Ramdhanie and Ors v. The State (Trinidad and Tobago) [2005] UKPC 47

Judicial Committee of the Privy Council

Case No Privy Council Appeal No.47 of 2004

Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO

Between

Ramdhanie and OrsAppellant

The State (Trinidad and Tobago)Respondent

Before

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Walker

Lord Brown of Eaton-under-Heywood

Lord Mance

Date 15 December 2005

[1]:- Lord Hoffmann Lord Rodger of Earlsferry Lord Walker Lord Brown of Eaton-under-Heywood Lord Mance [Delivered by Lord Mance ] This appeal is brought by special leave against the order of the Court of Appeal of Trinidad and Tobago (Ibrahim, Hamel-Smith and Permanand JJA) dismissing appeals against convictions on 6 th May 1997 of drug trafficking in the High Court before John J and a jury. The four appellants are Victor Lemassy (pursuing this appeal by substitution as executor of the estate of Mantoor Ramdhanie, who died after the Court of Appeal's order), Deochan Ramdhanie (Mantoor's son), Patrick Toolsie (married to Mantoor's niece) and Ken Gresham. Their Lordships will, where appropriate, refer to the late Mantoor Ramdhanie, Deochan Ramdhanie, Patrick Toolsie and Ken Gresham as the defendants.

[2]Each of the four defendants was, following his conviction at trial, sentenced by the trial judge to life imprisonment with hard labour and a declaration that he was not to be released before the expiration of 20 years from 2 nd June 1997. In addition, confiscation orders were made as follows:(a) against Mantoor Ramdhanie, in the sum of $3,887,604.58 to be paid within 3 months, with, in default, a term of imprisonment of 15 years with hard labour to run consecutive to any term of custody which he was liable to serve for the substantive offence,

(b) against Deochan Ramdhanie, in the sum of $1,816,003.71 to be paid within 3 months, with, in default, a term of imprisonment of 12 years with hard labour to run consecutive to any term of custody which he was liable to serve for the substantive offence,

(c) against Patrick Toolsie, in the sum of $23,537.00 to be paid within 3 months, with, in default, a term of imprisonment of 4 years with hard labour to run consecutive to any term of custody which he was liable to serve for the substantive offence and

(d) against Ken Gresham, in the sum of $153.17 to be paid within 3 months, with, in default, a term of imprisonment of 2 years with hard labour to run consecutive to any term of custody which he was liable to serve for the substantive offence.

[3]The Board granted special leave limited to three grounds, viz that(i) there was "failure of the defendants' counsel to raise and/or the trial judge to direct the jury on [the defendants'] good character",

(ii) "the prosecutor's closing speech was improper and engendered prejudice" and

(iii) "the sentences imposed were manifestly excessive".

[4]The trial involved stark issues of credibility relating to events on 18 th October 1996. The prosecution case was as follows: police officers were in two unmarked separate cars, in radio contact, in the Point Fortin area at about 11.15 a.m. One (white) car held Inspector Williams, Corporal Ferreira and PC Baptiste, the other car held PCs Bristol, Henry, Campbell and Stoddard. The officers in the first car saw a grey Gallant Mitsubishi reg. no. PAY 8234 parked in Mora Road just south of the Dunlop Roundabout with its bonnet up and recognised Deochan Ramdhanie, standing in front of the car; another red Gallant Mitsubishi reg. no. RBA 1498 drove up, and a brief conversation took place between the two cars, before the red Gallant drove off again; the bonnet of the grey Gallant was lowered, and the police recognised Mantoor Rahdhanie sitting in its front passenger seat. Deochan then drove the grey Gallant some distance west along Point Fortin Road to the compound of the Circle Place Restaurant in Cap-de-Ville Road, being followed during the latter part of the journey by the second police car containing PC Bristol and others; at the Circle Place Restaurant the grey Gallant reversed alongside a mauve Hillman reg. no. PT 8175 belonging to Patrick Toolsie, and the two cars' left doors were opened onto each other; Ken Gresham emerged and went towards the grey Gallant, but hurriedly returned to Toolsie's car as the police moved in; after a short chase the grey Gallant was stopped by the first police car on Richardson Street (a continuation of or right turn off Cap-de-Ville Road), where the two Ramdhanies were arrested by Corporal Ferreira and the other officers. Toolsie and Gresham were arrested in the mauve Hillman without any chase by PCs Bristol and Stoddard. The prosecution case was that, on making these arrests, the police found in the front well of the Ramdhanies' car two blue plastic bags with eight parcels inside marked "Yamaha" and containing 5540 grams of what proved, on analysis, to be cocaine, and in the front well of the mauve Hillman a blue plastic bag with two silver parcels inside also marked "Yamaha" and containing 1394.7 grams of cocaine. On that basis the prosecution relied on s.21(1) of the Dangerous Drugs Act 1991, whereby "any person who occupies, or is in possession of any …. vehicle …. in or upon which a dangerous drug is found shall be deemed to be in possession thereof unless he proves that the dangerous drug was there without his knowledge and consent".

