The Judicial Committee of the Privy Council Decisions

Ashook Kumar Appellant

v.

The State Respondent

FROM

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 15th May 2000, Delivered the 14th June 2000

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Lord Nicholls of Birkenhead

[Delivered by Mr. Justice Blanchard]

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1. At the conclusion of the hearing on 15th May 2000 their Lordships allowed the appellant’s appeal and quashed his conviction for murder. Their Lordships indicated that they would give their reasons later and this they now do.

 

2. Ashook Kumar appealed with special leave against the judgment of the Court of Appeal of Trinidad and Tobago dated 26th November 1996 dismissing his appeal against conviction on 20th June 1995 upon trial by judge and jury in the High Court of Justice of Trinidad and Tobago on a charge of murder. An earlier trial had resulted in a jury disagreement.

 

3. On Friday, 2nd June 1989 the victim, a 23 year old woman, Loutee Baboolal, left her house at about 5.15 p.m. to go jogging. Her partially unclothed body was found in a cane field on a bank of a ravine near Blackland Road between 5.00 and 6.00 the next morning. She had been sexually assaulted and beaten to death.

 

4. Apart from statements made by the appellant which will shortly be referred to, the evidence against him on the basis of which he was convicted was, first, that he had been seen by a witness, Leonard Millington, on the Friday after 4.00 p.m. sitting on a bridge on Blackland Road about 350 feet from where the body was later found. Mr. Millington gave evidence and was briefly cross-examined at the depositions hearing but had died before the trial, at which his deposition evidence was read to the jury. Secondly, there was evidence from several witnesses that they had seen the appellant before and after the time during which the murder must have been committed and each had observed on the latter occasion scratch marks on his face and neck which he did not bear at the earlier time. The medical evidence of an examination of the appellant about a week after the murder confirmed that the scratches were about a week old.

 

5. The appellant gave differing explanations to account for the marks, saying variously that he had fallen down in his sister’s garden, had been in a fight with a man called Creole and that he had been in a fight with a man in Chaguanas. To the extent that some part of these explanations must have been untrue, that factor might diminish the credibility of the appellant’s evidence but did not otherwise strengthen the prosecution’s case. There were also blood stains on the appellant’s clothing but as he and the deceased were of the same blood group this had little or no probative force.

 

6. As the judge correctly emphasised to the jury, this body of evidence in itself provided an insufficient basis for a guilty verdict. Certain admissions made to the police by the appellant were therefore crucial. There were said by the prosecution to be five of them. The appellant had been arrested by Sergeant Kennedy on the evening of Thursday, 8th June after trying to run away. According to the police witnesses, the appellant’s clothing was torn in the course of apprehending and detaining him. Sergeant Kennedy also said that in trying to escape the appellant had thrown himself off a "small precipice", some 6 feet high, and had fallen over.

 

7. According to the prosecution witness, Sergeant Michael, he identified himself to the appellant at the Chaguanas Police Station at 12.45 p.m. on Friday, 9th June and had a conversation with the appellant. At about 4.10 p.m. he saw the appellant again in the company of Inspector Philbert. The appellant told him that after thinking over the earlier conversation he wanted to tell Sergeant Michael what really happened. The appellant was cautioned and told of his rights to have a lawyer, relative or friend present. He made no such request.

 

8. Rule 6 of the Judges’ Rules of Trinidad and Tobago provides:-

"As far as practicable, and most especially in cases of serious crime, statements by persons under suspicion or charge should be authenticated by a senior police officer or by some responsible member of the community who shall certify thereon whether the person who gives any such statement acknowledges that he gave it voluntarily."

 

9. Sergeant Michael therefore contacted a Justice of the Peace, Mr. Krishna John, and, he said, arranged for Mr. John to come to the police station. Before Mr. John’s arrival, according to Sergeant Michael’s evidence:-

"Accused told me I was really dey when this thing happen – all I do is I hold she hand and she foot. She started bawling and fighting up. She scratch me up in my face and on my neck. She hurt my hand. I get vex and I bounce she head on the ground until she hushed."

 

10. Mr. John saw the appellant alone. A statement was afterwards dictated to Sergeant Michael by the appellant in the presence of Mr. John and Inspector Philbert. As recorded, it opens with an acknowledgement, signed by the appellant and the inspector, that the appellant wanted someone to write down what he said and had been told that he need not say anything unless he wished to do so and that whatever he said might be given in evidence. The substance of the statement was that he had seen "a girl in the gravel road"; he had then met two men one called Lall and the other Creole (also giving their proper names); they had come upon the girl returning down the gravel road and at the suggestion of Lall they had taken hold of her and carried her into the cane field. She was fighting them and scratched his neck and face. "She hurt may hand and ah get vex and ah bounce she head on the ground an we kick she up till she hush." She appeared to be dead. The other two men then had sex with her. They had then all left.

