Jairam & Anor v The State (Trinidad and Tobago) [2005] UKPC 21

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 19 of 2004Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
Jairam & AnorAppellantThe State (Trinidad and Tobago)Respondent
Before
Lord Rodger of EarlsferryLord Slynn of HadleyLord HuttonLord Walker of GestingthorpeSir Andrew LeggattDate 11 May 2005
[1]:- Lord Rodger of Earlsferry Lord Slynn of Hadley Lord Hutton Lord Walker of Gestingthorpe Sir Andrew Leggatt [Delivered by Lord Rodger of Earlsferry] On 4 April 1985, while Premraj Mahabir was driving his fiancée, Cheryl Soodeen, home in the moonlight, they stopped in a trace near Esperanza Salt House. When they were parked, a white Datsun pick-up van with grey spots drew up beside them and the driver got out. He was holding a gun and told Premraj and Cheryl to get out of the van. Which they did. After he was joined by another man, the driver told Premraj to give him his wallet. The other man put Cheryl into the van. The driver shot Premraj twice. Premraj subsequently managed to get help, but died in hospital.[2]The men drove away with Cheryl seated between them in the van. They eventually took her to a place called the Cane Weighing Yard. During the journey one of the men demanded her jewellery and took two chains from her neck. Cheryl handed over some rings. At the yard the men proceeded to rape her, one of them twice and the other three times. After that was over, one of them shot her in the vagina. They then left her. Cheryl, who was taken to hospital, survived her injuries.[3]These events set in train a complex sequence of trials and appeals which their Lordships must outline.[4]The appellants are Ramsingh Jairam and Krishna Persad. Persad is now known as Yagoob Hawkins but their Lordships will refer to him as Persad, since that is the name which was used in the trial proceedings. The appellants were arrested in February 1986, some ten months after the murder and rape. In 1988 they were tried for the murder of Premraj and on 19 April 1988 they were convicted and sentenced to death. They appealed, but their appeals were not heard until 14 December 1993. The appeals were allowed the following day, when the Court of Appeal ordered a retrial. That retrial did not begin until 12 October 1995. On 2 November 1995 the appellants were again convicted and sentenced to death. The directions which the judge gave the jury were based on the felony murder rule. The appellants appealed again and on 5 February 1998 their appeals were allowed and another retrial was ordered. The Court of Appeal seem to have taken the initiative and to have indicated at the very outset of the hearing that, because certain information which might have called into question the reliability of one of the key police witnesses, Inspector Dyo Mohammed, had not been made available to the defence, there would have to be a retrial. Counsel for both the State and the appellants appear to have acquiesced in the view that in these circumstances the only appropriate course was for a retrial to be ordered.[5]The appellants appealed, however, to their Lordships' Board on the ground that, by taking the initiative in this way, the Court of Appeal had in effect prevented them from arguing their appeals. In their judgment of 24 January 2001 delivered by Lord Clyde, the Board allowed the appellants' appeal on the ground that the Court of Appeal had failed to distinguish clearly between the questions, first, whether the convictions were safe and, secondly, if they were not safe, whether there should be a retrial. The State cross-appealed on the ground that the Court of Appeal had exceeded their statutory jurisdiction by not hearing any argument on the merits and by deciding, "in limine", to send the case back for a further trial. The Board were not satisfied that the Court of Appeal had exceeded the limits of their jurisdiction: the concern of the Board was about the way in which the Court of Appeal had exercised the jurisdiction which they had. In this "delicate situation", the Board decided that it would be preferable for the Court of Appeal to proceed to hear the appeals rather than for the Board themselves to form a concluded view without the assistance of the Court of Appeal. In giving the Board's decision to that effect, Lord Clyde drew attention to what appeared to be a serious defect in the summing up, viz that it had been based on the felony murder rule.[6]In these circumstances it was not strictly necessary for the Board to express any view about the substantive points which had been argued before them. Nevertheless, they did examine the point about the information relating to Inspector Dyo Mohammed in some depth. They also made mention of another point relating to the evidence of a prosecution witness, Yussuf Mohammed, to the effect that in 1985 the appellant, Jairam, had access to a Datsun pick-up van and that on one occasion the witness had found a gun concealed in the van. The witness removed the gun from the van. He said that, the same evening, Jairam had told him that the gun was his and had taken it away in the van. Their Lordships will have to examine the significance of this evidence in more detail, but what matters at present is that, even although at the trial defence counsel had not objected to the admission of this evidence, Lord Clyde made this observation, at para 20:
"Quite apart from the failure to disclose the information to the defence there was the question of the admissibility of the evidence about the gun. In the view of their Lordships the use which was made of this evidence by the trial judge, even although he sought to minimise the significance of the evidence, was improper and prejudicial. Counsel for the State sought to justify the evidence but their Lordships' view is that it should not have been admitted."
