Boodram v. The State (Trinidad and Tobago) [2001] UKPC 20 (10 April 2001)
Privy Council Appeal No. 65 of 2000
Ann Marie Boodram
Appellant
v.
The State
Respondent
FROM
THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
DELIVERED the 10th April 2001
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Present at the hearing:-
Lord Steyn
Lord Cooke of Thorndon
Lord Clyde
Lord Hutton
Lord Millett
[Delivered by
Lord Steyn]
I. The question
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The principal question is whether a
retrial of the appellant ("the defendant") on a charge of murder was
unfair in circumstances where her counsel was unaware of the first trial
until near the end of the retrial and, when he became aware of it, he
did not try to obtain the transcript of the first trial in order to
assess what could be done to redress any prejudice or potential
prejudice to the defendant.
II. The background
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On 20th January 1989 Alston
Boodram, the
husband of the appellant, died at Debe in the county of Victoria,
Trinidad and Tobago. The deceased was aged 37 years, the defendant 34
years and they had three children Simon (aged 17 years), Sheldon (aged
11 years) and Marie (aged 6 years). The deceased died as a result of
the ingestion of the herbicide Paraquat. On 3rd February 1989 the
police arrested the defendant and charged her with murder. The case
against her was that she had poisoned the deceased on about 12th January
1989 when she gave him curried chicken, potato and rice which later
that day he ate at work. The police marshalled a formidable case
against the defendant. On 15th March 1990 the defendant was committed
to stand trial at the next sitting of the San Fernando Assizes. The
defendant engaged the services of Mr Selwyn Mohammed and two juniors who
appeared for her at the trial. Between 8th March 1994 and 15th April
1994 the defendant was tried before Koylass J and a jury. On 15th April
1994 the defendant was convicted of murder and sentenced to death.
III. A bird's eye view of the evidence at the first trial
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Given the nature of the principal ground
of appeal it is necessary to explain the thrust of the evidence and
issues at the first trial as well as certain rulings of the judge. The
prosecution tendered in evidence two written statements signed by the
appellant. The first statement was taken on 1st February 1989 by
Sergeant Tom. The defendant signed the statement at 5pm that day. It
was not an outright confession but it did contain important admissions.
The defendant said that she gave the deceased a packed lunch of
chicken, potato and rice on 12th January 1989. Over the next few days
he complained of pain. For some days he went to work returning after
having had meals with his family with whom the defendant did not get on.
She gave the remainder of the rice in her husband's lunch kit to a dog
and a cat. On 19th January 1989 she discovered that the dog and cat
had died. At about 4.30pm on 20th January 1989 her husband died.
Given that her husband died of Paraquat poisoning, the jury would have
been entitled to regard these statements as pointing towards guilt.
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The defendant challenged the admissibility of the first statement. A
voir dire
was held. The defendant's case was as follows. The statement had in
fact been written by Sergeant Tom. Although the defendant asked three
or four times for Sergeant Tom to read the statement to her, he refused
to do so. Sergeant Tom also refused to allow the defendant to read the
statement before it was signed. She had asked, and was concerned, about
her children whom she had not seen since she had been taken to the
Homicide Office on 1st February 1989. Superintendent Philbert and
Sergeant Tom told her that if she signed the statement she could go home
in an hour's time. Finally she said that she had not been cautioned at
any time before she signed the first statement. Koylass J ruled that
the first statement was admissible.
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The second statement records that it was
taken between 3.30pm and 5.45pm on 2nd February 1989. It contained an
unequivocal confession. The defendant said that her husband was a heavy
drinker, beat her, and was unable to have sexual intercourse with her.
She said that she became intimate with a policeman called Tony Montegue. The statement contains the following passage:
"Tony told me on several occasions that my
husband better off dead, that it just got into my head. I got the
impression that Tony was telling me to kill my husband and he would
support me, so on Thursday 12th January, 1989 I got up around 6.00am and
cooked curried chicken, potato and rice for my husband to carry for his
lunch. After putting the rice, curry chicken and potato in my
husband's lunch kit, I went downstairs and took a plastic bottle
containing either weedicide or pesticide and emptied the bluish liquid
from it on my husband's food. I covered my husband's lunch kit and put
it in a brown paper bag. I then returned the empty bottle downstairs
from where I had taken it below the house."
She said she gave the remainder of the lunch to the dog and
the cat and they died after 3 days. She added that she told her son
Simon to dispose of the empty bottles. The defendant confirmed this
statement before Mr Ali Hosein, a justice of the peace, at 5.30pm on the
same day when she identified "the bottle which contained the paraquat .
