigley and R v. Wilson [1977] Crim.L.R. 553 to which Ms. Seetahal directed our attention.

36.

Mr. Alleyne-Forte contended that Seigley was inapplicable to the circumstances

of the instant case, since in that case the issue was whether the prosecution could be allowed to reopen its own case, not whether the defence case could be reopened to recall a witness as there was no suggestion that the defence case was closed. This is a

misinterpretation of Seigley since like the instant case, the ground of appeal was that the appellant having returned to the dock, it was too late to recall him for crossexamination. That case was therefore on all fours with the instant. In Seigley, it was held that the appellant was properly recalled.

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37.

In Wilson the appellant had lost his shield through his counsels fierce attack

on the credibility of a police officer during cross-examination. The prosecution successfully made an application for leave to cross-examine the appellant as to his previous convictions when he came to give evidence. However counsel inadvertently omitted to so cross-examine when the appellant gave evidence. After the close of the defence case, the prosecution successfully applied to have the appellant recalled to have him cross-examined as to his previous convictions. In dismissing the appeal, it was held that the judges duty was to exercise his discretion in a way he thought most advantageous to justice, bearing in mind that justice included the interests of both defendant and prosecution. The trial judge had not wrongly exercised his discretion to recall the appellant in the circumstances.

38.

Mr. Alleyne-Forte sought to distinguish Wilson on the basis that the judges

decision to recall the appellant was understandable since the prosecution had clearly signaled its intention to cross-examine the appellant when he came to give evidence, and they had only inadvertently omitted to do so at the proper time, and as that was not the sequence of events in the instant case, Wilson was therefore inapplicable.

39.

However we do not think the decision in Wilson turned on the fact that the

prosecution made an application to cross-examine the appellant when he came to testify, but rather upon recognition that in the interest of justice, and given the prosecutions inadvertent omission, such recall was necessary. Likewise in the instant case, whether it was an inadvertent omission not to have cross-examined the appellant as to his previous convictions at the proper time or that his previous conviction was only discovered after he testified, we think their fairness in the circumstances demanded that the trial judge exercise his discretion to recall appellant Ganga. To prevent the appellants previous conviction from being put before the jury would have been unfair to the prosecution and allowed the appellant an undeserved advantage, that is, the appearance of, and consequent direction on, good character.

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40.

We wish to mention en passant that like Wilson, the application for recall in the

instant case was made the day following the close of the defence case. While by no means the only factors, such close proximity in time and the fact that prosecuting counsel seized the earliest opportunity to seek to address the issue may well have favourably influenced the judges decision to recall, bearing in mind the issues of prejudice to the appellant.

41.

Mr. Alleyne-Forte further complained that the trial judges direction to the jury

that the appellants lie may be regarded as evidence supporting the prosecutions case was wholly incorrect. As we have already discussed under ground one, the said directions were general directions by the trial judge on lies as corroboration, and were quite appropriate in the circumstances of the instant case. However even if we are inclined to the view that the jury may have latched onto the appellants inconsistency with respect to his previous conviction as supportive of the prosecutions case, this only affected the issue of his credibility. The evidence elicited at the appellants recall was in direct response to specific evidence that the appellant had given during his cross-examination. In such circumstances, the judges direction may have been reflective of the lie supporting the prosecutions case not that the appellant murdered the deceased, but that his credibility may have been tainted in the jurys eyes since he was prepared to lie to them under oath on a matter as peripheral as his previous conviction. At the end of the day, it was for the jury to decide whether the appellant had deliberately lied to the court or otherwise, and we must point out that the appellant was nonetheless given a good character direction, albeit modified.

42.

All things considered, we do not think the appellant suffered any unfair prejudice

as a result of the recall, and wish only as a general reminder, to reinforce the principle stated in Archbold 2008 at para. 8-251:

The judge has a discretionary power to recall, or allow the recall of, witnesses at any stage of the trial prior to the conclusion of the summing up and of putting such questions to them as the exigencies of justice require, and the Court of Page 12 of 35

Appeal will not interfere with the exercise of that discretion unless it appears that an injustice has thereby resulted: R v. Sullivan 16 Cr. App. R. 121.

43.

We are not prepared to interfere with the exercise of the trial judges discretion to

have the appellant recalled. The appellants evidence as to previous conviction went toward his general credibility, and as already discussed under ground one, the trial judges directions were sufficient in this regard.

This ground is therefore without merit.

Ground 2 The learned trial judge failed to give the jury any or any proper care warning in respect of the evidence of Roseanne Ganga in relation to appellant Ganga and one cannot be sure to what extent the jury relied on her evidence to return a verdict of guilty against him.

44.

The nub of this ground is the manner in which certain evidence, that Mr. Alleyne-

Forte alleged to be suspect, was canvassed in the summing-up. Insofar as this ground is concerned, we need not concern ourselves with the adequacy of the warning given by the trial judge upon the aspect of the identification evidence, as indeed this is not an issue on which Mr. Alleyne-Forte focused. What is therefore left for us to examine is the judges direction in relation to other suspect evidence of Roseanne that implicated the two appellants in the murder of the deceased. This necessitates brief reference to the impugned evidence itself.

45.