Lord Clyde went on, at paras 22 and 23, to say:
"22. Further, although it was not mentioned by the Court of Appeal, the grounds of appeal raised the criticism of the summing up that the judge had given a direction on felony murder and that he had erred in law in that respect. Counsel for the State accepted that there was misdirection on this matter. The point is of critical importance for the appellant Persad, since it was Jairam who was said to have had the gun and to have shot the deceased. It seems to their Lordships that there was no proper direction given to the jury on the crucial matter of intention, and that is a serious defect in the summing up so far at least as Persad is concerned. This does not appear to have been a case where it could be affirmed with any confidence in the circumstances that the man who did not have the gun knew or expected that the other was going to use it to kill. While they may both have been robbers it was not evident that they were both murderers. 23. Their Lordships have some difficulty in seeing that there was room here for invoking the proviso at the very least in the case of Persad. Whether he contemplated that a gun would be used was a question never pursued in the evidence. At least in his case it may well be difficult to say that the jury would inevitably have convicted him of murder. The decision in the case of Johnson v The State [1999] 1 WLR 2000 can be invoked to support the point. The position in the case of Jairam will have to depend upon the view which the Court of Appeal take about the other points which may be presented on his behalf. But it is right that the Appeal Court should have the opportunity to adjudicate upon these questions."
[7]Having reaffirmed that it was impossible to decide the question of a new trial before the merits of the appeal were considered, the Board concluded, at para 28:
"For the foregoing reasons their Lordships have decided that the proper course is to allow the appeals by the appellants and the cross-appeal by the State and thereafter to remit the case to the Court of Appeal to hear the appeals on the grounds stated together with such further grounds as the parties may wish to present."
[8]Not surprisingly, in view of the indication given by Lord Clyde, when the Court of Appeal subsequently came to deal with the appeal, they proceeded on the basis that, in the light of the decision of the Board in Moses v The State [1997] AC 53 , the judge had misdirected the jury in terms of the felony murder rule. That point was of real significance for Persad, since in her evidence Cheryl had identified Jairam as the person who had shot her fiancé. The Court of Appeal dealt with Persad's appeal in this way, at para 141:
"As regards Persad, given the failure of the trial judge to direct the jury on the question of foresight by a secondary party, the verdict of murder cannot stand. We would therefore allow the appeal against conviction and substitute one of manslaughter."
The Court of Appeal went on to impose a sentence of 20 years imprisonment backdated to 19 April 1988. Persad has served his sentence, but none the less appeals to the Board against the Court of Appeal's decision to substitute a conviction of manslaughter.[9]Before examining that matter, their Lordships must first consider Jairam's appeal against conviction, which the Court of Appeal refused. In that regard the special leave to appeal to the Board is limited to the issue of the admissibility of the evidence of his possession of a gun and to the trial judge's direction to the jury in relation to that matter. Again, when that aspect of Jairam's appeal was argued before the Court of Appeal, the approach adopted by counsel was influenced by what the Board had said in their 2001 judgment. In particular, in both her written skeleton argument and in oral argument, counsel for the State conceded that this evidence had been inadmissible. She argued that the evidence would have had little impact, however, and that, having regard to all the other evidence in the case, the conviction was safe and the proviso should be applied. This concession by prosecuting counsel was a concession in law and, accordingly, not binding on the Court of Appeal. When they came to give judgment the Court of Appeal did not proceed on the basis of the concession: plainly, they took the view that, since the Board had remitted the case to them "to hear the appeals on the grounds stated", the Board's observation about the admissibility of the evidence was not binding on them and they were free to determine the matter for themselves. In the event, they decided that the evidence was admissible. The essence of their reasoning is contained in paras 128 and 129 of their judgment:
"128. Mohammed had described the gun and that description was similar to the one given by Cheryl. It was a .38 revolver and the casings found at the scene were the same bore. The trial judge made it clear to the jury that the State was not attempting to link the gun to the murder but, as it had in the case of the van, the State was asking them to draw the inference that, contrary to his denial, Jairam was in possession of a gun at one time or the other. 129. Counsel did not contend that the evidence in respect of the gun was inadmissible per se. He submitted that it was prejudicial and that prejudice outweighed its probative value. It was indeed injurious to Jairam's case if the jury believed Yussuf, as was the evidence in relation to the casings found at the scene of the crime. We do not agree, however, that the prejudicial effect outweighed the probative value and would reject this ground of appeal. The State was entitled to have the jury consider all the evidence and to draw any reasonable inferences they could."