[5]The defence took issue with the prosecution at almost every point. The Ramdhanies' evidence was that Mantoor, having suffered two quite recent strokes, was being driven by Deochan in the back seat of Mantoor's car, a grey Gallant, to his weekly visit to the doctor; that it did not use the Mora Road route or drive west along the Point Fortin Road, that it was on Adventure Road (another turning off Cap-de-Ville Road) when it was suddenly blocked by police in a white car who put Deochan in the back seat of Mantoor's car and said that they were taking them both to Port of Spain for enquiries. There were no bags, parcels or drugs in the Grey Gallant, and the first they had seen of the bags, parcels and drugs produced by the police was at the magistrates court. Toolsie accepted that the police had approached him and searched his car near the Circle Place Restaurant, but said that he was on his own and without any bag, parcel or drugs in his car. Gresham's case was that he had not been in the mauve Hillman and knew nothing of any drugs; he had been talking to a friend at a roundabout in the area of Cap-de-Ville Road, when a white car had pulled up, and one of the men in it had pointed a gun at him, shown him a card and told him to come, while another had said he was "the one who just drop off". He had been ordered to sit in the car and taken to the Woodbrook Police Station, where he was interrogated about drugs, about the Ramdhanies and about Patrick Toolsie, and denied any knowledge of them. He said that at one point an officer told him "this is a political thing, you better get a good lawyer", and that later in hospital PC Baptiste told him that the police realised that he had got "in this thing by mistake" and urged him to testify against the other defendants.

[6]All the defendants pointed to the absence of any police notebook kept by any policeman except PC Stoddard and the absence from PC Stoddard's notebook of important aspects of what he said that he had observed on 18 th October 1996. The Ramdhanies suggested that the police could not have seen their car, if it had been on the Mora Road, from the place where the police said that their own car was stationed. The defendants also pointed out that the exhibit numbers (8055-62/96) on the eight parcels of cocaine allegedly taken from the Ramdhanies' car preceded the exhibit numbers (8063-4/96) on the two parcels of cocaine allegedly taken from Toolsie's car; that according to both PC Bristol and Corporal Ferreira all ten parcels had reached the police station by 2.00 p.m. on 18 th October 1996; that PC Bristol's evidence at trial was that he had handed his two parcels (taken from Toolsie's car) to the station sentry or property officer at that time (although in the magistrates court he had said that he only did so at 11.45 p.m.); but that Corporal Ferreira maintained throughout that he had put his eight parcels in a locked locker and only handed them to the sentry at about 11.45 p.m. In support of the case that the Ramdhanies' car was stopped in Adventure Road, not Richardson Street, the defence called a witness, Lisa Merez. She said that on 18 th October 1996 she was working in a pudding shop at the end of Adventure Road, from the door of which she had observed what she had at first thought to be a raid on a silver/grey car by armed bandits from a white car, who after opening and closing the trunk of the silver/grey car made one of its two occupants join the other in its back and then drove it off. Good character

[7]In cross-examination, counsel questioned Corporal Ferreira and P. C. Baptiste about any prior involvement which they had had with some of the defendants. The cross-examination of Corporal Ferreira by Mr Guerra SC representing Mantoor Ramdhanie and Toolsie led to the following exchanges:

"Q. Now you said you had known Mantoor Ramdhanie for how long? A. Approximately 18 years, sir. Q. You know that he is a wealthy man? A. I have no information on his wealth, sir. Q. When first did Mantoor Ramdhanie come to your attention, as an officer of the Organised Crime and Narcotic Unit? A. Mantoor Ramdhanie came to my attention -- THE COURT: One moment. Mr Guerra, I want to ensure that we have no disclosures that would be of a prejudicial nature. I wonder whether you don't want to consider rephrasing that question? MR. GUERRA: My Lord, in all my practice this is the first time I have seen a judge try to tell me how I should conduct my client's defence. THE COURT: I am not telling you, Mr Guerra, how to conduct your client's defence. I just want to ensure, Mr Guerra, that at the end of the day, the accused persons get a fair trial. MR. GUERRA: They ought to get a fair trial regardless of whatever answers the witness gives. THE COURT: Proceed Mr. Guerra. Repeat your question please? BY MR. GUERRA: Q. When did Mantoor Ramdhanie first come to your attention, as an officer of the Organised Crime and Narcotic Unit? A. Mantoor Ramdhanie came to my attention before I was a member of the Organised Crime and Narcotic Unit. Q. I see, thank you. How long ago was that? A. Seventeen, 18 years ago, sir. Q. Seventeen, 18 years ago. And, insofar as you know, this is the first time Mantoor Ramdhanie is charged for any offence against narcotics law? A. As far as I am aware, sir. Q. Mantoor Ramhanie, insofar as you are concerned, he had been the subject of several investigations by the Organised Crime and Narcotic Unit? THE COURT: Mr. Ferreira, do not answer that question. BY MR. GUERRA: Q. In spite of the investigations made by the Organised Crime and Narcotic Unit no charge has ever been preferred, before now, against Mantoor Ramdhanie? A. As far as I am aware, sir, that is correct. Q. Within a year or so ago, the DEA of America has been taking very great interest in what is taking place in Trinidad as to drugs? A. I wasn't privileged to that information, sir, I was on vacation. Q. As a consequence the United States Ambassador -- THE COURT: Mr. Guerra you can't go on, 'as a consequence' because the witness response is, 'I am not aware.' MR GUERRA: No, no, sir, he was not part of it. He was on vacation. THE COURT: I was not aware of it, isn't that your answer? THE WITNESS: Yes, sir, I was not aware of it. . . . Q. As an officer of the Organised Crime and Narcotic Unit, were you aware that Mantoor Ramdhanie's was on a list provided by the American Ambassador? THE COURT: Do not answer that question. Mr Guerra, I reiterate -- MR GUERRA: Yes, My Lord. THE COURT: Whilst I may not be, and I will never attempt to tell you how to conduct your case, the Court has a responsibility to ensure certain degrees of fairness. I have to ensure that nothing prejudicial to the fair trial of these accused persons comes out in this trial. MR GUERRA: My Lord, this is not prejudicial to fair trial of the accused. We have a jury of Trinidadians here, and they know what is happening in Trinidad and Tobago. This is why they have been picked as jurors. And I have certain instructions which you are forbidding me from putting. You are telling the witness not to answer my questions. That, is being prejudicial to my client, My Lord. THE COURT: Mr. Guerra, if it turns out that I am wrong, well -- MR. GUERRA: It's just that it will be so expensive to my client to show that you are wrong. My Lord. THE COURT: Proceed. MR. GUERRA: Shall I put the question again? THE COURT: I am not allowing the witness to answer that question."