Counsel for the appellant suggested first of all that it was open to the jury to find

that Roseanne Ganga was a battered wife in an abusive domestic relationship with motive to kill or engineer the killing of her husband. While it may have indeed been open to the jury to so find, we do not think this is an inference that they would have reasonably drawn especially since Mr. Alleyne- Forte, who also represented appellant Ganga at the trial, did not there make very much of it. Page 13 of 35

46.

This is an appropriate juncture for us to examine R v. Beck [1991] 74 Cr. App.

R. 221, the leading case on suspect evidence. This case concerned evidence given for the prosecution by directors of a finance company in support of the allegation that the appellant had defrauded the company by securing payment against satisfaction notes for work which had not been done. The directors were not accomplices of the appellant. However it was alleged that they had a purpose of their own to serve in giving evidence, namely to cover up false representations made or acceded to by them in an insurance claim. In view of the defence's attack, the trial judge advised the jury to pay particular care and attention to the weight to be given to the directors' evidence, but on appeal it was argued that this was not enough and that a full corroboration direction should have been given, on the basis that the directors, while not accomplices, had a "substantial interest" to serve in giving false evidence. Akner L.J. in giving the judgment of the Court of Appeal, rejected the contention in these terms at page 228: "While we in no way wish to detract from the obligation on a judge to advise a jury to proceed with caution where there is material to suggest that a witness' evidence may be tainted by an improper motive, and the strength of that evidence must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial".

47.

Beck creates an obligation on a judge that is witness-specific, arising only where

there is material to suggest that a particular witness' evidence may be tainted by an improper motive. In light of Mr. Alleyne-Fortes allegation against the evidence of Roseanne, the above passage begs the question: What constitutes "material to suggest" the taint of improper motive?

48.

In Mouqni (unreported) March 29, 1994, the Court of Appeal stated, "it will not

automatically follow from the fact that the defendant or his counsel has chosen to allege that the witness has a motive or purpose to serve that a warning must be given". If the facts before the court suggest that a motive may be present, then that warning should be Page 14 of 35

given and the jury left to assess whether the witness in fact acted in pursuance of the motive or not.

49.

In the instant case, the only evidence that Roseanne was in an abusive relationship

was a statement she made during cross-examination that the deceased and his brother would beat her, and hence she had put the matter in courtI went back with him [the deceased] because I did still love him. It is not clear from the notes of evidence whether at the trial a specific question was asked by Mr. Alleyne-Forte, which may have produced the said response, but counsel did not further pursue that evidence. Even if he had so done, the real issue was whether there was material to suggest that as a consequence of abuse by her husband, Roseanne had a motive to kill him or engineer his killing?

50.

Roseannes evidence neither expressly nor impliedly disclosed any such motive,

and the appellant produced no evidence to the contrary. That said, a caution warning was not necessary merely because defence counsel may have alleged that Roseannes evidence was tainted by an improper motive: Mouqni.

51.

Mr. Alleyne-Forte further complained that Roseanne had been aware of an

ongoing feud between the deceased and appellant Ganga, and so capitalised on this situation to escape liability, and exculpate herself in any connection to the deceaseds death. The trial judge correctly directed that Roseannes evidence in this regard merely showed a history of feuding and bad relations between the parties, and it is a matter for you what you make of it on the States case. We think that direction adequately addressed the appellants allegation, and a caution warning was not required.

52.

We turn now to Mr. Alleyne-Fortes final complaint on this ground, which alleged

that Roseanne was not telling the truth as indicated from the several inconsistencies in her evidence, and therefore had given evidence with a view to serving some purpose of her own. Sergeant Flanders testified that when he first spoke to Roseanne on the morning after the murder had occurred, she never mentioned the names of the two appellants. It was only later when he later took a statement from her that she mentioned and implicated Page 15 of 35

the appellants in the murder. Further the deceaseds father, Chandrabooj Ganga, gave evidence that when Roseanne came to his home on the morning of 13 July 2003 (prior to her first conversation with the police) she said, Pappy Sunil hang himself. She

subsequently told Sergeant Flanders that she saw the deceased hanging. It is important to note that in chief, Roseanne stated, I tell his father I saw Sunil hanging. In crossexamination she denied saying, Pappy Sunil hang himself, but instead, I told him I saw him (Sunil) hanging.

53.

Mr. Alleyne-Forte complained that the following direction of the trial judge with

respect to the above inconsistencies in Roseannes evidence was inadequate:

If you accept the evidence of Mr. [Chandrabooj] or Sgt. Flanders then you may consider that such evidence reflects negatively on Roseannes credibility. One would reasonably have expected her- its a matter for you, but one would reasonably have expected her, that when she first spoke to them to have told them the truth. At the end of the day, taking those things into consideration, you will give to her evidence whatever weight you see fitMr. Alleyne-Forte addressed you and he pointed out the questions raised in relation to Roseanne Ganga and her honesty. And he also submitted to you that Roseanne Ganga got the police to go along with her cock and bull story. That is something you may choose to consider. 54. Counsels contention was that the trial judge ought to have strongly impressed

upon the jury the need for caution should they have found Roseannes evidence to be unreliable and that there was a danger of acting upon same without corroboration. In the absence of proper directions along those lines, the jury may have been in danger of relying on the evidence of Roseanne to convict appellant Ganga without subjecting it to sufficient scrutiny. In effect, if she had told her father-in-law that the deceased had hung himself that would cast serious doubt on her account at trial. Secondly, why did she not mention the names of the appellants and their actions to the police at first opportunity?