 

11. The appellant signed the document immediately below a statement that he had read it, had been told he could correct alter or add anything he wished, that it was true and had been made "of my own free will".

 

12. Mr. John also signed, certifying that this was the statement referred to in his certificate. The latter document, also signed by the appellant, and, like the statement, dated 9th June, certified that Mr. John had read and witnessed the statement; that he had asked Mr. Kumar if the statement was given of his own free will and been told Yes; that he had asked if Sergeant Michael or any other police officer had made any promises or threats or had induced him to give the statement and had been told No; and "That Ashook Kumar told me the statement I have just read was given of my own free will, because that is exactly what happened and I will stand by the said statement in Court".

 

13. The appellant had been formally charged with murder on Saturday, 10th June and cautioned. He had then said to Sergeant Michael "It’s really the three of we".

 

14. Sergeant Michael’s evidence then recounted that he had been on duty at the station the next day, Sunday, 11th June, when the appellant asked to speak to him privately and said:-

"… it really aint make no sense in getting Lall and Creole in trouble because we aint pulling. Its really a fellow named Kelson Peters and a fellow ah know as Natty who was with me when this thing happened."

 

15. The appellant said he wanted to make a further statement. Sergeant Michael testified that Mr. John was summoned again and the same procedure was followed, save that Inspector Philbert was not present. The appellant made a further written statement to the effect that it did not make sense getting Lall and Creole in trouble and that the other two men who had done the things set out in the first statement were Kelson Peters and one known as Natty. (Neither of these men was ever charged. Kelson Peters gave evidence at the trial. In part, his evidence concerned his noting of "fresh scrapes" on the appellant’s face and neck on Saturday, 3rd June, which the appellant had explained to him as the result of a fight in Chaguanas on the Friday evening. In cross-examination it was not suggested to Mr. Peters that he had been involved in the death of Loutee Baboolal).

 

16. A certificate by Mr. John, signed by the appellant, was also completed. Although every other date appearing in the second statement and that certificate is shown as being 11th June, the date alongside one of the appellant’s signatures is 10th June 1989.

 

17. Inspector Philbert gave evidence along the same lines as Sergeant Michael concerning the circumstances in which the appellant’s first statement was made.

 

18. Krishna John was a witness for the prosecution. He began his evidence by saying he was a Justice of the Peace for County Caroni. It appears from the judge’s notes that the witness was speaking in the present tense. He then said that on 9th June 1989 he was a Justice of the Peace. He had attended at the police station on that day, seen Mr. Kumar alone and, waiting until the appellant finished a meal, obtained confirmation that he wished to make a statement and that there had been no threats etc. Mr. John said he had been present when the statement was dictated by the appellant and had signed and certified it. He described the same process occurring in respect of the second statement on 11th June.

 

19. Two portions of the cross-examination of Mr. John were referred to in argument before their Lordships’ Board. In the first of them Mr. John is recorded in the judge’s notes of evidence as saying "I am not the only JP for area" and, comparing himself with another man, "Seuchan’s a JP for the whole of Trinidad and Tobago. I am only for Caroni and was appointed 9.12.87 …". As will be seen, the significance of this, as in Mr. John’s evidence-in-chief, is the use of the present tense.

 

20. The second passage is recorded in the following way:-

"Question: Have you got five cases pending at Couva.

 

Answer: Yes. I don’t recall what they are for or whether for perjury. I last attended court in relation to them in October 1994, and three times before that. I have not been convicted of any."

 

21. Commenting on this exchange in his summing up the judge said:-

"In this regard I remind you that Mr. John was cross-examined, Mr. John whether or not he was not challenged and whilst I said I would let the evidence go because I think everybody in this country must have known that Mr. John and certain other police officers had all sorts of allegations made against them and I am not going to shut out anything when it is public knowledge. But I reminded Attorney at the time that Mr. John was convicted of nothing and even this accused at this stage is entitled to the presumption of innocence that prevails in favour of him by law, that he is innocent until his guilt is established and it has not been established in the case of Mr. John that he is guilty of anything."

 

22. He had earlier told the jury that the best person to have present at the making of a statement was "somebody on whose integrity you are going to ask a court and a body of jurors to rely".

 

23. Concerning the dating of the appellant’s signature in the second statement as 10th June Mr. John said it was wrong and "an oversight on my part" which had never been previously pointed out to him.

