Deenish Benjamin (2) Deochan Ganga v Trinidad & Tobago

Facts

The appellants (B) appealed against their convictions for murder.

The wife (R) of the victim (V) had given evidence identifying B as the murderers, but there were inconsistencies in her evidence. B gave statements in which they admitted killing V, but they later alleged that they had been forced to sign the statements. The prosecution also relied on oral statements made by B in which they admitted involvement. The judge's directions included a comment that the cause of V's death had only been known after the post-mortem, yet B had known V had hanged when they made their statements before the post-mortem. Following the dismissal of their appeals against conviction by the Court of Appeal of Trinidad and Tobago, B sought to adduce psychiatric evidence before the Privy Council that they were of low intelligence, which could have affected their fitness to plead. The issues were (i) whether a direction in accordance with R. v Mushtaq (Ashfaq Ahmed) [2005] UKHL 25, [2005] 1 W.L.R. 1513should have been given in relation to B's confessions; (ii) the effect of the direction on special knowledge as to the cause of death; (iii) the appropriate directions regarding B's alleged oral admission; (iv) whether R's evidence had called for a special caution; (v) whether B should be allowed to raise fitness to plead for the first time before the Privy Council; (vi) if there had been a material misdirection, whether to apply the proviso in the Supreme Court of Judicature Act 1962 (Trinidad and Tobago) s.44(1), namely that an appeal could be dismissed if the court considered that no substantial miscarriage of justice had occurred, notwithstanding that the point raised in the appeal could be decided in the appellant's favour.

Held

(1) A Mushtaq direction had been required. All three conditions had been present: it had been open to the jury to conclude that B had made the statements and that the statements were true, and there was evidence on which they could have concluded that B had signed as a result of oppression. It was difficult to understand why, in R. v Wizzard (Barry) [2007] UKPC 21, it had been considered that the fact that the appellant had made an unsworn statement from the dock denying that he had made the confession meant that a Mushtaq direction was not required. Simply because the appellant denied making the statement did not mean that the jury could not find that he had done so, Wizzard considered. However, the judge's direction had effectively removed the option that the jury could act on the statements if they found they had been signed as a result of improper police conduct, even if they believed the statements to be true; it therefore constituted a Mushtaq direction, Mushtaq considered (see paras 15-19 of judgment). (2) During B's interviews, the police had already been treating the case as a hanging because of R's evidence. The judge had plainly been wrong to imply that the sequence of admissions and post-mortem results indicated B's special knowledge. However, no miscarriage of justice had been caused because of the strength of other evidence (paras 21-22). (3) Whether a warning about relying on an oral statement was required depended heavily on the facts of each case. B's written statements and R's evidence formed the essential case, while the oral statements were of little importance. To single out the oral statements as deserving special care would have been potentially misleading (paras 26-27). (4) The need for a special caution about the approach to a witness's evidence derived from the possibility that she had a motive for giving an untruthful account. As B had not made an explicit case that R's evidence was tainted by improper motive, and R had never been given the opportunity to deal with that suggestion, it would be highly questionable whether the judge could properly have raised it. Accordingly, no specific caution had been required (paras 30-33). (5) It was not to be assumed that even highly persuasive evidence produced for the first time at the final appeal stage would be admitted, Brown v Trinidad and Tobago [2012] UKPC 2applied. However, the psychiatrists were distinguished and their opinions that B might have been unfit to plead raised a substantial issue about the fairness of their trial and the safety of their convictions. Their further opinions that the reliability of B's confessions could have been affected by their intellectual impairment and that a defence of diminished responsibility could have been raised required that the appeals be remitted to the Court of Appeal (paras 48-49). (6) The only material misdirection had been on special knowledge, and the jury would have convicted regardless of whether that direction had been given. The essential prosecution case had rested on B's statements and R's evidence. On the evidence that had been available at trial, it was impossible to say that the relevant statements had been wrongly admitted or that the jury had been wrong to find that they provided clear evidence of B's guilt. Accordingly, the Court of Appeal had properly applied the proviso (para.58).

Appeals allowed.

Comment

Although it was not to be assumed that even highly persuasive evidence produced for the first time at the final appeal stage would be admitted, evidence from distinguished psychiatrists indicated that the low intelligence of two men convicted of murder might have affected their fitness to plead. That raised a substantial issue about the fairness of their trial and the safety of their convictions; the psychiatrists' further opinions that the reliability of the men's confessions could have been affected by their intellectual impairment, and that a defence of diminished responsibility could have been raised, required that the appeals be remitted to the Court of Appeal of Trinidad and Tobago.

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