55.

Ms. Seetahal submitted that the above direction should be viewed in light of the

trial judges earlier directions on credibility that inter alia, the jury could reject or accept

Page 16 of 35

any part of a witness testimony, or if a witness was incapable of belief, they could reject the entire testimony.

56.

The question now is to determine, in the light of Roseannes statements, and the

whole of the context in which they occurred, whether the jury had been warned appropriately, and warned thoroughly, of the danger inherent in such evidence. The adequacy of a warning and assistance given to the jury in grappling with evidence where a witness evidence may be deemed unreliable are essentially to be evaluated in the light of the ultimate and important requirement of ensuring a fair trial.

57.

We recognise that once the jury accepted or was in doubt that Roseanne had made

either statement (that the deceased hung himself or she saw him hanging), the factor of reasonable doubt as to whether Roseanne had indeed witnessed the two appellants attack and murder the deceased would have come into play. Ultimately whether Roseanne had made those two statements was crucial to the jurys determination of her credibility as a reliable eyewitness to the murder of her husband.

58.

Ms. Seetahal submitted that while the impugned direction of the trial judge may

have fallen short of the ideal with respect to the two statements attributed to Roseanne, his summing up on her credibility had to be looked at as a whole. Counsel referred us to a passage in the summing up where the learned trial judge again directed that the jury must consider how the specific discrepancies in Roseannes evidence reflected on her credibility. Having raised the issue of Roseannes credibility with the jury, the trial judge then connected the dots in his direction thus:

If you reject the alibi [of the two appellants], you may say, we do not believe it, you should then go on to consider the evidence of Roseanne Ganga. If you believe her evidence in relation to any or both accused your verdict will be guilty in relation to that accused or both accused. If you reject her evidence, or you are not sure of her evidence then you should go on to consider the statement of each accused.

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59.

While the judge may not have directed the jury in specific terms on the reliability

and credibility of Roseannes evidence insofar as it related to her statements, the cumulative effect of his directions referenced above was sufficient to convey to the jury that the truthfulness of her account of the two appellants as the murderers of the deceased was to be viewed with caution.

60.

We agree with Ms. Seetahal that when looked at as a whole, the trial judges

directions did not fall short, either in the adequacy of his warning, or in his assistance to the jury by relating the matters canvassed in the warning to the evidence.

61.

Undoubtedly, in the more deliberate atmosphere of this appellate court, one can

formulate directions and warnings which might have been given by the trial judge to the jury, and which might have conformed to a standard direction in situations such as the instant. The final question, however, which this Court must answer is whether the jury had been thoroughly and adequately warned of the danger inherent in the inconsistencies of Roseannes statements, and whether they had a requisite degree of assistance in relating those directions to the matters before them for deliberation.

62.

Notwithstanding the validity of Mr. Alleyne-Forte's submission that some specific

matters which are often included in directions of similar nature were not expressed in the judges summing-up, we are not persuaded that in its overall terms it fell short of the requisite degree of an adequate direction so as to result in the appellants not having received a fair trial.

Accordingly this ground must fail.

Ground 4 The trial judge on the voir dire failed to come to any finding or any proper finding on the evidence as it pertained to one of the grounds of oppression/ threat/ fear/ trickery/ intimidation, filed by appellant Ganga, to wit, he was informed by Sgt. Phillip that his parents were detained at the station and would not be allowed to leave the police station Page 18 of 35

until the appellant signed the alleged confession. The trial judge misdirected himself on a material aspect of the said evidence by taking into account an irrelevant and speculative consideration thereby constituting an irregularity to the detriment of the said appellant.

63.

This ground complained that the specific finding of fact by the trial judge on the

voir dire that the appellants parents were not at the police station when the statement was alleged to have been given was ill-founded, as there was no evidence to support such a conclusion. Mr. Alleyne-Forte further contended that the implication of such a finding was that it detracted from the appellants case that the police had informed him of his parents presence at the police station at the material time, and if he refused to sign the statement his parents would not be allowed to leave.

64.

Where there is an issue as to the admissibility of evidence, it may be necessary to

hear evidence in the absence of the jury on the voir dire. The determining principle should be that stated in R v. Bonython (1984) 38 S.A.S.R. 45, that where the admissibility of any piece of evidence depends on the existence of a certain fact or state of facts, the judge must determine the existence of the fact or state of facts in order to rule on the admissibility of the evidence.

65.

Where there are breaches of the PACE codes of practice, (or the Judges Rules

in Trinidad and Tobago), it will be more common for challenges to confession evidence to be based upon scrutiny of the police case rather than defence evidence: Archbold 2008, para. 15-381. That being said, while it is not necessary for us to go into a detailed evaluation of the evidence on the voir dire, we wish to highlight the salient points so as to place the irregularity complained of in its proper perspective.

66.