[8]Dr Seepersad representing Deochan Ramdhanie returned to this topic with Corporal Ferreira, leading to the following exchanges:

"Q. Now, you said yesterday that accused number one, Mr. Mantoor Ramdhanie was under investigation? A. I never said that, sir. Q. All right. Was he ever under investigation? A. I don't know that, sir. THE COURT: Dr. Seepersad please exercise caution necessary. BY DR. SEEPERSAD: Q. Mr. Ferreira? A. Yes, sir. Q. Were you ever investigating Deochan Ramdhanie? THE COURT: One moment please. Doctor Seepersad again, I am going to intervene and not allow the witness to answer that question. DR. SEEPERSAD: As my Lord pleases. THE COURT: Save and except insofar as his investigations relate to this particular matter before the court I won't allow it. DR. SEEPERSAD: As My Lord pleases. BY DR. SEEPERSAD: Q. Have you ever charged Deochan Ramdhanie for any offence other than this one? A. No, sir. THE COURT: Doctor Seepersad -- DR. SEEPERSAD: My Lord, I take your point."

[9]In these exchanges trial counsel do not appear to have aimed at adducing evidence of good character, but rather evidence on which the defence might rely to suggest a motive why Corporal Ferreira, or the police more generally, might have thought that the Ramdhanies were involved in drug trafficking and so might have planned to arrest and, if necessary, set them up in order to have them imprisoned. No positive evidence was led by any of the defendants to establish good character on their part at any stage. It appears that prosecuting counsel had, at the time of the trial, a document or information from the police indicating that Mantoor Ramdhanie had a conviction on 21 st July 1992 for possession of a firearm, as well as information regarding other matters (not involving any convictions) which he might have sought to suggest reflected adversely on at least some of the defendants' characters. Belatedly, it has now become clear that Mantoor Ramdhanie's supposed conviction never occurred – submissions of no case to answer on a charge of possession of a firearm and of ammunition were in fact upheld and charges against him dismissed on 9 th November 1992. It is now common ground that none of the defendants had any prior record of convictions. Mr Dingemans QC representing the prosecution before the Board points out however that, even if this had been established by evidence at trial in relation to any particular defendant, that defendant would not necessarily have been entitled to a, or an unqualified, good character direction, if the prosecution had been able to establish other matters which in common sense removed his entitlement to a, or a full, good character direction: see R v. Aziz

[1996] AC 41

, 53 per Lord Steyn.

[10]One ground of appeal argued before the Court of Appeal was that the judge was wrong to stop the questioning of Corporal Ferreira by Mr Guerra and Dr Seepersad in the passages already quoted. The Court of Appeal rejected this ground, and leave was not sought to pursue it before the Board. It does not therefore arise directly for consideration. But it is relevant to say this about it. First, the Board is not to be taken as endorsing the reasons given by the Court of Appeal for rejecting this ground. But, secondly, it is clear from the passages quoted in paragraphs 7 and 8 above that the judge believed that he was protecting and intended to protect the defendants by intervening as he did. One uninvestigated possibility, material to the ground of appeal relating to good character which is before the Board, is that the judge's concern about the possible implications of the questioning for the defendants was well-founded, or was seen as such by the defendants.

[11]Complaint was also raised before the Court of Appeal by Mantoor and Deochan Ramdhanie and by Toolsie about the absence from the judge's summing up of any good character direction. Mr Allum SC, representing all these three appellants on this ground in the Court of Appeal, pursued it only in respect of Mantoor and Deochan Ramdhanie. He conceded that there was no ground to advance it, and obtained leave to withdraw it, in respect of Toolsie. No such ground was, it appears, ever advanced in respect of Gresham.