To complete the picture, when Mr Knox came to present his submissions on behalf of the State in this appeal from the Court of Appeal's decision, he specifically withdrew the concession made by counsel below and argued that the trial judge had indeed been correct to admit the evidence about the finding of the gun.[10]The sequence of events is plainly less than happy, but their Lordships are satisfied that in the circumstances it was indeed open to Mr Knox to withdraw the concession and to present the argument. Since their Lordships have had the advantage of hearing full argument on the point on this occasion, they will address the point, although, for reasons which will become apparent, they need not reach a definitive view.[11]It is accepted that, to be admissible, evidence must be relevant to some issue of fact that is in dispute in the trial. In his Digest of the Law of Evidence (12th edition, 1936), p 3, article 1, Stephen gives a definition of relevance which has been widely accepted:
"The word 'relevant ' means that any two facts to which it is applied are so related to each other that according to the common course of events one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other."
The first question to be asked, therefore, is whether, if the State satisfied the jury that Jairam had a gun in the Datsun pick-up at an unspecified date in 1985, this fact, taken along with the other facts, rendered it probable that Jairam killed the deceased on the night in question.[12]Viewed in isolation, the fact that Jairam had a gun would make it more probable that he killed Premraj than any member of the public who did not possess a gun. In a society such as Trinidad where many people carry guns, however, that fact alone would do little to prove that Jairam killed Premraj. But the evidence was that he had the gun in the pick-up in 1985 and that evidence must be considered in the context of the other evidence in the case. The prosecution evidence was(1) that Cheryl identified Jairam as the murderer,(2) that she said that the murderer had emerged from a Datsun pick-up van,(3) that Inspector Dyo Mohammed said that he had found certain items of jewellery in Jairam's home,(4) that Cheryl identified them as items which had been taken from her on the night of the murder,(5) that Inspector Dyo Mohammed said that, in his presence, Jairam's wife said that he had given her the jewellery in April 1985,(6) that Inspector Dyo Mohammed said that Jairam admitted being present when Premraj was killed,(7) that Inspector Dyo Mohammed said that Jairam had told him that he had driven the Datsun pick-up van, registration number TAD 4985, on the night of the murder,(8) that, at trial, Jairam admitted driving that Datsun pick-up van, which belonged to Yussuf Mohammed's mother, in 1985, albeit only up until February, and(9) that Yussuf Mohammed said that Jairam had driven his mother's Datsun pick-up, registration number TAD 4985, in 1985. In their Lordships' view, in the context of these other items of evidence, Yussuf Mohammed's evidence that Jairam had a gun in the Datsun pick-up van, registration number TAD 4985, at some time in 1985 is relevant, because, if accepted, it would add yet another fact that would make it more probable that Jairam, rather than any other member of the public, shot Premraj.[13]Mr Knox accepted, of course, that, even though evidence is relevant, it may not always be admissible. Most obviously, pure hearsay evidence may well be relevant, but it is not admitted because its reliability is difficult to check. Likewise, evidence of similar facts is generally inadmissible but will be admitted if its probative force is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime: Director of Public Prosecutions v P [1991] 2 AC 447, 460 per Lord Mackay of Clashfern LC. Here Yussuf Mohammed's evidence did not point to Jairam having committed another crime. None the less, it was potentially illegitimately prejudicial in the sense that it might lead a jury to conclude that Jairam was the murderer simply because he was the kind of person who carried a gun. If it had stood alone, the probative force of Yussuf Mohammed's evidence would not have been sufficiently great to make it just to admit it when it carried this risk. But his evidence actually stands along with the other pieces of prosecution evidence which, if accepted, would point to Jairam as the person who killed Premraj. Having regard especially to the evidence linking Jairam's possession of a gun to the pick-up van, which Jairam admitted driving up until February 1985, and linking that van to the murder, their Lordships incline to the Court of Appeal's view that the probative force of Yussuf Mohammed's evidence was sufficient to justify admitting it.[14]It was important, however, that the jury should be properly directed as to the use which they could make of this evidence.