On behalf of the prosecution, Sergeant Flanders testified that the appellant

Gangas parents voluntarily went to the police station at 12:55 pm on the day in question to record statements and be interviewed. The appellants mother had indicated to him that she and her husband had indeed given statements to the police and Flanders saw them both leave at 8:00 pm. This information was accordingly entered in the station diary. At Page 19 of 35

about 10:15- 10:20 pm that same night, Flanders again saw the appellants father at the station but was unaware of the time the father left on this second occasion.

67.

Inspector Phillip, another interviewing officer in this mater, denied ever

representing to the appellant that his parents were at the station and would not be allowed to leave the station unless he signed the statement. A statement was given by the appellant between 8:17 pm and 9:30 pm that night. The Justice of the Peace who the State claimed was present during the police interview, supported the States account of the propriety with which the said interview was conducted with the appellant.

68.

On the other hand, the appellant testified that during the police interview,

Inspector Phillip told him that his parents were in custody and would only be released if he signed the statement, and it was as a result of fear for his and his parents well-being that he signed the statement.

69.

There was evidence from which the judge could have concluded, as he did, that

the appellants parents were not at the Police Station when his statement was recorded.

70.

At the end of the day, all the evidence on the voir dire in relation to the question

of admissibility of the confession statement having been advanced, the burden of proving the voluntariness of the confession rested on the prosecution, and could have only be discharged if the court was satisfied beyond reasonable doubt that the confession was voluntary: D.P.P. v. Ping Lin [1975] 3 All E.R. 175, H.L. For the trial judge in the instant case to have been so satisfied, he would have had to adopt the following three-step process stated in R v. Barry (1992) 95 Cr. App. R. 384, CA:

Where a defendant alleges that his confession was unreliable within section 76(2) of the Police and Criminal Evidence Act 1984, [our equivalent being Appendix A of the Judges Rules] the correct approach is first, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police. The second step is to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances. The Page 20 of 35

last step is to ask whether the prosecution have proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common sense way. 71. The above passage suggests that the paramount consideration in determining

admissibility of a confession statement is its voluntariness. The question whether a statement is voluntary is for the judge. This does not make it any less a question of fact: DPP v. Ping Lin at 182h-183a. Thus an appellate court will be very slow to disturb a judges finding that a confession was voluntary. In deciding this ground, we are guided by the dictum of Lord Hailsham in DPP v. Pin Ling [1975] 3 W.L.R. 419, 606 thus:

The Court of Appeal should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of fact, on apparently similar evidence, in other reported cases, but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle - always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal. 72. In the instant case, the evidence at the voir dire was not unduly in favour of, or

against the appellant or the prosecution. The prosecution advanced a number of witnesses in support of the voluntariness of the confession statement, and the appellant himself testified to the contrary. In finding that the appellants parents were not at the police station when his statement was taken and no threat was made against him with respect to his statement, the trial judges ruled on the voir dire in the following terms: the court, having heard and seen all the witnesses in this matter is satisfied beyond a reasonable doubt that the statements in question were given voluntarily by the respective accused persons. Having heard and seen Sergeant Gay, P.C. Badree, Sergeant Phillip, Corporal Flanders, Mr. Seebachan and Mr. Urban Baptiste the court is satisfied that they have spoken the truth in their evidence, though there are certain errors in the evidence, they were not such as could reasonably cast doubt upon the evidence of these witnesses. 73. We are satisfied that learned trial judge applied the correct principles of law in

determining the issue of voluntariness, and based his ruling not on speculation or

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immaterial considerations, but on a proper assessment of the evidence given his firsthand view of the witnesses and their general demeanor.

74.

In any event, weight was a matter for the jury as the ultimate arbiters of fact.

Where the judge ruled that a confession statement was admissible, the matter is nevertheless left to the jury to decide whether, as in the instant case, the appellant did in fact sign the statement in the circumstances he alleged. We are content that the trial judge gave proper directions in this regard, and in the premises, this ground is without merit.

Ground 5 The trial judge misdirected the jury on the alleged written confessions before them. 75. Counsel for the appellant complained that the following passage in the judges

summing up amounted to a misdirection in law: In attempting to decide whether the written statements were made or not, you may look at the details in the statement and consider whether the statements would have the type of details that they now have if they were concocted by someone. You will decide whether the statements were made, each one of them. If you decide the statements were not made, thats the end of the matter, you dont have to give any consideration to them then. Remember the onus is on the State to satisfy you beyond a reasonable doubt that each statement was made. So if you decide that you are not so satisfied, then you forget the statements, they are out of the case. You dont have to consider them anymore. But if you decide that one or more of them was/were made, how should you proceed from that point onwards? 76. Mr. Alleyne-Forte submitted that the issue for the jury before they considered the

truthfulness of the statements was not whether the said statements were made but rather the circumstances under which they were obtained. Counsel further submitted that the trial judge deprived the jury of any assistance on the issues of oppression, fear and trickery, which were paramount to determining whether the confessions were indeed made.

77.