[12]The reason why a point on good character was only argued on behalf of Mantoor and Deochan Ramdhanie in the Court of Appeal is, no doubt, that the only submission made there was that the judge was (by the passages in the cross-examination of Corporal Ferreira already quoted) put on notice that Mantoor and Deochan Ramdhanie each had a good character and should have given a direction accordingly. Before the Board, that submission is expressly disclaimed by Mr O'Connor QC, who now represents Mr Lemassy (as executor of Mantoor) and Deochan Ramdhanie, and it has not been relied on by Mr Ramdhun representing Toolsie and Gresham. What Mr O'Connor now submits is that trial counsel misunderstood the judge's interventions during Corporal Ferreira's cross-examination as precluding them from further cross-examination or from calling evidence to establish the defendants' good character, and that there was a mishap or error in that the position was not clarified between counsel and the judge in any discussions in the absence of the jury.

[13]No material supporting this new submission is produced from Mr Guerra SC, who represented Mantoor Ramdhanie and Toolsie and took a primary role in the conduct of the common defence advanced at trial by all the defendants. Three statements in like form have however been made by Deochan Ramdhanie, Toolsie and Gresham. Each is to the effect that the relevant defendant never suggested or agreed with his trial counsel that his good character should not be put in evidence and that there was no question or suggestion of a tactical decision not to raise it. None of these statements gives any information about what, if anything, may positively have been said, intended or decided about good character. However, Dr Seepersad, who represented Deochan at trial and appeared before the Board as Mr O'Connor's junior, has made an affidavit attesting that he understood the judge's intervention during his cross-examination of Corporal Ferreira to mean that it was not open to him to adduce evidence of Deochan's good character, while Mr Mohamed, who represented Gresham at trial, has written a letter in which he states that "the trial judge did not allow questions relating to the character of the accused, and made it abundantly clear to Attorneys (off the record) that he was not going to allow such questions", and that it was for this reason that "I did not pursue this line of questioning". There is however nothing else before the Board, and no detail is given and no contemporary notes found, to support the suggestion of any relevant "off the record" statement by the judge, quite apart from the fact that any such suggestion would not square with Mr O'Connor's complaint about the failure of the judge and counsel to have a discussion in the absence of the jury. Before the Board Mr Ramdhun representing Toolsie and Gresham in the event pursued a different line, suggesting that counsel at trial believed or probably believed that some or all of the defendants had antecedents. He referred to the (erroneous) information about Mantoor which prosecuting counsel is now known to have had (cf paragraph 7 above) and to prosecuting counsel's application during the trial to adduce a statement from a Winston Sylvester which (although its terms are not before their Lordships) clearly contained material adverse to at least one if not more of the defendants' characters.

[14]Where a defendant's good character is established by evidence (including an admission by the prosecution) or cross-examination, it is incumbent on a trial judge to direct the jury as to its significance in relation to both credibility and the (un)likelihood of the defendant having committed the offence charged: R v. Vye

[1993] 1 WLR 471

and R v. Aziz , cited above. But before a judge is so obliged, the defence must have raised the point "distinctly", establishing the absence of any prior record by evidence or cross-examination: Barrow v. The State

[1998] AC 846

, 852d; Teeluck and John v. The State

[2005] UKPC 14

, para. 33(v). There are however "some circumstances in which the failure of defence counsel to discharge a duty, such as the duty to raise the issue of good character, which lies on counsel …. can lead to the conclusion that the conviction is unsafe and that there has been a miscarriage of justice": Sealey and Headley v. The State

[2002] UKPC 52

, para. 30; Teeluck and John , paras. 38-40. In the last case, the Board issued a reminder that it would not ordinarily entertain a ground of appeal based upon allegations of incompetence by counsel when raised for the first time before the Board", but it entertained such a ground in the case before it "because of the importance of the issue to the appellant John and because, on account of the frankness of his former counsel in furnishing information, [the Board was] in a good position to determine the issue without having to deal with any conflicts of fact" (para.38). The Board went on in para. 39 to say:

"There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client. Apart from such cases, which it is to be hoped are extremely rare, the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict rather than attempting to rate counsel's conduct of the case according to some scale of ineptitude: see Boodram v The State [2002] 1 Cr App R 103, [2001] UKPC 20 at para 39; Balson v The State [2005] UKPC 2 ; and cf Anderson v HM Advocate 1996 JC 29 ."

[15]In the present case their Lordships find themselves in a much less satisfactory position than the Board was in Teeluck and John . Here, the actual position and thinking of counsel at trial are not clear. There is no evidence from Mr Guerra, despite the significance of his role in the common defence advanced of a police plant or "set-up". There is thus no evidence at all about Mantoor Ramdhanie's position or instructions at trial. Trial counsel for Deochan Ramdhanie (Dr Seepersad) and for Gresham (Mr Mohamed) state that they understood the judge to be excluding any evidence of good character. But there is no evidence of any discussions, intentions or decisions regarding good character in relation to any of the defendants. Nor was any complaint made before the Court of Appeal, where Mr Mohamed represented Mr Gresham, that the judge wrongly excluded evidence of good character. Mr O'Connor accepts that, on the face of the transcript, the judge's interventions were, and were at the time understood by trial counsel to be, intended to prevent prejudice to the defendants' positions. As their Lordships have pointed out, Mr Ramdhun representing Toolsie and Gresham sought to endorse this before the Board, by submitting that the real motivation of defence counsel at trial was to avoid some anticipated or feared prejudice of this nature. But no evidence has been adduced to indicate what nature of prejudice the defendants or their counsel had in mind at trial. There has been no disclosure of any of the normally privileged material which might have enabled the Court of Appeal, if this aspect had been raised before it, or the Board to understand the actual position and thinking at the time.