. . which I placed on my husband's food".
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The defence vigorously contested the admissibility of the second statement. A
voir dire
was held. Her account was to the following effect: By the time that
she signed the statement, at about 5.00pm in the late afternoon of 2nd
February 1989, she had not eaten or drunk anything, and had not been
offered anything to eat or drink since the 1st February 1989. She was
taken to a room at the Siparia CID on the evening of 1st February, where
Inspector Douglas and Superintendent Philbert repeatedly told her that
she killed her husband and Inspector Douglas slapped her hard several
times on her head and her back. She asked Inspector Douglas to allow
her to telephone her children and he refused to allow her so to do. She
asked Inspector Douglas to telephone her family lawyer. He refused.
Inspector Douglas returned to the room on his own later in the evening
of 1st February 1989. He started to pass his hands through her hair.
He told her that if she co-operated with him he would let her go. He
kept on asking her to have sex with him. She refused and told him that
she was pregnant. Thereafter, Inspector Douglas threw her to the ground
and forced himself on her. He lay down on top of her. She was crying.
He pushed her whole body down on the ground and he raped her. By the
afternoon of 2nd February 1989 she was very frightened, nervous and
hungry. She was bleeding from her vagina. Her feet were cold and her
ankles were swollen and she was suffering from pain in her ankles and
her belly and getting cramps in her feet. Sergeant Tom came into the
room with blue sheets of paper with writing which she asked her to sign.
Inspector Douglas pounded the table and told her to sign the document.
Somebody slapped her on the back of her head. Eventually she did sign
the papers. The first time she was aware of the contents of the
statement was when it was read out at the Magistrate's Court.
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Despite the fact that Superintendent
Philbert, Mr Ali Hosein, Sergeant Tom and Constable Gordon had given
evidence that the defendant made this statement voluntarily Koylass J
ruled that the statement was inadmissible. The judge's contemporary
note states as his reasons "Statement was involuntarily made". The note
does not reveal whether the judge was influenced by all the defendants
allegations or only by some. According to the note the judge came to an
affirmative conclusion rather than deciding the matter on the basis
that there was doubt about the voluntariness of the statement.
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Superintendent Philbert gave evidence
before the jury that on the 1st February 1989 together with WPC Gordon
and Inspector Douglas he went to the defendant's home with a search
warrant. He spoke to Simon Boodram, who took him to a pond at the back
of the house where he pointed out something. The police officers
recovered a cellophane bag. Superintendent Philbert opened the bag and
found among other things a bottle. Subsequent analysis revealed the
presence of Paraquat in the bottle. This is the bottle which the
defendant is alleged to have identified when Mr Ali Hosein spoke to her
and when she stated that it was the bottle from which she poured the
poison into her husband's food. Being in the nature of real evidence
this was a powerful plank of the prosecution case.
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The Prosecution called Simon
Boodram. In
examination in chief he confirmed the police evidence about events at
the defendant's home on 1st February 1989. Three days later under
cross-examination, however, Simon retracted his first account and gave
evidence to the following effect: Superintendent Philbert, Inspector
Douglas and Devika Persad (the defendant's sister) instructed him as to
the evidence that he should give against his mother. The police gave
him a copy of a statement to sign and then instructed him to memorise it
for the court proceedings. The police threatened to lock him up and
charge him together with the defendant if he did not give evidence
against her. Superintendent Philbert told him to say that he found two
bottles containing poison. The defendant never told him to throw any
bottles in the pond. No bottles were ever found in the pond. The
police had taken an Angostura bitters bottle from the house. There was
neither a dead dog nor a dead cat. The defendant told him that
Inspector Douglas had 'brutalised' her.
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The prosecution relied on two other
witnesses. Devika Persad, the defendant's sister, gave evidence that
the defendant confessed to her on 20th January 1989 that she had
poisoned her husband. The defendant denied this evidence and testified
to bad blood between her and her sister. Philoman Soobiah, the
deceased's manager and friend, testified that on 20th January 1989
before Alston Boodram died, the defendant enquired from him about the
life insurance cover of her husband. He said that the defendant said
that the doctor told her that her husband had been poisoned with Paraquat, that being at a time when there was no medical opinion to that
effect. The defendant accepted that a conversation had taken place but
her account was that she merely told Soobiah that a doctor told her
"that they were doing their best for Alston". In other words, she did
not deny the occasion but disputed what was said.
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The defendant testified. She denied
that she had poisoned her husband. She also denied the incriminating
parts of the first statement, and in particular the death of the dog and
the cat. The second statement had, of course, been excluded. She
disputed the substance of the evidence of her sister and of Soobiah.