This ground raises a number of related issues with respect to the exact ambit of a

trial judges direction in cases where incriminating statements are attributed to an accused and the circumstances of their procurement are challenged. We think a good starting Page 22 of 35

point is to put the instant case into perspective, and we do so by reference to the second of four situations in which a judge is called upon to direct in this regard as propounded by Lord Bridge in Ajodha v. The State [1981] 2 All E.R. 193, PC at 201:
The

accuseddenies authorship of the written statement but claims that he signed it involuntarilythe judge must rule on admissibility, and, if he admits the statement, leave all issues of fact as to the circumstances of the making and signing of the statement for the jury to consider and evaluate. 78. In the instant case, both appellants denied authorship of the confession statements

but claimed that their appended signatures on the said statements were obtained by violence and trickery. The argument put forward on behalf of the appellants was that having allowed the confession statements into evidence, the trial judge deprived the jury of the benefit of a direction on the lines laid down by the House of Lords in R v. Mushtaq [2005] 1 WLR 151.

79.

Before we examine Mushtaq, we think it important to briefly comment on its

predecessor, as Mushtaq altered the law in a material respect. In turn, the law on this issue as it stands today has progressed since Mushtaq, and the following discussion traces this evolution.

The pre-Mushtaq position: 80. Where, upon the intervention of a voir dire, the trial judge admitted a confession

statement into evidence, the direction to the jury was that if they were sure that the appellants confession was true, they may rely on it, even if it was, or may have been, made as a result of oppression or other improper circumstances. This in effect, was the specimen direction recommended by the Judicial Studies Board which reflected the approach laid down by the Privy Council in Chan Wei Keung v. The Queen [1967] 2 AC 160 (PC).

R v. Mushtaq [2005] 1 WLR 1513 (UKHL) 81. The appellant had made a confession statement, but claimed that he had not made

it voluntarily. He alleged that the statement was induced by oppression, not of physical Page 23 of 35

violence or threat of this, but a refusal to permit him to visit his wife who was seriously ill in hospital, unless he made the admissions. The trial judge rejected this contention and admitted the statement in evidence. In his summing-up he directed the jury that it was for them to assess whether the confession was true, bearing in mind the allegations of oppressive and improper behaviour on the part of the police, which if proved, would negate its voluntary nature. He instructed them that if they were not sure, for whatever reason, that the confession was true, they must disregard it. He then added, in accordance with the prevailing practice and the Judicial Studies Board model directions, that if, on the other hand, they were sure that the statement was true, they may rely upon it, even if it was, or may have been, made as a result of oppression or other improper circumstances.

82.

The House of Lords disapproved that direction and held, inter alia, that the logic

of section 76(2) of PACE which was based on the rule of law that a confession was not admissible in evidence unless the prosecution established that it was voluntary, required the jury to be directed that if they considered that the confession was or may have been obtained by oppression or in consequence of anything said or done that was likely to render it unreliable, they should disregard it. Further, the judge's direction that the jury could take into account a confession which they considered was or might have been obtained by oppression or other improper means was an invitation to the jury to act in a way that was incompatible with the appellants right against self incrimination implied in article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

83.

Although the appeal against conviction was dismissed, the point of general public

importance which emerged was most succinctly summed up by Lord Carswell at paragraph 75 of the judgment that, the judge should direct the juryto the effect that unless that they are satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression, they must disregard it.

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84.

Mr. Alleyne- Forte submitted that the instant case was an appropriate one for the

application of a Mushtaq type direction, since it satisfied the requirements for such a direction as set out in the case of Barry Wizzard v. The Queen [2007] UKPC 21.

The post- Mushtaq Position: 85. In Barry Wizzard, the Privy Council analysed the decision in Mushtaq in great detail, as the most significant ground of appeal complained that the fairness of the appellants trial was severely compromised since the facts of the case warranted a Mushtaq direction, and the trial judge had failed to give one. The primary evidence against the appellant consisted of admissions alleged by the prosecution to have been made to the police in a statement under caution. The appellant did not give evidence under oath but made an unsworn statement from the dock that he was severely brutalised by the police and threatened to be killed if he did not sign a piece of paper with writing on it. It was not read to him, and it was in those circumstances that he put his signature to the document. The trial judges direction in relation to the said document was reproduced at paragraph 25 of the judgment as follows:

"If, for whatever reason, you are not sure whether the statement was made or was true, then you must disregard it. If, on the other hand, you are sure both that it was made and that it was true, you may rely on it even if it was made or may have been made as a result of oppression or other improper circumstances."

86.

It will be remembered that a direction similar to that above was, of course,

disapproved by the House of Lords in Mushtaq, which essentially held that a jury should be directed to disregard a confession even if they were sure it was true, if they conclude that it was, or may have been, obtained by oppression.

87.

In holding that the facts of Barry Wizzard did not call for a Mushtaq direction,

the Privy Council seems to have made a distinction between cases where a defendant accepts that he made a statement attributed to him, but alleges that he made it as the result of maltreatment or oppression, and those where the complaint is that the statement was a fabrication and did not represent what the defendant told the interviewing officers: Ken Page 25 of 35

Charles v. The Queen [2007] UKPC 47, para. 14. The former is a proper case for the application of a Mushtaq direction, and the latter which essentially alleges that the appellant was forced to put his signature to a statement that was prepared without his input, did not require a Mushtaq direction as there was no need for the judge to give the jury a direction that presupposed that the jury might conclude that the appellant had made the statement but had been induced to do so by violence. [paragraph 35]

The Current State of the Law in Trinidad and Tobago:

88.