 

24. When the appellant gave evidence he said that he had not been sitting on the bridge in Blackland Road. He had been in the vicinity of California about 500 feet from his father’s residence. He had gone into a "snackette" and had a few drinks, leaving there at about 5.45 p.m. and going to his father’s home where he slept that night. Describing the occasion on which he had been arrested on 8th June by Sergeant Kennedy, he said that he had been about to enter his father’s house to have family dinner when a man in plain clothes holding something resembling a gun which was pointing in the direction of his head had told him not to move or he would shoot. Thinking this was a bandit he had tried to run away but had been captured and handcuffed. Sergeant Kennedy had beaten him and dragged him by the collar of his jersey which caused cuts and bleeding. Another officer had kicked him in the ribs. He said he had spent that night in the police station at Siparia sleeping on a bench and without food or refreshment. He had not been told about his right to contact a lawyer. On 9th June he had been taken to Chaguanas, interrogated by Sergeant Michael and given a medical examination. He was then placed in a room in which there were four officers. Sergeant Michael had come in holding a hose about 2 feet long and 2 inches thick and when he denied knowing anything about the killing of the woman Sergeant Michael had started to beat him with the hose. Inspector Philbert had also beaten him with it and slapped his face. At about 4.00 p.m. Sergeant Michael asked him to put his signature on some documents but the appellant said that he had refused to do so. He was again hit. Between 7.00 p.m. and 8.00 p.m. he was taken from the police station in a vehicle in a southerly direction. It pulled up in a lonely area "with cane". He was taken out and asked to put his signature on the documents but refused. Sergeant Michael then took out "something like a gun" and placed it against his head saying that if he did not sign the document he would kill the appellant and say he had tried to escape. In those circumstances and with the help of a torch held by one of the officers he signed the documents on the car bonnet. Later he was taken by car to a house where he met Krishna John who had the documents in his hand. Krishna John had asked if the signature was his and he had said it was. He was asked by Mr. John to sign his name on a paper and did so. He had never dictated any statement to the police sergeant nor spoken alone to Mr. John at the police station.

 

25. At about 7.00 p.m. on 10th June Sergeant Michael had taken him from his cell to an office and asked him to put his signature on another sheet of paper threatening that if he did not do so he would not live to see his family again. He signed the document dating it 10th June. No one else was present. He saw the Justice of the Peace again on 11th June and at Sergeant Michael’s request signed "the caution". (This appears to be a reference to a signature bearing that date alongside words indicating that the statement was true and had been made of his own free will). Mr. John had asked if what was written was true. He had said No. He had signed a certificate written out by Mr. John "Because of what Sgt Michael had told me would happen if I did not sign".

 

26. The appellant explained the scratching on his face as resulting from a fight with Creole on 2nd June at about 6.00 p.m. Creole had "fired a lash at my face. I pulled away my face and his finger caught right side of face".

 

27. The appellant’s allegations of misconduct had been put to the police officers in cross-examination and denied by them. There was therefore a stark contrast between their evidence, on the one hand, supported by Mr. John, and that of the appellant, on the other, relating to the making of the statements. In accordance with the directions of the judge it would not have been possible for the jury to have reached a guilty verdict without first rejecting the appellant’s account of those events. Since the trial and the determination of Mr. Kumar’s appeal to the Court of Appeal in November 1996, however, it has emerged that aspects of Mr. John’s evidence concerning his status as a Justice of the Peace and the five cases before the Couva Court were untrue or failed to convey the full picture. He was in fact no longer a Justice of the Peace at the time of the trial. On 8th July 1993 he had been arrested and charged with four counts of making a false declaration, one of uttering a false document, two of forgery and two of conspiracy to pervert the course of justice. These related to events in 1990 and 1993 which had nothing to do with the appellant’s case. There was no power merely to suspend him from office pending the disposition of these serious charges and he had therefore been removed from office by the President of Trinidad and Tobago on 16th July 1993. He has never been reinstated.

 

28. The circumstances relating to Mr. John’s affairs are set out in a judgment of the Court of Appeal of Trinidad and Tobago delivered on 31st July 1998 on an appeal of an unrelated man called Dennis John against his conviction for a murder. It is necessary to say a little about that case.

29. A petition for special leave had been granted by the Judicial Committee and the appeal remitted to the Court of Appeal to consider matters raised in the petition and to hear such evidence as the Court of Appeal saw fit and then to decide whether the conviction should be quashed or affirmed. The principal matter of complaint by the appellant, Dennis John, was that material which came to light only after his trial might, if available to the defence, have been used to undermine the credibility of three prosecution witnesses, being two police inspectors (not the persons involved in the present case) and Mr. Krishna John who had overseen the making of a statement by Dennis John.