The judge introduced his summary of it in this way:

"The next one we go to is Yussuf Mohammed and you will remember he was the witness who said he found the gun in this van. He becomes very important, very important."
The judge went on to explain the basis upon which the prosecution was asking the jury to infer that Jairam had been driving the van belonging to Yussuf Mohammed's mother on the night of the murder. After that, he narrated his evidence about finding the gun in the van, taking it out and concealing it, later the same day having to give it to Jairam after he had threatened to shoot him and Jairam leaving with it. The judge pointed out that Jairam denied that any of this had happened. "One is lying. Who is lying, you will determine".[15]Later in his summing up

the judge dealt with Yussuf Mohammed's evidence about the state of the gun which he found:

"He went on to say when he found the gun he inspected it and there were four sealed bullets, one missing, one shelled. What difference does it make really? He just told you what he found, he looked at the bullets and this is how he found it. As I said, there is no evidence that this was the murder weapon or the gun. When he found it, it was in the same condition that it was on the night of 4 April 1985, if that was the gun used. He is just telling you what he found. The police are making investigation, the police are getting information. The gun to the State was important, so they bring the evidence for it, all the evidence of it, whether it's important or not. And the State has a duty to do that, not to hold back evidence from the jury. So they bring the evidence, whether it's material or not. But, as I say, the important aspect of Yussuf Mohammed's evidence is that it puts a gun in the hands of [Jairam] at some time or the other while he was driving that van. It helps you to determine the credibility either of Yussuf Mohammed and the second accused because you will have to determine where the truth lies, so far as the evidence is concerned"
(emphasis added). This passage is self-evidently confusing and unsatisfactory. As their Lordships have explained, the jury should have been directed that, when considering whether it was Jairam who shot Premraj, if they accepted Yussuf Mohammed's evidence, they would have been entitled to take into account the fact that, at some unspecified date in 1985, Jairam had a gun concealed in the Datsun pick-up van, registration number TAD 4985. Towards the end of the excerpt from his summing up, the judge does indeed give the jury what appears to be a direction to that effect when he says that "the important aspect of Yussuf Mohammed's evidence is that it puts a gun in the hands of [Jairam] at some time or other while he was driving that van". The force of the direction is somewhat blunted, however, by the judge then telling them that this evidence helps to determine the credibility of the evidence of Yussuf Mohammed and Jairam, respectively. But, if anything, these words are unduly favourable to the defence since they seem to suggest that the only real significance of this evidence is in relation to Jairam's credibility, whereas it could in fact have been deployed more widely.[16]Unfortunately, however, other aspects of this passage in the summing up are far from satisfactory and are potentially prejudicial to the defence. The judge first points out, rightly, that there was no evidence that the gun which Yussuf Mohammed found was the murder weapon, but then appears to contradict this by adding that "when he found it, it was in the same condition that it was on the night of 4 April 1985, if that was the gun used" (emphasis added). This is misleading in two ways.[17]First, Yussuf Mohammed's evidence, that the gun had four sealed bullets, one missing and one shelled, did not point to the gun being in the same condition as the one used on the night of the murder. To judge from the medical evidence, at least three shots were fired from the murder gun, two into Premraj and one into Cheryl. If Yussuf Mohammed saw the gun before the incident, the fact that it had four sealed bullets would show nothing more than that it could have fired three shots; whereas, if he saw it after the incident, the state of the gun would have been inconsistent with it having been used to fire three shots.[18]Secondly, the whole tendency of the passage, culminating in the words which their Lordships have emphasised, is to contradict the proper direction which the judge had just given, that there was no evidence that the gun found by Yussuf Mohammed was the murder weapon. By speculating on the similarity of the state of the gun seen by Yussuf Mohammed and the presumed state of the gun used in the murder, the judge was in effect inviting the jury to see a link between the two weapons where none had been proved. That misdirection was not cured, and may indeed have been made worse, by the following confused sentences in which the judge seems to suggest that the duty of the State was to lead evidence, whether or not it was important and whether or not it was material.