These were issues for the jury.
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After the judge summed up, the jury
retired and in due course unanimously returned a verdict of guilty of
murder. The judge sentenced the defendant to death.
IV. The first Court of Appeal decision
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On the 30th April 1997 the Court of
Appeal of Trinidad and Tobago (Sharma JA, Hamel-Smith JA, Hosein, JA)
allowed the defendant's appeal against her conviction. The basis of the
Court of Appeal's decision was that, having ruled the defendant's
second written statement was inadmissible, the trial judge forgot to
direct the jury to disregard the linked oral confession, evidence of
which had been placed before the jury prior to the voir dire
hearing on the written confession. The Court of Appeal went on to doubt
whether any direction could have cured the prejudicial effect of this
error of the judge. A second ground of appeal relating to the failure
by the judge to direct the jury about "the effects" of the evidence of
Simon Boodram also succeeded, leading the Court of Appeal to remark that
"we were quite concerned that the Appellant may not have received a
fair trial". Reading this observation in the context of the summing up,
which their Lordships have studied since the hearing, it appears clear
that the Court of Appeal's concern was twofold, viz that the judge did
not correctly summarise the general effect of the evidence and, in any
event, did not properly direct the jury on what the specific effect
would be if it was reasonably possible that Simon Boodram's final
account was correct or may have been substantially correct. However,
despite the delay of 8 years and 2 months between the arrest of the
defendant and appeal, the Court of Appeal ordered that the defendant
should face a retrial "at the next Assizes".
V. Legal representation at the retrial.
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The retrial did not commence at the
next assizes. It only began on 13th February 1998, i.e. some 8 ½ months
later and some 9 years after the defendant's arrest. The defendant
states that she asked Mr Mohammed to appear for her again. He did in
fact appear for her as an "amicus" at one preliminary hearing. But she
could not pay his fees. He therefore ceased to act for her. For
several months leading up to the retrial the defendant was unrepresented. Towards the end of 1997 Mr Ramlal was appointed by the
Legal Aid Authority to appear for the defendant. In an affidavit the
defendant asserts Mr Ramlal visited her in prison "and took full
instructions from me as to what transpired at my first trial and as to
my defence generally". On 9th December 1998 Mr Ramlal appeared at a
preliminary hearing for the defendant. He indicated that he was ready
for trial. On 5th January 1998, at the next hearing, he was not
personally present. Two days later Mr Ramlal sought and was given leave
to withdraw.
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Shortly after 7 January 1998 the Legal
Aid Authority appointed Mr Sawh to act for the defendant. He appeared
for her at preliminary hearings on 27th January 1998 and 9th February
1998. On each of these occasions Mr Sawh told the court that the
defence was ready for trial. On Friday, 13th February 1998, the retrial
began. While the first trial had lasted 21 working days the second
trial was completed within 6 working days, ending with the summing up by
the judge and a verdict of guilty by the jury on Friday, 20th February
1998.
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Until the end of the prosecution case
on 17th February 1998, Mr Sawh was unaware that he was appearing at a
retrial. When he became aware that there had been an earlier trial, Mr
Sawh did not ask for the transcript or record of the trial which had
been prepared for the first appeal; he made no enquiries; he did not
raise the matter with the prosecution; he did not alert the judge to it;
and he did not take instructions about the course of proceedings at the
first trial or the reasons for the quashing of the first verdict. For
anyone versed in criminal practice this must be an astonishing
situation. It is necessary to explain how this state of affairs was
revealed.
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After her conviction at the retrial the
defendant at first said through her solicitor by letter dated 15th
September 1998 that Mr Sawh never took any instructions from her. She
now accepts she was in error because Mr Sawh has produced three sets of
brief instructions signed by her. In their letter of 15th September
1998 the defendant's solicitors also said that on the third day of the
trial (the 17th) the defendant raised the question of obtaining "the
notes from the previous trial" to which Mr Sawh responded by saying that
he "did not need to go through the foolishness which other lawyers do".
The letter also indicated that she wanted him to withdraw. In his
reply of 17th September 1998 Mr Sawh laconically observed "I had no
knowledge of the first trial" and rejected all allegations. In a letter
of 1st October 1998 Mr Sawh enclosed the three sets of written
instructions and said that he spoke to the defendant in the cells at the
Supreme Court on 9 occasions from 14th January 1998.
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In an affidavit sworn on 6th November 1998 the defendant deposed as follows:
"21 Now that I have seen these instructions I
recollect having spoken to Mr Sawh in the cell at San Fernando
downstairs of the Court. . . .