The law as it now stands requires a standard type Mushtaq direction in situations

where the defence alleges oppression in obtaining a confession statement from an accused. This approach was heralded in the case of Anthony Amogan and Michael Ramdhawar v. The State Cr. App. No. 39 of 2003, which was delivered in 2006, one year preceding the decision in Barry Wizzard.

89.

The facts of Anthony Amogan and Michael Ramdhawar are not unlike the

instant case. Appellant Amogan alleged that he was beaten into signing some pages, which contained writing, and to transcribe a passage from a book to the end of one of the pages. He was also threatened that his wife would be locked up and his children put in an orphanage if he refused to annex his signature to the said statement. Appellant Ramdhawar said he signed documents given to him by a police officer as he was petrified and was told that if he so signed he would be allowed to go home. He also stated that he was illiterate and the statement was never read to him, neither had he dictated it to the officer.

90.

The judgment of the Court of Appeal traced in great detail the cases preceding

Mushtaq and stated at paragraphs 69 and 72 respectively:

The impact of R v. Mushtaq in our society would be quite profound. The Constitution guarantees the citizen the right to a fair hearing and by implication and indeed expressly the right not to incriminate himself. We are of the view that Page 26 of 35

that right is not manifestly apparent in cases in which a Chan Wei Keung direction is given.

We therefore find that a direction in keeping with the House of Lords decision of R v. Mushtaq should be given by trial judges to the jury to the effect that unless they are satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression or in consequence of anything said or done which was likely to render it unreliable, they must disregard it.

91.

Amogan having been decided before Wizzard the above qualified passages from

the judgment in Amogan must be read subject to the distinction made in Wizzard between the mere signing and the making and/ or dictating of a confession statement.

In summary, in every case in which oppression was alleged, prior to Mushtaq, the trial judge was required to direct the jury that if they were sure that the appellant made the confession, and it was true, they may rely on it, even if it was, or may have been, made as a result of oppression or other improper circumstances. Mushtaq disapproved of this approach and directed that the judges charge to the jury in all cases in which oppression was alleged, was to be that unless they were satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression, they must disregard it. With the advent of Barry Wizzard, a distinction has to be made between two sets of circumstances: (1) where there is a possibility that the jury might conclude that a statement was made by the accused, and was true, but was and may have been induced by oppression, a Mushtaq direction is appropriate. (2) In other cases where oppression is alleged, but it is the case for the defence that the appellant never made the statement at all and that his signature was obtained by the oppressive conduct, a Mushtaq direction is inappropriate because the primary question or real issue for the jury is simply whether he made the statement or not. Should they be satisfied beyond reasonable doubt that the accused made it, and that it was true, they could act on it even if oppression may have been a factor. In this category it would not be open for the jury to find that the accused made a statement, but as a result of oppression. The evidence they would have to grapple Page 27 of 35

with would be that of the prosecution, that he made the statement of his own free will, and they are asked to find that it is true, and that of the defence that the accused made no statement at all. There would be no room for a finding that he made the statement, it was true, and he made it or may have made it as a result of oppression.

The instant case: 92. Both appellants alleged maltreatment and oppression in the form of violence by

the police in obtaining their signatures on the respective confession statements. Appellant Ganga further testified that the police Inspector told him that his parents were locked up and their release was dependent upon his signature on the said documents, and it was the cumulative effect of these oppressive circumstances that forced him to sign the document.

93.

Counsel for the appellant argued that consistent with the rule against self-

incrimination, the jury ought to have been directed that if a confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. This of course, is the standard type Mushtaq direction. Ms. Seetahal argued the contrary; that rather, the circumstances of the instant case fell squarely within those of Barry Wizzard, a case in which a Mushtaq direction was wholly inappropriate.

94.

We agree with Ms. Seetahal that the facts of the instant case are not unlike those

in Barry Wizzard. The appellants evidence in both cases was that their signatures on the confession statements were extracted by police brutality and were accordingly involuntary. The ground on which this complaint was premised in Barry Wizzard turned entirely on the appellants signature versus his authorship of the confession statement, and accordingly, the same must apply in the instant case.

95.

As we have already discussed, Barry Wizzard makes a distinction between

whether the appellant made the statement and whether he merely affixed his signature to a fabricated document. One might reasonably argue that intrinsic in the manifestation of Page 28 of 35

an appellants signature on a document is the contention that such signature is an attestation to the truth of the contents of the document, and therefore it may be said that by his signature, that appellant had made and/or acquiesced authorship of the said statement. The question that emanates from this concern is, how then is the distinction to be drawn between the mere signing and making of a statement, especially when it was open to the jury to conclude either way on the different versions of evidence presented to them by the prosecution and defence?

96.

The Privy Council in Barry Wizzard dealt with this matter in the following way

at paragraph 35: A Mushtaq direction is only required where there is a possibility that the jury may conclude (i) that a statement was made by the defendant, (ii) the statement was true but (iii) the statement was, or may have been, induced by oppression. In the present case there was no basis upon which the jury could have reached these conclusions. The issue raised by the appellant's statement from the dock was not whether his statement under caution had been induced by violence but whether he had ever made that statement at all. The statement bore his signature. His evidence was that his signature was obtained by violence. This raised an issue that was secondary, albeit highly relevant, to the primary issue of whether he had made the statement. His case was that he had not made the statement, nor even known what was in the document to which he was forced to put his signature. In these circumstances there was no need for the judge to give the jury a direction that presupposed that the jury might conclude that the appellant had made the statement but had been induced to do so by violence. [emphasis added]

97.