 

30. The allegations against Mr. Krishna John which constituted new material were those which on 8th July 1993 gave rise to the nine charges against him which have already been mentioned. The allegations against the inspectors were however quite separate and distinct. They had been charged with perverting the course of justice in relation to the death of one Sukbir. They had been suspended from duty. But later, after they had been discharged in those criminal proceedings, they had been reinstated. In the circumstances the Court of Appeal was satisfied that, as a result of the discharges, suggestions of impropriety in relation to the Sukbir death could not have been used to attack the credibility of the inspectors. The court referred in this connection to Reg. v. Edwards [1991] 1 W.L.R. 207.

 

31. But the court said that the position was quite different with regard to Mr. Krishna John:-

"In his case the police had investigated and obtained evidence in the form of statements with regard to two occasions on which Krishna John had acted fraudulently in the procuring of bail for a prisoner, Bobby de Leon. Firstly on the 18th November, 1990, John prepared an oath justifying bail and a recognisance in which the surety was stated to be Basdeo Persad who was said to have been the holder of a driving permit, the number of which was given and the owner of a property under a deed the registered number of which was also given. Enquiries showed that the driving permit bearing the number given was that of one Zorina Ali and there was in fact no deed in the registry of deeds bearing the number given. Moreover, the signature ‘Basdeo Persad’ on the oath and recognisance was certified by a handwriting expert to have been made by Krishna John. On the 19th March, 1993, at the Couva Police Station bail was again being arranged for the same prisoner, Bobby de Leon. Krishna John was handling the matter. The proposed bailor claimed to be Bridgelal Bharat, but as it happened a Police Sergeant who was on the scene recognised him as Matadai Roopnarine. Under questioning by the Sergeant, the bailor admitted his true identity and said that he had been told by Krishna John to pretend to be Bridgelal Bharat. John had claimed in answer to the Sergeant that the bailor’s deed and identification card were in his vehicle, but he did not comply with the Sergeant’s request that he produce them. Roopnarine was in fact a person who had been debarred from taking bail. There was evidence that Krishna John received payment for the services he provided in relation to these bail bonds. Arising out of these incidents a number of charges were laid on the 8th July 1993 against John. These were for making a false declaration, uttering a forged document and conspiracy to pervert the course of justice. There were nine charges in all. In all of them the complainant was Inspector Jacob. Apparently he retired from the police service and emigrated to the United States."

 

32. All the charges against Mr. Krishna John had consequently been dismissed for want of prosecution and without a hearing on the merits. Significantly, the Court of Appeal nevertheless saw fit to observe that the material relating to Mr. John afforded "very strong evidence" that he was involved in fraud in the performance of his duties as a Justice of the Peace on two occasions. The court commented:-

"It is clear that if the appellant were to be retried Krishna John could be cross-examined as to credit on the basis of this evidence and also to show that he had been removed from office as Justice of the Peace. It is true that the cross-examiner would be bound by his answers and evidence of the specific acts of wrong doing set out above would not be admissible if he denied them. It is also true these acts of dishonesty were not connected with the taking of statements from persons in custody. Nevertheless, we are prepared to assume that his credibility as a witness could be totally destroyed by a cross-examiner with the relevant documentation in his hands."

 

33. The result of this, it was said, was that no reliance could in the Dennis John case be placed on Krishna John’s evidence which concerned a confessional statement to one of the inspectors and a police constable. De la Bastide C.J., giving the judgment of the court, said that what had to be borne in mind was that the effect of destroying Mr. Krishna John’s credibility was not to create any presumption or inference that his evidence was false. "It simply cancels his evidence by precluding any reliance being placed upon it". The written statement of Dennis John had been vouched for by the police inspector and witnessed by the constable and no basis had been suggested for impugning the constable’s credibility. Furthermore, the court regarded the other evidence against Dennis John as very strong. It did not have any "lurking doubt" about his guilt. There had been no miscarriage of justice. Accordingly that appeal was dismissed. Dennis John’s petition for leave to appeal was dismissed by their Lordships’ Board on 16th February 2000.

 

34. For the appellant in the present appeal Sir Godfray Le Quesne Q.C. endorsed the approach of the Court of Appeal in Dennis John but argued that, as regards the ultimate result, that case stood on a different basis. Here, he submitted, the circumstantial evidence was not of anywhere near the same strength and the prosecution case had heavily depended upon an acceptance by the jury that the statements of Mr. Kumar were voluntarily made and reliable. The evidence of Krishna John about the way in which they came into being was thus crucial. If, as should be done, that evidence were set to one side it could not then be said with any confidence at all that a jury would necessarily disbelieve the appellant’s account and arrive at a guilty verdict.