"22 I expected that as Mr Mohammed and Mr Ramlal
had done, Mr Sawh would have come to Golden Grove to have a proper
interview with me. After my trial started on the 13th February 1998
before Madam Justice Weekes I did not get an opportunity to speak to Mr
Sawh until the trial was into the 3rd day by which time the alleged oral
confession was admitted into evidence.
"23 I had expected that Mr Sawh would have
visited me at Marabella Police Station where I was kept over the weekend
of the 14th and 15th February 1998 when I would have had a full
opportunity to relate to him how I had been raped by Inspector Douglas
prior to signing the statement of the 2nd February 1998.
"24 By the time I next got an opportunity to
speak to Mr Sawh the alleged confession had been admitted into evidence
and when I tried to tell him what had taken place at the first trial and
that he should get the Notes of Evidence he told me that he "did not
need to go through the foolishness which other lawyers do". When Mr
Sawh told me that I was totally confused and felt helpless. From that
time I lost confidence in him and told him that I did not wish him to
continue to represent me.
"25 Notwithstanding my communication to Mr Sawh
he continued to represent me against my wishes. I was afraid to bring
this to the attention of the trial Judge."
Mr Sawh swore an affidavit on 9th November 1998 in which he
said that he took instructions from the defendant in or outside her cell
on at least 9 occasions, one interview lasting two hours. He said that
the defendant never instructed him that Inspector Douglas had raped her
before she signed the statement of 2nd February 1989. He accepted that
he only became aware of the first trial on the afternoon of 17th
February 1998, i.e. after the end of the prosecution case. His
affidavit is silent as to his reaction to this information. And he does
not say that he did anything in response.
VI. The course of the retrial
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On the retrial the prosecution case was
deployed in very much the same way as at the first trial. The
difference was that Mr Sawh presented the defence case with markedly
less vigour than Mr Mohammed had done at the first trial. By and large
this accounts for the fact that the first trial lasted 3½ times longer
than the second. On the retrial the prosecution tendered the statement
signed by the appellant on 1st February 1989. Unlike Mr Mohammed at the
first trial, Mr Sawh raised no objection to the admissibility of this
statement. Although not an outright confession it was damaging,
particularly in its recital of the deceased's ill health from shortly
after 12th January 1989 and the admission of the death of the dog and
cat after they ate the remainder of the rice. It was the more damaging
because Mr Sawh argued that the deceased had been poisoned on the 19th
January. One does not know what enquiries Mr Sawh made as to the
circumstances in which the first statement was taken. However, if Mr
Sawh had studied the record of the first trial, he would have been able
to take instructions on the grounds of objection then raised, e.g. that
the defendant was not allowed to read the statement before signing it.
In the result the statement was admitted without objection.
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The prosecution then tendered in
evidence the second statement signed by the defendant on 2nd February
1989. The admissibility of that statement was challenged by Mr Sawh.
But he was unaware of the multiple and diverse grounds upon which the
statement had been successfully challenged at the first trial. In any
event Weekes J held a voir dire in relation to its admissibility.
Superintendent Philbert and Sergeant Tom testified that the defendant
voluntarily made the statement. Inspector Douglas was not called. Mr
Ali Hosein again testified that the defendant had identified the bottle
as one from which she had poured poison on her husband's food.
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On the
voir dire the defendant
denied that she had made any oral confession prior to signing the second
written statement; she denied that she had pointed to a bottle; denied
that she had spoken to Mr Ali Hosein at all; said that she had not
voluntarily signed the statement of 2nd February 1989. However, on this
occasion the defendant did not say that she had been raped by Inspector
Douglas. On the other hand, she did state:
"The night before, all night, and during the day
and my foot, all my feet was swollen. It started to cramp and I spoke
to Ms Tom and I told her I was not feeling well and during the course of
that night, something transpired between Inspector Douglas and myself.
He was with me all along that night up to two o'clock the morning. And
I couldn't do anything else but I signed the document."
Mr Sawh did not ask the defendant what had transpired
between her and Inspector Douglas or why he had stayed with her until 2
o'clock. Mr Sawh also failed to appreciate that the defendant had tried
to complain about the alleged rape at the CID office and at the Police
station. Moreover, on this occasion, her evidence and challenge was
generally much weaker since it did not contain the same circumstantial
details as before.
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Weekes J ruled that the statement was admissible. It was then led in evidence before the jury.
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Superintendent Philbert gave evidence
that he went to the defendant's home on 1st February 1989 with a search
warrant and that Simon Boodram pointed out something to him which
enabled him to recover a bottle. The medical and forensic evidence at
the retrial established that the bottle contained Paraquat and that the
deceased died of Paraquat poisoning. Uncontroverted and explained the
real evidence strongly pointed to the defendant's guilt. At the first
trial Simon Boodram's evidence under cross examination (if true)
suggested that the police evidence was fabricated.