The above passage seems to suggest that it is the appellants evidence that

determines whether the need for a Mushtaq direction arises in a particular case. Therefore the contention that it may have been open to the jury to conclude that the confession statement, not the signature thereon, was forced out of the appellant by violence and accordingly the judge should have given a direction that catered for that possibility simply does not stand. Appellants counsel in Barry Wizzard made a similar argument and the Board responded in the following terms at paragraph 36: The fact remains that the judge did give a direction that catered for that possibility, but catered for it in a manner that was inappropriate. The appropriate direction (had there been evidence that the statement under caution had been Page 29 of 35

forced out of the appellant by violence) would have been a Mushtaq direction. The fact that she gave an inappropriate direction in a situation where no direction was called for at all cannot have affected the safety of the jury's verdict. [emphasis added]

98.

Mr. Alleyne-Fortes understanding of the above passage was that a Mushtaq

direction would have been the appropriate direction had the appellant given evidence in the box rather than from the dock. We do not think this is the interpretation the Board intended at all. A Mushtaq direction would have been fitting if it were the case that the appellants statement under caution, not his signature, had been induced by violence. In like manner, a Mushtaq direction would have been inapt or even otiose in the instant case as there was no need for the judge to give the jury a direction that presupposed that the jury might conclude that the appellant had made the statement but had been induced to do so by violence. [paragraph 35 of Barry Wizzard]

99.

In our view Mr. Alleyne-Fortes reliance on the decision in Mushtaq was

misplaced. It is fundamental to note that in Mushtaq, the appellant accepted that he confessed but claimed that he did so as a result of improper conduct on behalf of the authorities. Here the appellants denied making any confession. This was not a Mushtaq type situation.

100.

From the foregoing discussion of the law on this issue, we consider that in

appropriate cases a direction should be given along the Mushtaq lines, that the jury should not rely on a confession, which they think has or may have been obtained by maltreatment or oppression, even if they conclude that its contents were true. In our view, the instant case can hardly be categorised as one such appropriate case.

102.

For the removal of doubt, we wish only to finally observe, as Ms. Seeathal

correctly pointed out, that even if the jury might have been inclined to conclude that the appellant had made the statement pursuant to violence and/ or oppression, the following passage in the summing up which dealt with the evidence of the police inspector who Page 30 of 35

recorded the statements of both appellants was consistent with a Mushtaq type direction. The trial judge had directed thus: The question for you to ask is whether you believe that either of the accused was forced in any way to dictate any statement or to sign any statement. If you believe that they were forced or you think they may have been forced in any way to sign the statement then you would have to disregard the statement. It is only if you are sure that the statement was given in circumstances as related by the witnesses for the State then you are to accept the statement was made and then proceed to consider whether the statement was true. 103. Even if we are wrong in our reasoning of the complaint on this ground, we are of

opinion that the above directions of the learned trial judge could be regarded as a sufficient compliance with the requirements enshrined in Mushtaq. At the end of the day, we harbour no doubt that the jury had the benefit of a summing up in which both appellants cases were fairly placed before them.

We therefore find no merit in this ground.

Ground 6 The trial judge misdirected the jury on the question of special knowledge which they would be entitled to take into account in their assessment of whether or not the confessions were genuine.

104.

This ground alleged an implication by the judge to the jury of special knowledge

on the part of the appellants with respect to the following passage in the summing up: At 12 midday on the 14 th [July 2003] Dr. Burris performed a post-mortem on the body of the deceased. So, this you may consider to be interesting in that the statements on the States case were taken from the accused persons on the 13 th, it was only on the 14th that the post-mortem was conducted, and it was only on the 14th that it was certified that the deceased died from homicidal hanging. You will make of that whatever you wish. But it would seem that the police could not have known for sure that the deceased died of homicidal hanging until the 14 th, around midday of the 14th. [emphasis added]

Page 31 of 35

105.

This direction was given to the jury following the trial judges earlier directions

that, in attempting to decide whether the written statements were made or not, you may look at the details in the statement and consider whether the statements would have the type of details that they now have if they were concocted by someone.

106.

Mr. Alleyne-Forte placed much emphasis on the judges use of the words for

sure and contended that the effect of the impugned passage as a whole was to suggest to the jury that the appellants possessed special knowledge of the murder of the deceased which they, the jury, were entitled to take into account in their assessment of whether the confession statements were voluntary and true.

107.

Ms. Seetahals submission was that the impugned directions fell within the

bounds of proper judicial comment. We do not agree. A judges direction categorised as judicial comment presupposes a basis of fact and/or evidence on which such comment is premised. The following dictum of Channell J. in R v. Cohen and Bateman 2 Cr. App. R. 197, 208 is instructive on this matter: In our view, a judge is not only entitled, but ought, to give the jury some assistance on questions of fact as well as on questions of law. Of course, questions of fact are for the jury and not for the judge, yet the judge has experience on the bearing of the evidence, and in dealing with the relevancy of questions of fact, and it is therefore right that the jury should have the assistance of the judge. It is not wrong for the judge to give confident opinions upon questions of fact. It is impossible to deal with doubtful points of fact unless he can state some of the facts confidently to the jury. It is necessary for him sometimes to express extremely strong opinions. The mere finding, therefore, of very confident expressions in the summing up does not show that it is an improper one. [emphasis added]

108.