[16]In his reply before the Board, Mr O'Connor submitted that the Board had to choose between three possibilities: the first, that there was a conscious decision by counsel, based on (for example) well-founded fear; the second, that there was a mistake by counsel, for example in failing to appreciate the relevance of good character in a criminal trial (before such relevance was underlined in Sealey and Headley ) or, possibly (although there is no evidence of this), in failing to accept or act on the defendants' instructions that they were of good character, in the light of suggestions by the prosecution that it could show the opposite; and the third, that counsel (mis)understood the judge's interventions in cross-examination as preventing the adducing of evidence of good character. Mr O'Connor, supported by Mr Ramdhun, submitted that the Board should conclude that the first possibility was the least likely of the three and that either the second or the third should, in view of the fundamental importance of credibility in this case and in the interests of justice, suffice to enable this appeal to succeed.

[17]The Board is not prepared to accept this submission, despite the obvious importance of credibility in this case. Neither the way in which the ground has, for the first time before the Board, been presented nor the evidential material advanced in support of it is in the Board's view at all satisfactory. The Board is invited to reach conclusions on factual matters which should have been raised before the Court of Appeal and which have not, when raised before the Board, been appropriately or adequately explained or documented. The Board is not prepared, on the exiguous and unsatisfactory material before it, to draw the speculative conclusion about likelihood that Mr O'Connor invites. The Board therefore rejects this ground of appeal as it is raised by all four appellants. The prosecutor's closing speech

[18]Before the Court of Appeal, this ground was raised on a limited basis, whereas before the Board the criticism of prosecuting counsel's final speech has been considerably more general. The speech was, in accordance with local practice, made after the speeches of all defence counsel. This has relevance in two ways. First, Mr Dingemans QC representing the State submits that the content and tone of prosecuting counsel's speech must be viewed in the light of certain passages in the speeches of defence counsel. Secondly, however, if and when prosecuting counsel's speech follows that of defence counsel, it is, if anything, even more important that it should in its tone and content adhere to the standards expected of prosecuting counsel throughout any criminal trial.

[19]The standards to be expected are well-established. As the headnote in Boucher v. The Queen (1954) 110 CCC 263 put it:

"The duty of Crown counsel is to be impartial and excludes any notion of winning or losing. He violates that duty where he uses inflammatory and vindictive language against the accused or where he expresses a personal opinion that the accused is guilty or states that the Crown investigators and experts are satisfied as to his guilt. Such language and opinions cannot help but influence the jury and colour their consideration of the evidence and amounts to a miscarriage of justice."

[20]In Johnson (Gregory) v. R

(1996) 53 WIR 206

the Court of Appeal of Jamaica was concerned with a complaint that crown counsel had "made 'improper and unfounded allegations' against defence counsel on numerous occasions during the trial which were of such character and frequency as to prejudice the fair trial of the appellant". The Court of Appeal said, allowing the appeal, that "Counsel must not cast aspersions or make improper imputations as to the integrity of the opposing counsel, unless in the most extreme circumstances, and then only in the absence of the jury. Such conduct emanating from prosecution counsel in the presence of the jury creates prejudice in the minds of the jury and inhibits a fair and impartial trial" (p.215). In Mohamed v The State

[1999] 2 AC 111

[1998] UKPC 49

, Lord Steyn, in delivering the judgment, said at pp.125G-126A that not only had the judge in that case been wrong to allow prosecuting counsel to make any speech at all (the defence having called no evidence), but that in prosecuting counsel's speech:

"The prosecutor informed the jury of his view that the defendant was plainly guilty. He made emotional appeals for sympathy for the deceased and his family. He demanded that the jury should not let the defendant 'get away with it"

. He repeatedly 'urged' the jury to convict. His speech contained many inflammatory passages. The prosecutor had commenced his speech by saying 'I act as a minister of justice.' The contrary is the case: the prosecutor made a wholly improper speech. The judge's interventions during the speech were perfunctory. And in his summing up the judge did not direct the jury to disregard the speech. The judge told the jury in general terms not to be swayed by emotion but he said nothing to counteract the prejudice which the speech of the prosecutor was calculated to generate in the minds of the jurors."

[21]In Randall v. The Queen

[2002] UKPC 19

;

[2002] 1 WLR 2237

Lord Bingham, giving the advice of the Board, said at para 10(1) that "The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice" and quoted with approval from Boucher v. The Queen . He continued:

". . . (iii) While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech. (iv) Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury."

[22]The last authority that their Lordships wish to cite on this aspect is Benedetto v. The Queen

[2003] UKPC 27

;

[2003] 1 WLR 1545

, where at paragraph 55 Lord Hope said this:

"Their Lordships have very much in mind the point which Singh JA made in paragraph 35 of the judgment of the Court of Appeal, that the principles which determine the proper role of the prosecutor have to be applied in the context of his own environment. He said that juries need to be spoken to in a language and style that they will understand, and there was nothing wrong with a prosecutor delivering a robust but respectful speech. That is true. But there is an obvious difference between a robust speech and one which is xenophobic, inflammatory and seeks to make use of inadmissible and irrelevant material. Regrettably, some parts of Mr Guerra's speech fell plainly into the latter category."