[19]As their Lordships have explained, Yussuf Mohammed's evidence about the gun called out for careful directions from the trial judge. Unfortunately, a jury, faced with the directions given by the judge would have been left in real doubt as to the way in which they should approach it. Moreover, the directions were not just a mixture of the correct and the confused: they also contained a positive misdirection on the possible implications of the state of the gun seen by Yussuf Mohammed.[20]In these circumstances their Lordships must go on to consider whether the appeal should be allowed and the verdict quashed on the basis of this misdirection, or whether, despite the misdirection, no substantial miscarriage of justice has actually occurred: section 44(1) of the Supreme Court of Judicature Act. Before they can apply this provision, the Board must be satisfied that, if they had been properly directed on Yussuf Mohammed's evidence, a reasonable jury would without doubt have convicted Jairam of murder.[21]Although the test is a high one, the Board are satisfied that it is met in this particular case. In para 11 above, the various strands in the prosecution case against Jairam are set out. The existence of these different interlocking strands is itself an indication that there was a sound basis for the verdict. Moreover, their Lordships would draw particular attention to the evidence of Cheryl's clear identification of Jairam as the man who shot Premraj. For present purposes it is important to remember that, although the events took place by moonlight, Cheryl had an opportunity to observe the two men in question over a long period, covering not only the initial incident when Premraj was murdered, but also the journey to the Cane Weighing Yard and the period of the rapes itself. The judge gave the jury meticulous directions about the way they should approach her identification evidence and, in particular, about the possibility of mistakes being made. It is plain that, with these warnings in mind, the jury accepted that she had correctly identified Jairam as the person who shot Premraj. Moreover, there was evidence that items of jewellery belonging to Cheryl, and which had been taken from her by the man she identified as Jairam, were discovered in Jairam's house. In addition there was evidence that, according to his wife, he had given her these items in April 1985, i.e. about the time of the murder. This evidence relating to the jewellery - which could only be explained away on the supposition of an elaborate and deliberate plot to frame Jairam – constitutes powerful corroboration of Cheryl's identification of Jairam as the person who killed Premraj and then took her jewellery. Having regard to these matters, in particular, their Lordships are satisfied that the conviction of Jairam is safe and that there has accordingly been no miscarriage of justice. His appeal against conviction is accordingly refused.[22]Their Lordships now turn to the appeal by Persad which they can deal with more briefly. As they have already explained, the starting point is that, in the light of the comments by Lord Clyde, in the Court of Appeal counsel for the State accepted that the judge had misdirected the jury in terms of the felony murder rule. On that basis the Court of Appeal quashed Persad's conviction of murder, but, without elaborating on their reasons, they substituted a conviction of manslaughter. In so doing, they purported to exercise the power contained in section 45(2) of the Supreme Court of Judicature Act:
"Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity."
[23]Mr Knox sought to uphold the Court of Appeal's decision to substitute a conviction of manslaughter by advancing a far-reaching argument on the appropriate test for the liability of a secondary party in manslaughter. In short, Mr Knox contended that, since Persad was concerned in the unlawful and dangerous joint enterprise of robbery, he could escape conviction for manslaughter only if the shooting of Premraj by Jairam was not only unforeseen but also unforeseeable. There is, of course, not a hint of this argument in the Court of Appeal's judgment.[24]In support of this submission, Mr Knox presented a detailed and interesting analysis of what he said were inconsistencies in the authorities on this question. Their Lordships do not find it necessary, however, to address that potentially important argument on this occasion. As Mr Guthrie, QC, submitted and as Mr Knox himself recognised, even if his submission were correct, it could not avail the State unless, in terms of section 45(2), the jury must have been satisfied that it was foreseeable by Persad that Jairam would shoot Premraj. But, precisely because the felony murder rule was thought to apply, neither side canvassed that issue in evidence at the trial and the jury were never asked, or directed, to consider it. There is therefore no reason whatever to believe that they did so. In that situation the Court of Appeal could have had no basis for holding that the jury must have been satisfied that the shooting was foreseeable by Persad. It was therefore not open to the Court of Appeal to substitute a verdict of manslaughter on that basis.[25]Since Mr Knox advanced no other argument to justify this aspect of the Court of Appeal's judgment, Persad's appeal must be allowed and his conviction for manslaughter quashed.

Cited in 1 later judgment