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By the time of the retrial Simon
Boodram was no longer alive. He had died in 1995 before a retrial was
ordered. The whole of his evidence could have been placed before to the
jury. But Mr Sawh was unaware of this possible way of attacking the
police evidence. Not only was Simon Boodram's evidence not placed
before the jury, but Mr Sawh did not cross examine Superintendent
Philbert on the basis of Simon Boodram's account as it emerged under
cross examination at the first trial.
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Devika
Persad, the defendant's sister,
gave evidence that on 14th January 1989 the defendant told her that she
suspected that someone was poisoning her husband and that he had twice
come home from work saying that 'the food was tasting bad'. She said
that on the same day the defendant confessed that she had killed her
husband. The defendant denied telling Devika Persad that she suspected
that someone was trying to poison her husband or that she had told
Devika Persad that she had killed her husband. The defendant, Sheldon Boodram, and Nancham Chandoo testified that there was a history of
ill-feeling between the defendant and Devika Persad.
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Philoman
Soobiah, the deceased's
manager at work and also his close friend, gave evidence that on the
morning of the 20th January 1989, before the defendant's husband had
died, the defendant visited him and asked him what her husband's
employment entitlements were. She also wanted to know whether he knew
what life insurance cover her husband had. Mr Soobiah said that the
defendant told him that the doctor caring for the defendant's husband
had told her that he was poisoned. He added that the defendant stated
that her husband had been poisoned by Paraquat. The defendant was not
asked about Mr Soobiah's evidence either in examination in chief or in
cross examination. However, it was put to Mr Soobiah in
cross-examination that his account was untrue and that the defendant had
not visited him on the 20th January 1989. If Mr Swah had seen the
record of the first trial he would have noticed that on that occasion
she had admitted a meeting but disputed the details of the conversation.
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On Friday 20th February 1998 the appellant was convicted of murder at the retrial and sentenced to death.
VII. The Court of Appeal's decision after the retrial
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On 5 March 1999 the Court of Appeal (de
la Bastide CJ, Sharma JA and Hamel-Smith JA), dismissed the defendant's
appeal. Three grounds canvassed before the Court of Appeal can be
disposed of summarily, namely that the reintroduction of the second
statement in the retrial was an abuse of the process; that the judge
wrongly admitted hearsay evidence; and that the summing up on intention
was defective. Their Lordships are in respectful agreement with the
Court of Appeal on these points. But it is necessary to refer to the
Court of Appeal judgment on a fourth ground, viz that due to
incompetence counsel had failed to take proper and timely instructions,
and had thus failed to realise that he was acting in a retrial. Sharma
JA stated that it is quite clear "that the written instructions which
counsel did take from her fell far short of what was required in a case
of this kind". He continued:
"We have no doubt at all that if the appellant's
previous counsel had not fallen short in his duty to the appellant he
would have before the re-trial commenced, been aware that there had been
a previous trial and been armed with a copy of the transcript of
evidence given at that first trial. The lapse of time alone between the
offence and the second trial ought to have at least alerted him to the
possibility that this was not the first trial. In any event, he could
hardly have failed to discover this fact if he had taken proper and
timely instructions from the appellant. But on his own admission, when
the trial began counsel had no knowledge of the previous trial, and only
became aware of it in the course of the re-trial. It is clear that
this was after the appellant's confessional statement had been admitted
and towards the end of the trial. He also appears to have remained
throughout unaware of any allegation of rape made by the appellant or of
the allegation of subornation made by Simon against the police in the
course of his evidence at the first trial. We are satisfied that
counsel's ignorance of these matters was the result of a failure on his
part to bring to his client's defence the degree of competence and
diligence which she was entitled to expect."
Sharma JA then turned to the impact of counsel's failures
which he said were the critical and only issue. About the allegation of
rape he observed:
"In our view the only inference that can reasonably be drawn is that either the rape did not occur or if it did, it was not linked in any significant way with her signing the second statement later that day." [Emphasis supplied]
Their Lordships point out that the Court of Appeal were not
prepared to say that a rape could not have occurred. The Court of
Appeal may have had in mind that the judge in the first trial was
satisfied (according to his note) that "the statement was involuntarily
made". The Court of Appeal was only prepared to rule out a causal
connection between the rape (if it took place) and the second statement.