Clearly the impugned directions in the instant case cannot be termed as judicial

comment since the judges comment was neither based on a question of fact or evidence before the trial court. As Mr. Alleyne-Forte pointed out, Sergeant Flanders had testified that the polices case of homicidal hanging was based on information given by Roseanne on 13th June 2003, and not on the alleged confession statements of the appellants. It was Page 32 of 35

on that basis that the police proceeded to treat the case as one of homicidal hanging prior to obtaining the post-mortem report. The justification of proper judicial comment does not therefore arise, as the trial judge obviously misunderstood the factual matrix within which homicidal hanging of the deceased came into play in the police investigation of 13th June 2003.

109.

However to have any effect in itself, a misstatement of the evidence or a

misdirection as to the effect of the evidence must be such as to make it reasonably probable that the jury would not have returned their verdict of guilty if there had been no misstatements: R v. Wann 7 Cr. App. R. 135, CCA, R v. Wright 58 Cr. App. R. 444 CA. We do not think that the misstatement of evidence in the instant case, however worthy of criticism, was such as to create reasonable probability that the jury would not have returned a verdict of guilty had it not been made. There was sufficient evidence which the jury clearly accepted, that is, the evidence of Roseanne, to justify the verdict.

Accordingly this ground must also fail.

Ground 3 (Appellant Benjamin) The learned trial judge failed to direct the jury on the issue of the extent to which they should rely on the oral admissions allegedly made by appellant Benjamin, in the absence of any supporting evidence other than the allegations of the investigating police officers.

110.

This ground of appeal complained that the trial judge failed to warn the jury of the

danger of a conviction which rested upon an unsupported oral admission. He should have specifically directed the jury that such a statement may be difficult to disprove and easily fabricated. The impugned direction was as follows: The oral statement of accused no.1, however, where he purportedly says, I only help hang up Sunil, that statement even by itself is sufficient for a finding of guilt since it puts him on the scene of the crime assisting in the hanging. So again you will give those statements whatever weight you wish to, which is consistent in the truth in this trial as you find them. That is a matter solely for you. Page 33 of 35

111.

We begin examination of this ground by tracing the law as set down in the case of

Belcon v R (1963) 5 WIR 526. It was there argued that the jury ought to have been warned that oral confessions are liable to be unintentionally misrepresented by the witness and therefore they should be cautious in acting on them. In the instant case, the appellants contention was not that the police unintentionally misrepresented his confession, but rather that it was completely fabricated. Belcon is nonetheless instructive to our present circumstance for its general principle contained at page 531G-I, where then Chief Justice Wooding stated, we accept that in some cases juries need to be warned to be cautious in acting upon alleged confessions, especially if they are not in writing.

112. The law in Belcon was further developed in Frankie Boodram v. The State Cr. App. No. 17 OF 2003. In that case, Sharma C.J. (as he then was) stated obiter that where the prosecution case depended wholly or substantially on an alleged oral confession, it would be prudent for police officers to make a contemporaneous note thereof in their station diaries, and validate same by the makers signature in accordance with the Judges Rules and Police Standing Orders. This ensures a proper record of reference of such incriminating statements is kept, and readily available to the Court should the need arise, as is often the case. This practice becomes all the more necessary when one considers that the nature of oral confessions is such that they are easy to fabricate and difficult to disprove. We agree with the Chief Justices further remarks at page 17 of the judgment that presiding judges also have a part to play. In our view, when the question of oral admission arises, judges must give a robust direction pointing out the heavy burden that is cast on the State, in order to secure a conviction on oral admission alone and directing their attention to the inherent dangers of such evidence and how difficult it is to disprove.

113.

We have considered the above dictum in Frankie Boodram in our determination

that the judges direction in the instant case provided little assistance to the jury on how to deal with the alleged oral admission of the appellant. However we must point out that in Frankie Boodram, it was plain, and had been conceded by the State that these

Page 34 of 35

utterances were the kernel of the prosecutions case. Without this the prosecution could not have secured a conviction. This was not the case in the instant appeal.

114. In our view, while the judges direction on the alleged oral admission attributed to appellant Benjamin was indeed inadequate, this was not fatal to his conviction. The said oral admission was not the only evidence against him upon which the jury may have founded his conviction, contrary to counsels suggestion. The prosecutions case was substantially premised on the written confession of the appellant and the eyewitness testimony of Roseanne. The jury was sufficiently directed on the other incriminating evidence against this appellant in the judges summing up.

115.

In the final analysis, we are satisfied that in the context of the trial judges

summing up as a whole, appellant Benjamin was afforded a fair trial.

We find no merit in this ground.

The appeals of both appellants are dismissed and convictions and sentences affirmed.

R. Hamel-Smith Justice of Appeal

S. John Justice of Appeal

P. Weekes Justice of Appeal

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