[23]Against this background, their Lordships turn to the basis of complaint before the Court of Appeal. That related to remarks made by prosecuting counsel, Mr Hudson-Phillips SC, in addressing the passage in Mr Guerra's cross-examination of Corporal Ferreira quoted in paragraph 7 above and a further passage in Dr Seepersad's cross-examination, when Corporal Ferreira was asked whether the police had on searching Mantoor's house found any US, Trinidad and Tobago, Venezuelan or Colombian currency. Mr Hudson-Phillips said this:

"There are several thing which I wanted to ask but I could not ask because they will be prejudicial to that accused. I could not ask him if he had Bolivares. You would have heard the roar. I could not have asked him if he had been to Bogota or Barranguilla, you would have heard the roar. I couldn't ask him if his name was on any U.S. Ambassadors list, you would have heard the shout and the screams and the cries of unfair. It is not I. They have come here with that taint at their own hands, on their own lips and they carry a responsibility for what is going on in this society on the clearest of evidence, on very clear evidence. They carry that and the responsibility is yours."

[24]The Court of Appeal dealt with this criticism as follows: "Mr Solomon submitted that the eliciting of that material by the defence and which was non existent was permissible and correct that is, the police not finding any of those currencies, but what was wrong was the way in which the absence of that material was permitted to be perverted in counsel's address on behalf of the State. The complaint is that counsel for the State in his address went over the line of what is permissible and appropriate. In our opinion, all that counsel for the State was doing was saying that he could not have raised those matters because they will be prejudicial to the defence but they were in fact raised by the defence in the cross-examination of Ferreira and he was, therefore, entitled to tell the jury that he did. We can find no fault with that part of the address of counsel for the State, and, accordingly, hold that there is no substance in this ground of appeal.

[25]Their Lordships are unable to agree with the Court of Appeal on this point. The questioning regarding currency did not elicit anything prejudicial to Mantoor Ramdhanie or any other defendant. If any currency had been discovered at Mantoor's house, that could have been prejudicial to his case. But the actual purpose and effect of the questioning and the actual response which it elicited (that no such currency had been found) were favourable to Mantoor's case. The questioning regarding a list provided by the United States Ambassador never led to any answer, and there was in the event no evidence that any of the defendants' names was or were on any list, even if that was so. The judge intervened to stop the questioning in order (as he saw it) to protect the defendants. Prosecuting counsel's comments in his final speech assumed that there was a list on which one or more of the defendants' names appeared, and, even less legitimately, that this was an indication of guilt, when he said:

"They have come here with that taint at their own hands, on their own lips and they carry a responsibility for what is going on in this society on the clearest of evidence, on very clear evidence"

This was not the first point in his speech at which he had sought positively to rely, as an indication of guilt, upon the questioning which the judge had stopped in order to protect the defendants. Prosecuting counsel had previously said - treating defence counsel's unanswered question impermissibly as if it was an admission by the defendants - that:

"They even had to be stopped by the Court from saying that their name was on some list from some Government. Can you believe that? They brought it up, you know. Not me. But if their name on this list, I didn't put it there. And how they know that? They are the ones that brought that to your attention, you know."

[26]Their Lordships therefore consider valid the submission made to, though rejected by, the Court of Appeal, that, the judge not having permitted the defence to pursue a line of cross-examination on the ground of prejudice to the defendants, "the prosecutor in his closing speech was permitted to excite the same prejudice by references to the same material enhanced by highly prejudicial matters". But they do not in the event find it necessary to decide whether, if this particular part of that final speech had stood alone, it would have engendered such prejudice as to make the trial as a whole unfair and the jury's verdict unsafe. The appeal to the Board has, as stated, been presented on a much wider basis, which their Lordships think it appropriate to examine, since it involves essentially an exercise in analysis. They have for this purpose full transcripts of all the final speeches as well as of all the evidence. Allowance must be made for context and environment, when considering the language used, its style and robustness. But there are fundamental limits which prosecutors should observe whatever the context and environment, as indicated by the cases that their Lordships have already cited, stemming from various jurisdictions. Having studied the whole of prosecuting counsel's final speech, their Lordships consider that it not only included(a) passages in which counsel in effect told the jury or strongly implied that there was incriminating material which had not been put before them, but that it also contained

(b) emotive and unjustified comments on the defence case and evidence or on defence counsel and

[27]Their Lordships do not propose to go through every point in the speech to which in their view legitimate objection can be taken, but will highlight a number of instances. Counsel started by saying that he would be lacking in his duty if he did not have "some comments and some very stringent comments on the nature of the defence in this case". There was nothing wrong in that, and the nature of the defence (including the pure coincidence, on the defence case, of the Ramdhanies and their relative, Toolsie, being in different cars so close to each other when the police chose to set out to arrest them with a view to setting them up) were matters justifying stringent comment. Prosecuting counsel went on, hyperbolically, to describe the defence case as being that "all police are bandits and scamps, perjurers and infidels", while "all others in this society are vestal virgins". Again, however, although this was not the defence case (which related to the group, albeit considerable in number, of officers in the two cars on the relevant day), their Lordships accept that the local jury is likely to have been capable of discerning and discounting the element of adversarial exaggeration which crept in at this point. But counsel went on to say this:

". . . Get hold of yourself in this society, in this day and age. Where you have heard, it is necessary to have a special organized narcotic unit. Why? Where you have heard that on the 18th of October there was a special briefing; we can't tell you what went on in the briefing because that would be hearsay evidence, but a briefing took place and these officers went on a mission. From the evidence, they went on a stake out. That is what it is called. They were not looking for mango. They were not looking for tannia and dasheen. They were looking for something specific. That is what you read into this evidence. And when they saw that specific thing, they stopped and observed. So let's make no bones about this. There is no magic in that. … Now, obviously, if you believe that, this is the scenario you have, that the police in the Organized Crime Unit get information, probably, that some showing or some kind of thing taking place that morning, so they go on a stakeout. That is what is going." … Remember, the police are not going vie-ke-vie. [ probably, on the qui vive] They are not saying, we were just going down the road. They are saying, we had a conference that morning and as a result of what was discussed there, we went to the Point Fortin area. They didn't take any other car under observation. They took a specific motorcar under observation. It is a matter for you."

In these two passages, counsel was in effect giving evidence to the effect that the police had prior information implicating these specific defendants or their specific cars in (by inference) criminal activity.

[28]With regard to the Ramdhanies' case that they were stopped in Adventure Road, not Richardson Street, prosecuting counsel also maintained that Mr Guerra failed to put a number of matters relating to the Ramdhanies' case that their car was stopped in Adventure Road, not Richardson Street, because he "had no such instructions", whereas it was "the 'inventful' and 'resourceful' Dr Seepersad who obviously busied himself and went down there and found this lady 'Iris' [sic – a reference to Lisa Merez]". In fact Mr Guerra had put to Corporal Ferreira that the car was stopped in Adventure Road, while Dr Seepersad on the same day had put various details, such as that its trunk was searched there and that Mantoor was sitting in the back seat. Further, there was no question of Lisa Merez being identified by Dr Seepersad between the time of Mr Guerra's and his own cross-examination, and the comments on Dr Seepersad amounted to gratuitous insinuation of impropriety. These were compounded by the immediately ensuing, and inappropriate comments about the basis on which Lisa Merez had appeared in court:

"You see, that is one thing and I will return to it. The other thing is, the orthodox way of somebody coming to court is to get a subpoena or a summons. That is the orthodox way. I am not saying somebody can come without a summons, you know. But when somebody comes without a summons, you sit up, because without a summons, for instance, you can't get your taxi fair from South to come here to give evidence, you know. If you get an order from the court, whether you give evidence or not, as long as you come, you get your expenses. When you bring in a witness and you summon the witness, then everybody knows. One could then go and find out where this person living, who is this lady, where does she come from, what she is, but you do not summon in order to cover it up and to hide whatever you have to hide."

[29]Lisa Merez said in cross-examination that she had first been approached and had given her account about three weeks after the incident she observed, at a time by when she had ceased working in the pudding shop; she lived nearby and had been located by a "maxi [taxi] tout" who had also been on the scene at the time of the incident and knew where she lived. None of this was challenged. It was put to her baldly that she had never seen what she recounted, that she was a "sight-me-and-relate-me" (an expression which she said she understood as "see and tell") witness and that she was lying (to which she responded that in that case "we are all liars"). But it was never suggested to her that this was evidenced by the fact that she had been asked to and/or had come to court without a summons. She was never even asked why she had come without a summons, let alone whether she knew of any possible advantage of insisting on being summonsed, or whether she had incurred any fare or any fare which had not been met voluntarily by the defence. Prosecuting counsel's insinuations in that respect had no basis in relation to either Lisa Merez or the defence legal team.

[30]Later in his speech counsel returned to this theme:

"But, no, Ms. Merez has not be[en] shaken in cross-examination. I have got what I wanted from her. The very details she gave puts the lie to the Defence and stamps it of something of recent fabrication and of recent innovation because if it were there all the time, this would have been put and put cogently to the witnesses. But, you see, according to her, some maxi taxi tout and two fellas rush across, but they are not here. They told them where she was and they went and find her, and all this sort of thing, although she stopped working, I don't know why; that is what you are told. And she comes here in a lovely green dress with guipure [ sic – i.e. Jaipur] lace in the front; you ladies noticed? Is [Jaipur] lace, you know? You laughing, but she working in a pudding shop. So don't be hoodwinked."

The inference of this passage was that Lisa Merez had been bribed or at least that she had access to clothing or money which in some way undermined her evidence that she was an independent witness who had worked in a pudding shop, lived on a nearby "track" and had been contacted through a local "maxi taxi tout". In cross-examination, no such suggestions were put to her; no questions were put and no point made about her dress, or about how or why she came to be wearing it; and it was not suggested to her that the dress, or the Jaipur lace with which counsel thought that it was decorated, had any significance. Had any such points been raised, Lisa Merez might well have had a telling response to the idea that the dress in which she had chosen to come to court lent any support to any such inference. But the jury's laughter indicates that counsel's unsupported barbs were going home.