Secondly, the Court of Appeal said about the evidence of Simon Boodram
that it "might have done more harm than good". In these circumstances,
Sharma JA concluded that "counsel's failure to discover that there was
an earlier trial and to inform himself of what evidence had been given
at it by obtaining a copy of the transcript of the evidence, however
regrettable, did not result in a miscarriage of justice".
VIII. Bethel v The State
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Since the judgment of the Court of Appeal in the present case it has qualified its decision in
Boodram. In Bethel v The State
(Cr. App No. 31 of 1996) a differently constituted Court of Appeal (de
la Bastide CJ, Sharma JA and Jones JA) referred to the earlier judgment.
On this occasion the judgment was given by the Chief Justice. He
observed that "when the conduct of a case forms the ground of appeal, we
ought to focus on the impact which the faulty conduct of the case has
had on the trial and the verdict rather than attempt to rate counsel's
conduct of the case according to some scale of ineptitude". But,
speaking in the context of the earlier decision of the Court of Appeal
in Boodram, the Chief Justice mentioned a qualification. He said:
"There is, however, one important proviso which
we would attach to this approach. It is conceivable that counsel's
misconduct may have become so extreme as to result in a denial of due
process to his client. In such a case, the question of the impact of
counsel's conduct on the result of the case is no longer of any
relevance, for whenever a person is convicted without having enjoyed the
benefit of due process, there is a miscarriage of justice regardless of
his guilt or innocence. In such circumstances the conviction must be
quashed. It is not difficult to give hypothetical examples of how such a
situation might occur. An obvious example would be if the accused had
the misfortune to be represented by counsel whose judgment was proved to
have been impaired by senility, drugs or some mental disease. Another
example closer to the facts of this case is if counsel conducted the
defence without having taken his client's instructions. This is simply
another application of the basic principle that if there is a
fundamental flaw in the conduct of a trial, the conviction which results
from it cannot be allowed in any circumstances to stand."
On the appeal to the Privy Council counsel for the State did
not challenge the correctness of this qualification. It will, however,
be necessary to return to it.
IX. Order for retrial was wrong in principle
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Counsel for the appellant began his
impressive argument by submitting that the order for a retrial was wrong
in principle. He pointed out that the order was made 8 years and 2
months after the defendant was charged with the offence. And the
retrial began about 9 years after she was first charged. Undoubtedly,
this was a very long delay. But the defendant did not appeal against
the order. In these circumstances, and taking into account that a
lawful retrial did take place, it is not now possible to review the
exercise of the discretion by the Court of Appeal when it directed the
retrial. On the other hand, their Lordships cannot leave this aspect
without expressing unease about the circumstances in which the order was
made. The Court of Appeal heard argument on the merits of the appeal.
Mr Mohammed, the counsel at the first trial, appeared for the
defendant. It seems that no submissions were made on the issue whether a
retrial would be appropriate if the appeal was successful. On 30th
April 1997 the Court of Appeal delivered judgment. Counsel who had not
appeared at the trial appeared on a "holding" brief for the defendant.
The Court of Appeal delivered a reasoned judgment quashing the
conviction. Hamel-Smith JA then observed: "Given the circumstances of
this case, we feel that there should be a retrial at the next Assizes".
Counsel for the defendant did not seek to reopen the issue of a
retrial. No doubt she was in insufficiently instructed to do so. In
the result the Court of Appeal, who in its reasons treated Simon Boodram
as an important witness, was unaware that he had died in 1995. This
was not a propitious start to the retrial proceedings. Moreover, at the
time of the first appeal there was in existence no record of the first
trial albeit that the evidence was in note form. There was also
available a transcript of the summing up. The Court of Appeal in making
the order would have acted on the assumption that the record would be
available to counsel at the retrial. Although Mr Mohammed would have
had the record for the purposes of the appeal, it was never passed on to
Mr Sawh. The explanation may be that Mr Mohammed, and subsequently Mr Ramlal, assumed that counsel appearing at the retrial would either be
given a copy of the record or, if not, ask for one.
X. The failure to appeal against the order for a retrial
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Counsel for the defendant submitted,
somewhat diffidently, that the defendant's legal advisers, who appeared
on the first appeal, were incompetent in not pursuing an appeal against
the order for a retrial. It may be the case that they did not
investigate the feasibility of such an appeal. Nevertheless their
Lordships are not persuaded that this ground of appeal is made out.