 

35. It was submitted that the jury had been given a false picture. Mr. John had been put before them as an independent judicial officer and of impeccable character. He was neither by the time of the trial. He had been dismissed as a Justice of the Peace. The Court of Appeal had concluded that he was very likely involved in fraudulent conduct. Sir Godfray drew attention to the fact that at the first trial the jury had been unable to agree despite the absence at that time of any evidence of misconduct on the part of Mr. John, because it had not yet come to light. This showed that the prosecution case was not especially strong. There was no warrant for saying that at the second trial anyone outside the prosecution knew the true position. And in his summing up the judge appeared to have downplayed the existence of the charges without himself being aware of the full facts. The jury did not have a fair and balanced picture of an important witness.

 

36. Mr. Dingemans, for the State, submitted that defence counsel at the trial must have been aware of the allegations facing Mr. John. That was shown by his question to the witness about the "five cases" and by the reference to perjury in Mr. John’s response. The judge in his summing up had referred to the allegations and to the fact that they were public knowledge in Trinidad and Tobago. Mr. John’s misconduct did not relate to the taking of statements from suspects or accused persons. It was accepted that he had misled the court concerning his status as a Justice of the Peace but knowledge of the true position about that, it was submitted, would have made little difference since the removal from office was on account of the existence of the charges and only because there was no power of suspension. In any event, counsel said, a properly instructed jury would still have been entitled to convict the appellant on the basis of the evidence of Sergeant Michael and Inspector Philbert relating to the five confessions (two of which were made without participation by Mr. John) together with the evidence as to the appellant’s presence at the scene and the scratches on his face and neck. Mr. Kumar’s prior criminal record, which was before the jury as a result of his attacks on the veracity of the police officers and Mr. John, showed that he was not a person who should be believed.

 

37. Their Lordships consider that the approach taken by the Court of Appeal in Dennis John to the evidence of Krishna John about the taking of a statement was appropriate. In Constance, Wilson and Lee v. The State (unreported) Privy Council Appeal No. 31 of 1998; a decision of the Judicial Committee delivered on 16th December 1999, also on appeal from Trinidad and Tobago, in which another Justice of the Peace who had given evidence of witnessing statements of the appellants had subsequently been convicted of corruption and sentenced to a lengthy term of imprisonment, their Lordships said that there was no escape from the conclusion that the witness was now totally discredited and that his evidence had tainted the conclusion of the jury to the effect that the police were to be believed and the appellants disbelieved.

 

38. The position in the present case is not as clear cut because the charges against Krishna John were not taken to a hearing, but it was not suggested for the State that the Court of Appeal in Dennis John gave an inappropriate description of the evidence of fraud against Krishna John. It is to be observed that he has not been reinstated. Their Lordships are of the view that Krishna John’s credibility could well have been seriously affected or even destroyed if defence counsel and the jury had been aware of the nature and seriousness of the charges against him and that as a consequence of the cloud hanging over him he had been removed from office. He may no longer have appeared to be of the character to be expected of a Justice of the Peace – "a responsible member of the community", as the Judges’ Rules put it.

 

39. It appears from the cross-examination that defence counsel had some awareness that charges had been brought against Mr. John but the inaccurate reference to the number of charges and the way in which the witness was able to deflect the question about them suggests that counsel’s knowledge was limited. Moreover, the judge’s comment in his summing up both pre-supposed "common knowledge" that jurors may not have had and also appeared to treat the matter as of little or no importance. It was also wrong in the circumstances for the judge to refer to the presumption of innocence in the way he did. The jury should, rather, have been told that Mr. John might or might not have committed the crimes for which he was then facing charges but that in assessing his evidence it was entitled to have regard to the fact that serious allegations had been made against him involving dishonesty.

 

40. Their Lordships have found it impossible to feel sure that a properly instructed jury would necessarily have arrived at a guilty verdict on the basis of the other evidence, once that of Mr. John was set to one side. The evidence of the police officers was crucial because the other circumstantial evidence was by itself insufficiently probative. The position is therefore different from that in Dennis John. It is also to be remembered that there had been a disagreement at the first trial even when no shadow existed over Krishna John’s character. Accordingly the verdict must be regarded as unsafe.

 

41. Their Lordships record that the State very properly did not seek a retrial after so many years.