[31]In another passage counsel said this:

"You release these people into society again on this cogent evidence. So that, really, you have what boils down to three defences; one defence is, police are bandits, that is what it is. Police are thief. Well, if they are bandits, then both my learned friends Guerra and Charles, who were police officers, have descended and arisen from that and let them not scorn the base degrees by which they did ascend. Let them not scorn those base degrees and come now and denigrate their past and try to draft a bill of indictment against a whole body of individual public officers. In order to liberate who? In order to return onto this society who? In order to support what? You have to fear me when you hear my voice because I speak with moral authority and that is what this country wants and needs sadly to return to its formal rectitude."

In their Lordships' view that passage combined unfortunate comments on the defence case and defence counsels' backgrounds with implied assertion of the justice of the prosecution case. But it is the concluding pages of the speech that contain passages in which counsel would most clearly have been heard by the jury to be pledging his own credit for the validity of the prosecution case, when he said:

"You, Madame Forelady and Members, are the defenders of this society. You are the ones who sand between the destruction of this society. You are the ones who stand up and strike a blow for decency, who strike a blow for the clean society, who are not sucked in by this broad paint brush that everybody is a bandit and a thief, well, then I too must pass with a brush because I am putting forward a case in all conscientiousness. And do not think that I do not, as it is my profession, examine and twist and turn and look at everything, and I am convinced myself, before I ever appear in any court in any case. So go tell it in Gath. Go into the highways and the byways. Let your verdict speak for Trinidad and Tobago. Let it speak volumes. Let us not be taken in by inconsistencies."

After thus indicating that he had convinced himself of the prosecution case before appearing in court, counsel went on to say, of the police evidence, that "I think that is the clearest evidence" and to ask the forelady "to take charge of your deliberations" and "as a woman and a mother, if you are, of this society alive to what is going on . . . to come to a hard and cold and calculating decision on what, in my view, are the clearest of facts".

[32]In his summing up, which was accurate and comprehensive, the judge told the jury in clear terms that they were the sole judges of fact, that they were not bound to accept any view that he or counsel might have expressed and that no-one could usurp their function as final judges of the facts. But no specific caveat was introduced regarding any aspect of prosecuting counsel's speech. The judge merely said:

"You were urged very strongly to accept the testimony of the State's witnesses, the views expressed by Attorney for the State were his views, views that he was entitled to put forward. However, you are not bound by those views."

Their Lordships consider that, contrary to this direction, the speech of prosecuting counsel contained significant statements of views that he was not entitled to express.

[33]Mr Dingemans drew attention to parts of the earlier speeches of defence counsel, where they commented on the police and expressed their own views or beliefs regarding facts, evidence or the appropriate outcome of the trial. Their Lordships have considered these with care. But they have to say that, reading all the speeches as a whole, the instances relied on are far less prevalent and striking than those manifest in prosecuting counsel's speech. The jury was invited by Mr Guerra to use its knowledge of "the type of police officers we have" and what they were "capable of", and to bear in mind that "police officers have no monopoly of the truth", and by Dr Seepersad to "take a stand against this kind of behaviour …. on the part of the police". Mr Guerra, Dr Seepersad and Mr Charles (for Toolsie) all at some point expressed clear, though impermissible, personal views as to their clients' innocence. But the overall tenor and effect of their speeches was quite different from that of prosecuting counsel. Further, whatever may be said about defence counsels' speeches could be no justification for impermissible and unfair comments by prosecuting counsel. The high standards required of prosecuting counsel, as a "minister of justice", do not depend on defence counsels' compliance with the rules governing their conduct of the defence.

[34]Mr Dingemans submitted that, even if prosecuting counsel's speech was to be seen as over-stepping the permissible mark, the overall strength of the prosecution case was such that this could have made no difference. He drew attention to the general disbelief of a whole body of police evidence and the improbable coincidence (already mentioned) which the defence case required. But the defence also had a number of points about the prosecution case (brushed aside in prosecuting counsel's final speech with phrases such as "horse stead and cow fat, irrelevancies", "ridiculous postulation", "eye wash, total eye wash" and "piddling. Nonsense"). The key issue was one of credibility, in relation to which their Lordships consider that the tenor and content of prosecuting counsel's speech were capable of having a significant impact on the jury, one which was capable of continuing despite the general fairness of the summing up which followed.

[35]In these circumstances, their Lordships consider that there was a material irregularity and unfairness in the trial process, and that the jury's verdicts in respect of all four defendants cannot be regarded as safe. Their Lordships will accordingly allow the appeals and quash the convictions. Mr Dingemans invited their Lordships to give directions or remit the matter to the Court of Appeal with a view to a possible fresh trial. The events in question are however old, one of the defendants is dead, while the others have spent some nine years in prison, and their Lordships are told that Lisa Merez has died. Their Lordships do not propose to give any such directions.

[36]It is unnecessary in this situation to say anything more about the points raised by Mr O'Connor and Mr Ramdhun on the level of the minimum term set in respect of the life sentences (a matter with which the Board would in any event rarely intervene) or on the consecutive nature of the default terms of imprisonment ordered in the confiscation proceedings.

[37]As regards costs, their Lordships direct that the Respondent do pay to the Appellants their costs of opposing the appeal subject to such consequences as may be dictated by Trinidad and Tobago law, such costs to be taxed and certified if not agreed.

Ramdhanie and Ors v. The State (Trinidad and Tobago) [2005] UKPC 47

Cited in 4 later judgments