XI. The fairness of the proceedings
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The duty rests on the court system to
ensure that on a retrial counsel for the defence is provided with the
transcript of the first trial, or relevant part of it. That was the
approach adopted by the Privy Council in Flowers v The Queen [2000] 1WLR 2396,
2415F-G, and their Lordships reaffirm it. But, as a minister of
justice, there is a residual duty on the prosecutor to ensure that the
transcript, or relevant part of it, is delivered to the defence for the
purposes of a retrial. The Privy Council stated this duty in Reid v The Queen[ 1990] AC 363, 390H-391A; compare also
Charles v The State [2000] 1 WLR 384, 390H-391C. In the case under consideration the transcript was never provided to Mr
Sawh.
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Moreover, their Lordships are in
agreement with the Court of Appeal that if Mr Sawh had not fallen short
in his professional duties he would have been bound to discover that he
was engaged on a retrial. And, again in agreement with the Court of
Appeal, if Mr Sawh had carried out his duties properly he would have
become aware of the allegation of rape and of the allegation of
subornation made by Simon Boodram against the police at the first trial.
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On the other hand, their Lordships do
not consider that the Court of Appeal was entitled to conclude that
counsel's undoubted incompetence or dereliction of duties had no
conceivable adverse effect on the trial. The Court of Appeal
concentrated on two features, viz Mr Sawh's ignorance of the rape
allegation and of Simon Boodram's evidence. Their Lordships will start
by examining the reasoning of the Court of Appeal on these two points.
First, the rape allegation seems at first glance implausible. On the
other hand, it would be a strong thing to say that it could not possibly
have been true. After all, the judge at the first trial was satisfied
that the second statement was not made voluntarily. It is impossible to
say that the judge was not influenced by the rape allegation. Indeed
the Court of Appeal does not suggest it. The Court of Appeal simply
said that the rape allegation was either untrue or if it was true "it was not linked in any significant way with her signing the second statement later that day".
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Now, if there had been a rape, or an
indecent act, it must have taken place after the making of the first
statement. And their Lordships respectfully suggest that if it did
occur it would not be possible to be satisfied beyond reasonable doubt
that it would have had no effect on the voluntariness and reliability of
the second statement made on the same day. It would have been a matter
for the judge (on the voir dire) or jury to consider. At the
retrial the defendant said in evidence "during the course of that night,
something transpired between Inspector Douglas and myself". It seems
likely or at least possible that she wanted to mention the alleged rape.
But Mr Sawh did not ask her to explain her veiled assertion. And
their Lordships note that at the first trial Superintendent Philbert
repeatedly mentioned Inspector Douglas' involvement in the
investigation. At the retrial he appears to have written Inspector
Douglas out of the script. But if the rape allegation had been made
Inspector Douglas would have had to be called. In these circumstances
it is not possible to conclude with certainly that Mr Sawh's failure to
obtain instructions on the rape allegation caused no prejudice.
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That brings their Lordships to Simon
Boodram's evidence. The Court of Appeal expressed grave doubts about
the credibility of Simon Boodram. But that would, of course, have been a
matter for the jury. The Court of Appeal also observed that it "is of
some significance that the jury which saw and heard Simon give his
evidence, found the appellant guilty of murder, even without the benefit
of her confessional statement". At the end of the judgment this point
is again emphasised. This is, however, not fair to the defendant
because the Court of Appeal at the first appeal held that the judge had
materially misdirected the jury on the effect of Simon Boodram's
evidence, adding that the members of the court "were quite concerned
that the appellant may not have received a fair trial". The reasoning
of the second Court of Appeal on this aspect was flawed. In any event,
where the Court of Appeal observed that placing the transcript of Simon
Boodram's evidence before the jury might "have done more harm than good"
it was in the realm of pure conjecture. After all, as the first Court
of Appeal found, his retraction of his first account was important to
the defence. Without Simon Boodram's explanation in cross-examination
the real evidence of the poison in the bottle found by the police at the
defendant's home stood uncontradicted. Moreover, if there was a
reasonable possibility that Simon Boodram's evidence was true, it would
have reflected adversely on the entire police investigation. It is not
possible to conclude that the failure of Mr Sawh to become aware of
Simon Boodram's evidence in cross-examination did not adversely affect
the retrial.
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So far their Lordships have considered
the potential effect of Mr Sawh's failures solely in the light of the
rape allegation and Simon Boodram's evidence. But, if Mr Sawh had
obtained the transcript and studied it, the effect on the retrial might
have been wider. Mr Sawh would have been able to use the transcript to
refresh the defendant's memory on the sequence of events. And it is
noteworthy that the defendant's complaints about the events surrounding
the taking of the two statements were far more detailed at the first
trial than at the retrial. It might have enabled Mr Sawh to challenge
the admissibility of the first statement as was done at the first trial.
And Mr Sawh might not have argued the case on the basis that the
deceased was poisoned on 19th January. Moreover, he would have been
entitled to put to the police officers that the judge, after hearing
their evidence, ruled that the second statement had been made
involuntarily. And Mr Sawh might have approached Mr Soobiah's evidence
differently by not denying the meeting but rather the detail of the
conversation. On such matters one simply cannot be confident that if Mr
Sawh had conducted adequate interviews with the defendant the course
of the trial might not have been different.
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It is true that there was also the
evidence of the defendant's sister and of Soobiah but this evidence was
disputed. And the prosecution case was generally strong. It was
nevertheless a case that had to be considered by a jury after a full and
fair exploration of the issues and proper directions by the judge.
Their Lordships have throughout kept two considerations firmly in mind.
First, an appellate tribunal must approach complaints about counsel's
incompetence, and its effect, with a healthy scepticism. On the other
hand, where it has been demonstrated that counsel's failures were of a
fundamental nature the court must proceed with great care before it
concludes that, on the hypothesis that the failures did not occur, the
verdict of the jury would inevitably have been the same. In all the
circumstances of the present case, their Lordships are not satisfied
that one can with certainty say that Mr Sawh's failures caused no
material prejudice to the defence. It is not possible to say that after
a full and proper deployment of the defendant's case a reasonable jury
would inevitably have convicted. For this reason alone their Lordships
would hold that the conviction must be quashed.
XII. The decision in Bethel
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In any event, their Lordships are of the view that de la Bastide CJ, when he revisited
Boodram
(the instant case), correctly stated the applicable principles. Where
counsel's conduct is called in question the general principle requires
the court to focus on the impact of the faulty conduct: R v. Clinton [1993] 1 WLR 1181;
Sankar v State of Trinidad and Tobago
[1993] 1 WLR 194. On the other hand, as the Chief Justice observed
there may be cases where "counsel's misconduct has become so extreme as
to result in a denial of due process to his client". The Chief Justice
gave examples including the case where counsel conducted the defence
without having taken his client's instructions. Substantively, the
Chief Justice explained:
"In such a case, the question of the impact of
counsel's conduct on the result of the case is no longer of any
relevance, for whenever a person is convicted, without having enjoyed
the benefit of due process, there is a miscarriage of justice regardless
of his guilt or innocence. In such circumstances the conviction must
be quashed. It is not difficult to give hypothetical examples of how
such a situation might occur."
Such cases are bound to be rare. But when exceptionally
they do occur the conclusion must be that there has not been a fair
trial or the appearance of a fair trial. Their Lordships would
respectfully endorse the formulation of the Chief Justice.
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In the present case Mr Sawh's multiple
failures, and in particular his extraordinary failure when he became
aware on 17th February 1998 that he was engaged on a retrial to enquire
into what happened at the first trial, reveal either gross incompetence
or a cynical dereliction of the most elementary professional duties.
Their Lordships do not overlook that the appellant has twice been found
guilty by the unanimous verdicts of juries after they had enjoyed the
advantage of seeing and hearing her give evidence. Nevertheless it is
the worst case of the failure of counsel to carry out his duties in a
criminal case that their Lordships have come across. The breaches are
of such a fundamental nature that the conclusion must be that the
defendant was deprived of due process. Even without embarking on any
investigation of the impact of the breaches, the conclusion must be that
in this exceptional case the defendant did not have a fair trial. For
this reason also the conviction must be quashed.
XIII. Other grounds of appeal
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Except for one point it is unnecessary
to mention the other grounds of appeal which were placed before the
Privy Council. There was, however, an interesting argument about the
correctness of the decision of the Privy Council in Director of Public Prosecutions v Tokai
[1996] 3 WLR 149 where it was held that the provisions of the
Constitution of Trinidad and Tobago do not confer on individuals the
right to a trial within a reasonable time. In Tokai the Privy
Council made its decision without reference to Trinidad's international
obligations to secure to its citizens the right to a trial within a
reasonable time: see Articles 9(3) and 14(3)(c) of the International
Covenant on Civil and Political Rights and Articles 7(5) and 8(1) of the
American Convention of Human Rights. The Privy Council did not
consider whether by necessary implication there is a right to a trial
within a reasonable time under the Constitution. It is unnecessary to
decide this point and, in any event, undesirable to do so in a case
where the Privy Council has not had the benefit of the views of the
Court of Appeal on this important point. The point will be decided when
it is necessary to do so.
XIV. Disposal
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The appeal is allowed and the
conviction and sentence quashed. Given that the time which has elapsed
since the defendant's first arrest is now more than 13 years, during
which she had suffered imprisonment, a retrial would be inappropriate.
